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Attempt is a crime of general application in every state in the Union, and is largely defined by statute in most. The same cannot be said of federal law. There is no general applicable federal attempt statute. In fact, it is not a federal crime to attempt to commit most federal offenses. Here and there, Congress has made a separate crime of conduct that might otherwise have been considered attempt. Possession of counterfeiting equipment and solicitation of a bribe are two examples that come to mind. More often, Congress has outlawed the attempt to commit a particular crime, such as attempted murder, or the attempt to commit one of a particular block of crimes, such as the attempt to violate the controlled substance laws. In those instances, the statute simply outlaws attempt, sets the penalties, and implicitly delegates to the courts the task of developing the federal law of attempt on a case-by-case basis. Over the years, proposals have surfaced that would establish attempt as a federal crime of general application and in some instances would codify federal common law of attempt. Thus far, however, Congress has preferred to expand the number of federal attempt offenses on a much more selective basis. Attempt was not recognized as a crime of general application until the 19 th century. Before then, attempt had evolved as part of the common law development of a few other specific offenses. The vagaries of these individual threads frustrated early efforts to weave them into a cohesive body of law. At mid-20 th century, the Model Penal Code suggested a basic framework that has greatly influenced the development of both state and federal law. The Model Penal Code grouped attempt with conspiracy and solicitation as "inchoate" crimes of general application. It addressed a number of questions that had until then divided commentators, courts, and legislators. A majority of the states use the Model Penal Code approach as a guide, but deviate with some regularity. The same might be said of the approach of the National Commission established to recommend revision of federal criminal law shortly after the Model Penal Code was approved. The National Commission recommended a revision of title 18 of the United States Code that included a series of "offenses of general applicability"—attempt, facilitation, solicitation, conspiracy, and regulatory offenses. In spite of efforts that persisted for more than a decade, Congress never enacted the National Commission's recommended revision of title 18. It did, however, continue to outlaw a growing number of attempts to commit specific federal offenses. In doing so, it rarely did more than outlaw an attempt to commit a particular substantive crime and set its punishment. Beyond that, development of the federal law of attempt has been the work of the federal courts. Attempt may once have required little more than an evil heart. That time is long gone. The Model Penal Code defined attempt as the intent required of the predicate offense coupled with a substantial step: "A person is guilty of an attempt to commit a crime, if acting with the kind of culpability otherwise required for commission of the crime, he ... purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime." The Model Penal Code then provided several examples of what might constitute a "substantial step"—lying in wait, luring the victim, gathering the necessary implements to commit the offense, and the like. The National Commission recommended a similar definition: "A person is guilty of criminal attempt if, acting with the kind of culpability otherwise required for commission of a crime, he intentionally engages in conduct which, in fact, constitutes a substantial step toward commission of the crime." Rather than mention the type of conduct that might constitute a substantial step, the Commission defined it: "A substantial step is any conduct which is strongly corroborative of the firmness of the actor's intent to complete the commission of the crime." Most of the states follow the same path and define attempt as intent coupled to an overt act or some substantial step towards the completion of the substantive offense. Only rarely does a state include examples of substantial step conduct. Intent and a Substantial Step : The federal courts are in accord and have said, "As was true at common law, the mere intent to violate a federal criminal statute is not punishable as an attempt unless it is also accompanied by significant conduct," that is, unless accompanied by "an overt act qualifying as a substantial step toward completion" of the underlying offense. The courts seem to have encountered little difficulty in identifying the requisite intent standard. In fact, they rarely do more than note that the defendant must be shown to have intended to commit the underlying offenses. What constitutes a substantial step is a little more difficult to discern. It is said that a substantial step is more than mere preparation. A substantial step is action strongly or unequivocally corroborative of the individual's intent to commit the underlying offense. It is action which if uninterrupted will result in the commission of that offense, although it need not be the penultimate act necessary for completion of the underlying offense. Furthermore, the point at which preliminary action becomes a substantial step is fact specific; action that constitutes a substantial step under some circumstances and with respect to some underlying offenses may not qualify under other circumstances and with respect to other offenses. It is difficult to read the cases and not find that the views of Oliver Wendell Holmes continue to hold sway: the line between mere preparation and attempt is drawn where the shadow of the substantive offense begins. The line between preparation and attempt is closest to preparation where the harm and the opprobrium associated with the predicate offense are greatest. Since conviction for attempt does not require commission of the predicate offense, conviction for attempt does not necessitate proof of every element of the predicate offense, or any element of the predicate offense for that matter. Recall that the only elements of the crime of attempt are intent to commit the predicate offense and a substantial step in that direction. Nevertheless, a court will sometimes demand proof of one or more of the elements of a predicate offense in order to avoid sweeping application of an attempt provision. For instance, the Third Circuit recently held that "acting 'under color of official right' is a required element of an extortion Hobbs Act offense, inchoate or substantive," apparently for that very reason. Impossibility : Defendants charged with attempt have often offered one of two defenses—impossibility and abandonment. Rarely have they prevailed. The defense of impossibility is a defense of mistake, either a mistake of law or a mistake of fact. Legal impossibility exists when "the actions which the defendant performs or sets in motion, even if fully carried out as he desires, would not constitute a crime. The traditional view is that legal impossibility is a defense to the charge of attempt – that is, if the competed offense would not be a crime, neither is a prosecution for attempt permitted." Factual impossibility exists when "the objective of the defendant is proscribed by criminal law but a circumstance unknown to the actor prevents him from bringing about that objective." Since the completed offense would be a crime if circumstances were as the defendant believed them to be, prosecution for attempt is traditionally permitted. Unfortunately, as the courts have observed, "the distinction between legal impossibility and factual impossibility [is] elusive." Moreover, "the distinction ... is largely a matter of semantics, for every case of legal impossibility can reasonably be characterized as a factual impossibility." Thus, shooting a stuffed deer when intending to shoot a deer out of season is offered as an example of legal impossibility. Yet, shooting into the pillows of an empty bed when intending to kill its presumed occupant is considered an example of factual impossibility. The Model Penal Code avoided the problem by defining attempt to include instances when the defendant acted with the intent to commit the predicate offense and "engage[d] in conduct that would constitute the crime if the attendant circumstances were as he believe[d] them to be." Under the National Commission's Final Report, "[f]actual or legal impossibility of committing the crime is not a defense if the crime could have been committed had the attendant circumstances been as the actor believed them to be." Several states have also specifically refused to recognize an impossibility defense of any kind. The federal courts have been a bit more cautious. They have sometimes conceded the possible vitality of legal impossibility as a defense, but generally have judged the cases before them to involve no more than unavailing factual impossibility. In a few instances, they have found it unnecessary to enter the quagmire, and concluded instead that Congress intended to eliminate legal impossibility with respect to attempts to commit a particular crime. Abandonment : The Model Penal Code recognized an abandonment or renunciation defense. A defendant, however, could not claim the defense if his withdrawal was merely a postponement or was occasioned by the appearance of circumstances that made success less likely. The revised federal criminal code recommended by the National Commission contained similar provisions. Some states recognize an abandonment or renunciation defense; the federal courts do not. Admittedly, a defendant cannot be charged with attempt if he has abandoned his pursuit of the substantive offense at the mere preparation stage. Yet, this is for want of an element of the offense of attempt—a substantial step—rather than because of the availability of an affirmative abandonment defense. Although the federal courts have recognized an affirmative voluntary abandonment defense in the case of conspiracy, the other principal inchoate offense, they have declined to recognize a comparable defense to a charge of attempt. The Model Penal Code and the National Commission's Final Report both imposed the same sanctions for attempt as for the predicate offense as a general rule. However, both set the penalties for the most serious offenses at a class below that of the predicate offense, and both permitted the sentencing court to impose a reduced sentence in cases when the attempt failed to come dangerously close to the attempted predicate offense. The states set the penalties for attempt in one of two ways. Some set sanctions at a fraction of, or a class below, that of the substantive offense, with exceptions for specific offenses in some instances; others set the penalty at the same level as the crime attempted, again with exceptions for particular offenses in some states. Most federal attempt crimes carry the same penalties as the substantive offense. The Sentencing Guidelines, which greatly influence federal sentencing beneath the maximum penalties set by statute, reflect the equivalent sentencing prospective. Except for certain terrorism, drug trafficking, assault, and tampering offenses, however, the Guidelines recommend slightly lower sentences for defendants who have yet to take all the steps required of them for commission of the predicate offense. The relation of attempt to the predicate offense is another of the interesting features of the law of attempt. It raises those questions which the Model Penal Code and the National Commission sought to address. May a defendant be charged with attempt even if he has not completed the underlying offense? May a defendant be charged with attempt even if he has also committed the underlying offense? May a defendant be convicted for both attempt and commission of the underlying offense? May a defendant be charged with attempting to attempt an offense? May a defendant be charged with conspiracy to attempt or attempt to conspire? May a defendant be charged with aiding and abetting an attempt or with attempting to aid and abet? Relation to the Predicate Offense : A defendant need not commit the predicate offense to be guilty of attempt. On the other hand, some 19 th century courts held that a defendant could not be convicted of attempt if the evidence indicated that he had in fact committed the predicate offense. This is no longer the case in federal court—if it ever was. In federal law, "[n]either common sense nor precedent supports success as a defense to a charge of attempt." The Double Jeopardy Clause ordinarily precludes conviction for both the substantive offense and the attempt to commit it. The clause prohibits both dual prosecutions and dual punishment for the same offense. Punishment for both a principal and a lesser included offense constitutes such dual punishment, and attempt ordinarily constitutes a lesser included offense of the substantive crime. Instances where the federal law literally appears to create an attempt to attempt offense present an intriguing question of interpretation. Occasionally, a federal statute will call for equivalent punishment for attempt to commit any of a series of offenses proscribed in other statutes, even though the other statutes already proscribe attempt. For example, 18 U.S.C. 1349 declares that any attempt to violate any of the provisions of chapter 63 of title 18 of the United States Code "shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt." Within chapter 63 are sections that make it a crime to attempt to commit bank fraud, health care fraud, and securities fraud. There may be some dispute over whether provisions like those of Section 1349 are intended to outlaw attempts to commit an attempt or simply to reiterate a determination to punish equally the substantive offenses and attempts to commit them. Conspiracy: The Model Penal Code and National Commission resolved attempt to attempt and conspiracy to attempt questions by banning dual application. Crimes of general application would not have applied to other crimes of general application. A few states have comparable provisions. The federal code does not. The attempting to conspire or conspiring to attempt questions do not offer as many issues of unsettled interpretation as the attempt to attempt questions, for several reasons. First, the courts have had more occasion to address them. For instance, it is already clearly established that a defendant may be simultaneously prosecuted for conspiracy to commit and for attempt to commit the same substantive offense. Second, as a particular matter, conspiracies to attempt a particular crime are relatively uncommon; most individuals conspire to accomplish, not to attempt. Third, in a sense, attempting to conspire is already a separate crime, or alternatively, is a separate basis for criminal liability. Solicitation is essentially an invitation to conspire, and solicitation to commit a crime of violence is a separate federal offense. Moreover, attempts that take the form of counseling, commanding, inducing, or procuring another to commit a crime is already a separate basis for criminal liability. Fourth, a component of the general conspiracy statute allows simultaneous prosecution of conspiracy and a substantive offense without having to addressing the conspire to attempt quandary. The conspiracy statute outlaws two kinds of conspiracies: conspiracy to violate a federal criminal statute and conspiracy to defraud the United States. Conspiracy to defraud the United States is a separate crime, one that need not otherwise involve the violation of a federal criminal statute. Consequently, when attempt or words of attempt appear as elements in a substantive criminal provision, conspiracy to attempt issues can be avoided by recourse to a conspiracy to defraud charge. For example, the principal federal bribery statute outlaws attempted public corruption. The offense occurs though no tainted official act has been performed or foregone. It is enough that the official has sought or been offered a bribe with the intent of corrupting the performance of his duties. Bribery conspiracy charges appear generally to have been prosecuted, along with bribery, as conspiracy to defraud rather than conspiracy to violate the bribery statute. Aiding and Abetting: Unlike attempt, aiding and abetting is not a separate offense; it is an alternative basis for liability for the substantive offense. Anyone who aids, abets, counsels, commands, induces, or procures the commission of a federal crime by another is as guilty as if he committed it himself. Aiding and abetting requires proof of intentional assistance in the commission of a crime by another. When attempt is a federal crime, the cases suggest that a defendant may be punished for aiding and abetting the attempt and that a defendant may be punished by attempting to aid and abet the substantive offense. | It is not a crime to attempt to commit most federal offenses. Unlike state law, federal law has no generally applicable crime of attempt. Congress, however, has outlawed the attempt to commit a substantial number of federal crimes on an individual basis. In doing so, it has proscribed the attempt, set its punishment, and left to the federal courts the task of further developing the law in the area. The courts have identified two elements in the crime of attempt: an intent to commit the underlying substantive offense and some substantial step towards that end. The point at which a step may be substantial is not easily discerned; but it seems that the more serious and reprehensible the substantive offense, the less substantial the step need be. Ordinarily, the federal courts accept neither impossibility nor abandonment as an effective defense to a charge of attempt. Attempt and the substantive offense carry the same penalties in most instances. A defendant may not be convicted of both the substantive offense and the attempt to commit it. Commission of the substantive offense, however, is neither a prerequisite for, nor a defense against, an attempt conviction. Whether a defendant may be guilty of an attempt to attempt to commit a federal offense is often a matter of statutory construction. Attempts to conspire and attempts to aid and abet generally present less perplexing questions. This is an abridged version of CRS Report R42001, Attempt: An Overview of Federal Criminal Law, by [author name scrubbed], without the footnotes, attributions, citations to authority, or appendix found in the longer report. |
According to the Federal Trade Commission, identity theft is the most common complaint from consumers in all 50 states, and accounts for over 35% of the total number of complaints the Identity Theft Data Clearinghouse received for calendar years 2004, 2005, and 2006. In calendar year 2006, of the 674,354 complaints received, 246,035 or 36% were identity theft complaints. The identity theft victim's information was misused for credit card fraud in 25% of the identity theft complaints; for phone or utilities fraud in 16% of the identity theft complaints; for bank fraud in 16% of the identity theft complaints; for employment-related fraud in 14% of the identity theft complaints; for government documents or benefits fraud in 5% of the identity theft complaints; for loan fraud in 5% of the identity theft complaints; and other types of identity theft fraud made up 24% of the complaints. As a result of identity theft, victims may incur damaged credit records, unauthorized charges on credit cards, and unauthorized withdrawals from bank accounts. Sometimes, victims must change their telephone numbers or even their social security numbers. Victims may also need to change addresses that were falsified by the impostor. With media reports of data security breaches increasing, concerns about new cases of identity theft are widespread. This report provides an overview of the federal laws that could assist victims of identity theft with purging inaccurate information from their credit records and removing unauthorized charges from credit accounts, as well as federal laws that impose criminal penalties on those who assume another person's identity through the use of fraudulent identification documents. This report will be updated as warranted. While not exclusively aimed at consumer identity theft, the Identity Theft Assumption Deterrence Act prohibits fraud in connection with identification documents under a variety of circumstances. Certain offenses under the statute relate directly to consumer identity theft, and impostors could be prosecuted under the statute. For example, the statute makes it a federal crime, under certain circumstances, to knowingly and without lawful authority produce an identification document, authentication feature , or false identification document; or to knowingly possess an identification document that is or appears to be an identification document of the United States which is stolen or produced without lawful authority knowing that such document was stolen or produced without such authority. It is also a federal crime to knowingly transfer or use, without lawful authority, a means of identification of another person with the intent to commit, or aid or abet, any unlawful activity that constitutes a violation of federal law, or that constitutes a felony under any applicable state or local law. The punishment for offenses involving fraud related to identification documents varies depending on the specific offense and the type of document involved. For example, a fine or imprisonment of up to 15 years may be imposed for using the identification of another person with the intent to commit any unlawful activity under state law, if, as a result of the offense, the person committing the offense obtains anything of value totaling $1,000 or more during any one-year period. Other offenses carry terms of imprisonment up to three years. However, if the offense is committed to facilitate a drug trafficking crime or in connection with a crime of violence, the term of imprisonment could be up to twenty years. Offenses committed to facilitate an action of international terrorism are punishable by terms of imprisonment up to twenty-five years. The Identity Theft Penalty Enhancement Act was signed on July 15, 2004, ( P.L. 108-275 ). The act amends Title 18 of the United States Code to define and establish penalties for aggravated identity theft and makes changes to the existing identity theft provisions of Title 18. Under the law, aggravated identity theft occurs when a person "knowingly transfers, possess, or uses, without lawful authority, a means of identification of another person" during and in relation to the commission of certain enumerated felonies. The penalty for aggravated identity theft is a term of imprisonment of two years in addition to the punishment provided for the original felony committed. Offenses committed in conjunction with certain terrorism offenses are subject to an additional term of imprisonment of five years. The act also directs the United States Sentencing Commission to "review and amend its guidelines and its policy statements to ensure that the guideline offense levels and enhancements appropriately punish identity theft offenses involving an abuse of position" adhering to certain requirements outlined in the legislation. In addition to increasing penalties for identity theft, the act authorized appropriations to the Justice Department "for the investigation and prosecution of identity theft and related credit card and other fraud cases constituting felony violations of law, $2,000,000 for FY2005 and $2,000,000 for each of the 4 succeeding fiscal years." While the Fair Credit Reporting Act (FCRA) does not directly address identity theft, it could offer victims assistance in having negative information resulting from unauthorized charges or accounts removed from their credit files. The purpose of the FCRA is "to require that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information." The FCRA outlines a consumer's rights in relation to his or her credit report, as well as permissible uses for credit reports and disclosure requirements. In addition, the FCRA imposes a duty on consumer reporting agencies to ensure that the information they report is accurate, and requires persons who furnish information to ensure that the information they furnish is accurate. The FCRA allows consumers to file suit for violations of the act, which could include the disclosure of inaccurate information about a consumer by a credit reporting agency. A consumer who is a victim of identity theft could file suit against a credit reporting agency for the agency's failure to verify the accuracy of information contained in the report and the agency's disclosure of inaccurate information as a result of the consumer's stolen identity. Under the FCRA, as recently amended, a consumer may file suit not later than the earlier of two years after the date of discovery by the plaintiff of the violation that is the basis for such liability, or five years after the date on which the violation occurred. The FACT Act, signed on December 4, 2003, includes, inter alia , a number of amendments to the Fair Credit Reporting Act aimed at preventing identity theft and assisting victims. Generally, these new provisions mirror laws passed by state legislatures and create a national standard for addressing consumer concerns with regard to identity theft and other types of fraud. Credit card issuers, who operate as users of consumer credit reports, are required, under a new provision of the FCRA, to follow certain procedures when the issuer receives a request for an additional or replacement card within a short period of time following notification of a change of address for the same account. In a further effort to prevent identity theft, other new provisions require the truncation of credit card account numbers on electronically printed receipts, and, upon request, the truncation of social security numbers on credit reports provided to a consumer. Consumers who have been victims of identity theft, or expect that they may become victims, are now able to have fraud alerts placed in their files. Pursuant to the new provisions, a consumer may request a fraud alert from one consumer reporting agency and that agency is required to notify the other nationwide consumer reporting agencies of the existence of the alert. In general, fraud alerts are to be maintained in the file for 90 days, but a consumer may request an extended alert which is maintained for up to seven years. The fraud alert becomes a part of the consumer's credit file and is thus passed along to all users of the report. The alert must also be included with any credit score generated using the consumer's file, and must be referred to other consumer reporting agencies. In addition to the fraud alert, victims of identity theft may also have information resulting from the crime blocked from their credit reports. After the receipt of appropriate proof of the identity of the consumer, a copy of an identity theft report, the identification of the alleged fraudulent information, and a statement by the consumer that the information is not information relating to any transaction conducted by the consumer, a consumer reporting agency must block all such information from being reported and must notify the furnisher of the information in question that it may be the result of identity theft. Requests for the blocking of information must also be referred to other consumer reporting agencies. Victims of identity theft are also allowed to request information about the alleged crime. A business entity is required, upon request and subject to verification of the victim's identity, to provide copies of application and business transaction records evidencing any transaction alleged to be a result of identity theft to the victim or to any law enforcement agency investigating the theft and authorized by the victim to take receipt of the records in question. The Fair Credit Billing Act (FCBA) is not an identity theft statute per se , but it does provide consumers with an opportunity to receive an explanation and proof of charges that may have been made by an impostor and to have unauthorized charges removed from their accounts. The purpose of the FCBA is "to protect the consumer against inaccurate and unfair credit billing and credit card practices." The law defines and establishes a procedure for resolving billing errors in consumer credit transactions. For purposes of the FCBA, a "billing error" includes unauthorized charges, charges for goods or services not accepted by the consumer or delivered to the consumer, and charges for which the consumer has asked for an explanation or written proof of purchase. Under the FCBA, consumers are able to file a claim with the creditor to have billing errors resolved. Until the alleged billing error is resolved, the consumer is not required to pay the disputed amount, and the creditor may not attempt to collect, any part of the disputed amount, including related finance charges or other charges. The act sets forth dispute resolution procedures and requires an investigation into the consumer's claims. If the creditor determines that the alleged billing error did occur, the creditor is obligated to correct the billing error and credit the consumer's account with the disputed amount and any applicable finance charges. Similar to the Fair Credit Billing Act, the Electronic Fund Transfer Act is not an identity theft statute per se , but it does provide consumers with a mechanism for challenging unauthorized transactions and having their accounts recredited in the event of an error. The purpose of the Electronic Fund Transfer Act (EFTA) is to "provide a basic framework establishing the rights, liabilities, and responsibilities of participants in electronic fund transfer systems." Among other things, the EFTA limits a consumer's liability for unauthorized electronic fund transfers. If the consumer notifies the financial institution within two business days after learning of the loss or theft of a debt card or other device used to make electronic transfers, the consumer's liability is limited to the lesser of $50 or the amount of the unauthorized transfers that occurred before notice was given to the financial institution. Additionally, financial institutions are required to provide a consumer with documentation of all electronic fund transfers initiated by the consumer from an electronic terminal. If a financial institution receives, within 60 days after providing such documentation, an oral or written notice from the consumer indicating the consumer's belief that the documentation provided contains an error, the financial institution must investigate the alleged error, determine whether an error has occurred, and report or mail the results of the investigation and determination to the consumer within 10 business days. The notice from the consumer to the financial institution must identify the name and account number of the consumer; indicate the consumer's belief that the documentation contains an error and the amount of the error; and set forth the reasons for the consumer's belief that an error has occurred. In the event that the financial institution determines that an error has occurred, the financial institution must correct the error within one day of the determination in accordance with the provisions relating to the consumer's liability for unauthorized charges. The financial institution may provisionally recredit the consumer's account for the amount alleged to be in error pending the conclusion of its investigation and its determination of whether an error has occurred, if it is unable to complete the investigation within 10 business days. The President's Identity Theft Task Force reported its final recommendations April 2007, and recommended a plan that is intended to harness government resources to crack down on the criminals who traffic in stolen identities, strengthen efforts to protect the personal information, help law enforcement officials investigate and prosecute identity thieves, help educate consumers and businesses about protecting themselves, and increase the safeguards on personal data entrusted to federal agencies and private entities. The Plan focuses on improvements in four key areas: keeping sensitive consumer data from identity thieves through better data security and education; making it more difficult for identity thieves who obtain consumer data; assisting the victims of identity theft in recovering from the crime; and deterring identity theft by more aggressive prosecution and punishment. Several recommendations made by the Task Force are aimed at closing the gaps in federal criminal statutes used to prosecute identity theft-related offenses to ensure increased federal prosecution. They are as follows: Amend the identity theft and aggravated identity theft statutes to ensure that identity thieves who misappropriate information belonging to corporations and organizations can be prosecuted Add new crimes to the list of predicate offenses for aggravated identity theft offenses Amend the statute that criminalizes the theft of electronic data by eliminating the current requirement that the information must have been stolen through interstate communications Penalize creators and distributors of malicious spyware and keyloggers Amend the cyber-extortion statute to cover additional, alternate types of cyber-extortion Ensure that an identity thief's sentence can be enhanced when the criminal conduct affects more than one victim In accordance with the REAL ID Act of 2005, on January 11, 2008, the Department of Homeland Security (DHS) published the final rule for State-issued driver's licenses and identification cards that federal agencies would accept for official purposes on or after May 11, 2008, in accordance with the REAL ID Act of 2005. The Real ID Rule establishes standards to meet the minimum requirements of the REAL ID Act. These standards involve a number of aspects of the process used to issue identification documents, including information and security features that must be incorporated into each card; proof of identity and U.S. citizenship or legal status of an applicant; verification of the source documents provided by an applicant; and security standards for the offices that issue licenses and identification cards. All states submitting requests will receive extensions until December 31, 2009. In addition, states that meet certain benchmarks for the security of their credentials and licensing and identification processes will be able to obtain a second extension until May 10, 2011. The Rule extends the enrollment time period to allow states determined by DHS to be in compliance with the act to replace all licenses intended for official purpose with REAL ID-compliant cards by December 1, 2014, for people born after December 1, 1964, and by December 1, 2017, for those born on or before December 1, 1964. The rule is effective March 31, 2008. | According to the Federal Trade Commission, identity theft is the most common complaint from consumers in all fifty states, and complaints regarding identity theft have grown for seven consecutive years. Victims of identity theft may incur damaged credit records, unauthorized charges on credit cards, and unauthorized withdrawals from bank accounts. Sometimes, victims must change their telephone numbers or even their social security numbers. Victims may also need to change addresses that were falsified by the impostor. This report provides an overview of the federal laws that could assist victims of identity theft with purging inaccurate information from their credit records and removing unauthorized charges from credit accounts, as well as federal laws that impose criminal penalties on those who assume another person's identity through the use of fraudulent identification documents. This report will be updated as events warrant. |
On May 15, 2008, the deadline imposed by court order, the Fish and Wildlife Service (FWS) listed the polar bear as a threatened species under the Endangered Species Act (ESA). At the same time, it published an ESA "special rule" limiting the application of ESA prohibitions to activities affecting the bear. The listing and special rule sparked debate not only because of the polar bear's charismatic qualities. It was widely known that the Center for Biological Diversity had petitioned the FWS to list the polar bear in 2005 in the hope that listing would provide a legal basis for forcing reduction of greenhouse gas (GHG) emissions throughout the country, to combat climate change. Thus, the consequences of the listing, many thought, could be vast. The legal arguments, when they are eventually made, will presumably run like this. GHG emissions contribute to climate change. Climate change has produced disproportionate warming in the Arctic. That warming has already reduced the extent of Arctic sea ice, and will continue to do so in the future. Polar bears depend on sea ice for breeding, foraging, and travel. Thus, by diminishing the polar bear's essential habitat and jeopardizing the species, GHG emitters anywhere in the United States now implicate the demands of the ESA—particularly sections 9 and 7, as follows. ESA section 9 makes it unlawful for any person to "take" an animal listed as endangered under the ESA. "Take" is defined broadly by the ESA to include "harm" to an endangered animal (or plant). And "harm," critically for the climate change argument above, has been administratively defined to include indirect harm to listed species members through certain significant habitat modifications . Thus, at first glance an argument appears to exist that because a significant GHG emitter contributes to climate change, which melts the polar bear's sea-ice, the emitter violates the section 9 "take" prohibition. If blessed by the courts, this argument would require a significant GHG emitter to obtain an "incidental take permit," allowing incidental takes of polar bears after the emitter submits a conservation plan and the FWS finds that the applicant will minimize the impacts of such taking. This argument has some flaws. First, section 9, as noted, prohibits "takes" only as to endangered species, while the polar bear was listed as threatened. Here matters become more complex. By general rule, the FWS long ago extended the section 9 "take" prohibition to threatened species as well. Threatened species with atypical management needs, however, are subject instead to "special rules." The FWS has great flexibility in writing special rules, because the ESA requires only that regulations protecting threatened species be "necessary and advisable to provide for the conservation of such species" —not that they be the same as the act's protections for endangered species. When the FWS listed the polar bear as threatened, it simultaneously issued a special rule for the species, also known as a "4(d) rule" after the relevant ESA subsection. The polar bear 4(d) rule has been controversial. The rule narrows the section 9 "take" prohibition that normally would apply through the general rule above, by two exceptions. Only one is substantially relevant to climate change. It exempts from the section 9 prohibitions "any taking of polar bears that is incidental to, but not the purpose of, ... an otherwise lawful activity within any area subject to the jurisdiction of the United States except Alaska." The effect of this exemption would appear to be that a coal-fired power plant anyplace in the United States except Alaska could not be deemed to "take" polar bears through its GHG emissions. Unless the section 4(d) rule is judicially invalidated, then, any effort to use the polar bear listing to reduce GHG emissions through a "take" argument will almost certainly be unsuccessful. A second flaw in the GHG-emissions-take-polar-bears argument is that of causal proximity. GHG sources (anywhere in the U.S.) do not affect polar bears directly, but through the intermediary steps of atmospheric mixing, Arctic warming, and sea-ice melting. Is this a close enough nexus between activity and "take" to trigger section 9? Section 9 case law indicates that, for a violation to occur, there has to be a causal connection between the activity and the "take," and "imminent harm" must be "reasonably certain to occur." Case law further indicates that indirect effects can constitute "takes," but does not explicate further. Given these vague standards, one can say only that the argument that a source of substantial GHG emissions "takes" polar bears is plausible. Greater certainty as to the argument's chances of success is impossible given that the decided cases involve facts very different from climate change. Judicial attitudes toward the causal proximity required by the ESA may be influenced by a Supreme Court decision in 2007, Massachusetts v. EPA , holding that EPA has authority under the Clean Air Act (CAA) to regulate GHGs from new motor vehicles. Relevant here is the Court's discussion of Massachusetts's standing to bring the suit. There, it found that the reduction in automobile GHG emissions sought by the state was likely to yield a non-negligible benefit to the state—slowing down its loss of shorelands to sea level rise—thus satisfying the "redressability" requirement of standing doctrine. The analogy between Massachusetts's loss of shoreland and the polar bears' loss of sea ice is evident, though standing law and the ESA are admittedly very different contexts. Finally, there is the question of whether the effect of a particular GHG emissions source on polar bear habitat is de minimis. While section 9 applies to persons, section 7 applies only to federal agencies. It demands that each federal agency "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [designated critical habitat]." To minimize the chance of "jeopardy" or "adverse modification," section 7 creates a consultation process. If any listed species is present in the area of the proposed action, the agency proposing to act prepares a "biological assessment" identifying any such species likely to be affected, and setting out relevant details of the action and available information on its potential effects. The agency must then consult with the FWS, which prepares a "biological opinion" as to how the proposed action will affect the species or designated critical habitat. If the biological opinion finds jeopardy or adverse modification, the FWS must propose "reasonable and prudent alternatives" that the action agency or permit applicant can take to eliminate jeopardy or adverse modification. Based on the argument above for "takes," the argument may be made that the proposal of a federal action "authoriz[ing], fund[ing], or [carrying] out" substantial emissions of GHGs triggers section 7 consultation. And just as section 9 has a habitat modification component, so does section 7, though only where critical habitat has been formally designated. Moreover, case law supports the triggering of section 7 consultation even when the effect of an agency action is remote from the area of agency action. If sanctioned by the courts, this argument for section 7 consultation would effectively require an agency to adopt any reasonable and prudent alternatives proposed by the FWS, which presumably could include reduction of GHG emissions. As with the section 9 "take" argument, the section 7 consultation argument has its vulnerabilities. The major one is causation. FWS regulations say that section 7 consultation evaluates the "direct and indirect effects" of the proposed action. "Indirect effects" are "those that are caused by the proposed action and are later in time, but still are reasonably certain to occur." The listing preamble strongly insists that the "caused by" requirement is not satisfied in the case of GHG emissions and the plight of the polar bear. States the preamble: "The best scientific information available to us today ... has not established a causal connection between specific sources and locations of emissions to specific impacts posed to polar bears or their habitat." Moreover, recently proposed amendments to the consultation regulations would make it even less likely that FWS would regard climate change-related impacts on the polar bear as an indirect effect of a federal action, triggering consultation. The preamble reference to "[t]he best scientific information available to us today" acknowledges that new scientific information may provide the requisite causal connection. A second point is that while the causal nexus between "specific sources" and adverse effects on polar bear habitat may be elusive, some federal actions—such as CAA regulations—may increase GHG emissions from enough sources that the linkage may be more clear. Third, in contrast with the section 9 prohibitions, the FWS cannot by special rule narrow the range of circumstances that trigger section 7 consultation—though its views on the causal nexus between GHG emissions and polar bears, or lack thereof, will likely be accorded deference by a court. A final point is that as with the causation issue under section 9, Massachusetts v. EPA may be influential here as well. As with section 7, a de minimis argument exists for consultation. Another problem with use of section 7 for polar bears is that the May 15, 2008 listing was not accompanied by designation of critical habitat for the bear. The Center for Biological Diversity sued, challenging this failure to designate. In the meantime, any effort to force a section 7 consultation based on a proposed activity's GHG emissions will have to argue that the emitting source satisfies the "jeopardy" trigger for consultation. Though the polar bear petition was the most publicized, several other listing petitions have been filed for animals alleged to be endangered or threatened due, in whole or in part, to climate change. The Center for Biological Diversity is the sole petitioner in almost all of these, reflecting its campaign to use the ESA to address climate change. Besides the polar bear, only one of these petitions has reached a final listing determination—that for the elkhorn and staghorn coral, in 2006. Seven other petitions are currently pending, and are listed below. To understand their status, the procedural stages in the ESA listing process must be reviewed. First, the 90-day finding . Upon receipt of a petition, the appropriate Secretary (of the Interior, or of Commerce) must determine if it "presents substantial ... information indicating that the petitioned action may be warranted," and must do so within 90 days, if practicable. Second, the 12-month finding. If the 90-day finding is positive, the Secretary must determine whether listing is warranted, not warranted, or warranted but precluded by other pending proposals that require immediate attention, within 12 months of receiving the petition. If the 12-month finding concludes that listing is warranted, the Secretary must promptly publish a proposed rule to list. Third, the final listing determination. Within one year of publishing the proposed rule, the Secretary must publish a final listing determination either listing or withdrawing the proposal. The seven pending listing petitions related to climate change, together with the year each petition was filed and current status, are— Kittlitz's murrelet, 2001. This Arctic sea bird has been in "warranted but precluded" status for several years. That status is being challenged in court on the ground that the Secretary of the Interior has not satisfied the ESA prerequisite for such status that "expeditious progress is being made" in adding and deleting other species from the endangered or threatened list. Twelve species of penguin, 2006. The failure to make a 12-month finding as to 10 of these species is being challenged in court. (In contrast to other species in this list, these twelve species are found exclusively outside the United States.) American pika, 2007. The failure to make a 90-day finding for this small alpine mammal is being challenged in court. (A similar suit attacks California's rejection of a listing petition for the pika under that state's Endangered Species Act). Ashy storm petrel, 2007. A positive 90-day finding for this seabird was made on May 15, 2008. Ribbon seal, 2007. A positive 90-day finding was made on March 28, 2008. Pacific walrus, 2008. The failure to make a 90-day finding has led to submission of 60 days' notice of a future citizen suit. Ringed, bearded, and spotted seal, 2008. Petition to list filed May 28, 2008. The Center for Biological Diversity's campaign to use the ESA against climate change is only part of a broad effort by states, public interest groups, and individuals to use existing laws for this purpose. Climate change-related litigation has invoked the CAA, wildlife protection statutes (the ESA and Marine Mammal Protection Act), energy statutes (the Energy Policy and Conservation Act and Outer Continental Shelf Lands Act), information statutes (including the National Environmental Policy Act), nuisance law, and state laws governing electric utilities. The number of case filings has proliferated in recent years. Under either the ESA or other statutes, however, it is likely that complainants fully understand the inability of these laws to produce broad schemes for dealing with climate change. Rather, these suits have almost certainly been filed, in part, to pressure Congress or international negotiators to adopt comprehensive solutions tailored to the specifics of climate change. | On May 15, 2008, the Fish and Wildlife Service (FWS) listed the polar bear as a threatened species under the Endangered Species Act (ESA). At the same time, it published a "special rule" limiting the application of ESA prohibitions to activities affecting the bear. The listing and special rule attracted attention due to the likelihood that the listing will be used as a legal basis to attempt to force reductions of greenhouse gas emissions from sources nationwide. At least two arguments might be made. First, the ESA prohibition of "takes" could be argued to be violated by major greenhouse gas sources. The special rule seeks to bar this argument, but has been challenged in court. Second, the ESA might require consultation with the Fish and Wildlife Service before a federal agency can authorize a major source of greenhouse gases, though the Service argues that current science does not support an adequate causal nexus between specific sources of greenhouse gases and specific effects on polar bears. |
An abusive tax shelter is generally defined as a transaction that technically complies with the Internal Revenue Code but results in unreasonable tax consequences that are not intended under the Code. The economic substance doctrine is one tool that the IRS has for fighting abusive tax shelters. It is a judicially developed doctrine that allows the IRS and courts to disregard transactions that were made for tax-avoidance purposes and lack economic substance. The economic substance doctrine is rooted in several Supreme Court decisions. The first is Gregory v. Helvering , where the Court stated that while "[t]he legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted," a transaction will be disregarded for tax purposes if it was not "the thing which the statute intended." In that case, the Court, looking at whether a stock transfer qualified as a tax-free reorganization, disregarded the transaction because there was no "business or corporate purpose" for the companies involved and "[t]o hold otherwise would be to exalt artifice above reality and to deprive the statutory provision in question of all serious purpose." In Knetsch v. United States , the Court applied the Gregory analysis in determining whether a taxpayer could deduct interest arising from a transaction in which, among other things, he bought bonds using a promissory note and effectively paid the note's interest due at the beginning of each year with money he borrowed prospectively from the bonds' value at the end of the year. The Court disregarded the transaction because it "did not appreciably affect [the taxpayer's] beneficial interest except to reduce his tax" and refused to believe, without evidence of legislative intent, that Congress intended to provide tax benefits for a sham transaction. The Court in Frank Lyon Co. v. United States further explained that a transaction should be recognized for tax purposes if there is a genuine multiple-party transaction with economic substance which is compelled or encouraged by business or regulatory realities, is imbued with tax-independent considerations, and is not shaped solely by tax-avoidance features that have meaningless labels attached.... In 2006, four important tax shelter cases were decided by U.S. courts of appeals. In all four cases, the economic substance of the transaction was at issue. The next section of this report looks at these cases. Because this report focuses on the economic substance doctrine, the other tax aspects of the cases are not discussed. It is, however, important to note that courts in these cases found that the challenged transactions complied with the relevant statutory requirements in the Internal Revenue Code. It should also be noted that the factual situations are summarized and may not include all parties to or all aspects of the transaction. The transaction at issue in this case involved two Coltec subsidiaries: A and B. A gave a promissory note worth $375 million and property worth $4 million to B in exchange for stock in B and B's assumption of A's future asbestos liabilities. The value of the note was calculated to cover the liabilities. A then sold its stock in B for $500,000. Coltec claimed that A had a $378.5 million loss from the sale of the stock. Coltec asserted that A's basis in the stock was $379 million (the value of the note and property) and did not have to be reduced by the value of the assumed asbestos liabilities under the contingent liability rules in IRC § 358(d)(2). The IRS challenged, among other things, the transaction's economic substance. In 2004, the Court of Federal Claims held that the economic substance doctrine was an unconstitutional violation of the separation of powers doctrine. The court reasoned that because Congress had the authority to write the tax laws, it was unconstitutional for courts to require taxpayers to meet criteria beyond compliance with the congressionally written statutes. The court explained that taxpayers needed to be able to rely on the tax code's statutory language and that it was unfair to apply the economic substance doctrine on top of the statutes because of its unpredictability and ambiguity. The court dismissed the idea that Supreme Court and Federal Circuit decisions had endorsed the use of the economic substance doctrine, finding instead that the holdings in those cases relied on the statutory language and only used the doctrine as support for their conclusions. The court also noted that the doctrine's constitutionality had not previously been challenged and believed that recent case law raised questions about the doctrine's viability. In 2006, the U.S. Court of Appeals for the Federal Circuit reversed and remanded the lower court's decision, describing the holding as "untenable." The appellate court, noting that the economic substance doctrine had been recognized in several Supreme Court and Federal Circuit cases and in tax treatises, found no precedent for holding the doctrine to be unconstitutional. The court explained that the doctrine was similar to other canons of statutory construction, upheld by the Supreme Court as constitutional, that permitted courts to look beyond the statutory language if legislative intent would otherwise be violated. The court then laid out five principles of the doctrine: (1) a transaction without economic substance is disregarded for tax purposes, regardless of the taxpayer's motive for entering into it; (2) the taxpayer has the burden to prove the transaction's economic substance; (3) an objective test is used to determine whether there is economic substance; (4) the transaction that is tested is the one giving rise to the tax benefit; and (5) inter-company transactions that do not affect third-party economic interests deserve close scrutiny. Using these principles, the court determined that the Coltec transaction lacked economic substance because it did not "effect[] any real change in the flow of economic benefits, provide[] any real opportunity to make a profit, or appreciably affect[] Coltec's beneficial interests aside from creating a tax advantage." Black & Decker Corp. (BDC), after realizing $300 million in capital gains from the sale of assets, took part in a transaction seeking to create a capital loss. First, BDC transferred $561 million in cash to a subsidiary in exchange for stock and the subsidiary's assumption of BDC's future health benefits claims, which had an estimated present value of $560 million. One month later, BDC sold the stock for $1 million to an unrelated third-party. The subsidiary then lent $564 million to BDC's parent company, which the parent company repaid in monthly installments designed to furnish the subsidiary with funds to pay the benefit liabilities. BDC claimed a $560 million loss from the sale of stock. BDC asserted that its basis in the stock was $561 million and was not reduced by the value of the assumed liabilities under the contingent liabilities rules in IRC § 358(d)(2). The IRS disallowed the loss. The district court agreed with BDC's characterization of the transaction. The court stated that, under Fourth Circuit precedent, the question was whether "the taxpayer was motivated by no business purpose other than obtaining tax benefits in entering the transaction, and that the transaction has no economic substance because no reasonable possibility of profit exists." The fact that the taxpayer's sole motivation was tax avoidance was undisputed. With respect to the test's objective second prong, the court stated it would be met if the business engaged in "bona fide economically-based business transactions." The court found that the transaction met this standard because it had "very real economic implications" for the health plan participants and the businesses involved in the transaction because the subsidiary had assumed the administration of the benefit plans, was responsible for paying the claims, had proposed cost containment strategies that had been implemented, and had always had salaried employees. Thus, the court found that the transaction had economic substance and granted BDC's motion for summary judgment. The U.S. Court of Appeals for the Fourth Circuit disagreed with the district court. Because BDC had conceded the subjective prong of the test, the court looked only at the objective prong. The appeals court stated that the lower court had misapplied that prong by focusing on the subsidiary's business activities, when the test actually required looking at whether the transaction had a reasonable expectation of profit outside of the tax benefits. The court therefore found that many of the facts upon which the district court had based its decision (e.g., the fact that the subsidiary had salaried employees and paid claims as they came due) were irrelevant. Thus, the court reversed the district court's decision and remanded the case for further proceedings to determine the economic substance issue. Dow entered into a plan under which it bought corporate-owned life insurance (COLI) policies, of which it was the owner and beneficiary, on the lives of more than 21,000 employees. The company paid the premiums by borrowing funds from the insurers using the policies' cash value as collateral and by making partial withdrawals from the policies' cash value. The plan was not expected to generate positive pre-deduction cash flows or earn significant inside build-up (i.e., earn interest on the policies' value) unless Dow made substantial investments of cash into the plan. The plan also limited Dow's potential mortality gain (i.e., its potential to profit by being paid more death benefits than expected because of a high number of deaths). Dow deducted more than $33 million for interest paid on loans used to pay the premiums. The IRS disallowed the deductions, arguing that the transaction lacked economic substance. The district court held that the transaction did not lack economic substance. The court began by stating that the economic substance doctrine required the court to determine whether the transaction "has any practicable economic effects other than the creation of income tax losses," and, if so, whether the "taxpayer had a legitimate profit motive in entering into the transaction." The court, looking at prior cases in which courts had held COLI plans to lack economic substance, determined the test would be met if the transaction generated positive pre-deduction cash flow and it was possible for Dow to profit from both inside build-up and mortality gain. The court determined that these factors were met because the net present value of the policies was positive, the plan allowed for inside build-up, and the plan did not completely eliminate the transfer of risk. The Sixth Circuit Court of Appeals reversed the district court. Although the appellate court found that the lower court had properly framed the inquiry by looking at the plan's key characteristics to determine whether it lacked economic substance, it disagreed with the district court's findings on each factor. Specifically, the appellate court stated the district court erred by not looking at Dow's past conduct in determining the likelihood that Dow would make the significant future investments necessary for the plan to eventually have positive pre-deduction cash flow and generate inside build-up. The court found that Dow's past conduct made such future conduct unlikely. The appellate court also stated that the district court wrongly required that the plan not provide any possibility of mortality gain, and found that while the plan did allow for the possibility of such gain, it was basically designed to make the mortality provisions neutral. Based on these factors, the court held that the plans lacked economic substance and should be disregarded for tax purposes. Dow filed a petition for certiorari with the Supreme Court on October 4, 2006. The taxpayer, which leased airplanes, among other business activities, became concerned during a downturn in the airline industry and entered into a transaction intended to partially monetize the value of its airplanes. The taxpayer formed a limited liability company (LLC) and then transferred airplanes worth $294 million and $246 million in cash to it. Two foreign banks then invested $117.5 million in the LLC. The LLC's operating agreement called for it to distribute most of its income to the banks each year. There was a significant difference between the bank's book income and tax income. This was because the book income had been reduced by expenses that included depreciation. The tax income, on the other hand, was not reduced by depreciation because the airplanes had already been fully depreciated for tax purposes. While the banks received most of the income, the operating agreement granted the taxpayer management control over the LLC. The operating agreement also called for the LLC to annually buy back a percentage of the banks' ownership interest so that the banks would be bought out after eight years. The overall effect of the transaction was that during the eight-year period, the taxpayer was able to partially monetize the airplanes by having access to the funds that the banks invested and the banks received a steady rate of return on their investment. The IRS argued that the transaction should be disregarded. The district court held that the transaction had economic substance. The court explained that the economic substance doctrine requires the court "examine both the subjective business purpose of the taxpayer for engaging in the transaction and the objective economic effect of the transaction." The court stated that the precedential decisions in the Second Circuit were unclear as to whether both prongs of the test had to be met. This was unimportant to the court, however, because it found that the transaction satisfied both tests. The court reasoned that the transaction had economic effect because the banks had invested $117.5 million and received a percentage of the LLC's income in return and that the taxpayer had a subjective business purpose in participating in the transaction because it needed to raise capital. The court then looked at whether the banks were actually partners in the transaction. The court found that they were because there were legitimate business reasons to create the LLC and the banks had an active stake in the LLC because its investment returns depended on the LLC's business performance. In 2006, the U.S. Court of Appeals for the Second Circuit reversed the lower court's decision. The appellate court did not disagree with the lower court that the transaction had economic substance due to the company's non-tax motive to raise equity capital. Instead, the appeals court found that the lower court erred in not looking at whether the banks were truly partners under the test developed in the Supreme Court's decision in Comm ' r v. Culbertson . The court stated that under Culbertson , it had to "determine[] the nature of the interest based on a realistic appraisal of the totality of the circumstances." The court found that the banks did not have any real equity interest because their "interest was in the nature of a secured loan, with an insignificant equity kicker," which meant that "only in a negligible fashion was their well-secured interest intertwined with the fortunes of the business." Thus, the appellate court did not find the Culbertson test to be met and held that the transaction should be disregarded for tax purposes. S. 96 (the Export Products Not Jobs Act) would codify the economic substance doctrine. The bill creates criteria for determining whether a transaction has economic substance, which apply once a court decides that the doctrine is relevant in the case. The bill also creates a new penalty for understatements of tax attributable to transactions lacking economic substance. The penalty equals 40% of the understatement and is reduced to 20% if the transaction was adequately disclosed. The bill also denies a deduction for interest on underpayments attributable to such transactions. | The economic substance doctrine is a judicially developed doctrine that has become one of the IRS's primary tools in fighting abusive tax shelters. The doctrine permits transactions lacking in economic substance to be disregarded for tax purposes. In 2006, four significant decisions dealing with the doctrine were issued by U.S. courts of appeals. In the 110th Congress, S. 96 (Export Products Not Jobs Act) has been introduced to codify the doctrine. This report discusses the doctrine's development and the four cases and summarizes the bill. It will be updated as events warrant. |
In order to conduct foreign relations and promote the interests of their nationals located abroad, States (i.e., countries) require secure means of communicating with their diplomats (i.e., representatives of a government who conduct relations with another government on its behalf) and consular officers (i.e., representatives of a government who promote the government's commercial interests and provide assistance to its citizens located in another country) stationed in other States. To ensure that such channels of communication are preserved, States receiving foreign diplomats and consular officers have long accorded such persons with certain privileges and immunities on the basis of comity, reciprocity, and international agreement. As political and economic contacts between States have grown, customary practices regarding diplomatic and consular immunities have increasingly been codified via bilateral or multilateral agreement. These agreements not only describe the specific privileges and immunities to be accorded to foreign diplomats and consular officers by a receiving State, but also specify those privileges and immunities owed to other members of diplomatic and consular missions, as well as towards the family members of mission members. In recent decades, international organizations have been viewed as a means by which States may conduct multilateral relations and cooperate on issues which are transnational in scope. In order to ensure the autonomy of such organizations and prevent any member State from unreasonably interfering with organizational functions, many international organizations and their employees have been accorded certain privileges and immunities by their member States. These privileges and immunities are typically similar in scope to those accorded to foreign diplomatic missions. This report describes the privileges and immunities generally owed to foreign diplomatic, consular, and international organization personnel under U.S. law. It does not discuss certain exceptions to these immunities that may apply to U.S. citizens and legal permanent residents who are employed by international organizations or foreign embassies or consulates. The treaties and statutes discussed in this report are: the Vienna Convention on Diplomatic Relations (Diplomatic Convention); the Vienna Convention on Consular Relations (Consular Convention); the Agreement Regarding the Headquarters of the United Nations (Headquarters Agreement); the Convention on the Privileges and Immunities of the United Nations (U.N. Convention); and the International Organizations Immunities Act. This report contains charts detailing the privileges and immunities provided by the legal authorities mentioned above, along with the personnel to whom such privileges and immunities apply. It is important to note that the above-mentioned authorities are not exhaustive, and the scope of immunity due in any particular case may be governed in whole or in part by other instruments. For example, the United States is a party to many bilateral consular conventions that contain immunities provisions. In most instances, the other signatory is, along with the United States, a party to the Consular Convention. In these cases, the instrument affording greater protection to each State's consular officers is controlling. Some countries with which the United States has a consular treaty are not parties to the Consular Convention. The immunities accorded to consular personnel of such States are governed by the appropriate bilateral treaties, not by the authority discussed in this report. Furthermore, not all international organizations are covered by the International Organizations Immunities Act (IOIA), or, as is the case with the United Nations, are covered not only by the IOIA but also by a number of international agreements. Even where immunities are governed generally by the authorities cited in the relevant chart, individuals serving in similar positions for different countries may nevertheless enjoy different immunities. For example, the Diplomatic Relations Act, which effectively adopted the standards of the Diplomatic Convention for domestic application, provides that the President may, on the basis of reciprocal treatment, specify immunities for individual countries that are more or less favorable than those under the Convention. Both the Diplomatic Convention and the Consular Convention allow the United States to apply immunities restrictively where a particular country has applied immunity rules restrictively towards American representatives. Similarly, the IOIA conditions certain immunities on the basis of treatment of American representatives abroad. It must be emphasized that the immunities provided to foreign diplomats, consular officials, and employees of international organizations may be waived by the sending State or the appropriate international organization, with or without the consent of the individual involved. On the other hand, certain individual acts may lead to a waiver of immunity. For example, the initiation of civil proceedings by an otherwise exempt individual may preclude him from invoking immunity with regards to a directly-connected counterclaim. Another example of this type of personal waiver is the relinquishment of all immunity by consular employees and staff who undertake private gainful employment in the receiving State. Still another example is when a foreign person accorded immunity wishes to become a lawful permanent resident of the United States, in which case the person must waive the rights, privileges, immunities, and exemptions he would otherwise accrue on account of his occupational status. Finally, note that even where an individual enjoys immunity from jurisdiction, a person harmed by the immune individual nevertheless may have recourse to compensation under one of two statutes. First, the Diplomatic Relations Act requires that (1) each diplomatic mission in the United States (including otherwise immune missions to international organizations), (2) members of these missions and their families, and (3) high ranking United Nations officials all meet liability insurance requirements relating to the operation of motor vehicles in the United States. Second, the Foreign Sovereign Immunities Act provides that a foreign State shall not, with limited exception, be immune from suit for money damages being sought against it for harm occurring in the United States and caused by a wrongful nondiscretionary act of one of its officials or employees acting within the scope of duty. The following sections provide an overview of the statutes and agreements governing the privileges and immunities accorded to foreign diplomats, consular officials, employees of international organizations, and related personnel. Pursuant to its treaty obligations under the Vienna Convention on Diplomatic Relations (VCDR), ratified in 1972, the United States accords certain privileges and immunities to designated categories of persons employed by other Convention parties' diplomatic missions, along with the household family members of certain mission employees. Persons entitled to certain privileges and immunities under the Diplomatic Convention include diplomatic agents and their immediate household families, the mission's administrative and technical staff and the immediate household families of those staff members; the mission's service staff; and private servants of members of the mission. Under the Convention, the United States accords diplomatic agents (and members of their households) absolute immunity from its criminal jurisdiction and near-absolute immunity from U.S. civil and administrative jurisdiction. A diplomatic agent is also not obliged to give evidence as a witness. Below the rank of diplomat, the administrative, technical, and service staffs also are immune from criminal jurisdiction, but have more limited immunity from civil and administrative jurisdiction. The household family members of diplomatic agents and mission staff are also generally provided with the same privileges and immunities accorded to the diplomatic agent or mission staff member to which they are related. To varying degrees, persons covered by the Diplomatic Convention also receive immunity from taxes and customs duties, military and public service obligations, and alien registration requirements. Congress passed the Diplomatic Relations Act to grant the privileges and immunities accorded under the Diplomatic Convention to all foreign diplomatic missions, personnel, and the families of such personnel, regardless of whether the sending State is a party to the Convention. This extension is subject to the sending State's reciprocal treatment towards U.S. diplomatic missions, personnel, and families of such personnel, along with other terms and conditions the President deems appropriate. The Vienna Convention on Consular Relations (VCCR), which was ratified by the U.S. in 1969, accords certain privileges and immunities to consular officers (i.e., persons who exercise consular functions on behalf of the sending State, notably including the consular post) and their immediate household families; the post's administrative and technical staff and the immediate household families of those staff members; the post's service staff; and honorary consuls (i.e., consular officers other than career consular officers). These privileges and immunities are lesser in scope than those enjoyed by similarly-situated members of diplomatic missions and those members' household families. For example, while foreign diplomats and their family members receive full immunity from the criminal jurisdiction of the receiving State under the Diplomatic Convention, consular officers covered by the Consular Convention only receive immunity for actions they take in the course of their official functions, and their family members receive no immunity from the criminal jurisdiction of the receiving State. Family members of consular employees also receive no immunity from the receiving State's civil jurisdiction. Members of the consular post and their family members do receive varying degrees of immunity from the receiving State's taxes and custom duties, alien registration requirements, and military service obligations. The privileges and immunities owed under the Consular Convention only apply between Convention parties. The privileges and immunities owed by the U.S. to the consular personnel of non-Convention parties are governed by applicable bilateral treaty. In the case that the U.S. and another Convention party also have a bilateral treaty governing consular relations, the instrument providing broader coverage is controlling. The IOIA provides a significant number of privileges and immunities for international organizations designated by the President via executive order. Certain privileges and immunities are also accorded to employees, officials, and representatives to such organizations, along with members of their immediate families, though these are less than those accorded to the international organizations themselves. Officials, employees, and representatives to designated international organizations are accorded immunity pursuant to the IOIA following validated notification to the Secretary of State of their organizational position. The terms "official," "employee," and "representative" are not defined by the IOIA The United Nations was designated as an "international organization" for purposes of the IOIA immediately following the statute's enactment. Several dozen other international organizations have been designated as receiving coverage under the IOIA, including such organizations as the International Monetary Fund, the International Committee of the Red Cross, the Organization of American States, the World Health Organization, and the World Trade Organization. In the same year the IOIA was enacted, the U.N. General Assembly also adopted the Convention on the Privileges and Immunities of the United Nations, establishing de minimus standards for the immunities and privileges accorded to the United Nations and U.N. officials, Member State representatives, and experts working for U.N. missions. These immunities and privileges are largely similar to those accorded via the IOIA. The United States ratified the Convention in 1970. As with the IOIA, the U.N. Convention on Privileges and Immunities (UNCPI) does not define the term "employee" or "official," though this is perhaps of little concern because the U.N. Convention provides immunity only to those categories of U.N. officials (beyond the U.N. Secretary-General and all Assistant Secretary-Generals) designated by the Secretary-General to receive protection under the Convention. The Convention also does not define "experts on missions" who receive immunity under the U.N. Convention. However, an advisory decision by the International Court of Justice (which has ultimate authority to interpret the U.N. Convention), found that the category of experts on U.N. missions includes, inter alia , persons entrusted by the United Nations with mediating disputes, preparing reports and studies, conducting investigations, or finding and establishing facts on behalf of U.N. missions. The Convention defines "representatives" of U.N. Member States as including all delegates, advisors, and secretaries of Member State delegations. Besides granting an explicit set of privileges and immunities to designated persons, the U.N. Convention also specifies that certain designated individuals (i.e., U.N. representatives, the U.N. Secretary-General, all Assistant Secretary-Generals, and certain U.N. officials designated to receive protection under the Convention by the Secretary-General) are to receive most or all of the privileges and immunities accorded by a receiving State to diplomatic envoys. Accordingly, by reference to other statutes and treaties adopted by the receiving State, the U.N. Convention provides these U.N. officials and representatives with certain privileges and immunities beyond those explicitly described under the U.N. Convention. Generally speaking, the U.N. officials and representatives covered by the U.N. Convention are given the same privileges and immunities as those the U.S. accords to diplomats under the Diplomatic Convention. With respect to designated U.N. officials, however, Diplomatic Convention standards concerning immunity from criminal prosecution apparently are not so incorporated, as the U.N. Convention provides that such officials are immune only for official acts. In 1947, the United States entered the Headquarters Agreement with the United Nations. The U.N. Headquarters Agreement (UNHQA) primarily concerns the privileges and immunities accorded to the United Nations and its headquarters in New York. However, the Agreement also provides certain privileges and immunities for specified U.N. representatives and related personnel residing in the United States . The Headquarters Agreement provides such persons with the full protections accorded to diplomatic envoys—a broader scope of immunity than that provided under either the IOIA or the U.N. Convention. Representatives and related personnel of U.N. Member States whose governments are not recognized by the United States receive lesser privileges and immunities. The following charts list the major privileges and immunities accorded to persons working for foreign embassies, consulates, or international organizations (including, specifically, the United Nations). When a treaty or international agreement makes reference to covered personnel receiving the same immunities accorded to persons covered by other treaties, the nature of such immunities is explained. Thus, for example, because the U.N. Convention on Privileges and Immunities provides that certain U.N. personnel are to receive the same immunities as the receiving State accords diplomatic envoys, the chart detailing the immunities provided under the U.N. Convention occasionally makes references to immunities provided to diplomats under the Vienna Convention on Diplomatic Relations. It is important to note that the charts concerning the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations only discuss those immunities accorded to persons who are not U.S. nationals or permanent residents. Diplomatic and consular officers working on behalf of a foreign State who are U.S. nationals or permanent residents only receive immunity for official acts performed in the exercise of their functions, while other diplomatic or consular personnel or members of their household families receive no immunities if they are U.S. nationals or permanent residents. Persons who are employed by international organizations or are foreign representatives to such organizations are provided with immunity regardless of whether they are U.S. nationals or permanent residents. The United Nations and specified officials, employees, and representatives to the organization are accorded a number of privileges and immunities by a series of interrelated statutes and treaties. In some cases, the immunities accorded to the organization and specified officials, employees, and U.N. representatives are explicit; in other cases, they are established via cross-reference to other sources of law. This chart details the scope of such immunities, as governed by the International Organizations Immunities Act, the U.N. Convention on Privileges and Immunities, the U.N. Headquarters Agreement, and, by cross-reference, the Vienna Convention on Diplomatic Relations. Where appropriate, immunities provided by related U.S. statutes are also listed. | To conduct foreign relations and promote the interests of their nationals located abroad, diplomatic and consular officers must be free to represent their respective States (i.e., countries) without hindrance by their hosts. Recognizing this, States receiving foreign diplomats and consular officers have long accorded such persons with certain privileges and immunities on the basis of comity, reciprocity, and international agreement. As international organizations have become increasingly important for multilateral relations and cooperation, representatives to and employees of such organizations have occasionally been granted privileges and immunities similar to those traditionally accorded to diplomats or consular officials. This report describes the privileges and immunities generally owed by the U.S. to foreign diplomatic, consular, and international organization personnel under treaties and statutes. It does not discuss certain exceptions to these immunities that may apply to U.S. citizens and legal permanent residents who are employed by international organizations or foreign embassies or consulates. Among the pertinent legal authorities are the Vienna Convention on Consular Relations, the Vienna Convention on Diplomatic Relations, the International Organizations Immunities Act, the Convention on the Privileges and Immunities of the United Nations, and the Agreement Regarding the Headquarters of the United Nations. Included are charts that detail the specific types of jurisdiction and obligations from which various categories of diplomatic and consular personnel are immune under each of these authorities. |
Federal inspectors general (IGs) have been granted substantial independence and powers to combat waste, fraud, and abuse within designated federal departments and agencies. To execute their missions, offices of inspector general (OIGs) conduct and publish audits and investigations—among other duties. In some cases, employees within federal offices or inspectors general are vested with law enforcement authority. For the purposes of this report, law enforcement authority is generally defined as having the legal authority to carry a firearm while engaged in official duties; make an arrest without a warrant while engaged in official duties; and seek and execute warrants for arrest, search of premises, or seizure of evidence. According to some OIGs vested with law enforcement authority, these authorities are essential to certain missions of the office. In some cases, for example, OIG law enforcement officers conduct investigations that pose potential safety risks. This report provides a list of the statutes and regulations that are used to vest OIGs with law enforcement authority. It also provides resources that add context to what some OIGs say is a need for law enforcement authority in their offices. Each federal agency, including OIGs, has a unique mission, and, therefore, a unique purpose for its law enforcement authority. In some cases, especially when Congress and the public demonstrate concern about the agency's weapons procurement, an agency may release a public statement detailing its law enforcement authority and its need to acquire weapons or ammunition. For example, in August 2012, the Social Security Administration's (SSA's) OIG posted information on its blog explaining an ammunition purchase that garnered public attention. According to an excerpt from the post, Media reports expressed concerns over the type of ammunition ordered. In fact, this type of ammunition is standard issue for many law enforcement agencies. OIG's special agents use this ammunition during their mandatory quarterly firearms qualifications and other training sessions, to ensure agent and public safety. Additionally, the ammunition our agents use is the same type used at the Federal Law Enforcement Training Center. In another, more recent example, the U.S. Department of Agriculture's (USDA's) OIG received inquiries about OIG solicitations for weapons and body armor. The procurement pertained to the OIG's effort to replace automatic firearms with new semi-automatic firearms. On May 19, 2014, Mr. Paul Feeney, deputy counsel at the OIG, sent the following response to questions about the procurement: The Inspector General Act of 1978 authorized OIG to, among other duties, pursue criminal activity, fraud, and abuses impairing USDA's program and operations. The criminal investigation responsibilities and impact of OIG are quite extensive—from fiscal year 2012 through March 2014, OIG investigations pertaining to USDA operations have obtained over 2,000 indictments, 1,350 convictions, and over $460 million in monetary results. OIG Special Agents are authorized to make arrests, execute warrants, and carry firearms. Regarding the need for weapons' procurements, and for defensive vests, USDA OIG's Investigations division conducts hundreds of criminal investigations each year, some of which involve OIG agents, USDA employees, and/or members of the public facing potentially life threatening situations. OIG special agents regularly conduct undercover operations and surveillance. The types of investigations conducted by OIG special agents include criminal activities such as fraud in farm programs; significant thefts of Government property or funds; bribery and extortion; smuggling; and assaults and threats of violence against USDA employees engaged in their official duties. Generally, there are three ways that an OIG can be vested with law enforcement authority. First, and most commonly, an OIG can be vested with law enforcement explicitly pursuant to Section 6(e)(3) of the IG Act of 1978, as amended (5 U.S.C. (IG Act) Appendix, Section 6(e)(4); hereinafter referred to as the IG Act). Second, an OIG can be vested with law enforcement authority by the Attorney General pursuant to criteria articulated in several provisions of Section 6(e) of the IG Act of 1978. Third, an OIG can be vested with law enforcement authority pursuant to statute outside of the IG Act of 1978, as is the case with six federal entities described below. As shown in Table 1 , the IG Act provides direct law enforcement authority to 25 federal entities explicitly named in Section 6(e)(3) of the act. As noted earlier, pursuant to Section 6 of the IG Act, the Attorney General is authorized to delegate law enforcement authority when 1. an OIG "is significantly hampered in the performance of responsibilities ... as a result of the lack of such powers"; 2. "assistance from other law enforcement agencies is insufficient to meet the need for such powers"; and 3. "adequate internal safeguards and management procedures exist to ensure proper exercise of such powers" (5 U.S.C. (IG Act) Appendix, Section 6(e)(2)). The Attorney General has vested the OIGs within the 10 agencies listed below with law enforcement authority. The National Archives and Records Administration Amtrak The Peace Corps The Board of Governors of the Federal Reserve and Consumer Financial Protection Bureau The Corporation for National and Community Service The Export-Import Bank of the United States The National Science Foundation The Federal Housing Finance Agency The Securities and Exchange Commission Special Inspector General for Afghanistan Reconstruction. The IG Act authorizes the Attorney General to promulgate guidelines "that govern the use of law enforcement powers" for these OIGs. On December 8, 2003, then-Attorney General John Ashcroft promulgated such guidelines, providing OIGs further detail on their law enforcement authorities' scope and limitations. Within these guidelines, Mr. Ashcroft wrote that employees within the OIGs who qualify for law enforcement authority are required to complete various training, including the Basic Criminal Investigator Training Program (or equivalent) and initial and "refresher firearms training and qualification." OIGs are also required to heed the Department of Justice's (DOJ's) deadly force policy. According to Mr. Ashcroft's guidelines, OIGs vested with law enforcement authority through the IG Act must provide "periodic refresher" training in trial processes; federal criminal and civil legal updates; interviewing techniques and policy; law of arrest, search, and seizure; and physical conditioning and defensive tactics. Additionally, the OIGs are responsible for following other DOJ law enforcement related policies and guidelines, must consult with DOJ before using electronic surveillance, and must receive other approval before beginning an undercover investigation. As shown in Table 2 , five additional OIGs are provided law enforcement authority through laws outside of the IG Act. The Department of Justice's Bureau of Justice Statistics maintains a Census on Federal Law Enforcement Officers , which includes data on the number of federal employees who are authorized to carry firearms. The most recent report available states that 33 OIGs had a total of 3,501 agents who were authorized to carry firearms in September 2008. Additionally, the report states that no law enforcement officers within an OIG were assaulted or injured in 2008. | Federal inspectors general (IGs) have been granted substantial independence and powers to combat waste, fraud, and abuse within designated federal departments and agencies. To execute their missions, offices of inspector general (OIGs) conduct and publish audits and investigations—among other duties. Established by public law as permanent, nonpartisan, and independent offices, OIGs exist in more than 70 federal agencies, including all departments and larger agencies, along with numerous boards and commissions and other entities. Many OIGs have been vested with law enforcement authority to assist their investigations. This report provides background on federal offices of inspectors general and their law enforcement authorities in investigations. In this report, law enforcement authority is generally defined as having the legal authority to carry a firearm while engaged in official duties; make an arrest without a warrant while engaged in official duties; and seek and execute warrants for arrest, search of premises, or seizure of evidence. This report identifies the laws and regulations that vest certain OIGs with law enforcement authority, which permits the use of guns and ammunition. This report also describes some of the requirements and expectations of OIGs that have law enforcement authority, and includes some reasons that OIGs have expressed a need for law enforcement authority. |
The Hardest Hit Fund (HHF), created in 2010, is one of several temporary programs that were established to help prevent home mortgage foreclosures in the wake of housing and mortgage market turmoil that began around 2007-2008. It provided funding to 19 states (including the District of Columbia) to design locally tailored initiatives to prevent home foreclosures. While many of the temporary programs that were established to help households facing foreclosure have since ended, the HHF remains active. Participating states have until December 31, 2020 to use their HHF funds. The HHF was established administratively by the Department of the Treasury using authority provided to it under the Emergency Economic Stabilization Act of 2008 (EESA, P.L. 110-343 ). EESA was enacted in response to financial market turmoil in the fall of 2008. It established the Troubled Asset Relief Program (TARP), which authorized the Secretary of the Treasury to purchase or insure up to $700 billion in troubled assets owned by financial institutions. EESA also contained language indicating that the purposes of the act included, among other things, protecting home values and preserving homeownership. EESA provided the Treasury Secretary with broad authority in how to implement TARP, including wide latitude in deciding what assets might be purchased or guaranteed and what qualified as a financial institution. Using this broad authority, and to comply with the homeownership preservation purposes of EESA, Treasury used some TARP funds to create certain programs designed to prevent home foreclosures, including the HHF. The programs are designed in such a way to qualify as activities authorized by EESA. Treasury set aside a total of $37.5 billion in TARP funds to use for foreclosure prevention initiatives. Of this amount, $9.6 billion was provided to the HHF. This funding was allocated to selected states through five rounds of funding. The first four rounds of funding—a total of $7.6 billion—were allocated in 2010. Treasury's authority to make additional commitments of TARP funds expired on October 3, 2010, meaning that it did not have the authority to provide additional TARP funds to the HHF after that date. However, in December 2015 the Consolidated Appropriations Act, 2016 ( P.L. 114-113 ) authorized Treasury to make up to an additional $2.0 billion in unused TARP funds available to the HHF. Treasury allocated this additional $2.0 billion to the HHF states in 2016, bringing the total amount of HHF funding to $9.6 billion. Table 1 shows the 19 states (including DC) that received funds through the HHF and the total amount that was allocated to each state through the five rounds of funding. The HHF was intended to provide funding to certain states that were deemed to be the "hardest hit" by the turmoil in housing and financial markets that started in 2007-2008, based on features such as house price declines or high unemployment rates. Funding was allocated through five rounds using different criteria to identify eligible states and allocate funds among the eligible states. The first four rounds took place in 2010. The fifth round took place in 2016 after Congress authorized Treasury to allocate additional unused TARP funds to the program. Round One: In February 2010, Treasury made a total of $1.5 billion available to five states that had experienced the greatest declines in home prices as of December 2009: California, Arizona, Florida, Nevada, and Michigan. Round Two: In March 2010, Treasury made a total of $600 million available to five states that had large proportions of their populations living in areas of economic distress, defined as counties with average unemployment rates above 12% in 2009: North Carolina, Ohio, Oregon, Rhode Island, and South Carolina. (The five states that received funding in the first round were not eligible.) Round Three: In August 2010, Treasury made a total of $2 billion available to 17 states and the District of Columbia, all of which had unemployment rates at or above the national average between June 2009 and June 2010. Nine of the states that received funds through one of the previous rounds (all but Arizona) also received funding in the third round. The states that received funding for the first time in the third round were Alabama, Georgia, Illinois, Indiana, Kentucky, Mississippi, New Jersey, Tennessee, and the District of Columbia. Round Four: In September 2010, Treasury provided a total of $3.5 billion to the 19 states (including DC) that had received funding in earlier rounds. A total of $7.6 billion was provided to states through the first four rounds. In early 2016, after Congress authorized Treasury to provide an additional $2 billion in TARP funds to the program, Treasury allocated this amount to participating states through two phases: Round 5, Phase 1: In February 2016, Treasury allocated $1 billion to participating states based on their population and utilization of previous HHF funds. States had to have used at least 50% of the HHF funding they previously received to be eligible for this funding. Each participating state except Alabama received additional funding in this phase. (Alabama had not used 50% of its previously allocated HHF funds.) Round 5, Phase 2: In April 2016, Treasury allocated $1 billion competitively to participating states. All but six participating states received additional funds through this phase. Five states did not apply for funding (Alabama, Arizona, Florida, Nevada, and South Carolina), while one state (Georgia) applied but did not receive any funding. HHF funds are provided to state housing finance agencies (HFAs) to use for designing programs that address foreclosures and are tailored to local conditions. For example, a state that had experienced steep decreases in house prices might choose to use funds to reduce the principal balances of certain mortgages, while a state experiencing high unemployment might want to use funds to provide temporary mortgage assistance to unemployed homeowners. The programs designed by states must meet the requirements of EESA and be approved by Treasury. In addition, states that received funding through the third round of the HHF must use that funding specifically for foreclosure prevention programs that target the unemployed. As of December 2016, there were over 80 HHF programs in the 19 states (including DC) that received HHF funding. (Every participating state was using funds for at least two types of programs, and many states were using funds for several different types of programs.) The most common types of state HHF programs have included the following (details and eligibility criteria vary by state): Mortgage Modification : Facilitating modifications of eligible borrowers' mortgage terms. Principal Reduction: Reducing mortgage principal as part of a sustainable mortgage modification or refinance. Mortgage Reinstatement: Providing funds to help eligible borrowers who have regained the ability to make regular monthly payments bring a mortgage current. Unemployment Assistance: Helping eligible unemployed or underemployed borrowers make monthly mortgage payments for a period of time. Transition Assistance: Providing relocation payments or other assistance to eligible borrowers to facilitate a short sale or deed-in-lieu of foreclosure (foreclosure alternatives that result in the borrower losing the home but avoiding the foreclosure process). Second Lien Assistance: Providing assistance to eligible borrowers to modify or extinguish a second mortgage on the property in conjunction with a modification of a primary mortgage or to facilitate a short sale. Blight Elimination: Providing funds to demolish or otherwise address vacant and abandoned homes. Removing vacant and abandoned homes may help avoid negative impacts on nearby home values, which in turn could help prevent additional foreclosures. Down Payment Assistance: Providing funds for down payment assistance in an effort to prevent foreclosures by encouraging home buying activity in certain areas. In addition, states can use funds for other types of foreclosure prevention programs that are approved by Treasury. For example, states have used HHF funds for programs that help households avoid foreclosure by providing assistance to homeowners with reverse mortgages and assistance to pay tax liens. States can continue to make changes to their HHF programs, subject to Treasury's approval. As of December 2016, participating states had drawn about $7 billion of the total $9.6 billion HHF allocation from their Treasury accounts. Of that amount, they had disbursed a total of about $5.8 billion. Of the participating states, Oregon has disbursed the highest share of its HHF funding (about 80%) while Alabama has disbursed the smallest share (just over 30%). According to Treasury data, over 290,000 homeowners had been assisted through the HHF as of December 2016. This number does not include blighted properties that have been removed through some states' blight elimination programs. Treasury does not have the authority to commit additional TARP funds to the HHF. Therefore, there will be no additional funding for the program without congressional action. However, if participating states do not meet certain spending deadlines, Treasury may rescind some of their funds and reallocate them to other participating states. States that are participating in the HHF were originally required to use their HHF funds by December 31, 2017, a deadline set by Treasury. However, when it allocated the fifth round of funding, Treasury extended the deadline for using HHF funds to December 31, 2020. More information on the HHF is available on Treasury's website. In particular, Treasury's quarterly Program Performance Summaries provide information on how participating states are using their funds and the amount of funding each state has disbursed to date. Treasury's website also includes links to state websites, which provide more information on specific state HHF programs and how eligible homeowners can apply. The Special Inspector General for the Troubled Asset Relief Program (SIGTARP) provides oversight of TARP programs, including the HHF, in quarterly reports and audit reports. | The Hardest Hit Fund (HHF), administered by the Department of the Treasury, is one of several temporary programs that were created to help prevent home foreclosures in the aftermath of housing and mortgage market turmoil that began around 2007-2008. It provided a total of $9.6 billion in Troubled Asset Relief Program (TARP) funds to 19 states (including the District of Columbia) that were deemed to be "hardest hit" by the housing market turmoil, as defined by factors such as house price declines or unemployment rates. In 2010, a total of $7.6 billion was allocated to selected states through four rounds of funding. Different funding rounds used different criteria to identify eligible states. In December 2015, the Consolidated Appropriations Act, 2016 (P.L. 114-113) authorized Treasury to make up to an additional $2.0 billion in unused TARP funds available to the HHF, bringing total program funding to $9.6 billion. Treasury allocated this additional funding to the states that were already participating in the HHF through two phases in 2016. The Hardest Hit Fund is intended to provide funds to participating states to design foreclosure prevention programs that respond to local conditions. Participating states are using their funds for a variety of programs, including mortgage modifications, helping unemployed homeowners with mortgage payments, facilitating short sales and other foreclosure alternatives, and removing blighted homes, among other programs. Most participating states are using their funding for several different types of programs. As of December 2016, participating states had disbursed about $5.8 billion of the total $9.6 billion allocated to the HHF and assisted over 290,000 homeowners. States have until December 31, 2020, to use their HHF funds. |
On March 2, 2009, the House Judiciary Committee reported the District of Columbia House Voting Rights Act of 2009, H.R. 157 (111 th Congress). The bill, as amended ( H.Rept. 111-22 ), among other provisions, would expand the U.S. House of Representatives by two members to a total of 437 members. The first of these two new seats would be allocated to create a voting member representing the District of Columbia. The second seat would be assigned in accordance with 2000 census data and existing federal law, resulting in the addition of a fourth congressional seat in the state of Utah that would be a temporary at-large district. No further action was taken by the House. On February 26, 2009, the Senate passed a related bill, S. 160 , by a vote of 61-37. During the 110 th Congress, the House passed similar legislation, H.R. 1905 , by a vote of 241 to 177. A similar bill, S. 1257 , was considered by the Senate, but a motion to invoke cloture failed by a vote of 57 to 42. This report discusses the constitutionality of the aspect of this legislation that would create an at-large congressional district. For discussion of other issues relating to this legislation, see CRS Report RL33824, The Constitutionality of Awarding the Delegate for the District of Columbia a Vote in the House of Representatives or the Committee of the Whole , by [author name scrubbed]; CRS Report RS22579, District of Columbia Representation: Effect on House Apportionment , by [author name scrubbed]; and CRS Report RL33830, District of Columbia Voting Representation in Congress: An Analysis of Legislative Proposals , by [author name scrubbed]. The U.S. Constitution provides the states with primary authority over congressional elections, but grants Congress the final authority over most aspects of such elections. This congressional power is at its most broad in the case of House elections, which have historically been decided by a system of popular voting. Article I, § 4, cl. 1 provides that The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. The Supreme Court and lower courts have interpreted this language to mean that Congress has extensive power to regulate most elements of congressional elections, including a broad authority to protect the integrity of those elections. The Constitution does not specify how members of the House are to be elected once they are apportioned to a state. Originally, most states having more than one Representative divided their territory into geographic districts, permitting only one member of Congress to be elected from each district. Other states, however, allowed House candidates to run at-large or from multi-member districts or from some combination of the two. In those states employing single-member districts, however, the problem of gerrymandering, the practice of drawing district lines in order to maximize political party advantage, quickly arose. Accordingly, Congress began establishing standards for House districts. Congress first passed federal redistricting standards in 1842, when it added a requirement to the apportionment act of that year that Representatives "should be elected by districts composed of contiguous territory equal in number to the number of Representatives to which each said state shall be entitled, no one district electing more than one Representative." (5 Stat. 491.) The Apportionment Act of 1872 added another requirement to those first set out in 1842, stating that districts should contain "as nearly as practicable an equal number of inhabitants." (17 Stat. 492.) A further requirement of "compact territory" was added when the Apportionment Act of 1901 was adopted stating that districts must be made up of "contiguous and compact territory and containing as nearly as practicable an equal number of inhabitants." (26 Stat. 736.) Although these standards were never enforced if the states failed to meet them, this language was repeated in the 1911 Apportionment Act and remained in effect until 1929, with the adoption of the Permanent Apportionment Act, which did not include any districting standards. After 1929, there were no congressionally imposed standards governing congressional redistricting; in 1941, however, Congress enacted a law providing for various contingencies if states failed to redistrict after a census—including at-large representation. (55 Stat 761.) In 1967, Congress reimposed the requirement that Representatives must run from single-member districts, rather than running at-large. (81 Stat. 581.) Both the 1941 and 1967 laws are still in effect, codified at 2 U.S.C. §§ 2a and 2c. In Branch v. Smith , the Supreme Court considered the operation and inherent tension between these two provisions. The question of congressional authority was not in dispute in this litigation. Rather, the Court noted in passing that the current statutory scheme governing apportionment of the House of Representatives was enacted in 1929 pursuant to congressional authority under the "Times, Places and Manner" provision of the Constitution. Consequently, it seems likely that Congress has broad authority, within specified constitutional parameters, to establish how members' districts will be established, including the creation of at-large districts. It might be suggested that creating an at-large congressional district in a state could violate the "one person, one vote" standard established by the Supreme Court in Wesberry v. Sanders. In Wesberry , the Supreme Court first applied the one person, one vote standard in the context of evaluating the constitutionality of a Georgia congressional redistricting statute that created a district with two to three times as many residents as the state's other nine districts. In striking down the statute, the Court held that Article I, section 2, clause 1, providing that Representatives be chosen "by the People of the several States" and be "apportioned among the several States ... according to their respective Numbers," requires that "as nearly as is practicable, one man's vote in a congressional election is to be worth as much as another's." While it is not beyond dispute, it does not appear that the creation of an at-large district under the circumstances outlined in H.R. 157 would be interpreted to create a conflict with the "one person, one vote" standard. Under H.R. 157 , each Utah voter would have the opportunity to vote both for a candidate to represent his or her congressional district as well as for a candidate to represent the state at-large. Each person's vote for an at-large candidate would be of equal worth. Further, each person's vote for an at-large candidate would not affect the value of his or her vote for a candidate representing a congressional district. Accordingly, all Utah residents' votes would have equal value, thereby arguably comporting with the one person, one vote principle. Based on the authority granted to Congress under the Constitution to regulate congressional elections and relevant Supreme Court precedent, it appears that a federal law establishing a temporary at-large congressional district would likely be upheld as constitutional. | This report discusses the constitutionality of legislation, such as the District of Columbia House Voting Rights Act of 2009, H.R. 157 (111th Congress), that would create an at-large congressional district. While it is not without doubt, based on the authority granted to Congress under the Constitution to regulate congressional elections and relevant Supreme Court precedent, it appears that federal law establishing a temporary at-large congressional district would likely be upheld as constitutional. H.R. 157, among other provisions, would expand the U.S. House of Representatives by two members to a total of 437 members. The first of these two new seats would be allocated to create a voting member representing the District of Columbia. The second seat would be assigned in accordance with 2000 census data and existing federal law, resulting in the addition of a fourth congressional seat in the state of Utah that would be a temporary at-large district. On March 2, 2009, the House Judiciary Committee reported the bill, as amended (H.Rept. 111-22), but no further action was taken by the House. On February 26, 2009, the Senate passed a related bill, S. 160, by a vote of 61-37. During the 110th Congress, the House passed similar legislation, H.R. 1905, by a vote of 241 to 177. A companion bill, S. 1257, was considered by the Senate, but a motion to invoke cloture failed by a vote of 57 to 42. |
NATO held a summit in Bucharest, Romania, April 2-4, 2008. The allies face an enduring challenge in their effort to stabilize Afghanistan, and clarified elements of the mission there. The allies decided to begin negotiations to admit Croatia and Albania, but a dispute over the formal name of the Former Yugoslav Republic of Macedonia (FYROM) with Greece was not resolved, and Macedonia's possible accession was postponed. A last-minute initiative by President Bush to persuade the allies to admit Georgia and Ukraine to the Membership Action Plan (MAP) failed. A principal theme of the summit was to be the clarification of NATO's mission., but no definable progress was made. The allies will not begin drafting a new "Strategic Concept," the guideline for NATO's operation, until next year. The alliance's role and the sharing of the burden for such objectives as defense against terrorism and proliferation of WMD, stabilization of countries and regions important to allied security, and peacekeeping are issues likely to be more fully debated in the drafting of a Strategic Concept. NATO has found difficulty in drawing the line between missions that directly threaten their security, and ones that require a less robust intervention, or that can be left to other international organizations. Some allies also wish to discuss the strategic ramifications of enlargement in that coming debate. Above all, NATO's effort to stabilize Afghanistan is proving a test of allied capabilities and political will. Under a U.N. mandate, NATO has an International Security Assistance Force (ISAF) in Afghanistan that is simultaneously combating a resurgent Taliban and attempting to stabilize the country through an ambitious rebuilding program. Some allies have proven reluctant to send combat forces to engage the Taliban, and have their forces instead in more secure areas of the country. This reluctance has led to sharp criticism by allies, such as the United States, Canada, Britain, the Netherlands, and Denmark, which have suffered casualties to their forces that are frequently engaged in combat. The allies now have approximately 42,000 troops in Afghanistan, as well as 25 Provincial Reconstruction Teams (PRTs). PRTs are the core of NATO's effort to rebuild Afghanistan by constructing schools, roads, and hospitals, and urging national and local leaders to improve governance. A continuing problem is Afghanistan's narcotics trade, which continues to expand, and to fuel the Taliban insurgency as well. The allies agreed to a "strategic vision" statement on Afghanistan. The statement commits the allies to remain in Afghanistan for an extended period; improve governance in the country through greater training of Afghan officials, including the police; pursue a "comprehensive approach" to stabilization that will include combat and economic reconstruction; and take initiatives to improve relations with Afghanistan's neighbors, particularly Pakistan, to counter extremism and the narcotics industry. The document did not commit governments to accept a greater share of the combat burden. France pledged to send 700 more combat troops to eastern Afghanistan, and several governments agreed to send more forces, but in small numbers. A second theme of the summit was discussion of the means by which NATO might counter emerging threats that often escape a purely military response. In spring 2007, a cyber attack against Estonia's government and banking system seriously disrupted them for a period of time. The Estonian government states that it traced the attacks to Russian governmental sources. In Bucharest, the allies agreed to greater sharing of information about cyber threats and began to discuss ways to counter them. For the last several years, Russia has intermittently disrupted the flow of oil or natural gas to Ukraine, Georgia, Lithuania, and other countries, a step widely viewed in the alliance as an effort at political intimidation. The summit did not result in major steps forward on this issue, but allied officials did travel to Kazakhstan after the summit ended, reportedly to discuss ways in which NATO might protect that country's energy infrastructure in a crisis. Most NATO governments continue to wish to address energy security through conservation, development of alternative fuels, and strengthening the supply-demand relationship with countries such as Russia. The allies are not at the point where either a cyber attack or disruption of energy supplies would be considered an Article V crisis, leading to a call for mutual defense. NATO is also engaged in a continuing debate over missile defense. The Bush Administration has proposed a site in Poland with10 interceptors and an associated radar system in the Czech Republic. The Administration contends that the sites would assist in the defense of NATO Europe and the United States against a developing Iranian missile threat. Russia contends that the sites are directed against its ballistic missiles. Public opinion in Poland and the Czech Republic opposes the sites. Warsaw is insisting that the United States provide resources to upgrade Poland's air defense system, in the event that the interceptors' presence provokes an attack. At the summit, the United States and the Czech Republic signed an agreement to place the radar site on Czech territory. The allies agreed at head-of-government level to positions on missile defense that they had previously taken more informally. The summit communiqué recognizes that "ballistic missile proliferation poses an increasing threat to" NATO, and that U.S. "missile defense assets" could make a "substantial contribution" to protection from long-range missiles, but did not name the country or countries from which the threat might come. NATO has been studying several ballistic missile defense systems for protection largely of forces in the field. NATO will continue to study how these systems might be "bolted on" to the U.S. system to provide protection for all allied space, but did not make a final determination which system, if any, might be appropriate, nor was any decision made on how the NATO system(s) might be funded. Some critics contend that the U.S. system is too rudimentary to counter a possible ballistic missile attack, and that extensive further testing is warranted before the system should be put in place. At a congressional hearing on April 23, one Member questioned why the Europeans will not contribute to the funding of the U.S. system, if it is intended to protect Europe and if in fact it is a capable system. The third principal issue at Bucharest was the candidacies of Albania, Croatia, and Macedonia for entry into the alliance, and the request by Georgia and Ukraine to be placed in NATO's Membership Action Plan, a significant step on the road to formal candidacy. None of the three candidate states has sufficiently large and capable military forces to contribute significantly to allied operations. Each is in the process of developing specialized "niche" capabilities in order to contribute to allied security. In that sense, their membership would not represent a major strategic event. However, given the continuing instability in southeastern Europe, fueled by Serbia's aggressive opposition to Kosovo's independence, the three candidates might contribute to regional stability. The allies extended invitations to Croatia and Albania. Under its Membership Action Plan (MAP), Croatia has made improvements in governance and in modernization of its military. Less progress has been made in persuading a strong majority of the Croatian population to desire NATO membership, a cause for concern in the event that NATO should undertake a new and controversial mission. Almost 60% of the Croatian population now supports NATO membership, a figure that has been rising in recent months. Croatia has recognized Kosovo. Zagreb could be an important channel for discussions to bring Serbia back into the fold of western-oriented European states. Albania is a small and impoverished country; its military resources are modest. OSCE reports on its recent elections detail a number of irregularities that call into question its adherence to international standards. The internal political atmosphere remains tense because of inter-party rivalries. The Albanian government is in the process of professionalizing and downsizing its military. While Albania has passed anti-corruption legislation, there remain doubts in the minds of some officials from allied governments about implementation. At the same time, Albania has pursued a moderate policy in the wake of Kosovo's declaration of independence. Albania has recognized Kosovo, and has renounced any effort to merge the two countries, once a point of concern in Europe because of the overwhelmingly ethnic Albanian population in Kosovo. NATO is in the process of preparing protocols for the two governments; the protocols will be sent to member governments, and are the instrument that must be approved for Croatia and Albania to join the alliance. The protocols may be completed by the end of July. At that point, each member government will follow its constitutional processes to amend the NATO Treaty and admit new states. All member states must approve a government's application to join for that government to be admitted. The process normally requires approximately one year to complete. A dispute with Greece over Macedonia's name could not be resolved between the two countries, and Athens blocked Macedonia's application to begin accession negotiations. Greece contends that Macedonia's name represents an irredentist claim against Greek territory, which has a northeastern province named 'Macedonia.' Macedonian officials counter that they should have the right to name their own country, that they have amended the Macedonian constitution to renounce all territorial claims on Greece. The allies urged the two governments to resolve the dispute, and gave NATO foreign ministers the authority to issue an invitation to Macedonia to begin accession talks should a resolution occur. To complicate possible progress, the Macedonian government fell after the summit and some time may pass before it can be reconstituted. A contentious discussion at Bucharest occurred over whether to admit Georgia and Ukraine to the MAP. U.S. State Department officials have contended that only Germany opposed the MAP for the two governments because Berlin was concerned about a negative reaction in Moscow to putting two neighboring countries on the road to membership. However, interviews of representatives of allied governments indicate a more complicated discussion, and broader opposition. NATO makes decisions on the basis of consensus, and a vote is sometimes not taken on an issue that cannot be fully resolved. That was the case in this instance. According to CRS interviews, in addition to Germany, representatives of France and at least two other governments indicated that they wish the MAP process to go more slowly; they opposed Georgia's and Ukraine's entry into the MAP at this time. Several other governments also opposed the MAP for Georgia and Ukraine but would not have blocked consensus had it been within reach, which it was not. While some governments indicated a desire not to antagonize Russia, they said that larger issues were also considered. A majority of Ukraine's population opposes NATO membership; some allies believe that Kiev must persuade its population of the value of membership before the MAP process can begin. Some allies also believe that Georgia must first stage its parliamentary elections in May and achieve acceptable international standards, and that it must make progress on resolving its two "frozen" conflicts within its territory. Some allies also raised another subject, not directly related to the two countries' qualifications. These allies believe that progress must be made to ensure greater energy security in countries vulnerable to a Russian cut-off of their energy resources. Representatives of several allied governments criticized the Administration's handling of the MAP issue. They noted that several allies had clearly indicated before the summit their opposition to Georgia and Ukraine joining the MAP, and that President Bush's campaign in Georgia and Ukraine, and then at the summit, to persuade them to change their minds ignored their concerns. They also noted that their opposition to the MAP for the two countries went well beyond concern over Russia's possible reaction to a favorable decision. The allies agreed in the communiqué upon the unusual formulation, "We agreed today that these countries [Georgia and Ukraine] will become members of NATO." The allies apparently wished to signal their confidence in the ability of the two countries' governments to make the necessary reforms to qualify for membership. The statement was also an obvious message to Moscow that it may not determine which governments enter NATO. The allies did not provide a time frame for eventual membership. NATO carried out a bombing campaign against Serbian forces in 1999 in a successful attempt to stop Serb "ethnic cleansing" of the majority Albanian population in Kosovo, then a Serbian province. Under U.N. Security Council Resolution 1244 (1999), the United Nations established a protectorate mission (UNMIK) in Kosovo. In 2006-2007, U.N. envoy Martti Ahtisaari developed a plan for Kosovo's "supervised independence" and Serbian minority rights under EU leadership. Russia would not accept the Ahtisaari plan, and threatened to veto it in the Security Council. After long preparation, the European Union and the United States together decided to implement the Ahtisaari plan. Kosovo declared itself sovereign and independent on February 17, 2008. The United States and a majority of EU countries quickly followed with a recognition of Kosovo's independence, which Serbia and Russia continue to oppose. The United States contributes approximately 1,600 troops (in a force of 16,000) to NATO's KFOR, charged with maintaining a peaceful environment in Kosovo. A long-term objective of the alliance is to persuade Serbia that its future lies in the Euro-Atlantic community, and that it must give up what NATO Secretary General Jaap De Hoop Scheffer calls "a sullen nationalism." The allies acknowledged "the value that a stronger and more capable European defense brings, providing capabilities to address the common challenges both NATO and the EU face." This acknowledgment may assist in preparing the way for France's return to NATO's Integrated Military Structure, which it left in 1966. Beginning July 2008 France will become president of the EU, and will likely make an effort to build up the Union's defense institutions and capabilities. Some governments had wished to begin drafting a new Strategic Concept to clarify NATO's mission. The Bush Administration contended that because there will be a new Administration in Washington in January 2010, debate over a new Strategic Concept should wait until early next year. | NATO held a summit in Bucharest, Romania, April 2-4, 2008. The summit did not become the occasion to adopt major new ideas or initiatives. A "Strategic Vision" paper on Afghanistan clarified several issues but did not lead to a greater sharing of the combat burden among NATO governments. Croatia and Albania, but not Macedonia, were invited to begin accession negotiations for membership. In a contentious debate, neither Georgia nor Ukraine were admitted to the MAP process. The debate over missile defense led to the consolidation of an evolving allied position. See also CRS Report RL34415, Enlargement Issues at NATO ' s Bucharest Summit , by [author name scrubbed] et al. This report will be updated as events warrant. |
In the early 1980s, U.S. satellites tracked a growing indigenous nuclear program in North Korea. A small nuclear reactor at Yongbyon (5MWe), capable of producing about 6kg of plutonium per year, began operating in 1986. Later that year, U.S. satellites detected high explosives testing and a new plant to separate plutonium. In addition, construction of two larger reactors (50MWe at Yongbyon and 200MWe at Taechon) added to evidence of a serious clandestine effort. Although North Korea had joined the Nuclear Nonproliferation Treaty in 1985, the safeguards inspections that began only in 1992 raised questions about how much plutonium North Korea had produced covertly. In 1994, North Korea pledged, under the Agreed Framework with the United States, to freeze its plutonium programs and eventually dismantle them in return for several kinds of assistance. At that time, Western intelligence agencies estimated that North Korea had separated enough plutonium for one or two bombs; other sources estimated four to five bombs. Acquiring fissile materialâplutonium-239 or highly enriched uranium (HEU)âis the key hurdle in nuclear weapons development. Producing these two materials is technically challenging; in comparison, many experts believe weaponization to be relatively easy. North Korea has industrial-scale uranium mining, and plants for milling, refining, and converting uranium; it also has a fuel fabrication plant, a nuclear reactor, and a reprocessing plantâin short, everything needed to produce Pu-239. In its nuclear reactor, North Korea uses magnox fuelânatural uranium (>99%U-238) metal, wrapped in magnesium-alloy cladding. About 8000 fuel rods constitute a fuel core for the reactor. When irradiated in a reactor, natural uranium fuel absorbs a neutron and then decays into plutonium (Pu-239). Fuel that remains in the reactor for a long time becomes contaminated by the isotope Pu-240, which can "poison" the functioning of a nuclear weapon. Spent or irradiated fuel, which poses radiological hazards, must cool after removal from the reactor. The cooling phase, estimated by some at five months, is proportional to the fuel burn-up. Reprocessing to separate plutonium from waste products and uranium is the next step. North Korea uses a PUREX separation process, like the United States. After shearing off the fuel cladding, the fuel is dissolved in nitric acid. Components (plutonium, uranium, waste) of the fuel are separated into different streams using organic solvents. In small quantities, separation can be done in hot cells, but larger quantities require significant shielding to prevent deadly exposure to radiation. North Korea appears to have mastered the engineering requirements of plutonium production. Its 5MWe nuclear reactor operated from 1986 to 1994, restarting in January 2003. North Korean officials claimed to have separated plutonium in hot cells and tested the reprocessing plant in 1990, and to have reprocessed all 8000 fuel rods from the 5MWe reactor between January and June 2003. The January 2004 unofficial U.S. delegation reported that "All indications from the display in the control room are that the reactor is operating smoothly now....However, we have no way of assessing independently how well the reactor has operated during the past year." The same delegation reported that the reprocessing "facility appeared in good repair," in contrast to a 1992 IAEA assessment of the reprocessing plant as "extremely primitive." In the end, however, significant growth in North Korea's arsenal depends on the completion of the two larger reactors and progress in the reported uranium enrichment program. In January 2004, North Korean officials showed an unofficial U.S. delegation alloyed "scrap" from a plutonium (Pu) casting operation. Alloying plutonium with other materials is "common in plutonium metallurgy to retain the delta-phase of plutonium, which makes it easier to cast and shape" (two steps in weapons production). Dr. Siegfried Hecker, a delegation member, assessed that the stated density of the material was consistent with plutonium alloyed with gallium or aluminum. If so, this could indicate a certain sophistication in North Korea's handling of Pu metal, but without testing the material, Hecker could not confirm that the metal was plutonium or that it was alloyed, or that it was from the most recent reprocessing campaign. There is no reliable information on North Korean nuclear weapons design. Although the U.S. Director of National Intelligence confirmed that a nuclear test was conducted on October 9, 2006 in the vicinity of P'unggye, the sub-kiloton yield of the test suggests that the weapon design or manufacturing process likely needs improvement. Environmental clues suggest that the device used plutonium. By comparison, a simple plutonium implosion device normally would produce a larger blast, perhaps 5 to 20 kilotons. The first nuclear tests conducted by other states range from 9 kt (Pakistan) to 60kt, but tests by the United States, China, Britain and Russia were in the 20kt-range. Implosion devices, which use sophisticated lenses of high explosives to compress fissile material, are generally thought to require testing, although the CIA suggested in 2003 that North Korea could validate its weapons design using extensive high explosives testing. It is possible that Pakistani scientist A.Q. Khan may have provided North Korea the same Chinese-origin nuclear weapon design he provided to Libya. If so, this might help North Korea develop a reliable warhead for ballistic missilesâsmall, light and robust enough to tolerate the extreme conditions encountered through a ballistic trajectory. Although former DIA Director Jacoby told the Senate Armed Services Committee in April 2005 that North Korea had the capability to arm a missile with a nuclear device, Pentagon officials later backtracked from that assessment. Most estimates of nuclear weapon stockpiles are based on estimated fissile material production. Factors in plutonium production include the average power level of the reactor; days of operation; how much of the fuel is reprocessed and how quickly, and how much plutonium is lost in production processes. According to North Korea, the 5MWe reactor performed poorly early on, unevenly irradiating the rods. There is no data on the reactor's current performance or the reprocessing facility's efficiency. North Korea told the IAEA that during the 1990 "hot test," it lost almost 30% of the plutonium in the waste streams. A key consideration is whether or not the reprocessing plant can run continuously, since frequent shutdowns can lead to plutonium losses. According to North Korean officials in January 2004, the plant annual throughput is 110 tons of spent fuel, about twice the fuel load of the 5MWe reactor. A final factor in assessing how many weapons North Korea can produce is whether North Korea's technical sophistication enables it to use more or less material than the international standards of 8kg of Pu and 25kg for HEU per weapon. North Korea's abilities here are unknown. Secretary of State Powell stated in December 2002 that "We now believe they [North Koreans] have a couple of nuclear weapons and have had them for years." On February 10, 2005, North Korea announced that it had manufactured "nukes" for self-defense and that it would bolster its nuclear weapons arsenal. In June 2005, Vice Foreign Minister Kim Gye Gwan told ABC News that "We have enough nuclear bombs to defend against a U.S. attack. As for specifically how many we have, that is a secret." Kim also said North Korea was building more bombs and when asked about delivery systems, said "our scientists have the knowledge, comparable to other scientists around the world." Some Members of Congress interpreted then-CIA Director Porter Goss' statements in March 2005 on a "range" of nuclear weapon estimates to confirm that North Korea's arsenal has multiplied. In December 2005, the North Korean foreign ministry stated that it would "increase [its] self-reliant national defense capacity, including nuclear deterrent." In October 2006, North Korea's Foreign Ministry said that "nuclear weapons will serve as [a] reliable war deterrent." On July 13, 2003, North Korean officials told U.S. officials in New York that they had completed reprocessing the 8000 fuel rods on June 30. On January 8, 2004, North Korean officials told an unofficial U.S. delegation that the reprocessing campaign began in mid-January 2003 and ended at the end of June 2003. In all, they reportedly reprocessed 50 tons of spent fuel in less than six months, which tracks with earlier estimates that North Korea could reprocess about 11 tons/month, roughly enough plutonium for one bomb per month. An unofficial U.S. delegation in January 2004 concluded that the spent fuel pond no longer held the 8,000 fuel rods and surmised that they could have been moved to another storage location, but not without significant health and safety risks. The delegation was not allowed to visit the Dry Storage Building, where the fuel rods likely would have been stored before reprocessing. The delegation also did not visit waste facilities. Reprocessing the 8,000 fuel rods from the 5MWe reactor would yield between 25 and 30kg of plutonium, perhaps for four to six weapons, but the exact amount of plutonium that might have been reprocessed is unknown. In 2004, North Korean officials stated that the reprocessing campaign was conducted continuously (four 6-hour shifts). U.S. efforts to detect Krypton-85 (a by-product of reprocessing) reportedly suggested that some reprocessing had taken place, but were largely inconclusive. On February 6, 2003, North Korean officials announced that the 5MWe reactor was operating, and commercial satellite photography confirmed activity in March. In January 2004, North Korean officials told U.S. visitors that the reactor was now operating smoothly at 100% of its rated power. The U.S. visitors noted that the display in the reactor control room and steam plumes from the cooling towers confirmed operation, but that there was no way of knowing how it had operated over the last year. In April 2005, the reactor was shut down, and on May 11, 2005, North Korean officials stated they harvested fuel rods for weapons. According to commercial satellite images, the reactor resumed operations in August 2005. A common estimate is that the reactor generates 6 kg of Pu per year, roughly one bomb per year, but the reactor would likely be operated for several years before fuel is withdrawn. One estimate is that the reactor held between 10 and 15 kg Pu in April 2005, and that North Korea could have reprocessed all the fuel by mid-2006. From August 2005 to 2006, the reactor could have produced another 6 kg of Pu; in total, there could be enough separated plutonium for another three weapons. The reactors at Yongbyon (50MWe) and Taechon (200MWe) are likely several years from completion. U.S. visitors in January 2004 saw heavy corrosion and cracks in concrete building structures at Yongbyon, reporting that the reactor building "looks in a terrible state of repair." The CIA estimates that the two reactors could generate about 275kg of plutonium per year. In August 2005, another unofficial U.S. delegation to Pyongyang was told by North Korean officials that they planned to finish building the 50MWe reactor within two years. Commercial satellite images in 2005 and 2006 showed little progress. A 2002 unclassified CIA working paper on North Korea's nuclear weapons and uranium enrichment estimated that North Korea "is constructing a plant that could produce enough weapons-grade uranium for two or more nuclear weapons per year when fully operationalâwhich could be as soon as mid-decade." Such a plant would need to produce more than 50kg of HEU per year, requiring cascades of thousands of centrifuges. The paper noted that in 2001, North Korea "began seeking centrifuge-related materials in large quantities." Pakistani President Musharraf revealed in his September 2006 memoir, In the Line of Fire , that "Doctor A.Q. Khan transferred nearly two dozen P-1 and P-2 centrifuges to North Korea. He also provided North Korea with a flow meter, some special oils for centrifuges, and coaching on centrifuge technology, including visits to top-secret centrifuge plants." However, the United States has not been able get direct confirmation from Khan. Questions have been raised about whether U.S. estimates were accurate. In a hearing before the Senate Armed Services Committee on February 27, 2007, Joseph DeTrani, the mission manager for North Korea from the Office of the Director of National Intelligence, was asked by Senator Reed whether he had "any further indication of whether that program has progressed in the last six years, one; or two, the evidenceâthe credibility of the evidence that we had initially, suggesting they had a program rather than aspirations?" DeTrani responded that "the assessment was with high confidence that, indeed, they were making acquisitions necessary for, if you will, a production-scale program. And we still have confidence that the program is in existenceâat the mid-confidence level." Information about North Korea's nuclear weapons production has depended on remote monitoring and defector information, with mixed results. Satellite images correctly indicated the start-up of the 5MWe reactor, but gave no details about its operations. Satellites also detected trucks at Yongbyon in late January 2003, but could not confirm the movement of spent fuel to the reprocessing plant; imagery reportedly detected activity at the reprocessing plant in April 2003, but could not confirm large-scale reprocessing; and, satellite imagery could not peer into an empty spent fuel pond, which was shown to U.S. visitors in January 2004. Even U.S. scientists visiting Pyongyang in January 2004 could not confirm North Korean claims of having reprocessed the spent fuel or that the material shown was in fact plutonium. Verifying those claims would require greater access to the material and North Korean cooperation. This is particularly true in the case of uranium enrichment; U.S. intelligence officials have said they do not know where the uranium program is and more recently, have shown less confidence about what the scope of the program might be. Although seismographs registered the October 9 th detonation, and environmental sampling confirmed radioactivity, there is still no information on what North Korea intended to accomplish with the test, from technical, security, political, and diplomatic perspectives. More data is necessary to project what this "new" capability might mean for North Korea, the region, and the United States. | On October 9, 2006, North Korea conducted a nuclear test, with a yield of under 1 kiloton (vice the anticipated 4-kiloton yield). The United States and other countries condemned the test and the U.N. Security Council passed Resolution 1718 on October 14, which requires North Korea to refrain from nuclear or missile tests, rejoin the Nuclear Nonproliferation Treaty (NPT), and dismantle its WMD programs. The test is the latest provocative act of many since 2002, when North Korea ended an eight-year freeze on its plutonium production program, expelled international inspectors and restarted facilities. North Korea may now have enough Pu for eight to ten weapons. On February 13, 2007, North Korea reached an agreement with other members of the Six-Party talks to begin the initial phase (60 days) of implementing the Joint Statement from September 2005 on denuclearization. Key components include halting production at Yongbyon and delivery of heavy fuel oil. Many other aspects are yet to be decided. This report will be updated as needed. |
This report briefly summarizes the Advancing Chronic Care, Extenders, and Social Services (ACCESS) Act, enacted February 9, 2018, as Division E of the Bipartisan Budget Act of 2018 (BBA 2018; P.L. 115-123 ). The provisions discussed in this report are part of a larger legislative package that was enacted to address a number of issues before Congress, including the need for an extension of temporary appropriations set to expire on February 8, 2018. An early version of this package was added by the House to H.R. 1892 (an unrelated measure), in the form of an amendment to an amendment that had been previously adopted by the Senate during its consideration of H.R. 1892 . The House adopted its amendment on February 6, 2018, by a vote of 245-182. The Senate subsequently took up the House proposal and adopted a further amendment to it on February 9, by a vote of 71-28. The House agreed to the Senate actions that same day by a vote of 240-186. The final version of H.R. 1892 , enacted as the Bipartisan Budget Act of 2018 ( P.L. 115-123 ), contained FY2018 temporary continuing appropriations, FY2018 supplemental appropriations, an increase to the debt limit, increases to the statutory spending limits for FY2018 and FY2019, tax provisions, and numerous provisions extending or making changes to mandatory spending programs, among other topics. According to the Congressional Budget Office (CBO) cost estimate, Division E of BBA 2018 is estimated to increase direct spending outlays by a total of $829 million, and increase on- and off-budget revenues by a total of $4.6 billion, for a net savings of $3.8 billion over the period of FY2018 through FY2027. The topics specifically addressed in this report include the following: Medicare ( Table 2 , Table 3 , Table 4 , Table 10 , Table 11 , and Table 12 ) State Children's Health Insurance Program (CHIP) (in Table 1 ) Public Health Extenders (in Table 5 and Table 9 ) Children and Family Services (in Table 6 ) Foster Care (in Table 7 ) Social Impact Partnerships Program (in Table 8 ) Medicaid and Offsets (in Table 12 ) Along with the brief description of each provision in Division E, this report provides the contact information for the CRS analysts who can answer further questions. CRS is preparing additional reports analyzing subsets of these provisions by topic or program in greater detail. Those reports will be linked to this report as they become available. Division E begins with a short title (Section 50100), Advancing Chronic Care, Extenders, and Social Services (ACCESS) Act. Division E is divided into twelve titles. The tables below briefly describe the sections within each title and provide CRS contacts. ACA: Patient Protection and Affordable Care Act ( P.L. 111-148 , as amended) ACCESS: Advancing Chronic Care, Extenders, and Social Services Act ( P.L. 115-123 ) ACO: Accountable Care Organization BBA 2018 : Bipartisan Budget Act of 2018 ( P.L. 115-123 ) CBO: Congressional Budget Office CHIP: State Children's Health Insurance Program CMMI : Center for Medicare & Medicaid Innovation CMS : Centers for Medicare & Medicaid Services CR : Cardiac Rehabilitation CRS: Congressional Research Service CSE: Child Support Enforcement CWS: Stephanie Tubbs Jones Child Welfare Services DSH : Disproportionate Share Hospital EHR: Electronic Health Record ESRD: End-Stage Renal Disease FFPSA: Family First Prevention Services Act GAO : Government Accountability Office GPCI : Geographic Practice Cost Index HHS: Department of Health and Human Services ICR : Intensive Cardiac Rehabilitation IHS: Indian Health Service IPAB: Independent Payment Advisory Board LVH: Low-Volume Hospital MA: Medicare Advantage MACRA: Medicare Access and CHIP Reauthorization Act of 2015 ( P.L. 114-10 ) MDH: Medicare-Dependent Hospital MedPAC: Medicare Payment Advisory Commission MIECHV : Maternal, Infant, and Early Childhood Home Visiting MSSP: Medicare Shared Savings Program NQF: National Quality Forum PREP: Personal Responsibility Education Program PSSF: Promoting Safe and Stable Families QRTP: Qualified Residential Treatment Program SIP: Social Impact Partnership SHIP : State Health Insurance Assistant Program SNP: Special Needs Plans SSA: Social Security Act SSI: Supplemental Security Income VBID: Value-Based Insurance Design | On February 9, 2018, President Donald Trump signed into law the Bipartisan Budget Act of 2018 (BBA 2018; P.L. 115-123). Division E of that law is titled the Advancing Chronic Care, Extenders, and Social Services (ACCESS) Act. This report provides a brief summary of each of the provisions included in the ACCESS Act, along with the contact information for the CRS expert who can answer questions about each provision. Division E consists of 12 titles. Each title is addressed in a separate table, and the provisions are discussed in the order they appear in the law. Topics discussed in this report include Medicare, Medicaid, the State Children's Health Insurance Program (CHIP), public health, child and family services, foster care, social impact partnerships, child support enforcement, and prison data reporting. Subsequent CRS reports examining selected subsets of these provisions will be linked to this report as they become available, such as CRS Report R45136, Bipartisan Budget Act of 2018 (P.L. 115-123): CHIP, Public Health, Home Visiting, and Medicaid Provisions in Division E. |
The economic substance doctrine is a judicial rather than statutory tax doctrine that has been used by the Internal Revenue Service (IRS) and applied by the courts for many years to disallow, for tax purposes, transactions that technically comply with the Internal Revenue Code (the Code), but produce tax benefits outside of what Congress intended. Throughout the years it has remained a matter of judicial interpretation and case law. There have been, however, suggestions that the doctrine should be codified to produce uniformity among the courts in applying the doctrine. Generally, proposals would codify the definition of "economic substance" rather than codifying the doctrine. This codification has been proposed in several bills during the 110 th Congress. Although the language in each proposal has been similar, the overall subject matter for the bills has been diverse. A section entitled "Clarification of Economic Substance Doctrine" has been included in the Abusive Tax Shelter Shutdown and Taxpayer Accountability Act of 2007, the Stop Tax Haven Abuse Act, the Responsible Fatherhood and Healthy Families Act of 2007, the Export Products Not Jobs Act, and the Food and Energy Security Act of 2007. Other bills have contained a similar provision entitled "Codification of Economic Substance Doctrine." Thus far, only one bill containing a provision to define "economic substance" in the Internal Revenue Code has been passed by either body of Congress. The Senate passed version of H.R. 2419 contains a section clarifying economic substance. This report analyzes the proposal as contained in the Senate amendment. Unless otherwise noted, all further references to "the Farm Bill," " H.R. 2419 ,"or "the current proposal" will be referring to the bill as passed by the Senate. H.R. 2419 adds a subsection to section 7701 of the Internal Revenue Code. It attempts to define the situations in which a court may find that a transaction has economic substance. These are limited to those transactions in which the taxpayer's economic position is changed in a meaningful way and "the taxpayer has a substantial purpose (other than a Federal tax purpose) for entering into such transaction." When a potential for profit is the basis of the taxpayer's position that a transaction has economic substance, the expectation of profit must be reasonable. Even when it is deemed reasonable, the present value of the expected profit must be compared to the present value of the expected net Federal tax benefit. The profit potential must be considered "substantial" when compared to the tax benefit. Further, if the only "substantial purpose (other than Federal tax purposes)" is a reduction in non-Federal taxes, there is no economic substance if similarities between Federal tax law and the other tax law result in a corresponding reduction in Federal taxes that at least equals the reduction in non-Federal taxes. When the purpose of the transaction is a financial accounting benefit, that will not be considered a "substantial purpose (other than Federal tax purposes)" if the financial accounting benefit stems from a reduction in Federal taxes. In addition to clarifying economic substance, the bill would establish a penalty for transactions found lacking in economic substance. This penalty would be 30% of the understatement in tax that resulted from disallowance of the transaction. The penalty would be reduced to 20% in cases where the facts relevant to the tax treatment of the disallowed transaction are "adequately disclosed in the return on a statement attached to the return." In contrast to most penalties provided for in the Code, the proposed penalty is calculated on the tax understatement rather than on the underpayment, so a taxpayer may be liable for a penalty even if that taxpayer does not have an outstanding tax balance. The penalty can only be imposed by the Chief Counsel of the IRS or by an Office of Chief Counsel branch chief to whom the Chief Counsel has delegated such authority (hereinafter "Chief Counsel or delegate"). The authority to compromise all or part of the penalty is similarly limited. Compromise of the penalty is also limited to situations in which the understatement from the noneconomic substance transaction has been reduced. The bill requires the individual asserting the penalty to first notify the taxpayer of the intent to assert the penalty. The taxpayer must also have the opportunity to respond in writing. While the penalty may be imposed following litigation in which a court finds that the economic substance doctrine is relevant and that the transaction lacked economic substance, such litigation is not required for assertion of the penalty. The Chief Counsel or delegate may determine that the economic substance doctrine is relevant and assert the penalty after finding that a transaction lacked economic substance. The penalty must be rescinded, however, if a court determines, in a final order, that the economic substance doctrine was not relevant to the transaction. When taxpayers underpay their taxes, they must pay interest on the amount that was underpaid. This is true even when the underpayment is created by a determination that a position taken on a tax return is not allowed for tax purposesâresulting in an assertion of additional tax liability. Section 163(m) of the Internal Revenue Code prohibits deduction of interest on understatements due to reportable transactions that were not properly disclosed. The bill would add language to also prohibit deduction of interest on underpayments due to a transaction that lacked economic substance. There is no exception to allow deduction of the interest if the facts relevant to the transaction had been disclosed on the tax return. The proposed bill provides a definition of "economic substance" for courts to use when they find that the economic substance doctrine is relevant. It makes no claim to clarify when the doctrine is relevant. Instead it codifies a definition that settles some differences between courts in terms of what is required to find that a transaction has economic substance. The rationale provided by the Court of Federal Claims in Coltec Industries v. United States suggests an additional justification for codifying the definition of economic substance (if not the doctrine itself). The court said that, in determining their tax liabilities, taxpayers "must be able to rely on clear and understandable rules established by Congress. If federal tax laws are applied in an unpredictable and arbitrary manner, albeit by federal judges for the 'right' reasons . . . , public confidence in the Code and tax enforcement system surely will be further eroded." Codifying the definition of economic substance arguably could provide a "clear and understandable rule." There are, however, phrases and concepts in the proposed definition that may be less than clear. If so, they may cause uncertainty rather than providing clarification. Some of these are "changes in a meaningful way," "substantial purpose," and substantial profit (in comparison to tax benefit). Additionally, since the courts are left to determine when the economic substance doctrine is relevant, there may still be room to apply the codified definition "in an unpredictable and arbitrary manner." The current bill proposes a 30% penalty on the understatement resulting from transactions that lack economic substance if the transaction was not disclosed. Some other proposals have set the penalty at 40%. If the transaction is disclosed, the penalty would be reduced to 20%. However, in either case, there is no provision for abating the penalty based on reasonable cause. The penalty is one of strict liability. Taxpayer reliance on advice from tax professionals is irrelevant even when that advice is based on substantial authority. Arguably, taxpayers have some protection from the penalty because it can only be imposed by the Chief Counsel or delegate. However, since it is left to the courts to determine whether the economic substance doctrine is relevant, taxpayers are placed in a situation in which they may need professional guidance as to whether the doctrine is applicable, but cannot rely on that guidance to avoid a substantial penalty if a court determines that the doctrine applies and the transaction lacked economic substance. Further complicating taxpayers' quandary is the assertion by the Joint Committee on Taxation that If the tax benefits are clearly consistent with all applicable provisions of the Code and the purposes of such provisions, it is not intended that such tax benefits be disallowed if the only reason for such disallowance it that the transaction fails the economic substance doctrine as defined in this provision. Thus, taxpayers, tax professionals, and the courts will still be in the position of trying to determine Congress's purpose for various provisions of the tax code. In some cases, there is sufficient legislative history to determine the purpose, but in other cases there is not. As a result, taxpayers might avoid legitimate business transactions out of fear of a potential penalty. This could reduce risk-taking and innovation in business and, possibly, lead to a decline in productivity and profitability. Some, however, believe that the penalty's results will be positive "caus[ing] taxpayers to forego entering into noneconomic, tax-motivated transactions that Congress never intended." Clarifying the economic substance doctrine through codification has been a persistent provision in legislative proposals in recent Congresses. Though the revenue projections of the current proposal vary, the proposal is viewed as providing increased revenue for the "pay-go" budget procedures. It may also reduce government costs by eliminating some abusive tax shelter schemes, thus reducing the resources needed to pursue both the promoters and participants in abusive tax shelters. Others oppose codification of even a definition of economic substance, in part because it may provide "the seeds of the next tax shelter problem." It is the business of tax professionals to examine the Code closely to determine how it can best be used to result in the least amount of tax owed. New laws aimed at clarifying current law, both statutory and case law, are apt to be viewed as challenges. It seems likely that someone will devise a transaction that a court might, in the past, have found to lack economic substance but which meets the criteria for having economic substance under the proposed bill. In this case, some may argue that codification of the definition may hinder rather than help actions against abusive tax shelters. There is also some question about both the cost saving and revenue raising prospects for the proposal. IRS Chief Counsel Donald L. Korb has questioned whether the strict liability penalty would ever be asserted by the IRS and has indicated that it would make litigation more complex and eliminate taxpayers' incentive to cooperate with the IRS. | The economic substance doctrine was judicially developed. A number of bills introduced in the 110 th Congress would codify the definition of "economic substance," provide a strict liability penalty for underpayments resulting from disallowed transactions that lack economic substance, and prohibit deduction of interest on those underpayments. The proposals would not codify the doctrine, itself, nor provide standards for a court's determination that the doctrine was relevant to a particular case. Codification has been dubbed a "revenue raiser," though there is disagreement as to both the amount that would be raised and the way in which codification would increase revenue. |
The Department of Defense (DOD) has a long history of relying on contractors to support troops during wartime and expeditionary operations. Generally, from the Revolutionary War through the Vietnam War, contractors provided traditional logistical support such as medical care, transportation, and engineering to U.S. armed forces. Since the end of the Cold War there has been a significant increase in contractors supporting U.S. troops – in terms of the number and percentage of contractors, and the type of work being performed ( Figure 1 ). According to DOD, post-Cold War budget reductions resulted in significant cuts to military logistical and support personnel, requiring DOD to hire contractors to "fill the gap." The number of DOD contractors in Iraq is significant. According to DOD, as of July 1, 2008, there were 200,000 DOD contractors in Iraq and Afghanistan, compared to 180,000 uniformed military personnel. The Congressional Budget Office (CBO) estimates that from 2003 through 2007, DOD obligated $54 billion for contractors working in Iraq. These contractors not only provide traditional logistical support—such as delivering food and providing weapons maintenance—but also provide critical front-line combat support that puts them directly on the battlefield. Such front-line support includes interrogating prisoners, working as translators for combat units, providing security for convoys traveling through the battle space, and providing security for forward operating bases ( Figure 2 ). Projecting into the future, a senior DOD official said that civilian contractors may make up 50% of all DOD personnel deployed in future overseas operations. Unless a policy decision is made to expand the military, many analysts argue that the large-scale use of contractors will remain a fixture of the military's force structure for the foreseeable future. This raises questions about DOD's capacity to manage contractors in the field during such operations. DOD has an established acquisition workforce, consisting of military and civilian personnel who are responsible for acquiring goods and services for the military. However, while a number of contracting officers and other acquisition officials are in Iraq, most of DOD's acquisition workforce is generally not deployed or embedded with the military during expeditionary operations. As the number of contractors in the area of operations has increased, the operational force—the service men and women in the field—increasingly rely on, interact with, and are responsible for managing contractors. Yet, a number of military commanders and service members have indicated they did not get adequate information regarding the extent of contractor support in Iraq and did not receive enough pre-deployment training to prepare them to manage or work with contractors. One DOD official has pointed out that the military does not have an adequate infrastructure to effectively execute and manage contractors in Iraq. And last year, an Army commission produced the Gansler Report, which found that Contacting Officer Representatives (CORs) responsible for managing contractors are generally drawn from combat units and receive "little, if any, training" on how to work with contractors. This finding confirms what many analysts have argued: that deployed military personnel are not sufficiently trained or prepared to manage contractors in an area of operations. Given the critical role contractors are playing in supporting military operations and the billions of dollars DOD spends on contractors, the ability of the operational force to manage and oversee contractors has become increasingly important. Poor contract management can lead to troops not receiving needed support and the wasteful spending of billions of dollars. A lack of effective contractor management can even undermine the credibility and effectiveness of the U.S. military. For example, according to an Army investigative report, a lack of good contractor surveillance at Abu Ghraib prison contributed to fostering a permissive environment in which prisoner abuses took place. Many observers believe that the fallout from Abu Ghraib and other incidents, such as the shooting of Iraqi civilians by private security contractors hired by the United States government, have hurt the credibility of the U.S. military and undermined efforts in Iraq. A number of experts believe that the military needs to improve the operational force's management of and coordination with contractors in the area of operations. These experts have argued that increased training and education is necessary for non-acquisition personnel throughout the military. The Gansler Report stated that the Army needs to train operational commanders on the important role contracting plays, as well as on their responsibilities in the process. The report called for including courses in the curricula on contractors in expeditionary operations at command schools (e.g., the War College and Sergeant Majors Academy) and other officer educational programs. Echoing the Gansler Report, an official at the U.S. Army Materiel Command wrote that "Contractor logistics support must be integrated into doctrine and taught at every level of professional schooling in each component." The calls for more robust training are not new. For example, in 2003, GAO testified before the House Armed Services Committee, Subcommittee on Readiness, stating "[T]he lack of contract training for commanders, senior personnel, and some contracting officers' representatives can adversely affect the effectiveness of the use of contractors in deployed locations. Without training, many commanders, senior military personnel, and contracting officers' representatives are not aware of their roles and responsibilities in dealing with contractors." In early 2008, Congress amended the law (10 U.S.C. 2333, as amended) and mandated training for non-acquisition military personnel filling positions with contracting responsibilities during expeditionary operations. The statute was aimed to ensure that the military is prepared to deal with contracting responsibilities during contingency and other operations. The amendment also (1) mandated the incorporation of contractors and contract operations into mission readiness exercises; (2) directed the Secretary of Defense and the Secretary of the Army to evaluate all recommendations in the Gansler Report and submit a report to the congressional defense committees describing their plans for implementing applicable report recommendations; and (3) and required the GAO to submit to Congress a report analyzing the extent to which DOD is complying with this amended section (2333) of title X. In addition, Congress appropriated $2,500,000 for the Joint Contingency Contract Support Office and $2,000,000 for Military Non-Contracting Officer Training to implement this program. According to Title X of the United States Code, military services are generally responsible for training military forces. As such, some argue that it is the charge of the military services to implement training aimed at improving contractor coordination and management. Others argue that the use of contractors during expeditionary operations cuts across military branches and to be successful, training initiatives should be spearheaded by DOD and then propagated throughout the individual services. According to senior military officials, while there is not yet a unified strategy among the various DOD departments on how to train and educate non-acquisition personnel to work with and manage contractors, a number of initiatives are underway. Some of these initiatives are described below. In July 2008, DOD developed an Operational Contract Support Concept of Operations, intended to be a road map for integrating contract support and management during expeditionary operations. The concept calls for training officers in developing and executing key contracting documents such as statements of work, with the objective that "DOD as a whole must have the ability to ensure CORs are properly trained and certified." In addition, according to the Joint Staff, a "Joint Logistics" doctrine has been published that addresses contractor support integration and management. DOD is also developing classroom and on-line training for non-acquisition personnel and incorporating contracting scenarios into military exercises. DOD has developed an eight-hour course on Contingency Contract Management Training that is intended to pave the way for the military services to introduce such a course at the Staff Colleges. DOD also developed a similar eight-hour course geared to the Senior Staff Colleges. These courses are intended to prepare military leaders who lack extensive contracting experience to plan for contract support, integrate contractors into force plans, and manage contractors in the area of operation. DOD expects these courses to be offered in 2009. According to senior DOD officials, the long term plan is to offer similar courses throughout the military's educational system, including courses for noncommissioned officers. DOD is also planning to develop an on-line course targeting non-acquisition personnel that is designed along the lines of the classroom courses. The on-line training is intended to focus on pre-deployment training needs such as how to plan for, work with, and get the most out of contractors during military operations. Some observers believe that incorporating contractors and contract operations in military exercises can help educate and prepare military planners and operational commanders to better manage contractors. DOD established the Joint Contingency Acquisition Support Office (JCASO) to provide the joint force commander with the necessary assistance to plan, support, and oversee contingency contracting activities during the initial phases of a contingency operation. JCASO is intended to provide initial program management and contracting teams and will be responsible for coordinating and monitoring all contractors in a joint area of operations where JCASO is operating. In May 2008, DOD tested the JCASO concept by incorporating it into a U.S. European Command (USEUCOM) military exercise which took place in Germany over a span of nine days. According to DOD, the exercise validated the JCASO concept and structure, providing the joint force commander with "much-needed visibility regarding contracts and contractors". A post-exercise assessment found that military planners and commanders need to become better informed as to the role of JCASO and the capabilities it provides. DOD intends to have JCASO participate in other war games and exercises to ensure that contracting is integrated into mission planning and execution. Recognizing that acquisition and program management during expeditionary operations is a critical element in achieving operational success, the Army established the commission that issued the Gansler Report. In addition to DOD efforts, the Army has been developing and implementing a number of initiatives to improve how it works with and manages contractors on the battlefield and during expeditionary operations. Incorporating ideas from the Gansler Report, the Army is developing doctrine and taking a three-pronged approach to improve how the operations force works with contractors. The new approach would (1) familiarize the operational force with the importance of contracting support to mission execution, (2) educate and train selected individuals to better plan and coordinate the management of contractor support, and (3) collectively train units at the brigade level and above. According to Army officials, some educational classes and seminars are intended to familiarize the force with the importance of contracted support, while other classes and seminars are intended to provide concrete knowledge and skill sets. Officials stated that most efforts are focused on logisticians, who will be provided seminars or discussions on contracting throughout their careers, including at the Staff Sergeant, Captain, and Second Lieutenant levels. A number of educational opportunities will also be offered to non-logisticians. For example, all Majors will be required to attend a two hour class on contract support through the intermediate leader education courses. All attendees of the Army War College will be required to participate in a seminar on contractor support and operations logistics. Selected generals are to take a three hour Senior Leader Course on operational contract support. The army has also developed informational pamphlets and handbooks to help military personnel better understand the contracting process, to know their contracting responsibilities, and to work more effectively with contractors. In addition, the Army, with Air Force support, is developing a one to two week course on operational contract support that is intended to outline the contracting process (focusing on tactical unit commanders and staff roles and responsibilities in the acquisition process), teach relevant contracting skills (including how to create a complete requirements package), and teach how to integrate contractor personnel into military operations. The course is expected to be taught at the Army Logistics Management College's Huntsville, Alabama, campus at Ft. Levenworth, Kansas, to selected officer and NCO multi-functional logisticians, and is to be made available to all Army personnel. According to officials, the Army has incorporated operations contract support into most mission-readiness exercises over the last two years. In addition, the Army is working with the joint community to include contract support into other operations. For example, from August 11 - 22, 2008, the U.S. Southern Command sponsored PANAMAX 2008, a military exercise focused on ensuring the defense of the Panama Canal. The exercise included a Joint Contracting Command element provided by the Army, augmented by Air Force and Navy personnel. As a result of the contracting component of the exercise, the After Action Review of the effort included discussions on contracting. For example, noting the importance of contracting to mission success and the "little to no emphasis on contracting functions ... during the execution phase of the exercise," the After Action Review recommended "joint training agencies develop acquisition training programs that target operational commanders as the training audience." The report also recommended the establishment of policies and procedures for managing contractors. The National Defense Authorization Act of FY2008 ( H.R. 4986 / P.L. 110-181 ) required DOD, and especially the Army, to train military personnel who are outside the acquisition workforce but are expected to have acquisition responsibility , and to incorporate contractors and contract operations into mission exercises. As outlined above, DOD has initiated a number of steps to comply with P.L. 110-181 , including developing doctrine, developing a concept of operations, planning and introducing educational courses into the curricula of non-acquisition military personnel, and incorporating contractor support scenarios into mission-ready and other exercises. Congress may wish to consider requiring officer and/or enlisted performance evaluations to include commentary and/or grade evaluation of contractor management. On the one hand, including a contractor management narrative as part of a performance evaluation could help ensure attention is given to this issue. However, it should be recognized that contract support is not relevant for all military personnel, and elements of contract support could also fall under other evaluation factors, such as personnel, management. Alternatively, Congress could consider requiring performance evaluations for military personnel whose mission involves or substantially relies on contractor support. Another option would be to amend the performance evaluation guidelines to stipulate specifically that contractor management be part of the discussion of personnel management or other related factors. Such a requirement would be similar to section 527 of the FY2009 Duncan Hunter National Defense Authorization Act ( P.L. 110-417 ) which requires the Chairman of the Joint Chiefs of Staff to submit to Congress a report outlining the joint education courses available throughout the DOD. Such a report could help Congress execute its oversight function. Such a report could help accomplish two goals: it can (1) help Congress chart the military's progress in preparing the operational force to work with contractors during expeditionary operations and (2) help DOD maintain focus on this issue. DOD has stated as far back as 2004 that it would explore creating training courses on contracting for mid- and senior-level service schools. However, some analysts would argue that DOD failed to follow through adequately on creating additional training on contract support until Congress mandated training for appropriate non-acquisition military personnel. As described in this report, DOD has recently taken a number of concrete steps to improve how the operational force works with contractors and has incorporated contractors and contract operations into mission-readiness and other exercises. Analysts argue that only sustained congressional attention can help ensure that the desired results will be achieved. | The Department of Defense (DOD) is responsible for performing a wide range of expeditionary missions, including domestic emergency operations and military operations outside of the continental United States. DOD increasingly relies on contractors during expeditionary operations to perform a wide range of services. For example, more contractors are working for DOD in Iraq and Afghanistan than are U.S. military personnel. As a result, military personnel in the field are increasingly interacting with and responsible for managing contractors. Yet many observers argue that the military is not sufficiently prepared to manage contractors during expeditionary missions. The National Defense Authorization Act of FY2008 (H.R. 4986/P.L. 110-181) required DOD, and especially the Army, to train military personnel who are outside the acquisition workforce but are expected to have acquisition responsibility , and to incorporate contractors and contract operations into mission exercises. DOD, including the Army, are taking a number of steps to comply with Congressional legislation to better prepare the operational force—including servicemen and women conducting military operations on the battlefield—to work with contractors. These steps include developing doctrine for integrating contract support into expeditionary operations, introducing courses on contract support into the curriculum for non-acquisition personnel, and incorporating contract operations into mission readiness exercises. This report examines these steps being taken by DOD and options for Congress to monitor DOD's efforts to comply with P.L. 110-181. Options include requiring military departments to report on acquisition education courses available for operational personnel. This report will be updated as events warrant. |
RS21300 -- Elections in Kashmir Updated December 5, 2002 Domestically, Indian efforts to defeat an armed insurrection in the predominantly Muslim Kashmir valley and to obtain greater political participation in the statehave been hindered by the position taken by both hardline Muslim and Hindu groups. Hardline Kashmiri Muslimmilitant groups refused to participate in theelections and threatened to violently disrupt them. This threat was made good during the elections, especially inthe third stage where the state witnessedseveral attacks by militant groups. More moderate groups, most notably the 23-party All Parties HurriyatConference (APHC), refused to participate in the pollsbecause they questioned the fairness of the process and the refusal of the Indian government, in their eyes, to makemore significant concessions on the futurestatus of the state. The Hurriyat had considered participating in the elections but only if its elected officials did nothave to take an oath of allegiance to theIndian constitution. What the Hurriyat seeks is a series of substantive, tripartite talks with the Indian and Pakistanigovernments to determine a final status forKashmir. Part of the problem remains the divided nature of the Hurriyat. The Hurriyat leadership also remain under threat from the violent militant groups, and most ofthem, while espousing independence from India, have bodyguards provided by the Indian government. As oneKashmiri separatist leader, Shabir Shah, put it,the 23-party amalgam had failed to provide a "unified" command for holding talks with the Kashmir Committee(a nongovernmental organization seeking asolution to the Kashmir problem). (3) Thus, anenvironment of fear, coupled with the lack of a coherent agenda, placed some domestic constraints on theelectoral process. The U.S. position was outlined by Secretary of State Powell during his July 2002 visit to South Asia, where the Secretary stated, We are looking to both India and Pakistan to take steps that begin to bring peace to the region and to ensure a betterfuture for the Kashmiri people. The problems with Kashmir cannot be resolved through violence, but only througha healthy political process and a vibrantdialogue. ... Elections alone, however, cannot resolve the problems between India and Pakistan, nor can they erasethe scars of so many years of strife. Elections can however, be a first step in a broader process that begins to address Kashmiri grievances and leads Indiaand Pakistan back to dialogue. (4) (5) (6) The United States has sought to reconcile Indian and Pakistani concerns to its own security interests in the region. Numerous reported links between Afghanijihadi groups, domestic terrorist groups in Pakistan, and the militant groups in Kashmir provide a policy rationalefor combating them as part of a generalanti-terror campaign. At the same time, bringing about a peaceful settlement of outstanding issues between Indiaand Pakistan appears important to long-termU.S. interests in the region. For security purposes, the polls were held in four stages, but still were marred by militant violence. Press reports estimate at least 700 killings in the state --including those of 84 political workers and two candidates -- between New Delhi's announcement of elections onAugust 2nd and the polling's October 8thconclusion. (7) In some districts, most notably thosein the Kashmir valley, the turnout was quite low -- in the single digits, even -- while in others it was closeto 60%. The average turnout overall was just below 44%. (8) The ruling National Conference party was ousted from power in the 2002 elections, though it did win a plurality of seats in the state assembly (28 of a total 87). The Indian National Congress won 20 seats, and party leader Sonia Gandhi agreed to a first-ever power-sharingarrangement with the regional People'sDemocratic Party (PDP), itself the winner of 16 seats, all of them from the Muslim-majority Kashmir valley. Thealliance of several smaller parties provides aworking majority. PDP leader and veteran politician Mufti Mohammed Sayeed will serve as Chief Minister forthree years, after which time he is to be replacedby a Congress Party member as per the coalition agreement. Most top ministerial positions have gone to Congressmembers. The Congress-PDP coalition has agreed to a "common minimum program" (CMP) for the governance of Jammu and Kashmir. Several of the CMP policies arehighly controversial in their "softened" approach to militancy in the state. These include launching investigationsinto the deaths of prisoners and the fate ofthousands who have disappeared following their arrest; the disbanding of the feared Special Operations Group, acounterinsurgency police unit; the release ofpolitical prisoners; the opening of a dialogue with militant groups; and the scrapping of the national Prevention ofTerrorism Act that has been criticized asabusive of human rights. The CMP proposals, while fulfilling an election promise to address Kashmiri grievances against separatist militants and Indian security forces alike, have comeunder fire from Hindu nationalists and top officials in New Delhi, many of whom believe that they will onlyencourage militancy and are contrary to India'sinterests. (9) Moreover, the national status of theCongress Party requires that it avoid appearing "soft on militancy" and so may add to the obstacles facingSayeed's government. (10) From the oppositequarter, the commander of a leading militant group, the Hizbul Mujahideen, called the proposals "cosmetic" andfarshort of what Kashmiris seek. (11) Pakistan-basedmilitants threatened Sayeed and the PDP with "forceful action" if they entered into a coalition with whatopponents describe as an "Indian puppet government." (12) Many ordinary Kashmiris, meanwhile, are reported to be pleased with many aspects of the newgovernment's approach. (13) The decision to release several well-known political prisoners has spurred heightened debate and accusations. During November 2002, the Jammu and Kashmirgovernment freed at least 11 top-ranking activists of both pro-Pakistan and pro-independence militant groups afterthey were granted bail by courts. (14) The NewDelhi leadership, including Prime Minister Vajpayee and Deputy PM Advani, expressed dismay at the moves andurged caution. Sayeed responded byquestioning the political motives of the BJP, but in his first official meetings with top national officials in earlyDecember 2002, Sayeed stated that, "There iscomplete understanding between New Delhi and the state government over vital issues relating to Kashmir andnegotiations with various Kashmiri groups." (15) The PDP is not politically strong in the Hindu-majority Jammu or heavily Buddhist Ladakh regions of the state. For this reason, analysts believe Sayeed mustgive attention to placating all constituencies, not merely his traditional base in the Srinagar area. The continued andincreased flow of development aid fromNew Delhi to Jammu and Kashmir is central to this effort, and Sayeed has vowed to ensure that all regions of thestate are treated equally in this regard. (16) From a political perspective, the elections strengthened somewhat the Indian government's position on Kashmir. With the people of the state reportedlyviewing the results as mostly credible, the Hurriyat apparently missed a chance to demonstrate its claims to beingthe genuine representative of the Kashmiripeople. The unexpectedly high voter turnout weakened Pakistan's position on Kashmir, to a large extent belyingIslamabad's claim that the elections were"farcical." With a representative government in place there may be a stronger push to end militancy in the state asKashmiri leaders see the value of the ballotbox over the rifle in accomplishing political change. The United States welcomed the successful conclusion of elections in Jammu and Kashmir while condemning terrorist attacks "aimed at disrupting ademocratic process and intimidating the Kashmiri people." It urged India and Pakistan to make a "strenuous effort"to resume a dialogue on all outstandingissues, including Kashmir. (17) Given New Delhi's insistence that such dialogue cannot begin until Islamabad halts the infiltration of militants into Jammu and Kashmir, it is the continuationof separatist violence in the state that appears to be the core obstacle to diplomatic progress between India andPakistan. On an October 2002 visit to India, atop U.S. diplomat urged the opening of dialogue despite ongoing infiltration. (18) Robert Blackwill, the U.S. envoy to New Delhi,believes that the problem inKashmir is "cross-border terrorism" that is "almost entirely externally driven." (19) He has indicated that the global fight against terrorism will remainincomplete so long as terrorism continues in Kashmir. (20) Formal congressional hearings have discussed, among other issues, the political situation in Kashmir and the problem of cross-border infiltration. (21) No majoraction with respect to Kashmir is being taken at this juncture, although U.S. aid and military cooperation programswith India and Pakistan are ongoing. Futureissues that Congress may face include whether or not there is a role for U.S. assistance in securing the Line ofControl between Pakistani- and Indian-heldKashmir. Some observers believe that U.S. assistance with the physical installation of sensors and monitoringdevices could help curb infiltration into theIndian state. (22) The Congress also faces issuesrelated to levels of more general economic and security assistance, including arms sales to both India andPakistan, along with the possibility of greater U.S. diplomatic involvement in the specific issue of Kashmir. (23) | The United States welcomed the successful October conclusion of 2002 elections inthe Indian state of Jammu andKashmir, where nearly half of the electorate cast ballots. The elections resulted in the ousting of the long-dominantNational Conference party, allies of thenational coalition-leading Bharatiya Janata Party, thus bolstering the credibility of the process and dampeningcriticism from some quarters that the electionswere flawed or "farcical." The opposition Indian National Congress and the regional People's Democratic Party(PDP) won a combined 36 seats in the stateassembly, and Congress leader Sonia Gandhi agreed to a first-ever power-sharing coalition. PDP leader MuftiMohammed Sayeed has assumed the office ofChief Minister vowing to bring a "healing touch" to state politics. His "common minimum program" includescontroversial policies -- including the freeing ofjailed political prisoners -- that have been lauded by some and criticized by others. The new government's seemingmoderation has brought renewed hopes forpeace in the troubled region. The United States had urged the holding of free and fair elections to be followed by renewed dialogue betweenIndia and Pakistan to resolve their long-runningdispute. India has made clear that it will not engage such dialogue until Islamabad has put an end to cross-borderinfiltration of Islamic militants intoIndian-held Kashmir. Following the elections, New Delhi announced a major troop redeployment after a tenseten-month standoff at the India-Pakistan frontier. Militant separatist groups in both Pakistan and Kashmir have stated that the ground realities are unchanged and sotheir violent campaign will continue. Inapparent confirmation of these statements, numerous coordinated attacks in November 2002 killed dozens. Thisreport will not be updated. (1) |
Section 1811 of the Social Security Act provides that Social Security Disability Insurance (SSDI) beneficiaries are eligible for Medicare hospital insurance (Part A). Individuals are also eligible to purchase Medicare supplementary medical insurance (Part B) or enroll in a Medicare Advantage plan (formerly known as a Medicare+Choice plan). SSDI beneficiaries are also eligible for voluntary prescription drug benefits (Part D). Generally, SSDI beneficiaries under age 65 are eligible for Medicare coverage in the month after they have received 24 months of SSDI benefits. Because of the five-month waiting period from onset of the disabling condition for disabled individuals to be qualified to receive SSDI benefits, this results in a total of 29 months after the onset of the disability before an individual is eligible for Medicare benefits. Thus, at the beginning of the 30 th month since the onset of the qualifying disability, SSDI beneficiaries become eligible for Medicare coverage. For SSDI beneficiaries under 65 years of age, there are exceptions to the required 24-month waiting period for certain diseases. Specifically, SSDI beneficiaries qualify for Medicare after 24 months of receiving SSDI benefits (the general rule described previously); or at the first month of receiving SSDI benefits if the beneficiary has amyotrophic lateral sclerosis (ALS, or Lou Gehrig's disease); or after the third month when a beneficiary has end-stage renal disease (ESRD) or kidney failure; or in the month in which a beneficiary receives a kidney transplant. The ALS exception went into effect July 1, 2001 as a result of the Consolidated Appropriations Act of 2001, P.L. 106-554 . The ESRD provision was part of Social Security Amendments of 1972, P.L. 92-603. In addition to SSDI beneficiaries, other individuals who are under age 65 may be eligible for Medicare on account of a disabling condition as described below. Certain disabled local, state, and federal employees who do not receive SSDI benefits may be eligible after the waiting period. Disabled widows and widowers ages 50 to 65 (and disabled divorced widows and widowers ages 50 to 65) are eligible for Medicare after a 24-month qualifying period if they are receiving Social Security benefits based on disability. For disabled widows/widowers, previous months of eligibility for Supplemental Security Income (SSI) based on disability may count toward the qualifying period. Certain dependent adult children of Medicare beneficiaries are eligible for Medicare if they developed a permanent and severe disability before age 22 and thus qualify for SSDI benefits based on a parent's work history. The two-year waiting period applies and starts when an individual turns 18 or when he or she is determined to be disabled if it is after age 18. A spouse or child may be eligible for Medicare, based on a worker's record, if the spouse or child is on continuing dialysis for ESRD or has a kidney transplant, even if no other family member participates in the Medicare program. Table 1 shows the number and percentage of persons under 65 years old who received Medicare in July 2005 due to disabling conditions. In 2006, just over 7 million beneficiaries under the age of 65 received Medicare on account of disability status. More than 43% of disabled beneficiaries were between the ages 55 and 64. More men (53.3%) than women (46.7%) received this benefit and the vast majority (73.5%) were white. The Social Security Amendments of 1972, P.L. 92-603, extended Medicare to persons with disabilities who had been entitled to Social Security Disability Insurance (SSDI) benefits for at least 24 consecutive months. The provision required the waiting period to begin with the first month of SSDI entitlement, which is five months after the onset of the disability. In 1971, the House Committee on Ways and Means Report recommended extending Medicare protection to the disabled and stated that the Committee felt it was "imperative to proceed on a conservative basis." The report stated that the 24-month waiting period was intended to ... help keep the costs within reasonable bounds, avoid overlapping private health insurance protection, particularly where a disabled worker may continue his membership in a group insurance plan for a period of time following the onset of his disability and minimize certain administrative problems that might otherwise arise.... Moreover, this approach provides assurance that the protection will be available to those whose disabilities have proven to be severe and long lasting. A similar statement was included in the report to the Senate from the Committee on Finance. The Social Security Disability Amendments of 1980, P.L. 96-265 , permitted an individual becoming re-entitled to SSDI benefits to count the months of the earlier spell of disability in satisfying the 24-month waiting period if the spell occurred within the previous five years or seven years for disabled widow(er)s and those who were disabled since childhood. The amendments also provided that if an individual was in a trial work period after the termination of the SSDI benefits, and had not completed the 24-month waiting period, the months of the trial work period could count toward satisfying the required waiting period for Medicare eligibility. Effective October 1, 2000, the Ticket to Work and Work Incentives Improvement Act of 1999, P.L. 106-170 , extended Medicare Part A coverage to certain working former SSDI beneficiaries for a total of 8.5 years. Those SSDI beneficiaries with limited incomes and assets may qualify for Supplemental Security Income (SSI) benefits. Under SSI, disabled, blind, or aged individuals who have low incomes and limited resources are eligible for benefits regardless of their work histories. In most states SSI receipt will entitle a person to Medicaid benefits. Certain working SSDI beneficiaries who had been receiving Medicaid benefits may be eligible for a Buy-In Option allowing maintenance of Medicaid coverage. Thirty-two states currently provide a Medicaid Buy-In Option. Title X of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), P.L. 99-272 , requires employers who offer health insurance to continue coverage for persons who would otherwise lose coverage due to a change in work or family status. Coverage generally lasts 18 months but, depending on the circumstances, can last for longer periods. If the Social Security Administration (SSA) makes a determination that the date of an individual's onset of disability occurred during the first 60 days of COBRA coverage or earlier, the employee and the employee's spouse and dependents are eligible for an additional 11 months of continuation coverage. This is a total of 29 months from the date of the qualifying termination or reduction of hours of employment. This provision was designed to provide a source of coverage while individuals wait for Medicare coverage to begin. Some SSDI beneficiaries may qualify for other government programs including veterans' programs for hospital and medical care. According to research based on new SSDI beneficiaries in 1995 who qualified upon their own work record, 11.8% died within the waiting period, 2.1% recovered, and 86.1% became entitled to Medicare. The study estimated hypothetical Medicare costs for the first 24 months of SSDI entitlement to be $10,055 in 2000 dollars per person. Costs varied substantially by diagnostic group and by whether the person died or recovered during the waiting period. On average, beneficiaries who died during the waiting period were estimated to cost $25,864, whereas those who recovered were estimated to cost $1,506. One research study suggested that eliminating the 24-month Medicare waiting period would cost $5.3 billion while another study estimated the cost at $8.7 billion. The differences in the estimates are because: (1) the $5.3 billion used 2000 dollars while the $8.7 billion is in 2002 dollars: (2) the $5.3 billion estimate is for only SSDI beneficiaries that qualified under their own work record while the $8.7 billion estimate includes disabled adult children and disabled widow(er)s; and (3) each used substantially different estimation methodologies. Neither of these estimates include the cost of the prescription drug benefit that started in January 2006. In 2002, approximately 40% of SSDI beneficiaries in the Medicare waiting period were enrolled in Medicaid. One study estimated that the federal government would save $2.5 billion in Medicaid if the 24-month waiting period was eliminated; however, these federal Medicaid savings would more than be offset by the aforementioned cost increases to the Medicare program. Additionally, the states would realize $1.8 billion in Medicaid savings if the waiting period was eliminated. | Recipients of Social Security Disability Insurance (SSDI) benefits are eligible for Medicare benefits after a 24-month waiting period. This report explains this waiting period and its legislative history. This report also provides information on other programs that may provide access to health insurance during the required waiting period.This report will be updated to reflect legislative activity. |
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. |
RS20968 -- Jordan-U.S. Free Trade Agreement: Labor Issues Updated July 15, 2003 Labor issues over the agreement revolved around two sets of provisions: labor provisions and dispute settlement provisions. The labor provisions of the U.S.-Jordan FTA, located in the body of the agreement, are relatively straightforward,occupyone page of text, and require three things. First, they require: (a) that each country enforce its own labor laws inmannersaffecting trade; and (b) that those laws reflect both "internationally recognized worker rights" as defined by the U.S.TradeAct of 1974, as amended, and "core labor standards" as defined by the International Labor Organization. Second,theprovisions require that the Parties to the agreement not "waive" or "derogate from" their own labor laws as anencouragement for trade with the other Party. Third, they provide that each Party will be considered in compliancewith theagreement where any deviation from the requirements reflects a "reasonable exercise of . . . discretion" or "resultsfrom abona fide decision regarding the allocation of resources." The dispute settlement procedures, slightly longer than the labor provisions, occupy one and one-half pages of text. Theyprovide for resolution of disputes that arise over: (a) interpretation of the agreement; (b) alleged failure of a Partyto carryout its obligations under the agreement; and (c) measures taken by a Party that allegedly severely distort the balanceof tradebenefits or substantially undermine the fundamental objectives of the agreement. Pursuing a dispute through the complete resolution procedure provided for in the agreement would take 270 days, or aboutnine months. Any dispute would move up the ladder for consideration first through consultations between "contactpoints." These would be followed with consideration by a Joint Committee, and further consideration by a DisputeSettlement Panel. The Panel is required to present a report containing its findings of fact and its determinations, which will benon-binding. Ifthe dispute is still not resolved within 30 days after the Joint Committee presents its report, the affected Party willbeentitled to take "any appropriate and commensurate measure ." Supporters, including many Democrats, argued that the labor provisions did not break much new ground. Conceptually, theU.S.-Jordan provisions are similar to those in the NAFTA labor side agreement, in that in both agreements, eachcountrymust (a) enforce its own worker rights laws; while over the long term (b) strive toward adopting a complete bodyof workerrights principles; and (c) not waive or derogate from its own labor laws as an encouragement for trade. (Provisionsof thetwo agreements are compared in Table 1 .) Opponents, including many Republicans, saw the labor provisions as breaking considerable new ground because they werelocated in the body of the agreement, where they would be subject to dispute settlement procedures and possiblysanctions. Moreover, the dispute resolution procedure entitled either party to take "any appropriate and commensuratemeasure" if thedispute resolution procedure on the included labor provisions fails - and that would appear to include sanctions. The Call for a Memorandum of Understanding. As a compromise measure, some observers suggested that the United States and Jordan exchange side letters or memoranda ofunderstandingagreeing that any "appropriate and commensurate measure" does not mean sanctions, but leaving open what elsethe wordsmight mean. (2) Such letters were actually exchangedby the ambassador of Jordan and U.S. Trade Representative RobertZoellick on July 23, 2001. These identical letters pledged to resolve any differences that might arise between thetwocountries under the agreement, without recourse to formal dispute settlement procedures. They also specified thateachgovernment "would not expect or intend to apply the Agreement's dispute settlement enforcement procedures ... inamanner that results in blocking trade." In House floor debate, the agreement to not use sanctions was viewedalternately as: (1) part of "a cooperative structure ... to help secure compliance without recourse to ... traditional trade sanctionsthat arethe letter of the agreement" (Thomas); and (2) "a step backwards for future constructive action on trade" (Levin). The exchange of letters paved the way for House and Senate approval of the trade agreement. The House approved H.R. 2603 by a voice vote on July 31, 2001. The Senate approved H.R. 2603 by a voice vote onSeptember 24. The Government of Jordan had already approved it on July 15. It became law as P.L. 107-43 onSeptember28, 2001. During the Senate debate, Senator Phil Gramm warned that he will oppose any effort to turn theU.S.-JordanFTA into a model for how future trade agreements should deal with worker rights (and environmental protectionissues). He argued that they should not be part of trade deals. Conversely, Senate Finance Committee Chairman MaxBaucusindicated he hoped the U.S.-Jordan FTA would set a precedent for how future trade agreements would address issueslikelabor and the environment. He also refuted a statement made by Senator Graham that the provisions wouldundermine U.S.sovereignty or prevent lawmakers from enacting and enforcing U.S. labor and environmental laws. If Congress had not been able to resolve the issue of sanctions with the exchange of memoranda of understanding or similardocuments, it would have had several other options other than to approve the agreement as negotiated. It could have(a)approved the agreement with conditions, and in effect required the President to renegotiate it; (b) amended anyimplementing legislation; or (c) as under the fast-track procedure, simply disapproved the agreement and theimplementinglegislation containing the language of the agreement as introduced. The labor provisions of the U.S.-Jordan FTA and reaction to them can also be viewed in the context of the larger ongoingdebate in Congress about the linkage of worker rights and trade. The most recent debate has been ongoing since 1994, when presidential "fast-track" authority to negotiate new tradeagreements, contained in the Omnibus Trade and Negotiating Act (OCTA) of 1988 ( P.L. 100-418 ), expired. TheOCTAincluded as a principal negotiating objective of the United States in trade agreements "to promote workerrights. " Underthat authority, NAFTA was negotiated with its labor side agreement. The issue of debate in recent years has beenwhich ofthree courses to follow - whether to include in new fast-track authority: (a) more limited presidential authority toincludelabor provisions than in the expired legislation; (b) similar authority; or (c) broader authority. After fast-track renewal efforts spanning parts of nine years, Congress finally included language that is arguably morelimited in some aspects, but which also includes more detailed requirements. P.L. 107-210 , signed August 6, 2002,finallyrenewed presidential fast-track authority (or trade promotion authority - TPA, as it is more recently being called). Therenewed authority to negotiate trade agreements on an expedited basis (without amendment and with limited debate)includes numerous labor provisions as both overall negotiating objectives, and principal negotiating objectives: Overall negotiating objectives (typically advisory in nature) reiterate the two concepts included in the expired 1988authority: (1) to promote respect for worker rights (but specifying that it shall be done in the international LaborOrganization, which has virtually no enforcement powers - a limitation not included in the expired legislation); and(2) toensure that domestic labor laws are not weakened as an encouragement for trade. The principal negotiating objectives on "labor and the environment" (typically enforceable) include three goals new tofast-track language, but somewhat reflective of both NAFTA and Jordan trade agreements, and also of previousattempts torenew fast-track authority. These are: (1) to strengthen the capacity of U.S. trading partners to promote respect forworkerrights; (2) to ensure that a party does not fail to enforce its own labor laws in a manner affecting trade; and (3) toensure thatlabor policies do not unjustifiably discriminate against U.S. exports or serve as disguised barriers to trade. With the passage of new trade promotion authority in August of 2002, the debate now has shifted once more, and the newfocus is on monitoring the kinds of labor provisions that will be negotiated as part of new trade agreements currentlyinnegotiation. Stakeholders. Stakeholders are watching to see how provisions of the new trade promotion authority law will become translated into trade agreements, to the extent that negotiatorsattempt toand are able to include them in future trade agreements. Stakeholders against actually including labor provisions in the body of trade agreements argue that (1) such provisionsimpede the flow of free trade and are not needed; (2) any labor and environment provisions could put U.S.companies atserious disadvantage vis-a-vis their competitors in the World Trade Organization; (3) the U.S.-Jordan languageshould be a"one time" occurrence rather than a precedent; and (4) that potential violations of core labor standards should bepursuedmultilaterally through the International Labor Organization (ILO) rather than through trade agreements. The ILO,part of theUnited Nations, was established in 1919 to promote worker rights. As mentioned, it has no direct enforcementpowers,working instead through technical assistance and moral suasion. Stakeholders in favor of including labor provisions in the body of trade agreements argue in favor of using the U.S.-JordanFTA labor provisions as a model for other trade agreements. The AFL-CIO asserts that an even more elaboratemechanismthan is included in the U.S.-Jordan FTA is needed (a) to ensure that foreign labor laws are brought up tointernationalstandards on a clear timetable, and (b) to prevent the use of trade and investment agreements as business tools toforce downwages and working conditions in the United States and abroad. The U.S.-Jordan FTA continues and arguably advances the linkage of worker rights provisions and trade beyond thatcontained in the NAFTA labor side agreement. It does this: (a) by including the worker rights provisions in thebody of theagreement, and (b) by raising the possibility of "sanctions" in that either country may take "any appropriate andcommensurate measure" if the dispute procedures do not lead to resolution - even though letters exchanged by U.S.andJordan governments have pledged not to exercise those sanctions with regards to potential labor violations. TheJordanagreement's influence was also felt in the reauthorization of TPA language which would continue to permit newtradeagreements to include provisions similar to those in the Jordan agreement in the body of the agreement. Table 1. Comparison of Key Provisions of U.S.-Jordan Free Trade Agreement and NAFTA | The U.S.-Jordan Free Trade Agreement (FTA), implemented as P.L. 107-43, which went into effect December 17, 2001, breaks new ground by including multiple worker rights provisions inthe bodyof a U.S. trade agreement, rather than as a side agreement, for the first time. For this reason, it adds somecontroversy to thecongressional debate over whether worker rights provisions should be included in future trade agreements. Someobserverseye this configuration of worker rights protections as a model for future trade agreements; others view it as aone-timeoccurrence justified only because Jordan has a strong tradition of labor protections; still others oppose the inclusionof laborprovisions in trade agreements under any circumstances. This report will be updated as events warrant. |
Under House rules and precedents, opportunities to speak on the House floor about pending legislation are restricted and highly structured. Every time a legislator is recognized on the floor to speak, his or her time is limited. Furthermore, when debating legislation, Members generally must confine their comments to the subject of the measure. Members also must observe long-standing principles of decorum and courtesy in debate, including avoiding personal remarks about fellow Members. Members direct their comments to the presiding officer, therefore referring to each other in the third person as "the gentleman/woman" from the state represented. They address the presiding officer as "Mr./Madam Speaker" during procedures in the House proper, and as "Mr./Madam Chairman" while in the "Committee of the Whole." It is not in order for a legislator directly to address the "television audience" or the galleries. The manner in which time is obtained, restricted, and distributed in the House depends on the procedures the House is using to consider a measure, as well as the terms of any special order of the House governing the consideration of the measure. There are two different methods by which time to speak on legislation is distributed on the House floor. Time for debate is either "controlled," or it is not. Under controlled time, a Member is granted a block of time from a Member, called a "manager," who determines for each side which Members may speak, for how long, and in what order. If time is not controlled, then a Member gains time to speak by seeking recognition from the chair, and the length of time the Member can speak is usually limited to five minutes. Most of the time when Members are debating legislation, time is equally divided and controlled by two managers. For example, the House passes bills that enjoy widespread support through the suspension of the rules procedure, which allows for a total of 40 minutes of debate. Under that procedure, two managers, generally the chair and ranking member of the committee or subcommittee of jurisdiction (or their designees) each control 20 minutes of which they then yield portions to Members, usually on their side of the aisle. Time for debate of special rules, which set the terms for consideration of most major legislation, is also controlled time; the first (and usually only) hour for debate is granted to the Rules Committee chair (or his or her designee) who in turn customarily yields half of that time to the ranking member of the committee (or his or her designee) for purposes of debate only. Each side then yields portions of the 30 minutes to other Members. In addition, when the House resolves into the Committee of the Whole to consider a bill, the first stage is usually a period for general debate, and this is also controlled time. The chair(s) and ranking member(s) of the committee(s) of jurisdiction typically serve as managers; if multiple committees have jurisdiction, then managers from each committee control a portion of the time. Those designated to control the time often begin discussing the measure by yielding to themselves a set number of minutes or, more often, by stating I yield myself such time as I may consume. The manager is then recognized and holds the floor until all of his or her available time expires or until the manager concludes by saying I reserve the balance of my time. The presiding officer will then recognize the other floor manager, who also generally begins by granting time to himself or herself for an opening statement. Floor managers then yield portions of the time they control to Members who let them know in advance they wish to debate the measure. Each floor manager usually, but not necessarily, yields to Members on his or her side of the aisle. Managers do not refer to other Members by name and instead designate them by state. For example, the manager might say I yield two minutes to the gentleman from California. If a manager yields a portion of time to another Member, the manager may not take the time back. Once the time is yielded, it belongs to the Member who is speaking until he or she finishes and "yields back" his or her time, or until the presiding officer announces that the time has expired. At that point, the presiding officer will look again to the manager, who could yield time to another Member, or reserve the balance of the time. By reserving the time, a floor manager gives the other floor manager a chance to speak or distribute time. Generally, the chair alternates recognition between managers from each side. Time is kept by the clerks sitting at the House dais, and managers often ask how much time remains available. In response, the presiding officer will announce how much time the majority and minority floor managers have left. It is not uncommon for the managers to discuss with each other how the remaining time will be distributed. For example, one manager might ask the other how many more Members on his side are waiting to speak. House precedents determine which manager has the right to speak last in debate, or "to close." In most cases, when time is controlled, the floor manager who is the proponent of the question has the right to close. An exception to this general guideline is controlled debate on an amendment, when the majority floor manager on the bill, not the proponent of the amendment, has the right to close. Toward the conclusion of the time for debate, the floor manager with the right to close will likely reserve the balance of his or her time until all the time of the other manager has been consumed or until the other manager yields back the balance of his or her time. Debate ends when all time has expired or all time has been yielded back. If the managers determine through discussion that no more Members wish to speak on either side, then they might, in turn, yield back their remaining time by stating I yield back the balance of my time. If a Member is not the floor manager but wishes to speak, the Member informs the floor manager on his or her side. Sometimes, particularly when many Members wish to address the House on major legislation, Members (or their staff) contact the expected floor manager (or the staff of the primary committee of jurisdiction) in advance of the debate. In this way, Members can gain information about when they might be recognized to speak, and for how long. In response to a request for time, the floor manager might yield a portion of time to the Member. The Presiding Officer will then formally recognize that Member, by stating The gentleman from ________ is recognized. The Member who has been yielded time can then begin speaking, generally after thanking the presiding officer (for the recognition) and the manager (for yielding the time). When the block of time the Member has been yielded is completely used, the chair will announce that the time yielded to the Member has expired. If the Member wishes to continue speaking, he or she can look to the floor manager and request additional time. The floor manager might choose to yield to the speaker an additional portion of time if any of the manager's time remains uncommitted. There is a difference between a manager yielding a specified portion of time, such as two minutes, to another Member and a Member who is not a manager "yielding to" another Member. When a manager yields time to a Member, the presiding officer recognizes that Member for that amount of time. The manager can then be seated; he or she has effectively given the floor to the Member who has been yielded time. Under the modern practice of the House, only managers may yield portions of time to other Members. In contrast, any Member who has been recognized in debate may "yield to" another Member for a question or comment. When one Member yields to another, the yielding Member retains the floor and should remain standing. Any time consumed by the Member yielded to is charged against the portion of time yielded originally by the manager to the Member who has been recognized. For this reason, Members ask permission to use another Member's time. If a Member wants to interrupt another Member to ask a question or respond to something that was said, he or she can ask the presiding officer Will the gentleman (or gentlewoman) yield? The Member speaking can decline to yield. Or, the Member can respond I yield to the gentleman (or gentlewoman). The time being consumed belongs to the Member who yielded. Therefore, the Member who was yielded to cannot yield to a third Member. If another Member wants to join the discussion between the yielding Member and the Member who was yielded to, he or she would have to seek permission to interrupt from the yielding Member. These practices of yielding permit Members to engage in a colloquy, with one Member yielding to one or more Members in turn so that they may exchange information or debate an issue. Furthermore, the Member who has yielded to another Member can take the time back. Generally, this is done by interrupting the Member who had been yielded to by saying Reclaiming my time.... The following example illustrates the difference between yielding a portion of time and yielding to another Member. During general debate, Representative A, as floor manager, might yield five minutes to Representative B, another majority-party member of the committee. Representative B then may begin speaking. If at some point during the five minutes another Member, Representative C, rises while Representative B is speaking and asks "will the gentleman (or gentlewoman) yield?," then Representative B can either yield or decline to yield. If Representative B yields, then any time used by Representative C is charged against the five minutes originally granted to Representative B. Representative C cannot yield to yet another Member, Representative D, because Representative B holds the floor. Representative D would have to ask Representative B to yield. Although Representative B cannot limit the time of Representative C by yielding only a set period of time, at any point Representative B can reclaim his or her time. In some procedural circumstances, debate time is not controlled by floor managers. Instead, Members gain time to speak by seeking recognition directly from the presiding officer. Most prominently, time for debating amendments can take place in the Committee of the Whole under what is known as the "five minute rule." Certain types of special rules, especially those referred to as open rules or modified open rules, normally allow for amendments under the five-minute rule. Time is also not controlled during the five minutes of debate permitted to each side on a motion to recommit a bill or joint resolution (under Rule XIX, clause 2), and in a few other less common circumstances. Clause 5(a) of House Rule XVIII states in part A Member, Delegate, or Resident Commissioner who offers an amendment shall be allowed five minutes to explain it, after which the Member, Delegate, or Resident Commissioner who shall first obtain the floor shall be allowed five minutes to speak in opposition to it. Accordingly, if a Member offers an amendment, the presiding officer will recognize him or her for five minutes. Another Member (sometimes the floor manager defending the version of the bill reported by the committee of jurisdiction) can then be recognized for five minutes to speak against the amendment by standing and stating I rise in opposition to the amendment. Because time under the five-minute rule is not controlled, there is no Member acting as a manager and allocating portions of time. Instead, any Member may seek recognition from the chair of the Committee of the Whole to speak for five minutes. The presiding officer recognizes Members from the committee with jurisdiction over the bill first, in order of seniority, alternating recognition from side to side. A Member need not consume the full five minutes, but time cannot be reserved. When a Member's five minutes on an amendment expires, the Member sometimes asks unanimous consent to extend his or her time by a specified number of additional minutes, up to five minutes. A Member may be recognized only once under the five minute rule on a given amendment. Although the 5-minute rule technically permits only 10 minutes of debate for each amendment, 5 in favor and 5 against the amendment, Members secure additional time through the use of "pro forma" amendments. Pro forma amendments are amendments to strike one or more words of the text under consideration, and they are offered solely for the purpose of gaining recognition to speak for five minutes. In other words, no change to the text under consideration is substantively proposed; the proponent is not actually suggesting a word or words be stricken. After the proponent and the opponent of an amendment have spoken for their allotted five minutes, another Member who wishes to speak may rise and state I move to strike the last word. The chair then recognizes that Member for five minutes, technically to speak on the pro forma amendment, but in fact to continue debate on the pending substantive amendment. Any number of pro forma amendments can be offered, but because of a general prohibition against offering the same amendment twice, Members sometimes choose to say instead I move to strike the requisite number of words. Pro forma amendments can also be made when no amendment is pending if Members wish to discuss the measure itself. Pro forma amendments, however, are not always in order. If a measure is being considered under a special rule from the Committee on Rules that prohibits most or all amendments, or that permits only specified amendments, then pro forma amendments are not in order unless the special rule explicitly states otherwise. A special rule could also limit the total number of pro forma amendments, and it could provide that only floor managers can offer them. In addition, unanimous consent agreements may restrict the offering of pro forma amendments. When time is not controlled, Members cannot yield portions of their time to other Members. They can, however, remain standing and yield to other Members for questions or comments, and the time consumed by the other Members is deducted from the time of the yielding Member. A Member recognized under the five-minute rule also cannot yield to another Member for the purposes of offering an amendment. The Member who wishes to offer an amendment would need to seek recognition for that purpose later from the presiding officer. | House rules and precedents structure Members' opportunities to speak on the floor about pending legislation. Under some circumstances, Members arrange to speak on legislation by communicating with the leaders of the committee that reported the bill. Sometimes the arrangements can be made on the floor during the debate, and at other times they are made prior to floor consideration. The committee leaders from both sides of the aisle manage the consideration of a bill on the floor, under what is known as controlled time, by allocating the debate time among several Members. In certain other procedural circumstances, most often when the House is amending legislation under an "open" special rule, legislators instead seek recognition to speak, usually for up to five minutes, directly from the presiding officer. A Member who has been recognized can yield to another during debate but continues to hold the floor; the time used by the Member yielded to is taken from the time allocated to the Member holding the floor. |
The Federal Election Commission (FEC) is a six-member independent regulatory agency. Congress created the FEC in 1974, after controversial fundraising during 1960s presidential campaigns and the early 1970s Watergate scandal. The commission is responsible for administering federal campaign finance law and for civil enforcement of the Federal Election Campaign Act (FECA). The FEC also discloses campaign finance data to the public, conducts compliance training, and administers public financing for participating presidential campaigns. FECA establishes six-year terms for commission members. Commissioners may continue in "holdover" status after those terms end. Commissioners are appointed by the President and are subject to Senate confirmation. FECA requires that at least four of the six commissioners vote to make decisions on substantive actions. This includes deciding on enforcement actions, advisory opinions, and rulemaking matters. Because FECA also requires bipartisan commission membership, achieving at least four agreeing votes is sometimes difficult, even with six members present. Vacancies make the task harder by reducing opportunities for a coalition of at least four votes. In 2008, the FEC lost its policymaking quorum for six months. As of this writing, the commission again faces a potential loss of its policymaking quorum because only four commissioners remain in office. One nomination is pending, and the status of future departures remains unclear. These developments notwithstanding, it is unclear whether the agency will lose more commissioners. This report provides a brief overview of the FEC's policymaking powers without at least four commissioners in office. The topic may be relevant for congressional oversight of the agency, particularly if it loses its policymaking quorum, and for Senate consideration of nominations to the agency. Other CRS products provide additional information about campaign finance policy, the FEC, and procedural issues. As of this writing, the FEC is operating with four commissioners instead of six, as shown in Table 1 below. The current vacancies developed as follows: Effective February 28, 2017, Democratic Commissioner Ann M. Ravel resigned, leaving the agency with five members. Ravel's term would have expired on April 30, 2017. As of this writing, no nominee for the Ravel seat has been announced. On February 7, 2018, Republican Commissioner Lee Goodman announced his intention to resign, effective February 16, 2018. As of this writing, no nominee for the Goodman seat has been announced. Once Goodman left the agency, the FEC had four remaining members. In addition to the current two vacancies, others are possible in the future, as noted below. Recent developments suggest that Republican Commissioner Matthew S. Petersen could leave the commission. On September 11, 2017, President Trump nominated Petersen for a federal judgeship. Petersen subsequently withdrew from consideration for the judgeship, reportedly writing, "until the time is otherwise appropriate, I look forward to returning to my duties at the Federal Election Commission." Petersen remains on the commission in holdover status after his term expired in 2011. The status of a nomination intended to replace Commissioner Petersen is unclear. After Petersen was nominated to the federal judgeship, but before he withdrew from consideration for that position, President Trump nominated a replacement for Petersen at the FEC. On September 14, 2017, President Trump nominated James E. "Trey" Trainor III to the Petersen seat. This nomination was returned to the President at the end of the first session. The White House resubmitted the nomination on January 8, 2018, at the start of the second session of the 115 th Congress. It is unclear whether any other commissioners currently plan to leave. For several years, periodic reports have suggested that one or more other commissioners also plan to depart. If any of the four remaining commissioners departed, the agency would be without a policymaking quorum. Congress originally designed eight positions for the FEC: six commissioners and two nonvoting ex officio members (the Clerk of the House and Secretary of the Senate). Under that structure, two commissioners were appointed by the President, two by the President pro tempore of the Senate, and two by the Speaker of the House. Two federal court decisions altered the FEC's original design. First and most significantly, in Buckley v. Valeo (1976) the Supreme Court of the United States invalidated the original appointments method, holding that congressional appointments violated the Constitution's Appointments Clause. Almost 20 years later, a federal court again found fault with the FEC's appointment structure. In 1993, the U.S. Court of Appeals for the District of Columbia held in FEC v. NRA Political Victory Fund that the presence of the two congressional ex officio members violated constitutional separation of powers. Congress did not amend FECA responding to this decision, although the ex officio members are no longer appointed. In a broad revision of FECA in 1976, undertaken in response to the Buckley decision, Congress adopted the current appointment method. Today, all commissioners are presidentially appointed subject to Senate advice and consent. Members of the congressional leadership or committees of jurisdiction (the House Committee on House Administration and Senate Rules and Administration Committee) apparently continue to influence the appointment process. FECA specifies few qualifications for FEC commissioners, noting simply that they "shall be chosen on the basis of their experience, integrity, impartiality, and good judgment." As one former general counsel notes, although many commissioners are lawyers, "a commissioner does not have to be a lawyer and the commission has a long history of having non-lawyers serve as members." Commissioners typically have experience as congressional staffers, political professionals, election lawyers, or some combination thereof. No more than three commissioners may be affiliated with the same political party. In practice, the commission has been divided equally among Democrats and Republicans, although one current commissioner identifies as an independent. FECA staggers commissioner terms so that two expire every other April 30 during odd-numbered years (e.g., 2019, 2021, etc.). This arrangement means that, at least as designed, two new commissioners would assume office biennially. However, the President is under no obligation to make biennial nominations. Currently, FEC commissioners may serve a single six-year term. As another CRS report explains, for some federal boards and commissions, including the FEC, "[a]n individual may be nominated and confirmed for a seat for the remainder of an unexpired term in order to replace an appointee who has resigned (or died). Alternatively, an individual might be nominated for an upcoming term with the expectation that the new term will be underway by the time of confirmation." Some FEC commissioners have assumed office when the term for which they were nominated was well underway. For example, on June 24, 2008, the Senate confirmed Donald F. McGahn and Steven T. Walther to terms that expired just 10 months later, on April 30, 2009. Both continued serving in their seats past the expiration of their terms, although they could have been replaced through subsequent appointments. These and other commissioners could remain in office because FECA permits FEC members to serve in "holdover" status, exercising full powers of the office, after their terms expire "until his or her successor has taken office as a Commissioner." As Table 1 above shows, as of this writing, all current commissioners are serving in holdover status. FECA requires affirmative votes from at least four commissioners to authorize most policymaking activity. In particular, this includes holding hearings; making, amending, or repealing rules; initiating litigation or defending the commission in litigation, including appeals; issuing advisory opinions; conducting investigations, and making referrals to other enforcement agencies; approving enforcement actions and audits; and issuing and amending forms (e.g., those used in the disclosure process). Matters without at least four votes for or against an action can have the effect of leaving questions of law, regulation, or enforcement unresolved, as some view the issues in question as having been neither approved nor rejected. With fewer than four commissioners, existing campaign law and regulation would remain in effect. Agency staff and remaining commissioners could continue to provide general information, and to prepare for a repopulated commission. In addition, as explained below, the commission revised its internal procedures before it last lost a policymaking quorum to clarify functions that could continue. The significance of the four-vote threshold became particularly evident in 2008. Following expired recess appointments and amid ongoing Senate consideration of FEC nominations, the agency had just two commissioners for the first six months of the year. In late 2007, in anticipation of only two commissioners remaining in office in 2008, commissioners amended the FEC's rules of internal procedure to permit executing some duties if the agency lost its four-member policymaking quorum. These revisions to the FEC's Directive 10 permit the commission to continue meeting with fewer than four members to approve general public information, such as educational guides; appoint certain staff; and approve other basic administrative and employment matters. During the loss of the commission's policymaking quorum in 2008, the two remaining commissioners (David Mason (R) and Ellen Weintraub (D)) met publicly to discuss advisory opinions, but could not vote to issue those opinions. At the time, the commissioners explained that although they recognized that the commission lacked a quorum, they were attempting to provide general feedback, particularly given the ongoing 2008 election cycle. That practice generated some controversy, however, as some practitioners contended that remaining commissioners did not have the authority to meet and provide guidance. It is unclear whether commissioners would continue the practice in the future with fewer than four members. After the Senate confirmed nominees in June 2008, the new commissioners faced a backlog of enforcement matters, litigation, advisory opinions, and rulemakings to implement portions of the Honest Leadership and Open Government Act (HLOGA). The agency returned to normal operations during the rest of 2008 and throughout 2009. The FEC has maintained a full policymaking quorum since then. The FEC currently retains its policymaking quorum. Media reports suggest that additional commissioners may be considering leaving the agency, although such reports are relatively common and do not necessarily foreshadow actual departures. If there are any departures before additional confirmations, it would be impossible for the FEC to reach a policymaking quorum. As explained previously, this means that even if all remaining commissioners agreed on an outcome, the agency would have too few votes to execute its most consequential duties. Among others, current matters before the FEC include a proposed rulemaking on disclosure requirements for certain online political advertising, as well as responding to developments during the 2016 election cycle and preparing for 2018. Particularly during election years, advisory opinion requests are common. | The Federal Election Commission (FEC) is the nation's civil campaign finance regulator. The agency ensures that campaign fundraising and spending is publicly reported; that those regulated by the Federal Election Campaign Act (FECA) and by commission regulations comply and have access to guidance; and that publicly financed presidential campaigns receive funding. FECA requires that at least four of six commissioners agree to undertake many of the agency's key policymaking duties. As of this writing, the FEC is operating with four commissioners instead of six. Others reportedly are considering leaving the agency. One nomination to the FEC has been resubmitted during the 115th Congress; no committee or floor action has been taken on it to date. It is entirely possible that the FEC will retain at least four commissioners and that the agency will remain able to carry out all its duties. If, however, the FEC loses its policymaking quorum—as happened for six months in 2008—the agency would be unable to hold hearings, issue rules, and enforce campaign finance law and regulation. This CRS report briefly explains the kinds of actions that FECA would preclude if the commission lost its policymaking quorum. This report will be updated in the event of significant changes in the agency's policymaking quorum or the status of agency nominations. |
Medicaid is a cooperative federal-state program through which the federal government provides financial assistance to states for medical care and other services for poor, elderly, and disabled individuals. Although participation in the Medicaid program is voluntary, states, as a condition of participation, are required to have a plan that complies with federal Medicaid statutes and regulations in order to qualify for federal assistance. States also have considerable discretion in administering their Medicaid program, which generally includes setting the payment rates at which providers are reimbursed for their services to Medicaid beneficiaries. Given declining state revenues and increased demand for public programs like Medicaid, states have been faced with difficult choices about how to allocate limited funds. To address budget shortfalls, many states have sought to trim down their Medicaid costs in various ways, including reducing the rates at which Medicaid health care providers are reimbursed. In several instances, providers and others have argued that these reductions make reimbursement rates inadequate and have turned to the courts to challenge these reductions. When challenging these reimbursement rates, plaintiffs have often claimed that the rates violate the requirements of Section 1902(a)(30)(A) of the Social Security Act, often referred to as Medicaid's "equal access provision," which requires a state Medicaid plan to provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan…as may be necessary to safeguard against unnecessary utilization of such care and services and to assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area.... Medicaid beneficiaries and others have claimed that because of inadequate Medicaid reimbursement rates, the requirements of the equal access provision are not met (e.g., the state did not consider, or the state plan's methods or procedures do not assure, that Medicaid payments are consistent with efficiency, economy, quality of care, or are sufficient to enlist providers to provide Medicaid services). In other words, plaintiffs have generally argued that the provider reimbursement rates are so low that they do not allow for sufficient care and services to be provided to beneficiaries, as compared to the care in that area that is available to individuals who do not participate in the Medicaid program. In determining whether a state's provider reimbursement rates violate the equal access provision, a significant question arises in these cases: whether private parties can sue to enforce these requirements. Because the Medicaid Act contains no express language that allows private parties to challenge reimbursement rate cuts, plaintiffs desiring to challenge cuts in Medicaid payment rates under the equal access provision have sought out other legal vehicles to bring their claims. Historically, plaintiffs have brought their claims under 42 U.S.C. §1983, which allows individuals to sue local governments and state and local officers in order to redress violations of federal law. Based on this section, plaintiffs have alleged that state officials violated their rights because the reimbursement rates did not comply with the requirements of the equal access provision. Multiple courts found that Medicaid providers and beneficiaries could enforce the equal access provision by bringing an action under Section 1983. However, in 2002, the Supreme Court's decision in Gonzaga University v. Doe restricted plaintiffs' ability to bring an action under Section 1983. As the Court explained in Gonzaga , "we now reject the notion that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under section 1983." In the wake of Gonzaga , most appellate courts held that the equal access provision is not privately enforceable under Section 1983. Thus, in light of this decision, Medicaid providers and beneficiaries have sought other legal avenues for challenging Medicaid reimbursement rates. In February 2008, the State of California legislature enacted a 10% cut in certain Medi-Cal (i.e., California's Medicaid program) provider reimbursement rates, in light of the state's fiscal distress. Plaintiffs, a group of pharmacies, health care providers, senior citizens' groups, and beneficiaries, claimed a violation of the Supremacy Clause of the Constitution based on the idea that the state rate cut is preempted by the federal equal access provision. The plaintiffs contended that the state failed to properly evaluate whether the reduced rates would comply with the equal access provision and bear a reasonable relationship to providers' costs, which they argued was required under Ninth Circuit precedent. After the district court found that the plaintiffs did not have an implied right of action under the equal access provision or the Supremacy Clause, the Ninth Circuit vacated the district court's decision and remanded the case to the district court. The Ninth Circuit explained that "a plaintiff may bring suit under the Supremacy Clause to enjoin implementation of a state law allegedly preempted by federal statute regardless of whether the federal statute at issue confers an express 'right' or cause of action on the plaintiff." On April 1, 2009, the director filed a petition for Supreme Court review, and the petition was denied. On remand, the district court found that the defendant, the director of California's Department of Health Care Services, did not meet the requirements of the equal access provision, as the director failed to demonstrate that the state of California considered whether the 10% rate reduction would be consistent with efficiency, economy, quality of care, and equality of access requirements. Accordingly, plaintiffs demonstrated a likelihood of succeeding on the merits of their Supremacy Clause claim. In addition, because it appeared that Medi-Cal patients could be irreparably harmed by the rate cut, the court granted in relevant part the plaintiffs' motion for preliminary injunction to enjoin enforcement of the reduction, which was affirmed by the court of appeals. The California legislature later enacted legislation amending the rate cuts, under which the 10% rate cut would expire and smaller rate cuts would be instituted. The director moved to vacate the Ninth Circuit's decision on the grounds that it became moot because of a change in law. The state's motion was denied. In February 2010, the proceedings on remand led the director to petition the Supreme Court again for review of the case. The Court invited the Solicitor General to express views on the lawsuit, and the Solicitor recommended that the Court decline to take the case. Nevertheless, the Court granted certiorari on one of the two issues presented to the Court—whether Medicaid recipients and providers can bring an action under the Supremacy Clause to enforce the equal access provision by asserting that the federal provision preempts a state law reducing reimbursement rates. Accordingly, the Court will likely address the ability of private parties to bring an action under the Supremacy Clause to determine whether the California law is preempted by the Medicaid act. With respect to the issue before the Court, the respondents (i.e., the Medicaid providers and beneficiaries) argued in briefs to the Supreme Court that based on Court precedent, a statutory cause of action is unnecessary in order to bring a preemption claim under the Supremacy Clause. They also asserted that in order to prevent injury, the Court has permitted private parties to obtain relief from state laws that are preempted by federal law. On the other hand, the director of California's Department of Health Care Services claimed that the Ninth Circuit improperly allowed use of the Supremacy Clause, as the decisions in question essentially allow Medi-Cal beneficiaries and providers to invoke the Supremacy Clause to enforce a federal statute (i.e., equal access provision) despite the fact that the statute does not expressly create any privately enforceable rights. The director's petition urges the Supreme Court to find that "[d]ressing the lawsuit up as a preemption challenge should not change the conclusion that the [equal access provision] is not privately enforceable." Further, the director argued that given that Congress did not provide for a private right of action under the equal access provision, allowing a private party's preemption claims to proceed based on an alleged conflict with a federal statute frustrates congressional intent and would negate the principle that "'private rights of action to enforce federal law must be created by Congress.'" The Court will hear oral arguments in the Douglas cases during its October 2011 term. Some commentators have noted that the Court's decision in Douglas may be important, as the case could determine whether the Supremacy Clause provides a basis for court review of various issues related to a state's Medicaid program—issues that may have been immune from review because, for example, there appeared to be no private right of action. More specifically, a holding for the Medicaid providers and beneficiaries could permit Medicaid litigation that Gonzaga had obstructed, by giving standing to individuals under the Supremacy Clause who did not have a private right of action under Section 1983. In addition, it has been observed that the potential significance of Douglas goes beyond the Medicaid program, as the Court's decision could determine whether a private party may bring a preemption challenge under other federal statutes that these parties could not otherwise enforce. Advocates for Medicaid beneficiaries have opined that a decision in their favor is vital, because if the Court sides with the California Medicaid program, it may be difficult for providers and beneficiaries to enforce states' obligations under Medicaid, and this is increasingly critical given the expansion of the Medicaid program by recent health reform legislation, the Patient Protection and Affordable Care Act (PPACA), as amended. On the other hand, as several states have argued in an amicus brief, allowing private litigants to sue to enforce the equal access provision would lead to more court orders compelling states to increase spending for programs like Medicaid and would be detrimental to their ability to provide financial assistance. Since the Court only agreed to evaluate whether a cause of action may be brought under the Supremacy Clause for a potential violation of the equal access provision, it is unlikely that the Court will address whether the rate cuts actually violated the Medicaid Act. Also, in counseling against Supreme Court review of this case, the Solicitor General noted in an amicus brief that CMS regulations would address the requirements for Medicaid plans to meet the equal access provision. As the Solicitor noted, "[t]he nature and extent of the obligations imposed on States under [the equal access provision] are best suited for expert agency consideration in the first instance." On April 29, 2011, CMS issued proposed regulations that address the equal access provision. The proposed regulations contemplate a state-level process for reviewing reimbursement rates that involves identifying and collecting data on access to Medicaid services, analyzing and monitoring this data for access issues, and maintaining a corrective action plan to follow should access problems arise. | Given declining state revenues and increased demand for public programs like Medicaid, states have been faced with difficult choices about how to allocate limited funds. To address budget shortfalls, many states have sought to shrink their Medicaid costs in various ways, including reducing the rates at which health care providers are reimbursed for the services they provide to Medicaid beneficiaries. In several instances, providers and others have argued that the reduced rates do not comply with federal Medicaid requirements and have turned to the courts to challenge these reductions. When challenging these reimbursement rates, Medicaid providers have often claimed that the rates violate the requirements of Section 1902(a)(30)(A) of the Social Security Act, commonly referred to as Medicaid's "equal access provision." This provision compels state Medicaid programs to assure that Medicaid payments "are consistent with efficiency, economy, and quality of care," and are "sufficient to enlist enough providers" so that care and services are available at least to the extent that they are available to an area's general population. Based on this provision, Medicare providers have argued that because of cuts in reimbursement rates, the state Medicaid program does not provide the level of care or services to beneficiaries that is required under federal law. However, an important question arises in these cases: whether Medicaid beneficiaries and health care providers can sue state officials to enforce the equal access provision. Because the Medicaid Act contains no express language that allows private parties to challenge reimbursement rate cuts, plaintiffs desiring to challenge cuts in Medicaid payment rates under the equal access provision have sought out other legal vehicles to bring their claims. Since 2002, courts have often barred these suits when based on "section 1983." But on January 18, 2011, the Supreme Court granted certiorari in Douglas v. Independent Living Center of California, a set of consolidated cases in which plaintiffs took a different approach to challenging provider reimbursement rates. In Douglas, health care providers and Medicaid beneficiaries challenged cutbacks in reimbursement rates for certain health care providers, arguing that since the reduced reimbursement rates do not comply with Medicaid's equal access provision, they are preempted under the Supremacy Clause of the Constitution. The Ninth Circuit agreed, and blocked implementation of the reduced rates, explaining that the Supremacy Clause provides a basis for challenging a state's purported failure to abide by Medicaid's equal access provision. Some commentators have noted that the Court's decision in Douglas may be significant, as the case could determine whether the Supremacy Clause provides a basis for judicial review of various issues related to a state's Medicaid program—issues that may have been immune from review because, for example, there appeared to be no private right of action. It has also been observed that the possible implications of Douglas go beyond the Medicaid program, as the Supreme Court's decision could determine whether a private party may bring a preemption challenge with respect to federal statutes that these parties could not otherwise enforce. This report provides relevant background on the Medicaid program and an overview of the Douglas case. In addition, it may be noted that the Centers for Medicare and Medicaid Services (CMS) recently issued proposed regulations that address the equal access provision. Although proposed regulations do not address whether a private party may bring an enforcement action under the equal access provision, the regulations do provide guidance on how states can comply with it. |
The number of foreign-born people residing in the United States (37 million) is at the highest level in our history and has reached a proportion of the U.S. population (12.4%) not seen since the early 20 th century. Of the foreign-born residents in the United States, approximately one-third are naturalized citizens, one-third are legal permanent residents, and one-third are unauthorized (illegal) residents. There is a broad-based consensus that the U.S. immigration system, based upon the Immigration and Nationality Act (INA), is broken. This consensus erodes, however, as soon as the options to reform the U.S. immigration system are debated. The 110 th Congress is faced with a strategic question of whether to continue to build on incremental reforms of specific elements of immigration (e.g., border security, employment verification, temporary workers, or alien children) or whether to comprehensively reform the INA. While it appears that bipartisan as well as bicameral agreement on specific revisions to the INA may be achievable, it is also clear that many think a comprehensive overhaul of the INA is overdue and necessary. President George W. Bush has stated that comprehensive immigration reform is a top priority of his second term, and his principles of reform include increased border security and enforcement of immigration laws within the interior of the United States, as well as a major overhaul of temporary worker visas, expansion of permanent legal immigration, and revisions to the process of determining whether foreign workers are needed. Some in the Bush Administration reportedly advocated to replace or supplement the current legal immigration preference system with a point system that would assign prospective immigrants with credits if they have specified attributes (e.g., educational attainment, work experience, language proficiency). The thorniest of these immigration issues remains the treatment of unauthorized aliens in the United States. Future debates will reflect the divergent views on how to address the more than 12 million illegal alien population, as well as what the level of future permanent immigration should be. The policy issues for Congress are twofold: whether and how to reform the nation's legal immigration system; and whether border security and interior enforcement provisions—as well as the resources of the immigration agencies charged with the administration and enforcement of immigration laws—are sufficient to implement comprehensive immigration reform. Immigration enforcement encompasses an array of legal tools, policies, and practices to prevent and investigate violations of immigration laws. The spectrum of enforcement issues ranges from visa policy at consular posts abroad and border security along the country's perimeter, to the apprehension, detention, and removal of unauthorized aliens in the interior of the country. Illustrative among these issues likely to arise in the 110 th Congress are border security, worksite enforcement, alien smuggling, and the role of state and local law enforcement. Border security involves securing the many means by which people and goods enter the country. Operationally, this means controlling the official ports of entry through which legitimate travelers and commerce enter the country, and patrolling the nation's land and maritime borders to interdict illegal entries. In recent years, Congress has passed a series of provisions aimed at strengthening immigration-related border security. Whether additional changes are needed to further control the border remains a question. For two decades it has been unlawful for an employer to knowingly hire, recruit or refer for a fee, or continue to employ an alien who is not authorized to be so employed. The large and growing number of unauthorized aliens in the United States, the majority of whom are in the labor force, have led many to criticize the adequacy of the current worksite enforcement measures. Efforts to strengthen worksite enforcement, however, are sometimes met by opposition of increased bureaucratic burdens for employers and fears that more stringent penalties may inadvertently foster discrimination against legal workers with foreign appearances. Many contend that the smuggling of aliens into the United States constitutes a significant risk to national security and public safety. Since smugglers facilitate the illegal entry of persons into the United States, some maintain that terrorists may use existing smuggling routes, methods, and organizations to enter undetected. In addition to generating billions of dollars in revenues for criminal enterprises, alien smuggling can lead to collateral crimes including kidnaping, homicide, high speed flight, identity theft, and the manufacturing and distribution of fraudulent documents. Past efforts to tighten laws on alien smuggling, however, sparked opposition from religious and humanitarian groups who asserted that the forms of relief and assistance that they may provide to aliens might be deemed as the facilitation of alien smuggling. There are ongoing questions about the adequacy of the resources given to the agencies charged with the administration and enforcement of immigration laws. Concerns have been raised that increased funding has been directed to border enforcement in recent years, while interior enforcement resources have not reached sufficient levels. For example, some contend that decisions on which aliens to release from detention and when to release the aliens may be based on availability of detention space, not on the merits of individual cases, and that DHS Immigration and Customs Enforcement (ICE) does not have enough detention space to house all those who should be detained. The debate is also likely to continue over whether DHS has adequate resources to fulfill its border security mission. Notwithstanding an increase in ICE agents, many maintain that the number is still insufficient in the interior of the country. As a result, some recommend that state and local law enforcement be more engaged in enforcing immigration laws. Others question whether state and local law enforcement officers possess adequate authority to enforce all immigration laws—that is, both civil violations (e.g., lack of legal status, which may lead to removal through an administrative system) and criminal punishments (e.g., alien smuggling, which is prosecuted in the courts). Whether state and local law enforcement agencies have sufficient resources and immigration expertise as well as whether state and local funds should be used to enforce federal immigration law are also controversial. The challenge inherent in this policy issue is balancing employers' hopes to increase the supply of legally present foreign workers, families' longing to reunite and live together, and a widely-shared wish among the stakeholders to improve the policies governing legal immigration into the country. The scope of this issue includes temporary admissions (e.g., guest workers, foreign students), permanent admissions (e.g. employment-based, family-based), and legalization and status adjustment for aliens not currently eligible for legal status. Four major principles underlie current U.S. policy on permanent immigration: the reunification of families, the admission of immigrants with needed skills, the protection of refugees, and the diversity of admissions by country of origin. The INA specifies a complex set of numerical limits and preference categories that give priorities for permanent immigration reflecting these principles. Legal permanent residents (LPRs) refer to foreign nationals who live lawfully and permanently in the United States. During FY2005, a total of 1.1 million aliens became LPRs in the United States. Of this total, 57.8% entered on the basis of family ties. Other major categories in FY2005 were employment-based LPRs (including spouses and children) at 22.0%, and refugees/asylees adjusting to LPR status at 12.7%. A variety of constituencies are advocating a substantial increase in legal immigration and perhaps a significant reallocation between these visa categories. The desire for higher levels of employment-based immigration is complicated by the significant backlogs in family-based immigration due to the sheer volume of aliens eligible to immigrate to the United States. Citizens and LPRs often wait years for the relatives' petitions to be processed and visa numbers to become available. Meanwhile, others question whether the United States can accommodate higher levels of immigration and frequently cite the costs borne by local communities faced with increases in educational expenses, emergency medical care, human services, and infrastructure expansion, which are sparked by population growth. The INA provides for the temporary admission of various categories of foreign nationals, who are known as nonimmigrants. Nonimmigrants are admitted for a temporary period of time and a specific purpose. They include a wide range of visitors, including tourists, students, and temporary workers. Among the temporary worker provisions are the H-1B visa for professional specialty workers, the H-2A visa for agricultural workers, and the H-2B visa for nonagricultural workers. Foreign nationals also may be temporarily admitted to the United States for employment-related purposes under other categories, including the B-1 visa for business visitors, the E visa for treaty traders and investors, and the L-1 visa for intracompany transfers. Many business people express concern that a scarcity of labor in certain sectors may curtail the pace of economic growth. A leading legislative response to skills mismatches and labor shortages is to increase the supply of temporary foreign workers. While the demand for more skilled and highly-trained foreign workers garners much of the attention, there is also pressure to increase unskilled temporary foreign workers, commonly referred to as guest workers. Those opposing increases in temporary workers assert that there is no compelling evidence of labor shortages. Opponents maintain that salaries and compensation would be rising if there is a labor shortage and if employers wanted to attract qualified U.S. workers. Some allege that employers prefer guest workers because they are less demanding in terms of wages and working conditions, and that expanding guest worker visas would have a deleterious effect on U.S. workers. The debate over comprehensive immigration reform is further complicated by proposals to enable unauthorized aliens residing in the United States to become LPRs (e.g., "amnesty," cancellation of removal, or earned legalization). These options generally require the unauthorized aliens to meet specified conditions and terms as well as pay penalty fees. Proposed requirements include documenting physical presence in the United States over a specified period; demonstrating employment for specified periods; showing payment of income taxes; or leaving the United States to obtain the legal status. Using a point system that credits aliens with equities in the United States (e.g., work history, tax records, and family ties) would be another possible avenue. A corollary option would be guest worker visas tailored for unauthorized aliens in the United States. There are also options (commonly referred to as the DREAM Act) that would enable some unauthorized alien students to become LPRs through an immigration procedure known as cancellation of removal. The policy question here is how to establish an appropriate balance among the goals of protecting vulnerable and displaced people, maintaining homeland security, and minimizing the abuse of humanitarian policies. Specific topics include refugee admissions and resettlement, asylum reform, temporary protected status, unaccompanied alien children, victims of trafficking and torture, and other humanitarian relief from removal. The scope of rights, privileges, benefits, and duties possessed by aliens in the United States is likely to be a significant issue in the 110 th Congress. The degree to which such persons should be accorded certain rights and privileges as a result of their presence in the United States, along with the duties owed by such aliens given their legal status, remains the subject of intense debate. Specific policy areas include due process rights, tax liabilities, military service, eligibility for federal assistance, educational opportunities, and pathways to citizenship. During the 109 th Congress, both chambers passed major overhauls of immigration law but did not reach agreement on a comprehensive reform package. In December 2005, the House passed H.R. 4437 , the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005, which had provisions on border security; the role of state and local law enforcement in immigration enforcement; employment eligibility verification; and worksite enforcement, smuggling, detention, and other enforcement-related issues. H.R. 4437 also contained provisions on unlawful presence, voluntary departure, and removal. In May 2006, the Senate passed S. 2611 , the Comprehensive Immigration Reform Act of 2006, which combined provisions on enforcement and on unlawful presence, voluntary departure, and removal with reform of legal immigration. These revisions to legal immigration would have included expanded guest worker visas and increased legal permanent admissions. S. 2611 also would have enabled certain groups of unauthorized aliens in the United States to become LPRs if they paid penalty fees and met a set of other requirements. Senate action on comprehensive immigration reform legislation stalled at the end of June 2007 after several weeks of intensive debate. The bipartisan compromise was negotiated with Bush Administration officials and introduced in the Senate on May 21, 2007. The bill includes provisions aimed at strengthening employment eligibility verification and interior immigration enforcement, as well increasing border security. It would substantially revise legal immigration with a point system and expanded temporary worker programs. Unauthorized aliens in the United States would be able to become LPRs if they meet certain requirements, pay penalty fees, and meet other requirements. A modified version of that compromise ( S. 1639 ) was introduced June 18, 2007, but failed a key cloture vote on June 28, 2007. The House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law held multiple hearings weekly in April, May, and June on various aspects of comprehensive immigration reform. | U.S. immigration policy is a highly contentious issue in the 110th Congress. The number of foreign-born people residing in the United States is at the highest level in U.S. history and has reached a proportion of the U.S. population not seen since the early 20th century. There is a broad-based consensus that the U.S. immigration system is broken. This consensus erodes, however, as soon as the options to reform the U.S. immigration system are debated. Senate action on comprehensive immigration reform legislation stalled at the end of June 2007 after several weeks of intensive debate. This report synthesizes the major elements of immigration reform in the 110th Congress and provides references to other CRS reports that fully analyze these legislative elements. It will be updated as needed. |
The U.S. Congress is contemplating a $700 billion government assistance package to arrest the financial crisis in the United States. President Bush argued that failure to enact legislation quickly could result in a wholesale failure of the U.S. financial sector. As discussion of the Administration's plan unfolded, however, questions in Congress arose over issues of magnitude and management of the "bailout," the need for oversight, and the possibility that less costly and perhaps more effective alternatives might be available. In this light, Chile's response to its 1981-84 systemic banking crisis has been held up as one example. The cost was comparable relative to the size of its economy to that facing the U.S. Government today. In 1985, Central Bank losses to rescue financially distressed financial institutions were estimated to be 7.8% of GDP (equivalent to approximately $1 trillion in the United States today). The policy options Chile chose had similarities as well as differences from those contemplated in the United States today. Their relevance is debatable, but they do highlight an approach that succeeded in eventually stabilizing and returning the Chilean banking sector to health, while keeping the credit markets functioning throughout the crisis. The seeds of the Chilean financial crisis were much different than those in the United States. Nonetheless, in both cases, the financial sector became the primary problem, with policy makers concerned over the prospect of a system-wide collapse. Chile's problems originated from large macroeconomic imbalances, deepening balance of payments problems, dubious domestic policies, and the 1981-82 global recession that ultimately led to financial sector distress. Although most of these are not elements of the U.S. crisis, there are a number of similar threads woven throughout both cases. Broadly speaking, both countries had adopted a strong laissez-faire orientation to their economies and had gone through a period of financial sector deregulation in the years immediately prior to the crisis. A group of scholars characterized Chile's orientation toward the financial sector as the "radical liberalization of the domestic financial markets" and "the belief in the 'automatic adjustment' mechanism, by which the market was expected to produce a quick adjustment to new recessionary conditions without interference by the authorities." In both cases, given the backdrop of financial sector deregulation, a number of similar economic events occurred that ultimately led to a financial crisis. First, real interest rates were very low, giving rise to a large expansion of short-term domestic credit. With credit expansion came the rise in debt service, all resting on a shaky assumption that short-term rates would not change. In both cases, but for different reasons, rates did rise, causing households and firms to fall behind in payments and, in many cases, to default on the loans. The provision for loan losses was inadequate causing financial institutions to restrict credit. Soon, many found themselves in financial trouble or insolvent, resulting in the financial crisis. Chile's response may prove useful as policy makers evaluate options. Following the coup against socialist President Salvador Allende in 1973, General Augusto Pinochet immediately re-privatized the banking system. Banking regulation and supervision were liberalized. Macroeconomic conditions and loose credit gave way to the economic "euphoria of 1980-81." The exuberance included substantial increases in asset prices (reminiscent of a bubble) and strong wealth effects that led to vastly increased borrowing. The banking system readily encouraged such borrowing, using foreign capital, that because of exchange rate controls and other reasons, provided a negative real interest rate. From 1979 to 1981, the stock of bank credit to businesses and households nearly doubled to 45% of GDP. This trend came to a sudden halt with the 1981-82 global recession. The financial sector found itself suddenly in a highly compromised position. Weak bank regulations had allowed the financial sector to take on tremendous amounts of debt without adequate capitalization. Debt was not evaluated by risk characteristics. Most debt was commercial loans, but banks also carried some portion of consumer and mortgage debt. As firms and households became increasingly financially stressed, and as asset prices plummeted, the solvency of national banks became questionable. Two issues would later be identified: the ability of borrowers to make debt payments, and more importantly, the reluctance of borrowers to do so given there was a broadly-held assumption that the government would intervene. By November 1981, the first national banks and financial institutions that were subsidiaries of conglomerates failed and had to be taken over by regulatory authorities. Most debt was short term and banks were in no position to restructure because they had no access to long-term funds. Instead, they rolled over short-term loans, capitalized the interest due, and raised interest rates. This plan was described by one economist as an unsustainable "Ponzi" scheme, and indeed was a critical factor in bringing down many banks as their balance sheets rapidly deteriorated. From 1980 to 1983, past-due loans rose from 1.1% to 8.4% of total loans outstanding. The sense of crisis further deepened because many of the financial institutions were subsidiaries of conglomerates that also had control over large pension funds, which were heavily invested in bank time deposits and bank mortgage bonds. In the end, although the roots of the banking crisis were different than those in the United States, the Chilean government faced the possibility of a complete failure of the financial sector as credit markets contracted. The Central Bank of Chile took control of the crisis by enacting three major policies intended to maintain liquidity in the financial system, assist borrowers, and strengthen lender balance sheets. These were: 1) debt restructuring for commercial and household borrowers; 2) purchases of nonperforming loans from financial institutions; and 3) the expeditious sale, merger, or liquidation of distressed institutions. From the outset of the rescue plan, the Chilean Central Bank considered providing relief to both debtors and lenders. There were two rationales. First, as a matter of equity, there was a sense that households as well as firms should be helped. Second, to maintain a functioning credit market, both borrowers and lenders needed to be involved. The Central Bank decided to restructure commercial, consumer, and mortgage loans. The goal was to extend the loan maturities at a "reasonable" interest rate. The debtor was not forgiven the loan, rather banks were given the means to extend the maturities of the loans to keep the debtor repaying and the credit system functioning. Restrictions were in place. Eligible firms had to produce either a good or service, eliminating investment banks that held stock in such firms. Only viable businesses were eligible, forcing the bankruptcy procedures into play where unavoidable. To keep the program going, the loan conditions of each subsequent iteration of the program became easier: longer maturities; lower interest rates; and limited grace periods. The program allowed Central Banks to lend firms up to 30% of their outstanding debt to the banking system, with the financing arrangement working in one of two ways. At first, the Central Bank issued money, lent it to debtors, which used it to pay back the bank loans. Later, the Central bank issued money to buy long term bonds from the banks, which used the proceeds to restructure the commercial loans. Variations of this process were applied to consumer and mortgage debtors. In cases where loans were made directly from the Central Bank to the debtor, repayment was expected usually beginning 48 months after the loan was made. The fiscal cost was significant, approximating 1% of GDP in 1984 and 1985. This program was more controversial and had to be adjusted over time to be effective. The key idea was to postpone recognition of loan losses, not forgive them. It relied on identifying nonperforming loans and giving banks time to provision against them, without risking insolvency. The process has been variously characterized as the Central Bank taking on bad debt through loans, purchases, or swaps. All three concepts play some part of this complex, largely accounting-driven arrangement. Initially, this program was described as a sale, although there was no exchange of assets. The Central Bank technically offered to "buy" nonperforming loans with non-interest bearing, 10-year promissory notes. Banks were required to use future income to provision against these loans and "buy" them back with the repurchase of the promissory notes. In fact, they were prohibited from making dividend payments until they repaid the Central Bank in full. The banks, though, actually kept the loans and administered them, but did not have to account for them on their balance sheets. This arrangement was intended to encourage banks to stop rolling over non-performing loans, recognize the truly bad ones, and eventually retire them from their portfolios. The banks benefitted by remaining solvent and gaining time to rebuild their loan loss reserves so to address nonperforming loans. The credit market was served by banks being able to continue operating with increased funds from released loan-loss reserves. This program did not work as hoped at first and had to be adjusted. The Central Bank allowed more time for banks to sell nonperforming loans and also permitted a greater portion of their loan portfolios to qualify. It also began to purchase these loans with an interest-bearing promissory note. The banks, however, actually repaid the interest-bearing note at a rate 2 percentage points below that paid by the Central Bank to the banks. This added differential was sufficient incentive for the banks to sell all their bad loans to the Central Bank, beginning a process of identifying good loans and allowing for the eventual retirement of bad loans from the balance sheets (and the banking system). The cost to the Central Bank increased, but by 1985, the portfolio of non-performing loans at the Central Bank began to decline and was eventually eliminated. A major goal of government actions was to ensure that bank owners and creditors were not absolved of responsibility to help resolve the crisis, including using their own resources to absorb some of the costs. The government worked closely with all financial institutions to impose new risk-adjusted loan classifications, capital requirements, and provisioning for loan losses, which would be used to repurchase loans sold to the Central Bank. The banks, through the Central Bank purchase of substandard loans, were given time to return to profitability as the primary way to recapitalize, and became part of the systemic solution by continuing to function as part of the credit market. A number of banks had liabilities that exceeded assets, were undercapitalized, and unprofitable. Their fate was determined based on new standards and they were either allowed to be acquired by other institutions, including foreign banks, or liquidated. The "too big to fail" rule was apparently a consideration in helping keep some institutions solvent. A total of 14 financial institutions were liquidated, 12 during the 1981-83 period. In most cases, bank creditors were made whole by the government on their deposits with liquidated banks. For three financial institutions that were closed in 1983, depositors had to accept a 30% loss on their assets. The overriding goal of a strategy to correct systemic crisis in the financial sector is to ensure the continued functioning of credit markets. Chile succeeded in accomplishing this goal and restoring a crisis-ridden banking system to health within four years. The single most important lesson of the Chilean experience was that the Central Bank was able to restore faith in the credit markets by maintaining liquidity and bank capital structures through the extension of household and consumer loan maturities, the temporary purchase of substandard loans from the banks, and the prompt sale and liquidation of insolvent institutions. Substandard loans remained off bank balance sheets until the viable institutions could provision for their loss from future profits. Other losses were covered by the government. In addition, a number of other insights emerged from the Chilean crisis: The market could not resolve a system-wide failure, particularly in the case where there was a high expectation of a government bailout. The expectation of a bailout became self-fulfilling and increased the cost. Appropriate prudential supervision and regulation were critical for restoring health and confidence to the financial system. Observers lamented the a priori lack of attention to proper regulation. Private institutions that survived shared in the cost and responsibility to resolve the crisis to the apparent long-term benefit of the financial sector. The fiscal cost of the three policies discussed above was high. Liquidating insolvent institutions had the highest cost followed by the purchase of non-performing loans and rescheduling of domestic debts. The strategy, however, is widely recognized as having allowed the financial system and economy to return to a path of stability and long-term growth. | Chile experienced a banking crisis from 1981-84 that in relative terms had a cost comparable in size to that perhaps facing the United States today. The Chilean Central Bank acted quickly and decisively in three ways to restore faith in the credit markets. It restructured firm and household loans, purchased nonperforming loans temporarily, and facilitated the sale or liquidation of insolvent financial institutions. These three measures increased liquidity in the credit markets and restored the balance sheets of the viable financial institutions. The Central Bank required banks to repurchase the nonperforming loans when provision for their loss could be made and prohibited distribution of profits until they had all been retired. Although the private sector remained engaged throughout the resolution of this crisis, the fiscal costs were, nonetheless, very high. |
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. |
This report is an overview of the FY2010 appropriations for the Department of Homeland Security (DHS) programs that are designed to provide assistance to state and local governments, and public and private entities, such as ports. These programs are primarily used by first responders, which include firefighters, emergency medical personnel, emergency managers, and law enforcement officers. Specifically, the appropriations for these programs provide for grants, training, exercises, and other support to states, territories, and tribal and joint jurisdictions to prepare for terrorism and major disasters. The programs are administered by two different organizations within the Federal Emergency Management Agency: the Grant Programs Directorate (GPD) and the National Preparedness Directorate (NPD). This report will be updated to reflect appropriated funding for these programs in FY2010. GPD is responsible for administering the State and Regional Preparedness Program and the Metropolitan Statistical Area (MSA) Preparedness Program. The State and Regional Preparedness Program includes seven programs intended to provide resources to support preparedness projects and activities that build state and local homeland security capabilities as outlined in the National Preparedness Guidelines, the Target Capabilities List, and the National Strategy for Homeland Security of 2007. The State and Regional Preparedness Program includes: State Homeland Security Grant Program (SHSGP); Firefighter Assistance Grants Program (FIRE); Driver's License Security Grants Program (DLSGP, formerly known as REAL ID); Citizen Corps Grant Program (CCP); Interoperable Emergency Communications Grant Program (IECGP); Regional Catastrophic Preparedness Grant Program (RCPGP); Medical Surge Grant Program (MSGP); and Emergency Management Performance Grants (EMPG). The Metropolitan Statistical Area Preparedness Program is specifically designed to provide assistance to high-threat, high-risk urban areas, and critical infrastructure (primarily transportation infrastructure). The Metropolitan Statistical Area Preparedness Program includes: Urban Area Security Initiative (UASI); and Transportation Infrastructure Protection (including port, rail/transit, bus, and Buffer Zone Protection security programs). NPD is responsible for administering the Training, Measurement, and Exercise Programs, which fund state and local preparedness exercises, training, technical assistance activities and evaluations. In FY2010 this account funds the National Exercise Program (NEP), State and Local Training Programs, Technical Assistance (TA) Programs, and Evaluations and National Assessments. Congress appropriated approximately $4.2 billion for DHS programs for state and locality homeland security in FY2010. Conferees also established limits on the amount FEMA and grantees can use funding for management and administration costs. See Table 1 below for FY2009 and FY2010 funding levels. Additionally, Table 1 provides information on the Administration's FY2010 budget request, and the House- and Senate-passed versions of the FY2010 DHS appropriations. Even though Congress has appropriated funding for FEMA's grant programs, Congress could elect to address three issues when considering appropriating future funds for DHS's state and local assistance programs. The first issue is the overall reduction in funding for state and local assistance programs, the second issue is the allocation method DHS uses to determine state and local grant awards, and the third issue is the reduction in appropriations for the Assistance to Firefighters Program. One issue that has been debated annually by Congress is the overall amount to be appropriated for these programs. In FY2010, the Administration proposed to reduce the overall funding for these programs by $909 million. The House-passed version of H.R. 2892 proposed to reduce the overall funding for these programs in FY2010 by $817 million and the Senate-passed version of H.R. 2892 proposed a reduction of $559 million. With the enactment of the FY2010 DHS appropriations, Congress determined to fund FEMA programs with an approximate appropriation total of $4.2 billion, which was a reduction of $610 million from the amount appropriated in FY2009. As stated earlier in this report, this reduction is either the result of the elimination of funding for some grant programs or through the reduction of funding for others. In the past eight years, Congress has appropriated an approximate total of $33 billion for state and local homeland security assistance with an average annual appropriation of $3.7 billion. In FY2009 Congress appropriated a high total of funding of $4.78 billion; the lowest appropriated amount was $1.43 billion in FY2002. Some might argue that since over $33 billion has been appropriated and allocated for state and local homeland security, jurisdictions should have met their homeland security needs. This point of view could lead one to assume that Congress should reduce funding to a level that ensures states and localities are able to maintain their homeland security capabilities, but doesn't fund new homeland security projects. Additionally, some may argue that states and localities should assume more responsibility in funding their homeland security projects and the federal government should reduce overall funding. This, however, may be difficult due to the present state and local financial circumstances. Another argument for maintaining current funding levels is the ever changing terrorism threat and the constant threat of natural and accidental man-made disasters. As one homeland security threat (natural or man-made) is identified and met, other threats develop and require new homeland security capabilities or processes. Some may also argue that funding amounts should be increased due to what appears to be an increase in natural disasters and their costs. Another potential issue of debate is how grant program funding is distributed to states and localities. Specifically, Congress may want to continue to address the funding distribution methodologies to ensure states and localities meet their homeland security needs. This issue has garnered Congress' attention the most over the past eight years, with the issue addressed in P.L. 110-53 in January 2007. Specifically, P.L. 110-53 required that SHSGP and UASI allocations be based entirely on risk; however, SHSGP recipients were guaranteed a minimum amount annually through 2012. This funding debate has been primarily focused on SHSGP and UASI; funding allocation methodologies for the majority of GPD and NPD programs have not been discussed during this debate. Some observers have criticized the guaranteed minimum allocation for SHSGP and the continued use of population as a key variable for other grant program distribution methodologies (for such grant programs as Emergency Management Performance Grants and Citizen Corps Programs). For example, the National Commission on Terrorist Attacks Upon the United States (9/11 Commission) recommended that all homeland security assistance be allocated based only on risk. Since P.L. 110-53 required DHS to guarantee a minimum amount of SHSGP funding to states, it could be argued that the law did not meet the 9/11 Commission recommendation. On the other hand, some might contend that the statue requires funds to be allocated on the basis of risk but with a floor that provides a guaranteed minimum. While the 9/11 Commission criticized the allocation of federal homeland security assistance and recommended that the distribution not "remain a program for general revenue sharing," commissioners acknowledged that "every state and city needs to have some minimum infrastructure for emergency response." The 9/11 Commission also recommended that state and local homeland security assistance should "supplement state and local resources based on the risks or vulnerabilities that merit additional support." In a policy document published prior to his inauguration, President Obama stated, in what arguably is in agreement with the 9/11 Commission, that homeland security assistance should be based solely on risk. Due to this criticism, Congress may wish to consider conducting oversight hearings on how DHS allocates homeland security funding to jurisdictions. Instead of guaranteed minimums, Congress could require that DHS allocate funding based solely on risk. This option, however, might result in some jurisdictions receiving no or limited allocations. Arguably, a risk assessment process used to allocate homeland security assistance would determine that every state and locality has some risk, whether terrorism or natural disaster related, and needs some amount of funding. Such a process, however, would require DHS to evaluate state and local capabilities (currently DHS relies primarily on grant recipient self evaluations), vulnerabilities, and risk in a manner that accurately reflects the nation's current homeland security environment. For FY2010, the Administration proposed $170 million for Assistance to Firefighter Grants (AFG), a 70% decrease from the FY2009 level, and $420 million for SAFER (Staffing for Adequate Fire and Emergency Response Firefighters), double the amount appropriated in FY2009. The total amount requested for firefighter assistance (AFG and SAFER) was $590 million, a 24% decrease from FY2009. The FY2010 budget proposal stated that the firefighter assistance grant process will give priority to applications that enhance capabilities for terrorism response and other major incidents. AFG grants are used primarily for firefighting equipment, while SAFER grants are used for hiring (by career departments) and recruitment/retention (by volunteer departments). The $170 million request for AFG would have been the lowest level for the program since FY2001, the program's initial year. On the other hand, the proposed doubling of the SAFER budget to $420 million would have been the highest level for this program since its inception. In evaluating the budget proposal, Congress may assess whether there is an appropriate balance between funding for firefighter equipment and hiring/recruitment. House-passed H.R. 2892 provided $800 million for firefighter assistance, including $390 million for AFG and $420 million for SAFER. Although the SAFER level matches the Administration's request, the AFG level is more than twice what the Administration proposed. According to the House committee report, the Administration's request of $170 million for AFG "is woefully inadequate given the vast needs of fire departments across the nation for equipment." The committee directed FEMA to continue granting funds to local fire departments, include the United States Fire Administration in the grant decision process, and maintain an all-hazard focus while granting eligibility for activities such as wellness. Senate-passed H.R. 2892 provided $810 million for firefighter assistance, including $390 million for AFG and $420 million for SAFER. The committee directed DHS to continue funding applications according to local priorities and priorities established by the United States Fire Administration, and to continue direct funding to fire departments through the peer review process. P.L. 111-83 provided $390 million for AFG and $420 million for SAFER, identical to the levels in both the House and Senate-passed bills. The Conference Agreement directed FEMA to continue the present practice of funding applications according to local priorities and those established by the USFA, to maintain an all-hazards focus, to grant funds for eligible activities in accordance with the authorizing statute, and to continue the current grant application and review process as specified in the House report. | Since FY2002, Congress has appropriated more than $33 billion for homeland security assistance to states, specified urban areas and critical infrastructures (such as ports and rail systems), the District of Columbia, and U.S. insular areas. The Grant Programs Directorate and the National Preparedness Directorate, within the Federal Emergency Management Agency, administer these programs for the Department of Homeland Security. Each assistance program has either an all-hazards purpose or a terrorism preparedness purpose. These programs are primarily used by first responders, which include firefighters, emergency medical personnel, emergency managers, and law enforcement officers. Specifically, the appropriations for these programs provide for grants, training, exercises, and other support to states, territories, and tribal and joint jurisdictions to prepare for terrorism and major disasters. This report provides information on enacted FY2009 and FY2010 funding for these grant programs. It also identifies potential issues Congress may wish to address. The report will be updated when congressional or executive branch actions warrant. |
RS21727 -- Sensitive Security Information (SSI) and Transportation Security: Background andControversies February 5, 2004 On November 16, 2001, 63 days after the attacks on the World Trade Center and the Pentagon, Congress passed the Aviation andTransportation Security Act (ATSA); and the President signed it into law on November 19, 2001. (1) Congress enacted ATSA toincrease aviation security after the September 11 terrorist attacks. Under ATSA, Congress created theTransportation SecurityAdministration (TSA) and authorized the agency to make improvements in the country's transportation security. (2) Based on thisauthority, the Under Secretary of Transportation for Security transferred authority for the existing Federal AviationAdministrationregulations, (3) which include SSI, to the TransportationSecurity Administration (4) on February 22, 2002. (5) The TSA incorporatedthese regulations into its Transportation Security Regulations (TSRs). The TSRs contain rules on administration, procedure, and security for air, land, and maritime transportation. Subchapter A, titled"Administrative and Procedural Rules," contains Part 1520, which addresses Sensitive Security Information (SSI). The FederalRegister notice on the regulations describes or defines SSI as including "information about security programs,vulnerabilityassessments, technical specifications of certain screening equipment and objects used to test screening equipment... and otherinformation." (6) This definition is spelled out in moredetail in 49 C.F.R. 1520.7, which is summarized below. Section 1520.7(a) protects any security program "that relates to United States mail to be transported byair." Section 1520.7(b) through (d) covers security directives and information circulars, selection criteriaused in thesecurity screening process, and security contingency plans and/or instructions pertaining to those plans. Section 1520.7(e) through (g) relates to any technical specification of any device or equipment usedfor securitycommunications, screening, or "detecting deadly or dangerous weapons," including an "explosive, incendiary, ordestructivesubstance." Section 1520.7(h) covers the release of information that TSA "has determined may reveal a systemicvulnerability of the aviation system, or a vulnerability of aviation facilities, to attack." Section 1520.7(i) protects "information [released by TSA] concerning threats againsttransportation." Section 1520.7(j) protects "details of aviation security measures." Section 1520.7(k) and (l) relates to any "information" TSA has prohibited from disclosure under thecriteria of49 U.S.C. 40119, or any draft, proposed, or recommended change to the information or records identified in thissection. Section 1520.7(m) through (p) covers locations, tests, and scores of tests on all screening methods orequipment. Section 1520.7(q) protects "images and descriptions of threat images for threat projectionsystems." Section 1520.7(r) relates to all Department of Transportation information on "vulnerability assessment...irrespective of mode of transportation." Section 1520.5 specifies that all airport operators, aircraft operators, foreign air carriers, indirect air carriers, applicants, and otherpersons who receive SSI must protect that information from disclosure. SSI may be exempted from disclosure underthe Freedom ofInformation Act. (7) The regulations are intended to reduce the risk of vital security information reaching the wrong hands and resulting in another terroristattack. The regulations governing SSI, however, have raised a number of concerns about the management of suchinformation and theaccountability of governmental agencies. This section highlights four cases that have surfaced over the last twoyears, in which theSSI regulations were applied to withhold information. The cases deal with airport security procedures, employeeaccountability,passenger screening, and airport secrecy agreements. In January 2003, the Dallas/Fort Worth Airport experienced an early controversy involving TSA security procedures. The incidentinvolved a federal screener who permitted a man to pass through security after his luggage tested positive for anexplosive. Theairport was closed for over an hour while TSA and law enforcement authorities searched for the individual. Afterthe incident, a TSAspokesman stated that the agency was "not going to be issuing any kind of report because anything beyond the mostgeneral ofcomments would lead us into areas which concern sensitive security information." (8) The use of SSI rules to prevent the release ofinformation has raised the concerns of some experts. For example, Jane E. Kirtley, director of The Silha Center forthe Study ofMedia Ethics and Law at the School of Journalism and Mass Communication at the University of Minnesota hasstated, "The publichas a burning interest in knowing how secure the nation's airports are. It is not satisfactory in a democracy to saywhen an incidenthappens that we're taking care of the problems." (9) On the other hand, some have argued that the release of certain information couldharm the public. The TSA has stated "if [SSI] information were to fall into the wrong hands it could be used toattack thetransportation system." (10) A second controversy arose when the U.S. attorney's office in Miami dropped a criminal case against a former federal baggagescreener who was charged with stealing from passengers in November 2003. (11) The U.S. attorney's office withdrew the chargesbecause a federal judge determined that the defense could cross-examine the prosecution's witnesses, which couldraise the possiblyof disclosing SSI about TSA's security and training procedures. The problem with the decision of the JusticeDepartment accordingto a TSA spokeswoman, is that "future prosecutions of dishonest agency employees would be hamstrung by thesame dilemma thatled to the dismissal of the indictment." (12) Thepublic defender in the case suggested that "prosecutors could have drop[ped] the partof the conspiracy charge relating to the sensitive security information ... and [moved] forward with the other twounderlying offenses-- breaking into baggage and stealing their contents." (13) The U.S. attorney's office and TSA, however, decided the risk of releasingSSI was too great. A third controversy involves the Computer Assisted Passenger Pre-Screening system (CAPPS). In the summer of 2004, TSA plans toupdate the system and call it CAPPS II. (14) Theoriginal CAPPS system attempted to screen passengers by "focusing primarily ontravel patterns and financial transactions." (15) Thenew system, in addition to monitoring travel records, will check various personalrecords of passengers trying to make reservations. These records, combined with "CIA, FBI, and other intelligencedatabases", willbe used to select certain travelers for additional screening. Then-TSA Administrator Loy stated, "I don't think thereis a single projectthat will do more potential good for aviation security." The system will be able "to trace would-be terrorists, evenif they leadapparently unremarkable lives." (16) Some do notagree the system will function as TSA believes. (17) David Sobel of the ElectronicPrivacy Information Center thinks that CAPPS II is a "Catch-22" that will "present enormous challenges for clearingnames -- andan enormous temptation for misuse." For example, if a person is flagged by the system, Sobel says they "are goingto want to know,'Why am I pulled aside every time I take a flight?'" Since the system will contain SSI, the answer will be "Sorry, wecan't tell you." (18) TSA officials point out that "a passenger advocate and appeals process" will be available when the system goesonline. (19) A fourth SSI controversy involves a security agreement between airport administrations, local police departments, and TSA officials. The agreements prohibit the local police from commenting on any incident involving SSI that has occurred onairport propertywithout authorization by the proper TSA officials. Failure to comply with the agreement may mean the loss offinancial aid forairport security. (20) A partial copy of one of theagreements contains the following two sections. A copy of any summons, complaint, subpoena or other legal document served upon alocal law enforcement organization that is related to a local proceeding that seeks records or testimony containingsensitive securityinformation shall be promptly forwarded to the ... Transportation Security Administration fieldcounsel. All media releases and other contact with or by media specific to the security directive, ...the airport security program, or other subsequent or superceding regulations or documents regarding lawenforcement services foraviation security shall be coordinated with the federal security director or the federal security director's designee. All media releasesand other contact with or by media on the terms and conditions of this reimbursement agreement shall becoordinated with thecontracting officer. (21) When these agreements were initially designed, many local officials reportedly were not sure of the exact level of compliance theyrequired. For example, police officials in Des Moines, IA, thought that they might be prevented from discussingwith the public "abomb or shooting incident at the airport." The local police chief, William McCarthy, reasoned that the "agreementmay even preventofficers from 'reporting the arrest of a drunk at the airport'" or testifying in court without clearance from TSA. (22) Only after Iowa Senators Charles Grassley and Tom Harkin became involved in the matter was the agreement clarified. In a letter toSenator Grassley, TSA Administrator James Loy explained that the agreement was not a "gag order" for local police,but wasintended to inform TSA officials about incidents that occur on airport property. In addition, Loy stated "that lawenforcement officerswho are asked to testify about purely factual matters that do not reveal sensitive [security] information may do sowithout consultationwith the federal government." The TSA letter also explained that copies of the agreement could be made publicexcept for parts withsensitive security information, such as "Appendix A, which concerns the amount of airport security." (23) Currently, the Des Moines issue has been resolved between TSA and local police. Lt. David Huberty of the Des Moines policedepartment has stated that, since the clarification of the agreement, SSI has not been an issue. In fact, local policeand TSA officialshave a good working relationship. The close interaction between local and federal authorities in Des Moines,according to Lt.Huberty, has provided the airport-assigned police officers with a working understanding of SSI. (24) For example, incidents that occuron airport grounds outside the terminal are not generally reported to TSA officials since local police understand thatthey do notinvolve SSI. Incidents that do occur within the terminal or at checkpoints, however, are treated differently in thatTSA officials areinvolved and local police will write up more generalized descriptions of the incident so that SSI is not revealed. (25) In addition, a TSAattorney will provide a training seminar for the Des Moines police department to better understand the SSIregulation. (26) The implementation of SSI regulations has created a number of controversies for TSA. The agency has worked to alleviate theseconcerns, but some experts are not convinced. They are still alarmed that SSI is currently "muzzling debate ofsecurity measures," (27) and although they acknowledge that some information should be kept secret, "the refusal to release otherinformation seemsoverzealous." For example, according to Paul S. Hudson of the Aviation Consumer Action Project, at a recentlyheld aviationmeeting, information in one report was labeled SSI and prevented participants from having "any exchange ofviews." (28) For some,the issue being raised is the need for security versus the public's right to know. This issue, Kirtley contends, comesdown to whether"our openness was what made us so vulnerable." (29) SSI justifications are not made on those grounds, but the TSA warns that SSIwould "be damaging to the security of the [airline] industry and could well be damaging to the security of the UnitedStates were it tobe publicly disclosed." (30) SSI will continually bediscussed in a post 9/11 environment where the TSA has to weigh its duty toprovide air, land, and maritime security against the need to keep the public informed and maintain constitutionalrights andsafeguards. | In November 2003, the U.S. attorney's office in Miami dropped a criminal case againstaformer federal baggage screener charged with stealing from a passenger's luggage. The case was dropped becauseprosecutors fearedthat sensitive security information (SSI) would have to be disclosed. At issue is the ability of the TransportationSecurityAdministration (TSA) to prosecute other dishonest agency employees in the future. Will the same dilemma that ledto the dismissalof this particular case occur again? In recent months, this and other important issues relating to SSI have beenraised. This reportprovides a brief background on SSI regulation, an overview of the current policy issues, and a description of thecriticism of, andsupport for, SSI policy. This report will be updated as events warrant. |
Since 1993, many states have enacted laws relating to breastfeeding. Currently, forty-three states and Puerto Rico have enacted some form of breastfeeding legislation, which most commonly addresses breastfeeding in the workplace and exempting nursing mothers from laws dealing with indecent exposure and/or criminal behavior. Additionally, some states have laws or rules that more directly bear on the obligation of breastfeeding mothers to serve on juries. This regulation of jury service generally has taken one of three approaches: Some states have enacted statutes that expressly excuse or defer jury service. States with this type of law include California, Idaho, Illinois, Iowa, Kansas, Minnesota, Mississippi, Nebraska, Oklahoma, Oregon, and Virginia. These laws are cited and summarized below. Additionally, Wyoming is considering legislation to defer or excuse jury duty. Another state legislative development is the enactment of "family friendly" jury duty legislation that permits parents who care for a young child on a full time basis, or who are caretakers of an elderly or disabled relative, to have jury service deferred or excused upon their request. Usually, breastfeeding mothers fall with the coverage of these statutes, although the statutes vary, and may not be applicable under every circumstance. Currently, twelve states—Alaska, Colorado, Florida, Georgia, Illinois, Massachusetts, New Jersey, South Carolina, Tennessee, Texas, Virginia, and Wyoming have some form of "family friendly jury duty legislation." (The laws of Colorado and Massachusetts probably are not applicable to the excuse or deferral of breastfeeding mothers from jury duty.) California has adopted a state-wide court rule which uniformly deals with breastfeeding and jury service. In addition, many individual courts—federal and state—have adopted rules to deal with this situation. Even if a state has neither a specific statute dealing with jury service and breastfeeding, a "family friendly" statute, nor a statewide court rule, it does not necessarily mean that a nursing mother will be required to perform jury duty. Individual court rules or custom, community practice, or other circumstances may permit an excuse or a deferral from jury service for a nursing mother. In the absence of a state law or court rule providing a specific exception for breastfeeding, the nursing mother may or may not be excused on the basis of a general "medical" needs exception. On the other hand, research has not found any court that permits a mother serving on a jury to have her child present in the court room or the jury room, or to breastfeed during court proceedings or jury deliberations. At the present time, eleven states have enacted laws which specifically allow a breastfeeding mother to either postpone or be excused from jury duty. The laws vary significantly in their language and scope. Certain states permit the mother to be excused from jury duty and other states permit the mother to postpone jury duty. The laws are cited to and are summarized below. Cal. Civ. Proc. Code § 210.5 (2006) requires that the "standardized jury summons shall include a specific reference to the rules for breast-feeding mothers." This rule, discussed below, permits the mother of a breastfed child to postpone jury duty for one year and eliminates the requirement for the mother to appear in court to request a postponement. Idaho Code § 2-212(3) (Michie 2006) provides that a nursing mother may have jury service postponed "upon a showing that the juror is a mother breastfeeding her child." 705 Ill. Comp. Stat. Ann. 305/10.3 (West 2006) provides that "any mother nursing her child shall, upon request, be excused from jury service." Iowa Code Ann. § 607A.5 (West 2006) permits a mother who is breastfeeding and who is responsible for the daily care of the child and is not regularly employed to be excused from serving on a jury. K.S.A. 43-158 (2006) provides that a mother's jury service shall be postponed until she is no longer breastfeeding the child. 2000 Minn. Laws Ch. 269 allows a nursing mother, upon request, to be excused from jury service if she is not employed outside of her home and if she is responsible for the daily care of the child. Miss. Code Ann. § 13-5-23(d) (2006) provides that a juror may be excused when "the potential juror is a breast-feeding mother." Neb. Rev. Stat. § 25-1601(1), (4) (2006) provides that a nursing mother shall be excused from jury service until she is no longer nursing her child by making such request to the court at the time the jury qualification form is filed with the jury commissioner and including with the request a physician's certificate in support of her request. The jury commissioner shall mail the mother's notification form to be completed and returned to the jury commissioner by the mother when she is no longer nursing the child. Okla. Stat. tit. 38, § 28(D) (2006) provides that breastfeeding mothers may request to be exempted from service as jurors. Or. Rev. Stat. §§ 10.050(4) (2006) permits a breastfeeding woman to be excused from acting as a juror, upon the approval of a written request. Va. Code Ann. § 8.01-341.1(8) (2006) provides an exemption for jury service, upon request, for "any mother who is breast-feeding a child." Some state statutes excuse or postpone jury duty for family caregivers. While they vary, some of these laws may apply to breastfeeding mothers. They are cited and summarized below. In addition to the laws which are discussed below, two other states—Colorado and Massachusetts—have "family friendly jury duty legislation" that do not appear to accommodate breastfeeding activities. Alaska Stat. § 09.20.030(a) (2007) exempts a person from service as a juror upon showing that the health or proper care of the person's family makes it necessary for the person to be excused. Fla. Stat. Ann. § 40.013(4) (2006) provides that an expectant mother or a parent who is not employed full time and who has custody of a child under six years of age may, upon request, be excused from jury service. In addition, the statute provides that a person may be excused from jury service upon a showing of hardship, extreme inconvenience, or public necessity. Ga. Code Ann. § 15-12-1(3) (2006) provides an exemption for jury duty to "any person who is the primary caregiver having active care and custody of a child under six years of age or younger...." 705 Ill. Comp. Stat. Ann. § 305/10.2(b) (2006) . A person may be excused from jury service upon showing that jury service would impose an undue hardship on account of the nature of the prospective juror's family situation. It is further provided that when an undue hardship caused by a family situation is due to the prospective juror being the primary caregiver of a child under age 12, the juror is to be excused if the jury commissioner finds that no reasonable alternative care is feasible which would not impose an undue hardship on the prospective juror. N.J. Rev. Stat. Ann. § 2B:20-10(c)(3) (2007) provides an excuse from jury service for a prospective juror having a personal obligation to care for another, including a minor child, who requires the prospective juror's personal care and attention, and no alternative care is available without severe financial hardship on the prospective juror or the person requiring care. S.C. Code Ann. § 14-07-860(B)(1) (2006) provides authority to a judge to excuse jurors for good cause if the person has legal custody and the duty of care for a child less than seven years of age. Tenn. Code Ann. § 22-1-104(b) (2006) provides an excuse from jury service upon a showing that service will constitute an undue hardship and upon making an oath that the person will, if excused, be caring for the person's child, children, grandchild or grandchildren, or ward. Tex. Code Crim. Proc. Code Ann. Art. 19.25.[356][407][395](2) (2006) provides that a person responsible for the care of a child younger than eighteen years may be excused from grand jury service. Tex. Gov ' t Code Ann. § 62.106(a)(2) (2006) provides that a person qualified to serve as a petit juror may establish an exemption from jury service if the person has legal custody of a child younger than ten years of age and the person's service on the jury requires leaving the child without adequate supervision. Va. Code Ann. § 8.01-341(8) (2006) provides for an excuse from jury duty for "a person who has legal custody of and is necessarily and personally responsible for a child or children 16 years of age or younger...." Wyo. Stat. Ann. § 1-11-10 4 (2006) provides that a person may be excused from jury duty when the care of that person's young children requires his absence. At the current time, one state's legislature is considering a bill which, if enacted, would impact breastfeeding mothers and their jury duty responsibilities. The bill is cited and summarized below. However, it should be considered, as it is early in the state legislative sessions, that additional bills may be subsequently introduced. Wy. H.B. 105 (2007) is a comprehensive legislative initiative dealing with various aspects of breastfeeding. One of the provisions would allow for breastfeeding mothers to be excused from jury duty. This section of the report deals only with state-wide court rules and federal district court rules for jury service relating to breastfeeding. It does not deal with local, county, or municipal court rules which may provide 1) a specific excuse for breastfeeding mothers; or 2) a general excuse under "family friendly" court rules. Cal. Rules of Court, Rule 859 (2006) provides for the deferral of jury service. A mother who is breastfeeding a child may request that jury service be deferred for up to one year, and may renew that request as long as she is breastfeeding. If the request is made in writing, under penalty of perjury, the jury commissioner must grant it without requiring the prospective juror to appear at court. Many of the federal district courts have made a provision in their jury plan to excuse or a defer jury duty for persons caring for a child or children under the age of ten. It appears that the rules vary among the federal district courts, including even among those located within the same state. For example, the U.S. District Court for the Central District of California has a rule concerning individual requests for excuse or deferment from jury duty. This rule provides an excuse for: Persons having active care and custody of a child or children under 14 years of age whose health and/or safety would be jeopardized by their absence for jury service; or a person who is essential to the care of an aged or infirm person. In contrast, the U.S. District Court for the Northern District of California provides an excuse upon the request of a sole caretaker of a preschool child or of an aged or disabled person, and not otherwise employed. In further contrast is the rule of the U.S. District Court for the Southern District of California, which provides an excuse for: 2) Any person having active care and custody of a child or children under 10 years of age whose health and/or safety would be jeopardized by absence of such person for jury service; or a person who is essential to the care of aged or infirm persons. These variations illustrate how different district courts in the same state handle the "family care" issue under different rules. While it appears that a breastfeeding mother might be excused from jury duty in these federal district courts, the term "breastfeeding" is not used, and the language of the rules is different. It is possible that the rules could be interpreted differently in various breastfeeding circumstances. The following chart compares the ways in which states currently deal with the issue of breastfeeding and jury duty. Some states have enacted legislation which provides a specific excuse or deferral from jury duty for a breastfeeding mother. Other states have enacted more general "family friendly" legislation that excuses a prospective juror from duty when faced with various family responsibilities. Depending upon the language of the statute and its implementation, such legislation may or may not excuse or defer breastfeeding mothers from jury duty. Legislation is currently pending in Wyoming to legislatively respond to the issue of breastfeeding and jury duty. California has a specific state-wide court rule which deals with the issue of breastfeeding mothers and jury duty. It is likely that local and state courts—where there is no uniform rule—may have varied, and not necessarily implemented consistent policies in dealing with breastfeeding mothers and jury duty responsibilities. | The increasing popularity of breastfeeding has focused attention on how the law facilitates or discourages the practice. One issue that has arisen involves breastfeeding mothers and jury duty, and whether a breastfeeding mother may receive an excuse or deferral from compulsory jury duty. At the present time there is no federal legislation on the subject, although Congress has considered and adopted other legislation concerning certain breastfeeding issues. By contrast, several states have enacted legislation to excuse or defer jury duty for breastfeeding mothers, either specifically or more generally under "family friendly" jury duty legislation. "Family friendly" jury legislation varies in scope, but it generally, though not always, is sufficiently expansive to cover breastfeeding mothers. Court rules concerning breastfeeding mothers and jury duty vary widely. California has adopted a uniform statewide rule. However, federal district courts have not adopted standard rules or practices. Likewise, state and local courts may have no specific rules, or very different rules on breastfeeding mothers and jury duty. The fact that a state, a court system, or a single court does not have a law, rule, or formally written procedure does not necessarily mean that a breastfeeding mother will be compelled to serve on a jury. It appears that a general "medical exception" from jury duty may be applicable to breastfeeding mothers in some instances, and local practice and custom may influence an excuse or deferral from jury duty. It appears that many of the decisions concerning a nursing mother's excuse or deferral from jury duty are handled on a case-by-case basis by the individual courts. |
Recommendations in the final report of the 2005 Defense Base Closure and Realignment Commission (hereafter referred to as the BRAC Commission or commission) became binding on November 9, 2005. In September and October 2005, Mr. Michael Wynne, then Principal Deputy Under Secretary of Defense for Acquisition, Technology, and Logistics, issued instructions to the military departments and defense agencies in DOD to create a Business Plan for each of the recommendations drafted by the commission and approved by the President. Following is a series of frequently asked questions concerning these Business Plans. A Business Plan specifies all actions necessary to comply with all or part of a particular commission recommendation, including timing, estimated cost, military construction, and environmental remediation, among others. The 2005 BRAC round was the fifth since 1988. However, because this round is occurring concurrently with DOD "transformation" efforts as well as the redeployment of forces from overseas installations, it is the most complex of all rounds to execute. Secretary Wynne devised the Business Plan approach as a management tool serving two main functions: to ensure that military departments and defense agencies adequately plan and coordinate implementation, and to assist DOD in allocating resources and prioritizing tasks to meet the statutory deadline. A Business Plan is not intended to provide an all inclusive description of activity but only the level of detail needed by administrators to ensure coordination and to allocate BRAC funds effectively. The plan describes necessary steps that must be taken to carry out the commission's recommendations and the estimated time-frames and costs associated with those steps. Detailed planning is not included but can be found in associated documentation referenced in the plans. Also, some details concerning to the planning, particularly with regard to personnel, are deliberately excluded in order to avoid providing potentially useful information to adversaries. Secretary Wynne issued his guidelines for Business Plan preparation in two memoranda. The first, dated September 21, 2005, provided a basic outline of major headings and general guidance regarding the information to be included. The second, dated October 12, 2005, described the necessary data in greater detail. Each plan should contain: The relevant recommendation from the commission's final report. A description of the steps needed to satisfy the recommendation. A list of the DOD organizations, including military units, that will have to be moved in order to fulfill the requirements of the commission's recommendation. A time-table for the movement of organizations listed above. Where applicable, this will also include a schedule for installation closure. A description of the estimated costs and savings associated with moving each organization. Details concerning military construction necessary as a result of BRAC actions. All required environmental studies at both the losing and gaining bases and the estimated costs for them. Identification of land and permanent structures (real property) that will need to be sold, destroyed, or otherwise disposed of. A list of all DOD agencies affected by the plan along with assurances that those agencies have participated in the plan's development and concur with its content. Secretary Wynne selected the term "Business Plan" based on the premise that the plans present the "business case" for the implementation of each recommendation. They outline financial estimates of costs and savings as well as describe movement plans throughout the BRAC implementation process. Furthermore, use of the term "business" is consistent with terminology currently employed within DOD. Soon after taking over as Secretary of Defense, Donald Rumsfeld announced his intention to steer the department towards more cost effective operations by adopting commercial business models. A June 18, 2001, DOD press release announced the creation of the Senior Executive Committee to function as a "business board of directors for the Department" and the Business Initiative Council, created to "recommend good business practices and implement cost savings that could offset the funding requirements for personnel programs, infrastructure recapitalization, equipment modernization and transformation initiatives." Secretary Wynne adopted the practices of private enterprise to create these Business Plans. Secretary Wynne assigned each BRAC Commission recommendation, in whole or in part, to a military department or defense agency. Generally the entity that has the largest number of resources tied to the action is responsible for preparing and executing the corresponding Business Plan. When more than one service or defense agency is involved in a realignment, DOD gave consideration to the location receiving resources as a result of the recommendation. DOD reasoned that the receiving agency could best decide how to align additional personnel and facilities with their existing infrastructure. As an example, in commission recommendation #131, which calls for the co-location of military criminal investigative agencies with the Counter Intelligence Field Agency and the Defense Security Service at the United States Marine Corps Base, Quantico, Virginia, responsibility for developing the Business Plan was assigned to the Department of the Navy. Because they were intended to be internal resource allocation documents, these Business Plans were not intended to circulate outside DOD. Nevertheless, once the DOD FY2008 budget proposal is submitted to Congress, much of the information contained in the plans, if not the plans themselves, will likely become publicly accessible. This is because the plans will form the basis for DOD's allocation of BRAC funding and estimated budgets; thus supporting data from the plans will likely be included in the military department and defense agency Budget Justification Documents, or "J-Books." J-Books are usually provided annually to Congress to explain how the military departments and defense agencies plan to use requested funds. BRAC 2005 differed from previous BRAC rounds in a number of ways. Unique to 2005 was the number and complexity of the recommendations. In their final report, the commission noted, "the 2005 BRAC recommendations exceeded the number considered by all prior BRAC Commissions combined. In addition to the unprecedented number, many DoD recommendations were extremely complex, proposing intertwining movements between and among numerous installations." The planning and execution of the 1991, 1993, and 1995 BRAC rounds centered on the Departments of the Army, Navy, and Air Force, each of which crafted its own list of recommendations. DOD consolidated, coordinated, and forwarded these lists to the President for approval. The military departments were then responsible for implementing the approved recommendations within the six years required by law. However, the very high level of complexity of the 2005 process led DOD's senior leadership to institute centralized control of the planning and resource allocation process while at the same time preserving a decentralized implementation policy for the military departments and defense agencies. Furthermore, DOD believed the coordination required by a Business Plan's development process would provide an added benefit. Coordination was intended to produce an efficient plan but also to create conditions in which potentially problematic issues could be identified and resolved prior to implementation. This was of particular importance where commission recommendations resulted in new methods of operation such as with "Joint Basing." Business Plans are intended to cover current planning through FY2011, when the law mandates implementation must be complete. Action affecting a location after FY2011, such as its post-closure use by the local community, is not covered in the plans. DOD will require updates to each of the Business Plans biannually—in the fall, to examine the next year's budget request and in the spring, to assess current budget execution. DOD considers these plans "living documents" that are likely to change as operational priorities and resource availability shift or any number of other variables and circumstances change. For example, a survey of a planned renovation of an existing facility may reveal that new construction would be more cost effective. The head of each military department or defense agency assigned responsibility for the preparation of each Business Plan to a subordinate organization. For example, the Secretary of the Air Force assigned the plan for the realignment of McGuire Air Force Base to Air Mobility Command, which is responsible for that installation. Air Mobility Command is empowered to coordinate details of the plan with the other services affected by that particular BRAC recommendation. After the plan's formulation, the Secretary of the Air Force or his delegate reviews and approves it. The plan is then submitted to the Installation Capability Council (ICC) at DOD for review and approval. The Deputy Under Secretary of Defense for Installations and Environment (DUSD (I&E)), currently Mr. Philip W. Grone, chairs the ICC, which consists of senior executives and military officers drawn from the Office of the Secretary of Defense, the military departments, and the Joint Staff. After approving each Business Plan, the ICC forwards it to the department's higher-echelon Infrastructure Steering Group (ISG) for further review. The ISG chair, the Under Secretary of Defense for Acquisition, Technology, and Logistics (USD (AT&L)), has the final approving authority. Before this approval is granted, each Business Plan is reviewed by the ISG Executive Secretariat, the DOD Base Realignment and Closure Office. This review includes a legal assessment of whether the Business Plan meets the BRAC Commission's intent for the recommendation. Once approved, the military departments and defense agencies put the Business Plans into action. Figure 1 illustrates the review structure: To date, 219 of the 237 required plans have been approved. Three of the 18 unapproved plans were reviewed by the DOD BRAC Office and sent back for further analysis. Examples of further analysis includes ensuring the plans address DOD's legal obligations and further assessment of implementation alternatives. The remaining 15 unapproved plans still require action. Of the 15 unapproved plans, 12 are for "joint bases." Joint bases involve locations where installations of two or more services are either adjoining or within close proximity and the BRAC Commission has recommended that the installations' support functions be combined and operated by a single service. DOD is currently developing Joint Base Implementation Guidance to provide the military departments and defense agencies direction regarding how the combined bases will be established and operated. Once this guidance is issued by the Deputy Secretary of Defense, the 12 plans will be completed and submitted for review and approval. The remaining three of the 15 unapproved plans involve Army-run chemical munitions depots where closure requires compliance with international treaty obligations. Affected locations are Newport Chemical Depot, Indiana; Umatilla Chemical Depot, Oregon; and Deseret Chemical Depot, Utah. It is possible that the required destruction of chemical weapons stockpiles at these depots may not occur within the six-year statutory period for completion of BRAC actions. Questions regarding this report should be directed to Mr. Daniel Else at [phone number scrubbed] or [email address scrubbed] . | As part of the implementation for the 2005 Base Realignment and Closure (BRAC) round, the Department of Defense (DOD) required the military departments and defense agencies to create action plans for each of the BRAC Commission's recommendations. These plans, called "Business Plans", describe the implementing actions, their timing, cost, and other related issues. DOD is to use these plans as a mechanism to ensure proper coordination among the defense agencies, allocate BRAC resources more efficiently, and to monitor the status of the commission's recommendations. To date, 219 of the 237required plans have been completed and approved. This report answers frequently asked questions regarding the plans. It will be updated as necessary. |
Virtually every federal crime comes with a hidden feature. Helpers and hands-on offenders face the same punishment. The result is the work of 18 U.S.C. 2, which visits the same consequences on anyone who orders the commission of a federal crime. This secondary liability is much like that which accompanies conspiracy, and the rationale is the same for both: society fears the crimes of several more than the crimes of one. (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. Section 2(a), the aiding and abetting subsection, is more frequently prosecuted than §2(b), the causes subsection. Although its elements are variously described, it is often said that, "[i]n order to aid and abet another to commit a crime it is necessary that a defendant in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, [and] that he seek by his action to make it succeed." Aiding and abetting means assisting in the commission of someone else's crime. Section 2(a) demands that the defendant embrace the crime of another and consciously do something to contribute to its success. That means that the defendant must know that the offense is afoot before it occurs if he is to be convicted of aiding and abetting. That does not mean that the defendant must aid in every aspect of the substantive offense. At common law: "where several acts constitute[d] together one crime, if each [was] separately performed by a different individual[,] ... all [were] principals as to the whole.... Indeed, ... a person's involvement in the crime could be not merely partial but minimal too: [t]he quantity [of assistance was] immaterial, so long as the accomplice did something to aid the crime.... That principal continues to govern aiding and abetting law under §2." Yet, neither knowledge without assistance nor assistance without intent is enough. Moreover, §2(a) requires that someone else commit a federal offense, because "[a]iding and abetting is not itself a federal offense, but merely describes the way in which a defendant's conduct resulted in the violation of a particular law." In Standefer , the Supreme Court rejected the petitioner's contention that "he could not be convicted of aiding and abetting a principal, Niederberger, when that principal had been acquitted of the charged offense." That view still prevails. A completed offense is a prerequisite to conviction for aiding and abetting, but the hands-on offender need be neither named nor convicted. As a general rule, the defendant's aiding and abetting must come before or at the time of the offense. Assistance given after the crime has occurred is a separate, less severely punished, offense—acting as an accessory after the fact. Whether by prosecutorial discretion or judicial pronouncement, accomplices sometimes void the application of federal principles of secondary criminal liability which usually govern conspiracy as well as aiding and abetting cases. It happens most often when there is a substantial culpability gap between the accomplice or co-conspirator and the primary offender. The cases ordinarily involve one of three types of accomplices or co-conspirators: victims, customers, and subordinates. "Victims" include "persons who pay extortion, blackmail, or ransom monies." Not every victim qualifies for the exception. Some do. Some do not. Culpability makes a difference. For instance, the Hobbs Act outlaws extortion by public officials. Yet, the erstwhile victim who is the moving party or a willing participant in a scheme to corrupt a public official is likely to be convicted and sentenced either for bribery or as an accomplice to extortion. "Customers" who have escaped conviction as co-conspirators or accomplices include drinkers, bettors, johns, and drug addicts. Examples from the Supreme Court include United States v. Farrar and Rewis v. United States . In Farrar , the Court held a speak-easy's customers could not be prosecuted as aiders and abettors of the establishment's unlawful sale of liquor. In Rewis , it reached the same conclusion for the customers of a gambling den. Rewis had been convicted of interstate travel in aid of unlawful gambling, following a jury charge that included an aiding and abetting instruction. The Court concluded that Congress had not intended mere bettors to be covered. It later indicated that same could be said of the federal gambling business statute, 18 U.S.C. 1955, when it observed that "§1955 proscribes any degree of participation in an illegal gambling business, except participation as a mere bettor." The same logic may cover a prostitute's customer. The federal Controlled Substances Act (CSA) reenforces the preexisting view that a drug trafficker's customers cannot be prosecuted coconspirators or aiders and abettors in his trafficking. Prior to the act, federal law punished the trafficker but not his customer. Since enactment of the CSA, federal law punishes the trafficker severely for possession with intent to distribute, but it punishes the customer for simply possession, ordinarily as a misdemeanor. "Subordinates" have more difficulty avoiding secondary liability. Nevertheless, in Gebardi , the Supreme Court held that a woman who agreed to be transported in interstate commerce for immoral purposes could not be charged with conspiracy to violate the Mann Act which outlawed interstate transportation of a woman for immoral purposes. Later lower federal courts continued to honor the Gebardi construction of the Mann Act, but limited it to cases in which the prostitute did no more than acquiesce in her interstate transportation. Moreover, the Occupational Safety and Health Act's (OSHA's) provisions do not allow employees of an OSHA offender to be prosecuted as aiders and abettors. On the other hand, no such benefit accrues to subordinates supervised by offenders of the federal gambling business statute, which condemns those who own or supervise an unlawful gambling enterprise which involves direction of five or more individuals. There is no consensus over how subordinates of a drug kingpin may be treated. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal. Although the words "commands, induces or procures" in §2(a) would seem to capture crimes committed through an agent, as the 1948 report explained the language of §2(b) leaves no doubt. Section 2(b) applies to defendants who work through either witting or unwitting intermediaries, through the guilty or the innocent. Whether the intermediary is a subordinate or an undercover government agent, he may be well aware that his conduct constitutes an element of the underlying offense. On the other hand, whether the intermediary is a dupe or a facilitating governmental official, §2(b) also applies even if he is unaware of the nature of his conduct. When the intermediary is an innocent party, no one but the "causing" individual need commit the underlying offense. Yet there must be an underlying crime. Section 2(b) imposes no liability unless the actions of the defendant and his intermediary, taken together, constitute an offense. Congress gave little indication of its purpose when it changed "causes" to "willfully causes," in 1951. The amendment originated in the Senate Judiciary Committee, after the House had passed its version of the bill. The committee report explained why it changed "is a principal" to "is punishable as a principal," but said nothing about why it added the word "willfully." There has been some speculation that the word "willfully" was added to address an observation by Judge Learned Hand. Judge Hand had observed that §2(a) had a mental element ("knowing"), but that §2(b) had no comparable element. In any event and although it seems far from certain, it appears that the courts understand "willfully" to mean a dual form of "intentionally." They believe that an individual "willfully" causes an offense when he intends the commission of conduct that constitutes a crime and then intentionally uses someone else to commit it. An individual may incur liability under §2(b) even if he is unaware that the underlying conduct is in fact a crime. Federal courts sometimes mention a withdrawal defense comparable to one available in conspiracy cases. In conspiracy, withdrawal is not a defense for conspiracy itself but only for the crimes committed in foreseeable furtherance of the scheme after the defendant's withdrawal. "To establish withdrawal from a conspiracy, the defendant has the burden to demonstrate that he took affirmative action by making a clean breast to the authorities or by communicating his withdrawal in a manner reasonably calculated to reach his coconspirators." In aiding and abetting, the withdrawal defense in federal cases may be more limited. Certainly, an individual faces no liability under §2(a) if the underlying offense goes uncommitted as a consequence of the withdrawal of his necessary assistance. Aiding and abetting needs a completed offense. The question is more difficult in cases where the crime blooms in spite of an abettor's abandonment. "[I]t is unsettled if a defendant can withdraw from aiding and abetting a crime. Other courts have reached varying results when considering the applicability of the withdrawal defense to the federal accomplice liability statute." Proponents of a general withdrawal defense may claim support from recent dicta in Rosemond . Rosemond had been convicted of two crimes, distributing marijuana (21 U.S.C. 841) and discharging a firearm during a drug trafficking offense (18 U.S.C. 924(c)). The Tenth Circuit had upheld an alternative aiding and abetting instruction concerning the firearm charge. The Supreme Court explained that an accomplice must know of the substantive offense beforehand in order to be shown to have embraced its commission. It did so in a manner suggesting an accomplice might be able to withdraw and escape liability prior to the commission of the substantive offense, even if he had contributed to the crime's ultimate success. "Congress has not enacted a general civil aiding and abetting statute.... Thus, when Congress enacts a statute under which a person may sue and recover damages from a private defendant for the defendant's violation of some statutory norm, there is no general presumption that the plaintiff may also sue aiders and abettors." With this in mind, the courts have concluded, for example, that aiders and abettors incur no civil liability as a consequence of their violations of the Anti-Terrorism Act; the Electronic Communications Privacy Act; the Stored Communications Act; or RICO. | Virtually every federal criminal statute has a hidden feature; primary offenders and even their most casual accomplices face equal punishment. This results from 18 U.S.C. 2, which visits the same consequences on anyone who orders or assists in the commission of a federal crime. Aiding and abetting means assisting in the commission of someone else's crime. Section 2(a) demands that the defendant embrace the crime of another and consciously do something to contribute to its success. An accomplice must know the offense is afoot if he is to intentionally contribute to its success. While a completed offense is a prerequisite to conviction for aiding and abetting, the hands-on offender need be neither named nor convicted. On occasion, an accomplice will escape liability, either by judicial construction or administrative grace. This happens most often when there is a perceived culpability gap between accomplice and primary offender. Such accomplices are usually victims, customers, or subordinates of a primary offender. Section 2(b) (willfully causing a crime) applies to defendants who work through either witting or unwitting intermediaries, through the guilty or the innocent. Whether the intermediary is a subordinate or an undercover government agent, he may be well aware that his conduct constitutes an element of the underlying offense. On the other hand, whether the intermediary is a dupe or a facilitating governmental official, §2(b) applies even if the intermediary is unaware of the nature of his conduct. Section 2(a) requires two guilty parties, a primary offender and an accomplice. Section 2(b) permits prosecution when there is only one guilty party, a "causing" individual and an innocent agent. Both subsections, however, require a completed offense. Federal courts sometimes mention, but rarely apply, a withdrawal defense comparable to one available in conspiracy cases. Proponents of a general withdrawal defense in §2 cases may find support in recent Supreme Court dicta. In Rosemond, the Court explained that an accomplice must know of the pending substantive offense in order to be shown to have embraced its commission. It did so in a manner suggesting that an accomplice might be able to withdraw and escape liability prior to the commission of the substantive offense, even if he had contributed to the crime's ultimate success. There is no general civil aiding and abetting statute. Aiding and abetting a violation of a federal criminal law does not trigger civil liability unless Congress has said so in so many words. This report is an abridged version of CRS Report R43769, Aiding, Abetting, and the Like: An Overview of 18 U.S.C. 2, by [author name scrubbed], without the footnotes, attribution for quotations, and citations to authority found there. |
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. |
RS21753 -- Indonesia-U.S. Economic Relations March 2, 2004 Indonesia, like many East Asian economies, suffered a severe economic shock when the "Asian Financial Crisis" struck the country in mid-1997. Prior to thisperiod, Indonesia had enjoyed relatively healthy economic growth: from 1980-1989, real GDP growth averaged5.5%, and from 1990 to 1996, it averaged 8.0%(one of the highest GDP growth rates in the world). According to the World Bank, the proportion of people livingbelow poverty declined from 60% in 1970 toan estimated 11% by mid-1997. (3) The 1997 economic crisis (which began in Thailand and quickly spread to Indonesia and several other East Asian economies), (4) resulted in a sharp depreciationof Indonesia's currency (the rupiah), (5) large-scalecapital flight, high inflation, widespread corporate bankruptcies (caused in part by large short-term debt ofmany companies and corrupt business practices), and a near collapse of the banking system. (6) In 1998, real GDP plunged by 13.2%; exports andimports fell by 8.6% and 34.5%, respectively, and living standards (per capita GDP on a purchasing power parity basis) droppedby nearly 13% (see Table 1 ). Finally , thepoverty rate doubled between mid-August 1997 (pre-crisis) and late 1998/early 1999. (7) Political unrest followed the economic crisis, eventually leading to the resignation in May 1998 of President Suharto (or Soeharto) who had ruled the countrysince 1967. The collapse of the Suharto regime helped usher in a new era of democratic political reforms inIndonesia, although the transition to democracy hasnot been easy and political instability remains a problem. Indonesia's near economic meltdown forced it to turn tointernational lending institutions, such as theInternational Monetary Fund, the World Bank, the Asian Development Bank, and foreign governments for billionsof dollars in loans, debt rescheduling, andeconomic aid. Indonesia has been somewhat successful in bringing the economy back to at least pre-crisis levels, but several problems remain. On the positive side, real GDPfrom 2000-2003 grew at a relatively healthy pace, averaging 4.0% (although it was half the average level of realGDP growth during the early 1990s). Inaddition, Indonesia's living standards (measured according to per capita GDP in purchasing power parity) finallyreached and exceeded pre-crisis levels in 2002($3,320 in 2002 versus $3,201 in 1997). Living standards improved by 12.7% in 2003. Finally, Indonesian exports (in dollar terms) in 2003 were 6.6% higherthan 1997 levels. On the negative side, Indonesian imports in 2003 were 21.1% lower than pre-crisis levels,reflecting the effects of the sharp devaluation of therupiah. In addition, the stock of foreign direct investment (FDI) in Indonesia dropped each year from 1997-2002. While the stock of FDI is estimated to haverisen slightly in 2003, it is $14.8 billion (or 20.3%) lower than what it was in 1997. (8) Finally, the rate of unemployment in Indonesia has steadily risen over thepast few years, from 6.1% in 2000 to 8.7% in 2003. Table 1. Selected Economic Indicators for Indonesia's Economy: 1997-2003 Source: Economist Intelligence Unit and government of Indonesia. Data for 2003 are estimates. *PPP data are measurements of foreign data in national currencies converted into U.S. dollars based on a comparable level of purchasing power these datawould have in the United States. The short-term economic prospects for Indonesia are relatively positive. For example, Global Insight , an international forecasting firm, predicts thatIndonesia's real GDP will rise by 4.6% in 2004 and 5.0% in 2005. (9) However, Indonesia faces a number of challenges that threaten to undermine long-termgrowth prospects. These include widespread government corruption and a weak legal system, (10) large public debt, extensive government controlof keyeconomic sectors (such as oil and gas), a high level of corporate non-performing loans, a weak banking system,uncertainties surrounding the centralgovernment's efforts to decentralize fiscal and political authority to local governments, and failure by thegovernment to provide adequate protection ofintellectual property rights (IPR). In addition, the existence and activities of several separatist movements andterrorist groups in Indonesia constitute majorthreats to political and economic stability. (11) InOctober 2002, terrorists with reported links to Al Qaeda bombed a club in Bali frequented by western tourists,killing over 200 people (including seven Americans) and wounding hundreds more. (12) In August 2003, terrorists bombed a U.S.-run hotel in Jakarta , killing12 people and wounding 150. The bombings have had a chilling effect on Indonesia's tourism industry and raisedmajor concerns over the safety of foreigntourists and businesspeople in Indonesia. Ethnic, religious, and separatist violence in the country has displaced 1.3million Indonesians. (13) According to the World Trade Organization, Indonesia was the world's 28th largest exporter and the 39th largest importer in 2002. Indonesian trade data indicatethat Japan was its largest trading partner in 2002, followed by the United States, Singapore, South Korea, and China(see Table 2 ). The United States wasIndonesia's second largest export market and its third largest source of imports. Major Indonesian exports includedpetroleum and petroleum products, naturalgas, and clothing and accessories. Its major imports were petroleum and petroleum products, organic chemicals,and general industrial machinery. (14) According to Indonesian investment statistics (which record approved investment, as opposed to actual investment),the top five foreign investors in Indonesiaare the United Kingdom, Japan, Singapore, China, and Malaysia. Major sectors for FDI in Indonesia includechemicals, pharmaceuticals, paper; metal goods,transportation, and real estate. (15) Table 2. Indonesia's Major Trading Partner's: 2002 ($billions) Source: United Nations Conference on Trade and Development U.S. data indicate that Indonesia is not a large U.S. trading partner. In 2003, U.S. exports to, and imports, from Indonesia were $2.5 billion and $9.5 billion,respectively, making Indonesia the 37th largest U.S. export market and its 26th largestsource of imports. As indicated in Table 3 and figure 1 , U.S. exports toIndonesia declined sharply in 1998 and 1999 and have been relatively flat since. Overall, U.S. exports to Indonesiain 2003 were 44.4% lower than 1997 levels. U.S. imports from Indonesia grew slightly from 1997-2000, but have been relatively flat since. U.S. imports fromIndonesia in 2003 were only 3.6% higherthan 1997 levels. The top three U.S. exports to Indonesia in 2003 were soybeans, textile fibers, and animal feed,while the top U.S. imports from Indonesiawere clothing and apparel, telecommunications equipment (mainly audio and video equipment), and crude rubber. According to U.S. investment data (whichlists the value of U.S. FDI on a historical cost basis, i.e., the cumulative book value of investment), U.S. FDI inIndonesia stood at $7.5 billion at year-end 2002,down by $700 million from 2001 and by $1.4 billion from its peak in ($8.9 billion) in 2000. Currently, 77% of U.S.FDI in Indonesia is in the mining sector(mainly oil and gas). (16) Because Indonesia is a developing country and meets other criteria set in U.S. law, $1.3 billion worth of its exports entered the United States duty-free under theGeneralized System of Preferences (GSP). In an effort to boost U.S.-Indonesian commercial relations, promotepolitical stability in Indonesia, and combatterrorism, the Bush Administration on September 19, 2001 announced that the United States would add 11 productsimported from Indonesia (valued at about$100 million) that would be eligible for GSP treatment and pledged that the United States would provide up to $400million in financial aid and loan guaranteesunder U.S. trade programs operated by the Overseas Private Investment Corporation (OPIC), the Export-ImportBank (Eximbank), and the Trade andDevelopment Agency (TDA), largely targeted at Indonesia's oil and gas sector. Indonesia has gradually reformed its trade regime over the past 10 years, reducing its average un-weighted tariff from 20.0% in 1994 to 7.3% in 2003. In 1999,Indonesia agreed to eliminate various discriminatory trade policies on auto trade after it lost a case in the WTOdispute brought mainly by the United States andEuropean Union. Indonesia's enforcement of U.S. IPR has been a major issue of concern for U.S. firms. Accordingto the International Intellectual PropertyAlliance (IIPA), piracy levels in Indonesia are "among the highest in the world," rivaling those of China andVietnam. IIPA estimates that IPR piracy inIndonesia cost U.S. firms $260 million in lost trade in 2002. (17) Table 3. U.S. Trade With Indonesia: Selected Years ($millions) Source: U.S. International Trade Commission Dataweb. PDF version | Indonesia's economy continues to struggle against the lasting effects of the 1997-1998Asian financial crisis and thepolitical instability that resulted. Indonesia was one of the hardest hit economies in Asia; real GDP fell by 13.2 %in 1998. Indonesian-U.S. commercial tieswere sharply diminished as well, caused in part by declining Indonesia living standards and a loss of foreign investorconfidence in Indonesia (due largely topolitical instability). The Indonesian economy has improved over the past few years, however, recent activities ofterrorist elements in Indonesia and the rise ofseparatist movements threaten to undermine further an already fragile economy. This report will be updated asevents warrant. |
The President's authority to issue pardons is delineated in Article II, Section 2, Clause 1 of the Constitution, which states: "The President shall ... have power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." This express language itself implies the inherent limits of the pardon power. First, the pardon power is limited to "offenses against the United States," preventing the President from intruding upon state criminal or civil proceedings. Likewise, the pardon power does not extend to "Cases of Impeachment," preventing presidential interference with Congress's power to impeach. Absent these limitations, the President's authority to grant pardons is essentially unfettered. For instance, a pardon may be bestowed at any time after the commission of an offense, irrespective of whether charges have actually been pressed. Also, a pardon may be issued subsequent to conviction and during the service of sentence. Additionally, a pardon may be granted after a sentence has been served, in order to restore the civil rights of the individual in question. Furthermore, the President may also pardon a large group of offenders, as was done subsequent to the Civil War. The establishment of the pardon power in the Constitution was derived from English custom and the view of the Framers that "there may be instances where, though a man offends against the letter of the law ... peculiar circumstances in his case may entitle him to mercy." Further, this power was properly reposed in the President, according to Alexander Hamilton, as "one man appears to be a more eligible dispenser of the mercy of the government, than a body of men." In determining that the President should exercise the pardon power, the Framers further decided that minimal limitations should be placed on the power. For instance, the Framers rejected a proposal that the Senate have consent power over pardons. The Framers likewise rejected James Madison's argument that treason should be excepted. Based upon this broad grant of authority under the Constitution, the courts have traditionally held that the President's pardoning power may not be circumscribed by Congress. In Ex Parte Garland , for instance, the Supreme Court held that the pardon power "is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions." The Court repeated this maxim in United States v. Klein ("[t]o the executive alone is intrusted the power of pardon; and it is granted without limit"), and again in Ex Parte Grossman ("[t]he executive can reprieve or pardon all offenses ... without modification or regulation by Congress"). Finally, in Schick v. Reed , the Court declared that the President's pardon power "flows from the Constitution alone, not any legislative enactments," and "cannot be modified, abridged, or diminished by the Congress." However, Members of Congress have introduced resolutions expressing the sense of Congress that the President either should or should not grant pardons to certain individuals or groups of individuals. Members of Congress have also proposed constitutional amendments that would restrict the President's pardon power. It appears that the pardon power is generally used to pardon specific offenders for any of a broad range of crimes that might stem from a series of related events. In the case of the pardon of President Nixon, for instance, President Ford issued a pardon "for all offenses ... which he ... has committed or may have committed or taken part in," precluding any prosecution of President Nixon related to the Watergate Scandal. Another high-profile example of broad use of the pardon power is seen in President Bush's pardon of individuals facing charges relating to the Iran-Contra Affair. Specifically, President Bush issued full pardons for six persons who had either pled guilty, been convicted, or were facing trial. While the above examples indicate that pardons are often used to completely absolve a pardonee for his or her illegal act(s), the inherent flexibility of the pardon power also establishes that the President may grant limited or conditional pardons. This is seen primarily in the commutation of sentences, which has been described by the judiciary as an inherent power woven into the President's pardon authority. In Ex parte Wells , for instance, the Supreme Court rejected the argument that the power to pardon did not include the authority to commute, declaring that "the mistake in the argument is, in considering an incident of the power to pardon the exercise of a new power, instead of its being a part of the power to pardon." The Court went on to note that "[t]he power to offer a condition, without ability to enforce its acceptance, when accepted by the convict, is the substitution by himself, of a lesser punishment than the law has imposed upon him, and he cannot complain if the law executes the choice he has made." While the cases discussed above seem to establish conclusively the broad scope of the President's pardoning power, the actual legal effect of executive clemency is less clear. Specifically, courts have disagreed as to whether a pardon erases only the punishment for an offense, or whether a pardon also blots out the existence of an offender's guilt. In United States v. Wilson , for instance, Chief Justice Marshall declared that a pardon "exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed." The Court's initial declaration that a pardon merely remits punishment was repudiated during the Reconstruction era, however. Specifically, in Ex Parte Garland , Chief Justice Field declared that "a pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity." This broad interpretation of the pardoning power was subsequently narrowed by the Court in the early part of the 20th Century. In Carlesi v. New York , the Court considered a situation where an individual who had received a presidential pardon was subsequently convicted of forgery in a state court. Upon conviction of the later offense, the individual was sentenced as a second offender, predicated upon the pardoned offense. The Supreme Court approved of the basis for the increased sentence, stating: "... we must not be understood as in the slightest degree intimating that a pardon would operate to limit the power of the United States in punishing crimes against its authority to provide for taking into consideration past offenses committed by the accused as a circumstance of aggravation even although for such past offenses there had been a pardon granted." This view has adhered in the modern era. In Nixon v. United States , for instance, the Court determined that "the granting of a pardon is in no sense an overturning of a judgment of conviction by some other tribunal; it is an executive action that mitigates or sets aside punishment for a crime." This restricted view of the effect of a pardon was further reinforced in two cases stemming from the pardons of officials involved in the Iran-Contra affair. In In re North , the United States Court of Appeals for the District of Columbia held that a pardon did not remove an indictment from a former CIA official's criminal record, precluding the recovery of attorneys fees under the Ethics in Government Act. A similar result was reached in In re Elliott A br ams , where the D.C. Court of Appeals, sitting en banc , held that a pardon did not preclude an individual from being disciplined for professional misconduct. These recent decisions seem to represent an implicit rejection of the sweeping language employed in Garland , in favor of a return to the view that a pardon only nullifies the punishment for an offense, with the underlying guilt remaining in effect. Regarding the legal nature of warrants of pardon and their delivery and acceptance, it appears that pardons must be physically delivered before they become legally effective. In United States v. Wilson , Chief Justice Marshall, writing for the Court, stated: "A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended ..." The Court further declared: "A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete, without acceptance." Chief Justice Marshall went on to explain that a warrant of pardon must be pleaded like any other private instrument before any court may take judicial notice thereof. This standard was reiterated in Burdick v. United States , where the Court stressed that the contention that pardons have automatic effect by their "mere issue" was rejected in Wilson "with particularity and emphasis." The Court further stressed in Burdick that a pardon may be refused, since its acceptance may involve "consequences of even greater disgrace than those from which it purports to relieve." It also appears that a pardon may be revoked at any time prior to acceptance or delivery. In In re De Puy , the District Court for the Southern District of New York addressed a situation where a pardon issued by President Johnson on March 3, 1869 was revoked on March 6th, 1869 by incoming President Grant. The court held that the pardon had been properly withdrawn, as it had not yet been delivered to the grantee, a person on his behalf, or to the official with exclusive custody and control over him. In an analogous situation, President George W. Bush sent a master warrant of clemency to the Pardon Attorney on December 23, 2008 for 19 individuals. One day later, the President "directed the Pardon Attorney not to execute and deliver" a pardon to one of the individuals, Isaac R. Toussie, a real estate developer who plead guilty to mail fraud and using false documents to receive government-insured mortgages, after it was disclosed that his father had donated $28,500 to the Republican National Committee. Rather, the Pardon Attorney was given an opportunity to review the Toussie case, which had not been reviewed according to Department of Justice regulations, discussed below, or the recipient of a recommendation by the Pardon Attorney on whether to grant clemency. As a practical aid to the consideration of requests for presidential clemency, the Office of the Pardon Attorney is charged with accepting and reviewing applications for clemency, and preparing recommendations as to the appropriate disposition of applications. Pursuant to Department of Justice regulations, a person "seeking executive clemency by pardon, reprieve, commutation of sentence, or remission of fine shall execute a formal petition" addressed to the President and submitted to the Office of the Pardon Attorney in Washington, D.C. These regulations state that a petition for pardon should not be filed "until the expiration of a waiting period of at least five years after the date of the release of the petitioner from confinement or, in case no prison sentence was imposed, until the expiration of a period of at least five years after the date of the conviction of the petitioner." Furthermore, the regulations state that "[g]enerally, no petition should be submitted by a person who is on probation, parole, or supervised release." After a petition for executive clemency is received, an investigation is conducted by employing the services of appropriate governmental agencies, such as the Federal Bureau of Investigation. Subsequently, the Pardon Attorney presents the petition and related material to the Attorney General via the Associate Attorney General, along with a recommendation as to the proper disposition of the petition. In turn, the Attorney General reviews the petition and all related information, and makes the final decision as to whether the petition merits approval or disapproval by the President. This recommendation is then submitted to the President in writing. Pursuant to regulations, the petition for clemency, as well as all "reports, memoranda, and communications submitted or furnished in connection with the consideration" of a petition are generally available only to the officials involved in the proceedings. However, these documents may be made available for whole or partial inspection, where the Attorney General determines that "their disclosure is required by law or the ends of justice." It is important to note that these regulations do not appear to impose rigid restrictions on the Pardon Attorney's ability to consider petitions for pardon, but, rather, are identified as being advisory in nature. Indeed, these regulations have been cited by the courts as being "primarily intended for the internal guidance of the personnel of the Department of Justice." Furthermore, it is important to note that the aforementioned regulations do not have any binding effect, do not create any legally enforceable rights in persons applying for clemency, and do not circumscribe the President's "plenary power under the Constitution to grant pardons and reprieves" to any individual he deems fit, irrespective of whether an application has been filed. | The Constitution of the United States of America imbues the President with broad authority to grant pardons and reprieves for offenses against the United States. This report provides an overview of the scope of the President's pardoning power, the legal effects of a pardon, and the procedures that have traditionally been adhered to in the consideration of requests for pardons. Members of Congress have introduced resolutions expressing the sense of Congress that the President either should or should not grant pardons to certain individuals or groups of individuals, such as H.Res. 9 in the 111th Congress and H.Con.Res. 24, H.Con.Res. 37, and H.Con.Res. 214 from the 110th Congress. Additionally, Members of Congress have also proposed constitutional amendments that would restrict the President's pardon power, such as H.J.Res. 48 from the 110th Congress. |
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. |
RS20771 -- Quadrennial Defense Review (QDR): Background, Process, and Issues Updated June 21, 2001 The Quadrennial Defense Review for 2001 is a congressionally mandated review of national defense strategy. The Secretary of Defense is required to analyze, among other things, forcestructure, modernization plans, military infrastructure, and the defense budget with a view towards establishing aroadmap for defense programs for the next 20 years. Thiscomprehensive assessment could profoundly effect the nation's ability to carry out its national security strategy inthe new millennium. Genesis of QDR 2001. The1990s produced a number of defense related studies meant to reshape American military strategy in lightof the downfall of the Soviet Union and the end of the Cold War. These studies included the "Base Force" structure,the Bottom Up Review, the Commission on Roles and Missions, theQuadrennial Defense Review of 1997, and the 1997 National Defense Panel. In the early 1990s the Chairman ofthe Joint Chiefs of Staff, General Colin Powell, coined the term "BaseForce." It was used to designate a proposed structure representing the minimum armed forces necessary for theUnited States to meet the national security objectives defined by policymakers, notably the capability to conduct two major theater wars simultaneously. (1) In 1993, the Bottom Up Review (BUR) acknowledged the significant changesin the global securityenvironment by articulating a strategy where the Department of Defense sought to prevent conflict by promotingdemocracy and peaceful resolution of conflict while connecting theU.S. military to the militaries of other countries, especially those of the former Soviet Union. (2) The BUR addressed the need for peacekeeping andpeace enforcement operations butused the two major theater war (MTW) scenario as the main force shaping construct. (3) Iraq and North Korea were seen as regional powers able to initiatesimultaneous conflictsrequiring a U.S. military response. Their capabilities in turn drove force planning, structure, and capabilities of theAmerican military forces. The BUR was criticized on various grounds. Some thought the resultant construct was merely a budget driven review and failed to adequately address the challenges of the newinternational security environment. As a result, in the 1994 National Defense Authorization Act, Congressmandated the Commission on Roles and Missions (CORM). The CORM waslater criticized for failing to depart from the two-MTW scenario. Its most significant contributions includedsuggestions that DoD undertake a major quadrennial strategy review and thatthe Chairman of the Joint Chiefs of Staff develop a clear vision for future joint operations. (4) Reacting to one of the CORM recommendations,Congress directed the 1997 QuadrennialDefense Review as a method to conduct a "fundamental and comprehensive examination of America's defenseneeds." (5) The First QDR. QDR 97 described a strategy of "shape, respond, prepare" in which the military must shape the environment throughdeterrence and engagement, remain prepared to engage in a spectrum of conflicts ranging from small scalecontingencies to major theater war, and prepare for an uncertain future. Inaddition, the report acknowledged the military must contend with additional threats including the proliferation ofweapons of mass destruction, advanced technologies, the drug trade,organized crime, uncontrolled immigration, and threats to the U.S. homeland. (6) As with the BUR and CORM, the QDR retained the two-MTW construct asits force shaping tool. As aresult, the1997 QDR was again criticized by many as a budget driven assessment of what military force structurewould be like if funded at present budget levels. The Military Force Structure Review Act of 1996 established the independent National Defense Panel (NDP) as a forum to review the results of the 1997 QDR. The NDP report tookexception to what it termed broadly as the QDR's less than ambitious plan for defense transformation, stating that,"our current security arrangements--will not be adequate to meetingthe challenges of the future." (7) It also recommendeda comprehensive look at scaling back or cancelling "legacy systems." (8) Most significantly the NDP report challenged therequirement to fight two major theater wars simultaneously as simply a force sizing tool and not a viable strategy. The two-MTW construct was criticized as a means to justify Cold Warbased force structure and as a roadblock to implementing transformation strategies enabling the military to preparefor future threats. (9) The second Quadrennial Defense Review is now fully under way. The 2001 QDR presents an opportunity to assess future U.S. security challenges and link them to an overarchingmilitary strategy designed to protect the interests of the U.S. as a whole. Its results however, are not binding, andmay be significantly altered by the administration. The 106th Congress created a permanent requirement for a Quadrennial Defense Review by inserting Section 118 into Chapter 2 of title 10, United States Code, which states that everyfour years the Secretary of Defense will: .....conduct a comprehensive examination of the national defense strategy, force structure, force modernization plans, infrastructure, budgetplan, and other elements of the defense program and policies of the United States with a view towards determiningand expressing the defense strategy of the United States andestablishing a defense program for the next 20 years. (10) The purpose of the 2001 QDR as stated in the National Defense Authorization Act for Fiscal Year 2000 is to1) delineate a military strategy consistent with the most recent NationalSecurity Strategy (11) , 2) define the defense programsto successfully execute the full range of missions assigned the military by that strategy, and 3) identify the budgetplan necessary tosuccessfully execute those missions at a low-to-moderate level of risk. The questions listed below are intended to assist DoD in formulating a comprehensive military strategy in lightof the evolving international security environment and rapidly emergingtechnologies. Congress specifically requires the Secretary of Defense to consider precision guided munitions, stealth,night vision, digitization, and communications as he formulates hispreferred force structure options for the next 20 years. (12) QDR Input. While OSD is responsible for the integration of the QDR effort, it is the Joint Staff that will gather the data and formulatethe inputs from the individual Services, the combatant commands, and Defense Agencies into the end result. TheJoint Staff QDR organization is led by a general officer steeringcommittee that will receive input from eight different panels. Those panels are Strategy and Risk Assessment; ForceGeneration, Capability and Structure; Modernization; Sustainment,Strategic Mobility and Infrastructure; Readiness; Transformation, Innovation and Joint Experimentation;Information Superiority; and Human Resources. Each panel's input will go to aPreparation Group which is assisted by an Integration Group providing budget, analysis, and administrative support. The Joint Requirements Oversight Council, the Service OperationalDeputies, and the Joint Chiefs of Staff will provide guidance and help resolve panel issues as needed. Recentinformation suggests that OSD will form six major issue panels to developoptions and make recommendations for the QDR report. Those panels are tentatively: strategy; force structure;capabilities and investment; information warfare, intelligence, and space;personnel and readiness support infrastructure; and joint organizations. (14) Several process issues will garner attention as the QDR is undertaken. First, the timing of the QDR itself may be called into question. Numerous major policy actions by the BushAdministration must be considered prior to delineating the National Security Strategy. Second, determining theappropriate military strategy with which to frame the review will be acrucial step. Last, prior studies were criticized by some as being a budget driven process as opposed to strategydriven. Although the military strategy ultimately defined by the QDR willmost likely have budgetary limitations, it is deemed essential to provide a clear picture of how that strategyeffectively defends U.S. national interests. Timing of the QDR. As discussed earlier, the QDR process was established as a Title 10 requirement for the Secretary of Defense toconduct a QDR "every four years, during a year evenly divisible by four" and to submit the report to Congress "notlater than September 30 of the year in which the review isconducted." (15) The National Security Strategy isdue in June of 2001 with the QDR report to follow by September 30, 2001. If the administration substantiallychanges previoussecurity strategy, DoD will most likely require more time to formulate its strategy and concepts based on the newNational Security Strategy and delineate a coherent military strategywithin which to frame the QDR. It has been suggested by some that the administration take a different approachto the review. Conducting a broad strategic review and using it toestablish priorities with a more extensive study to follow might allow both the administration and DoD to take amore measured view. (16) This method could affectthe administration'sfirst budget submission in 2002. Using results of QDR97 to shape the defense budget until the comprehensivestudy is complete might allow the administration to more coherentlytranslate its National Security Strategy into a different or revamped defense strategy. This approach would requireCongress to amend the QDR legislation now in law. Appropriate Strategy. Structuring our military forces on the premise the U.S. military will need to fight two simultaneous regionalconflicts provided a logical yardstick during the Cold War and time frame immediately afterward. Some see it asa less likely occurrence in today's environment given the lack ofeligible adversaries that could muster the necessary forces and resources to create that scenario. Since that time,it has been criticized as being more an argument to retain the currentforce structure at the expense of restructuring. Opponents of the two-MTW construct contend it is difficult tosubstantiate the necessity of countering major, cross-border, conventionalconflicts in the current international security environment. The emerging asymmetric threats of terrorism,narco-trafficking, weapons of mass destruction, information warfare,environmental sabotage, anti-access operations, and other low intensity operations may dictate a different approachto force sizing. (17) Conversely, modifying orcompletely changing thecurrent strategy may have an impact on our allies around the world. Changing the two-MTW construct could beperceived by some allies as a lack of resolve and backing away fromcurrent security commitments. Strategy/Budget Mismatch. The cost of most strategies considered will probably exceed current budget levels. Estimates range fromover $20 billion to $100 billion per year shortfall to fund the 1997 QDR force. (18) The Iraqi no-fly zone enforcement, the Balkans peacekeeping force, andnumerous other small scalecommitments continue to place a strain on the current budget. Budget estimates for transforming the military tomeet future threats while maintaining a credible force to deter currentthreats or win possible conflicts far outreach the proposed defense budgets in the current future years defenseprogram. (19) The overall goal of the QDR processis to create a defensestrategy, complementing the National Security Strategy, bounded by a budget that ensures a "low-to-moderate levelof risk" when executed. In order to do this, most defense specialistssee a likely necessity to either increase the defense budget, restructure and reduce current costs, or reduce thedemands of the current defense strategy. They have urged that the QDRapproach as monitored by Congress address those hard choices. Besides the process issues mentioned above, Congress may be interested in other aspects of the QDR. It will be important to ensure the DoD QDR organization is an effective analyticstructure that emphasizes jointness and total force thinking versus protection of individual service equities or servicebudget shares. The roles of the regional commander-in-chiefsshould be analyzed as they compete for limited service resources during growing commitments. The transformationstrategies of each service could require a reassessment ofprocurement decisions of systems designed for conventional battle as the United States moves further into theinformation age. The methods of estimating the risks involved in changingthe strategy, the construct the strategy is based upon, and the transformation philosophies of the services could wellaffect the outcome of the QDR. Translating the QDR into a coherentand useful defense strategy to guide the United States into an uncertain future will require challenging choices bythe Congress and Bush Administration. | The congressionally mandated Quadrennial Defense Review (QDR) directs DoD toundertake a wide-ranging review of strategy, programs,and resources. Specifically, the QDR is expected to delineate a national defense strategy consistent with the mostrecent National Security Strategy by defining force structure,modernization plans, and a budget plan allowing the military to successfully execute the full range of missionswithin that strategy. The report will include an evaluation by theSecretary of Defense and Chairman of the Joint Chiefs of Staff of the military's ability to successfully execute itsmissions at a low-to-moderate level of risk within the forecast budgetplan. The results of the 2001 QDR could well shape U.S. strategy and force structure in coming years. This reportwill be updated as future events warrant. |
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 federal government, through the Department of Energy, operates four regional power marketing administrations (PMAs), created by statute, the Bonneville Power Administration (BPA), the Southeastern Power Administration (SEPA), the Southwestern Power Administration (SWPA), and the Western Area Power Administration (WAPA), each operating in a distinct geographic area (see Figure 1 ). Congressional interest in the PMAs has included diverse issues such as rate setting, cost and compliance associated with the Endangered Species Act (ESA; P.L. 93-205 ; 16 U.S.C. §§1531 et seq.), and questions of privatization of these federal agencies. With minor exceptions, these agencies market the electric power produced by federal dams operated by the Corps of Engineers (Corps) and the Bureau of Reclamation (BOR). PMAs must give preference to public utility districts and cooperatives, and sell their power at cost-based rates set at the lowest possible rate consistent with sound business principles. The PMAs serve 60 million Americans in 34 states. In general, the PMAs came into being because of the government's need to dispose of electric power produced by dams constructed largely for irrigation, flood control, or other purposes, and to promote small community and farm electrification—that is, providing service to customers whom it would not have been profitable for a private utility to serve. Though PMAs were all created to market federal power, and they share the common mission of providing electricity at cost-based rates with preference to public customers, each PMA also has unique elements and regional issues that affect its business. They will be discussed in alphabetical order. Created by the Bonneville Project Act of 1937 (16 U.S.C. §832) just before the completion of two large dams in the Pacific Northwest—Bonneville Dam in 1938 and Grand Coulee Dam in 1941—BPA was the first PMA. Though it serves a smaller geographical area, BPA is on par with WAPA (which serves the largest area) in the size of its transmission system. The agency constructed and maintains approximately 75% of the high voltage transmission lines in the Northwest, a system of over 15,000 miles of transmission line and approximately 300 substations. BPA differs from the other three PMAs in that it is self-financed: it receives no federal appropriations. Since passage of the Federal Columbia River Transmission System Act of 1974 (16 U.S.C. §838), BPA covers its operating costs through power rates set to ensure repayment to the Treasury of capital and interest on funds used to construct the Columbia River power system. BPA also has permanent Treasury borrowing authority, which it may use for capital on large projects. This money is also repaid, with interest, through power sales. BPA borrowing authority totals $4.45 billion, through congressional allocations of $1.25 billion on three separate occasions and a final allocation of $700 million in 2003. The agency intends to use $461 million of its remaining borrowing authority in FY2007 and $538 million in FY2008. Two ongoing issues will likely affect the agency over the long term. The first, a conflict over salmon recovery in the Columbia and Snake Rivers, centers around the operation of the dams that produce the electricity sold by BPA. Environmental, fishing, and tribal advocates have sued the federal government successfully, arguing that the National Marine Fisheries Service (NMFS) Biological Opinion—the regulatory document dictating operation of the dams to ensure survival of species listed as threatened and endangered under the Endangered Species Act (ESA; P.L. 93-205 ; 16 U.S.C. §§1531, et seq.)—is inadequate to keep the threatened species from extinction. In addition, some parties argue that removing four dams on the Snake River in Washington is the only way to ensure survival of some salmon and steelhead species. The final resolution of the lawsuit, and the ultimate disposition of the Snake River dams, may not allow BPA to sell as much electricity, which would likely increase the power rates. A second issue concerning BPA is the so-called regional dialogue . The regional dialogue refers to the development of a plan to define BPA's power supply and marketing role over the long term. Key elements of the plan are 20-year contracts and a tiered rate methodology for the period following FY2011, when many of BPA's current contracts will expire. A challenge in the regional dialogue is developing a plan that is supported by BPA's customers, and that addresses such issues as service to public utilities, service to direct service industries (such as aluminum smelters), benefits for residential and small farm customers of investor-owned utilities, and long-term cost controls. SEPA is unique among the four PMAs in two ways. It is the smallest PMA, with just over 40 employees, and, unlike the other three agencies, SEPA does not operate or maintain any transmission facilities and thus contracts with other utilities for transmitting the federal power it markets to over 13 million consumers. SEPA, like the other PMAs aside from Bonneville (with its self-funding provision), receives annual appropriations and subsequently repays this funding through power revenues. SEPA's FY2007 appropriation request was $6.5 million. Actual appropriations, reflecting an across-the-board rescission for the Department of Energy, were $6.4 million. SEPA is contending with reduced generation from one of the dams whose power it markets. The Wolf Creek Dam, a Corps project on the Cumberland River in Kentucky, has had a seepage problem since the late 1960s. A $309 million rehabilitation project is scheduled to run from 2006 to 2014. The Corps of Engineers has determined it necessary to reduce the water elevation behind the dam, lowering power generation capability. The dam's powerhouse has a capacity of 270 MW, or roughly 8% of SEPA's total generating capacity. SWPA serves over 100 preference customer utilities with over 7 million end-use customers in the south-central United States. The agency manages nearly 1,400 miles of high-voltage transmission lines with 24 substations. SWPA returns revenues to the U.S. Treasury for repayment, with interest, of the federal investment in generation and transmission facilities and, like SEPA and WAPA, for repayment of annual appropriations. SWPA requested an appropriation of $30.4 million in the President's FY2008 budget. Appropriations, reflecting a Department of Energy across-the-board rescission, were $30.2 million. SWPA had been challenged by low water conditions recently. It has a rain-based water supply—rather than one that is snow-based, like the mountain snowpack water supply of WAPA and BPA—and sells power from a comparatively small reservoir system which stores that water. As of December 2006, the agency had been operating through 21 months of drought. It was forced to call upon a continuing fund in the summer of 2006 to cover the cost of power purchases brought about by drought-reduced generation. Continued dryness in the area would keep SWPA struggling to purchase the power allocated for delivery to its customers. Generation figures were closer to normal through the remainder of FY2007, and to date, FY2008 generation has been better than the drought period as well. During the drought period of 2006, access by SWPA to the continuing fund was initially denied by the Office of Management and Budget (OMB), and some Members of Congress felt OMB had reinterpreted its policy in granting access to the fund. Continued drought could force SWPA to request access to the fund in FY2007. Additionally, a proposal in the FY2008 Congressional Budget Request would require all of the PMAs, except for Bonneville, to recover any expenditure from their continuing funds from ratepayers within one year. These issues may raise the same OMB policy questions for the 110 th Congress. Created by the Department of Energy Organization Act of 1977 ( P.L. 95-91 ), WAPA is the newest and largest of the PMAs. WAPA's service area covers 1.3 million square miles, and its power—transmitted by a high voltage grid over 17,000 miles long—serves customers in 15 western states. Like the other PMAs, WAPA's electricity comes from federal dams operated by the Corps and BOR. However, it also sells power provided by the International Boundary and Water Commission and markets the United States' 24.3% share (547 megawatts) of the coal-fired Navajo Generating Station in Arizona. In addition to the types of public bodies traditionally served as preference customers by the other PMAs, WAPA has developed a policy to give preference to Native American tribes regardless of their utility status. For FY2008, the agency made a budget request of $201.0 million. Actual appropriations, reflecting an across-the-board rescission for the Department of Energy, were $228.9 million. An issue of importance to WAPA is its role in relieving transmission congestion within its marketing area. There are a number of constrained transmission paths in the West whose limited capacity to transfer power may reduce the ability of utilities to serve electric loads on a seasonal or ongoing basis. Examples are the main transmission link between northern and southern California called Path 15, and the transmission corridor between southeastern Wyoming and northeastern Colorado known as TOT 3. While WAPA does not currently have resources to fund construction of new lines or upgrades to these congestion points, the agency is interested in working collaboratively with other affected parties to resolve the problems. WAPA has expertise in transmission design and construction planning, land acquisition, and environmental assessments and may contribute these resources to transmission upgrade projects in the West. Under P.L. 110-161 , Congress appropriated approximately $30 million more than the Administration requested for WAPA construction, rehabilitation, and O&M funding. In the President's FY2006 budget request, WAPA, SEPA, and SWPA proposed an alternative to the current method of appropriations that provides for their operating expenses. The FY2006 budget proposal included a plan to reclassify receipts to allow these PMAs to fund their program direction and their operation and maintenance (O&M) expenses through offsetting collections, also known as net-zero appropriations. The PMAs currently deposit receipts into the Treasury and Congress appropriates general Treasury funds to the PMAs for these expenses. Reclassifying the PMA's receipts in this way would make them discretionary budget items (they are now mandatory), putting them on the same side of the ledger as PMA appropriations. An effect of this change may be a reduction in reallocation of PMA appropriations to other efforts, because the subsequent incoming receipts would be reduced by a similar amount. Congress did not agree to this change for FY2006. The proposal was not reported for FY2008, but a renewed proposal to change to a net-zero appropriations approach to PMA operations funding may be an issue for the 110 th Congress. | The U.S. Department of Energy operates four regional power marketing administrations (PMAs)—the Bonneville Power Administration (BPA), the Southeastern Power Administration (SEPA), the Southwestern Power Administration (SWPA), and the Western Area Power Administration (WAPA). These agencies all operate on the principle of selling wholesale electric power with preference given to publicly or cooperatively owned utilities "at the lowest possible rates to consumers consistent with sound business practices" under the Flood Control Act of 1944 (16 U.S.C. §825s). Maintaining competitive rates sufficient to cover operating costs and repay the federal investment in the hydropower dams and transmission systems amid drought, legal challenges, and customer pressure for cost reductions are some of the challenges faced by these agencies, and issues tied to these challenges may come before Congress. |
The U.S. Patent and Trademark Office (USPTO) examines and approves applications for patents on claimed inventi ons and administers the registration of trademarks. It also assists other federal departments and agencies to protect American intellectual property in the international marketplace. The USPTO is funded by user fees paid by customers that are designated as "offsetting collections" and subject to spending limits established by the Committee on Appropriations. Traditionally, the U.S. Patent and Trademark Office was funded primarily with taxpayer revenues through annual appropriations legislation. In 1980, P.L. 96-517 created within the U.S. Treasury a "Patent and Trademark Office Appropriations Account" and mandated that all fees collected be credited to this account. Subsequently, in 1982, Congress significantly increased the fees charged to customers for the application and maintenance of patents and trademarks to pay the costs associated with the administration of such activities. (Note that fee levels were established by Congress.) Funds generated by the fees were considered "offsetting collections" and made available to the USPTO on a dollar-for-dollar basis through the congressional appropriations process. Additional direct appropriations from taxpayer revenues, above the fees collected, were made to support other operating costs. The Patent and Trademark Office became fully fee funded as a result of P.L. 101-508 , the Omnibus Budget Reconciliation Act (OBRA) of 1990, as amended. The intent of the legislation was to reduce the deficit; one aspect of this effort was to increase the fees charged customers of the USPTO to cover the full operating needs of the institution. At the same time, a "surcharge" of approximately 69% was added to the fees the office had the statutory authority to collect. These additional receipts were deposited in a special fund in the Treasury established under the budget agreement. Through the appropriations process, the USPTO must be provided the budget authority to spend collected fees. Funds generated through the surcharge were considered "offsetting receipts" and were defined as offsets to mandatory spending. The use of these receipts was controlled by the appropriation acts; the receipts were considered discretionary funding, and counted against the caps under which the Appropriations Committee operated. The funds generated through the basic fee structure continued to be designated as "offsetting collections" and also subject to spending limits placed on the Appropriations Committee. The surcharge provision expired at the end of FY1998. While OBRA was in force, the ability of the USPTO to use all fees generated during any given fiscal year was limited by appropriation legislation that did not allocate these revenues on a dollar-for-dollar basis. Critics argued that those fees not appropriated to the USPTO were used to fund other, non-related programs under the purview of the appropriators. It has been estimated that during the eight years in which OBRA provisions were in effect, the USPTO collected $234 million more in fees than the budget authority afforded to the office. Another estimate suggested that between FY1991 and FY1998, the USPTO collected $338 million more in discretionary and mandatory receipts than the office had the authority to spend. Subsequent to the expiration of the surcharge, several times Congress increased the statutory level of the fees charged by the USPTO. Until FY2001, the budget authority provided to the USPTO came from a portion of the funds collected in the current fiscal year plus funds carried over from previous fiscal years. The carry-over was created when the annual appropriations legislation established a "ceiling" and limited the amount of current year collections the U.S. Patent and Trademark Office could spend. Additional funds were not to be expended until following fiscal years. However, in FY2001, this latter provision was eliminated. All funds raised by fees were considered "offsetting collections" and counted against caps placed upon the appropriators. If appropriators chose to provide the USPTO with the budget authority to spend less than the estimated fiscal year fee collection, the excess was permitted to be used to offset programs not related to the operations of the USPTO. Between FY1999 and FY2004, the budget authority provided the USPTO was less than the total amount of fees generated within each fiscal year. During this time period, it has been estimated that $406 million in fees collected were not available for use by the USPTO. Various calculations have been made of the total amount of fees generated that were withheld from use by the USPTO since the office became fully fee funded. One analysis argues that, in total, the USPTO was not permitted to use $680 million in fees generated between FY1990 and FY2004. An additional study found that during this time frame, $747.8 million in fees were "diverted" from the Patent and Trademark Office and used to fund unrelated programs. While the office was provided the budget authority to spend all fees collected between FY2005 and FY2009, the Intellectual Property Owners Association estimates that $260.7 million in fees collected were not made available to the USPTO in FY2010 and FY2011. For FY2016, the USPTO budget supported by patent fees is $3.231 billion. The Administration's request for a fee-based budget authority for FY2017 is $3.244 billion. P.L. 112-29 , the Leahy-Smith America Invents Act, makes several changes to the handling of fees generated by the USPTO. Under the new statute, the use of fees generated is still subject to the appropriations process whereby Congress provides the budget authority for the USPTO to spend these fees. However, to address the issue of fees withheld from the office in the past, the America Invents Act creates within the Treasury a "Patent and Trademark Fee Reserve Fund" into which fee collections above that "appropriated by the Office for that fiscal year" will be placed. These funds will be available to the USPTO "to the extent and in the amounts provided in appropriations Acts" and may only be used for the work of the USPTO. In addition, the new law grants the USPTO authority "to set or adjust by rule any fee established or charged by the Office" under certain provisions of the patent and trademark laws. This appears to provide the USPTO with greater flexibility to adjust its fee schedule absent congressional intervention. The act requires that "patent and trademark fee amounts are in the aggregate set to recover the estimated cost to the Office for processing, activities, services and materials relating to patents and trademarks, respectively, including proportionate shares of the administrative costs of the Office." Beginning in 1990, appropriations measures have, at times, limited the ability of the U.S. Patent and Trademark Office to use the full amount of fees collected in each fiscal year. Even when the office was given the budget authority to spend all fees, the issue remained an area of controversy. Proponents of the withholding approach to funding the USPTO claimed that despite the ability of the appropriators to impose limits on spending current year fee collections, the office was provided with sufficient financial support to operate. Advocates of this appropriations structure saw it as a means to provide necessary funding for other programs in the relevant budget category given budget scoring and the caps placed upon the Committee on Appropriations. However, many in the community that pay the fees to maintain and administer intellectual property disagreed with this assessment. Critics argued that, over time, a significant portion of the fees collected were not returned to the USPTO due to the ceilings established by the appropriations process and the inability of the office to use the fees on a dollar-for-dollar basis. They claimed that all fees were necessary to cover actual, time-dependent activities at the USPTO and that the ability of the appropriators to limit funds severely diminished the efficient and effective operation of the office. Under the America Invents Act, the budget authority to use fees collected by the USPTO remains within the congressional appropriations process. Fees generated above the amount provided in the appropriations legislation are to be put into a special fund and are restricted to use solely by the Patent and Trademark Office. However, the office must still obtain congressional authority to use these "excess" funds. It remains to be seen how this new approach addresses the issues associated with the operations of the USPTO and the use of those fees collected within a given fiscal year. An additional issue was raised in regard to the FY2013 sequestration of fees paid to the USPTO. According to the Office of Management and Budget (OMB), the fees collected are not considered "voluntary payments" and are therefore subject to sequestration. However, others disagree with this assessment. In a letter to the Director of OMB, the American Intellectual Property Law Association stated: we have serious doubts that the USPTO is lawfully subject to sequestration in the first place because it is funded through fee collections, not through government spending. Section 255 of the Balanced Budget and Emergency Deficit Control Act of 1985 ("BBEDCA") (2 U.S.C. 905) provides a list of exemptions from sequestration including "[a]ctivities financed by voluntary payments to the Government for goods or services to be provided for such payments." 2 U.S.C. 905(g)(1)(a). A plain reading of the statute suggests that this exemption should apply to the fees collected by the USPTO since they are from voluntary users in exchange for patent and trademark examination and review. Similar concerns have been expressed by other organizations, including the American Bar Association, which stated in another letter to the Director of OMB that the "unique funding mechanism for the USPTO" lends itself to the congressionally mandated exemptions from sequestration for "activities financed by voluntary payments to the Government for goods or services to be provided for such payments." | The U.S. Patent and Trademark Office (USPTO) examines and approves applications for patents on claimed inventions and administers the registration of trademarks. It also assists other federal departments and agencies protect American intellectual property in the international marketplace. The USPTO is funded by user fees paid by customers that are designated as "offsetting collections" and subject to spending limits established by the Committee on Appropriations. Until recently, appropriation measures limited USPTO use of all fees accumulated within a fiscal year. Critics of this approach argued that because agency operations are supported by payments for services, all fees were necessary to fund these services in the year they were provided. Some experts claimed that a portion of the patent and trademark collections were used to offset the cost of other, non-related programs. Proponents of limiting use of funds collected maintained that the fees appropriated back to the USPTO were sufficient to cover the agency's operating budget. On December 9, 2016, President Obama signed into law the Further Continuing and Security Assistance, Appropriations Act of 2017 (P.L. 114-254). This act, among other provisions, continues USPTO's budget supported by patent fees at $3.231 billion. For FY2017, the Administration's request for a fee-based budget authority was $3.244 billion. P.L. 112-29, the Leahy-Smith America Invents Act, keeps the use of fees collected within the congressional appropriations process, but requires that fees generated above the budget authority provided by the Committee on Appropriations be placed in a separate fund within the Department of the Treasury. While use of these "excess" funds still remains under the control of the appropriators, they may only be used for the work of the USPTO. |
The Multilateral Debt Relief Initiative (MDRI) is the most recent effort by the International Monetary Fund (IMF), World Bank, and African Development Bank (AfDB) to provide poor country debt relief. Proposed by G8 finance ministers in June 2005, the MDRI provides 100% debt relief to select countries that are already participating in the joint-IMF/World Bank Heavily Indebted Poor Countries (HIPC) program. The goal of the MDRI program is to free up additional resources for the poorest countries in order to help them reach the United Nations' Millennium Development Goals (MDGs), which are focused, among other things, on reducing world poverty by half by 2015. There are several key features of the MDRI: All pre-existing IMF, World Bank, and AfDB debt will be cancelled for any country that completes the HIPC program. (The Asian Development Bank, Inter-American Development Bank, and other development banks are not participating in the Initiative.) The MDRI Agreement provides no additional net assistance. HIPC countries that receive debt reduction will have their total assistance flows from the agency canceling their debt reduced by the amount of debt forgiven. The IMF will internally fund its debt relief while the World Bank and AfDB will be compensated by G8 donors. IMF debt relief will be funded with the money obtained from the sale of some IMF gold in the late 1990s. The MDRI raises several questions for policy makers: What is the effect of debt on the poorest countries? What impact can the MDRI be expected to have on poverty reduction? What policies could make debt relief more effective? Looking at several studies of the effectiveness of the HIPC program from 1996-2006, it appears that although debt relief can slightly increase the amount of financial resources available to poor countries, the debt burden is not the main impediment to poverty reduction and economic growth in the poorest countries. Weak macroeconomic institutions and difficulty absorbing foreign assistance, as well as political challenges, appear more likely hurdles. Alleviating the debt burden in the absence of other strategic reforms is unlikely to substantially contribute to improved conditions in the poorest countries. If combined with other efforts, however, debt relief can have a complementary effect on domestic government finances and can help promote further reform. The MDRI builds on several bilateral and multilateral debt relief initiatives conducted over the past twenty years. In the 1980s and early 1990s, as the debts of the poorest countries increased rapidly compared to other low-income countries, the G7 and other creditor countries implemented several plans aimed at reducing the countries' debt payment burden. In 1988, in response to a G7 initiative, a group of major creditor nations, known as the Paris Club, agreed for the first time to cancel debts owed to them by up to one-third instead of refinancing them on easier terms as they had done previously. Over the next decade, the Paris Club gradually increased the amount of debt that it would be willing to write off by up to 90% in 1999. The United States did not participate in the initial debt forgiveness plans, but in 1991, at the initiative of Congress, independently forgave almost all of the debt owed to it by the poorest nations. Since 1991, the United States has forgiven $23.9 billion in foreign debt. The IMF and World Bank introduced debt relief in 1996 through the Heavily Indebted Poor Country (HIPC) Initiative. When conceived, the intention of the program was to reduce poor countries' debts to a so-called "sustainable" level. Sustainability was defined as multilateral debts not exceeding a maximum debt-to-exports ratio of 250%. In 1999, the program was redesigned in response to criticism that the debt-to-export ratio was too large, disqualifying many countries from debt relief. The target debt service-to-exports ratio was reduced to 150%, and the time period for eligibility was shortened. The HIPC program was also modified to require increased poverty reduction efforts. Any money freed up by debt relief must now be used explicitly on poverty reduction efforts. HIPC debt relief is provided in stages, based on each country's performance against a defined set of economic targets and requirements. HIPC-eligible countries must successfully implement IMF-proscribed reforms for three years before reaching the "decision point" and receiving intermediate debt relief. Following a further track record of good economic policy, a country reaches "completion point" where the remaining debt relief is granted. Table 1 shows the current status of countries in HIPC initiative. The eventual MDRI agreement was a compromise agreement between the United States and the Europeans. U.S. officials had reportedly argued that the cost of multilateral debt relief could be borne by the institutions and did not require donors' contributing any new assistance. Other creditors believed the institutions should be compensated for their debt forgiveness to avoid diverting potential resources that could be lent to the poorest countries. Any debt relief, they argued, should be additional to existing multilateral assistance. The compromise plan entailed the multilateral development banks receiving new money from creditor nations to offset their debt reductions while the IMF would absorb the cost of debt relief using internal resources. The IMF was the first of the participating institutions to implement its MDRI debt relief. Under MDRI, the IMF is cancelling all HIPC debt incurred by year-end 2004. In addition to the eligible HIPC countries, the IMF expanded MDRI to all IMF members with per capita incomes of $380 or less. Two non-HIPC countriesâCambodia and Tajikistanâhave qualified for MDRI debt relief. To date, the IMF has provided MDRI debt relief to 21 countries, totaling $3.67 billion. The IMF expects that total MDRI debt relief will be around $5 billion if all eligible countries complete the program. Unlike the IMF, both the World Bank and the Asian Development Bank are only providing MDRI relief to HIPC completion point countries. Only debts accrued prior to year-end 2003 are eligible for World Bank/AfDB MDRI debt relief. If fully implemented, the World Bank will provide about $37 billion in debt relief. African Development Bank debt relief would be $8.5 billion. There are numerous reasons why policy-makers support poor country debt relief. Debt relief emerged as a foreign policy issue mainly through moral arguments against requiring the poorest countries to repay their debts. At a United Nations conference on Africa in 2004, Columbia University professor and United Nations advisor Jeffrey Sachs remarked: "No civilized nation should try to collect the debts of people who are dying of hunger and disease and poverty." Others, including the Bush Administration, presented what they viewed as a pragmatic argument for debt relief. They argued that debt was "locking these poorest countries into poverty and preventing them from using their own resources [for development]." By providing debt relief, they argued, resources that would have been allocated for debt repayments would now be redirected toward new investment and/or domestic social services. At a press release announcing the MDRI deal, former World Bank president Paul Wolfowitz announced that, "across Africa and around the world, leaders in 38 countries will no longer have to choose between spending to benefit their people and repaying impossible debts." Recent studies cast doubt, however, on debt relief's contribution to larger development and poverty reduction goals. These studies argue that poor underlying economic and political conditions are the main reason for the HIPCs' poor performance. In light of this research, Congress may wish to explore in more depth what effect debt has on poor countries' economies and under what conditions debt relief can help promote economic growth and poverty reduction. Historically, policymakers and academics viewed high levels of debt as a constraint on economic growth. It was argued that as long as investors expected a country's debt level to impair its ability to repay its loansâits "debt overhang"âinvestors would abstain from entering a country out of a concern that the government may resort to distortionary or inflationary measures, such as expanding the money supply or raising taxes on their profits, to finance debt payments. Even if the debt is not being serviced, the theory suggests that it is still an impediment to economic growth because of the effect the large debt stock has of dissuading private investors. In a debt overhang situation, the theory says, the appropriate policy response is to forgive the debt, either entirely or to some "sustainable" level so that investor confidence will be restored. Debt overhang theory was instrumental in driving the development of the HIPC program. Over time however, it became apparent that the theory was not especially well suited for the poorest countries, which relied on foreign assistance, rather than private investment, as their key source of foreign capital. According to the World Bank's 2006 evaluation of the HIPC program, debt relief alone is not sufficient for debt sustainability in the poorest countries. Under HIPC, 18 countries had their debt levels reduced to half their initial levels, cancelling $19 billion of external debt. However, in 11 out of the 13 countries (with data available), the debt situation has worsened. In 8 countries, debt levels once again exceed HIPC thresholds. Several reasons may explain this situation. First, the concepts of "sustainable debt" and "debt overhang" may be inappropriate for the HIPC countries. Earlier debt overhang models were designed with middle-income countries in mind, which were suffering under heavy non-concessional private debt. For example, when financial crises hit Latin American countries in the 1980s, their debts were resolved under the "Brady Plan" (negotiated by former Secretary of the Treasury Nicholas Brady). The forgiveness of debt amounted to $60 billion, after which, private capital surged into the Brady countries. These countries received $210 billion dollars in net capital flows in the five years following their debt write-off. In the case of the HIPC countries, investors were more likely to stay away for other reasons, such as political and economic instability, rather than any concerns about indebtedness per se. Moreover, unlike other debtor nations, bilateral and multilateral HIPC debt is highly concessional (i.e., inexpensive) compared to private sector debt. Foreign aid providers have not stopped their aid just because they are not being repaid 100% on their bilateral debt. Moreover, the inflow of foreign aid funds is typically more than sufficient to cover debt payments, so the cost of debt service is effectively borne by the donor countries rather than by the debtors. Secondly, there are additional factors, unique to the poorest countries, that may promote increased indebtedness. Since their debt is highly concessional, there may be a perverse incentive for countries not to grow in order to remain eligible for multilateral assistance. Preliminary evidence looking at 94 countries (33 of which are low income) over 1988-2000 found evidence of this effect. A significant number of countries appeared to stagnate around the income level that defined eligibility for concessional assistance. Above the cutoff level, countries would no longer be able to receive concessional aid. By diverting their assistance away from investment toward consumption they were able to hover just below the eligibility cutoff. The impact of MDRI debt relief will likely be modest at best. First, by definition, MDRI debt relief does not increase the overall resources available to poor countries. Any debt relief that a country receives results in a net decrease in future multilateral aid resources allocated. Second, the amount of debt relief provided by MDRI is small. In the case of the 15 African HIPCs, on average, they paid $19 million in debt service to the World Bank in 2004. That same year, they received $197 million in new World Bank aid and $946 million in total aid. Any debt relief, even if it were in addition to existing foreign aid, would provide only a minuscule increase in domestic resources. Thus it appears that debt relief can have its largest impact if it is situated as part of a broader package of reforms that include, among other things, increased debt management capacity, and targeted growth enhancing changes in national policy. | In June 2005, G8 finance ministers proposed the new Multilateral Debt Relief Initiative (MDRI). The MDRI proposes to cancel debts of some of the world's poorest countries owed to the International Monetary Fund, World Bank, and African Development Bank. This report discusses MDRI's implementation and raises some issues regarding debt relief's effectiveness as a form of foreign assistance for possible congressional consideration. |
The popular Russian President Vladimir Putin—in his second and constitutionally-limited final term in office—was faced in 2007 with the decision of either stepping down at the expiration of his second term or with abolishing constitutional term limits. After he announced in April 2005 that he would not change the constitution, a period of political uncertainty set in that lasted until December 10, 2007, when Putin publically endorsed his First Deputy Prime Minister, Dmitriy Medvedev (pronounced dee-MEE-tree mehd-VYED-yehf), as his choice to be the next president. Both Putin and Medvedev reassured Russians that the "Putin plan" would continue, and Russians received further assurances a few days later when Putin accepted Medvedev's request to serve as prime minister under a Medvedev presidency. Medvedev had become better known by Russians after Putin appointed him first deputy prime minister in late 2005 and tasked him with implementing various high-budget "national projects" to implement social service and other reforms. Medvedev had long served under Putin during the latter's rise to power, and since 2000 Medvedev also held the chairmanship of Gazprom—the world's largest gas firm—to ensure government control over its operations. He had never run for elective office. Four candidates were able to register for the March 2, 2008, presidential election. Three of the four candidates—Medvedev, Gennadiy Zyuganov, and Vladimir Zhirinovskiy—were nominated by parties with seats in the Duma. According to the election rules, other prospective candidates had to gather two million signatures of support within a few weeks. One prospective self-nominated candidate, well-known oppositionist Mikhail Kasyanov, was denied registration, after repeated examinations of his signature lists by the Central Electoral Commission (CEC) alleged a higher-than-permitted number of invalid signatures. Oppositionist Garry Kasparov alleged that his United Civil Front group was repeatedly turned down in its attempts to rent halls for a meeting to nominate him as its candidate. Oppositionist Boris Nemtsov, nominated by the Union of Right Forces Party, received approval from the CEC on December 22, 2007, to gather signatures, but he ended his campaign four days later, stating that the government had predetermined who would be president. A prospective candidate from the tiny pro-Putin Democratic Party, the little-known Andrey Bogdanov, was able to gather two million signatures and was approved as a candidate. Medvedev refused to debate the other candidates, "whose programs ... obviously have no chance of being implemented." Debates between the other candidates often were broadcast only late at night or early morning. The Russian non-governmental organization Golos ("Voice") concluded that in many regions where its representatives carried out pre-election monitoring, Medvedev received overwhelming television coverage. Zyuganov and Zhirinovskiy filed several complaints with the courts alleging unequal coverage by state television, which appeared to spur slightly more coverage for Zyuganov. Among the main events during the campaign were long-term development programs set out by Putin at a State Council (a presidential advisory body composed of regional governors)meeting on February 8, 2008 and by Medvedev at an economic forum in the city of Krasnoyarsk on February 15. Both speeches juxtaposed the economic and political disorder of the 1990s to present-day stability and prosperity, and called for further health, education, and other reforms through the year 2020. Medvedev's speech was viewed by some observers in Russia as more liberal in tone than Putin's, although both mostly covered similar topics. Medvedev highlighted reforms to the judicial system as a "key priority" to make the courts "genuinely independent from the executive and legislative branches of power." He called for "protect[ing] the real independence of the media," to enable them to expose corruption and provide for free expression. He lamented that "the state itself often fails to protect [private] ownership rights," and asserted that "respect for private property must become one of the pillars upon which the state's policy is built." He stated that economic development requires that all citizens have equal access to healthcare, education and other social support. He also called for giving "more people the possibility of ... acquiring their own home and land," so that a large middle class eventually may be created. According to the final report of the Central Electoral Commission (CEC), Medvedev won 70.28% of almost 75 million votes cast, very similar to (but slightly less than) the percentage of the vote received by Putin in the 2004 presidential election (71.31%). Some observers suggested that Zyuganov benefitted from his runner-up results, since he gained a greater percentage of the vote than the Communist Party—which he heads—received in the December 2007 Duma election. Zhirinovskiy benefitted too, according to this thinking, because he also received a higher percentage than his party received in the Duma election. Bogdanov, on the other hand, appeared to have secured fewer votes than the number of spoiled ballots and less than one-half of the votes he might have expected if those who signed his voter registration petitions had later voted for him. He conceded defeat quickly and expressed the view that the election had been conducted properly. Zhirinovskiy's representative on the CEC reportedly stated that the results reflected the will of the people, and Zhirinovskiy pledged that his party would support the new president. Zyuganov claimed that election "rigging" had probably denied him an extra 5%-10% of the vote. The Organization for Security and Cooperation in Europe's Office of Democratic Institutions and Human Rights (OSCE ODIHR) declined to monitor the Russian presidential election because of Russian government restrictions on its proposed work (it had similarly declined to monitor the December 2007 legislative election). A small 22-member monitoring group from the Parliamentary Assembly of the Council of Europe (PACE) concluded that the election "had more the character of a plebiscite" on Putin's rule than a competitive election, but that Medvedev was given "a solid mandate ... by the majority of Russians." The monitors raised concerns that an onerous registration process for independent candidates and uneven media coverage contributed to a electoral process that was not free and fair. A pre-election report by PACE also criticized Medvedev's decision not to engage in debates. U.S. analyst Michael McFaul termed the election "the least competitive election in Russia's post-communist history." Amendments to the electoral legislation in 2005 banned electoral observers from non-governmental organizations (NGOs), permitting only representatives of the candidates and of media to observe voting. However, Golos sent its "press correspondents" as observers to hundreds of voting precincts, although they were blocked from monitoring in some localities. Besides Medvedev, only Zyuganov mounted a serious monitoring effort, sending representatives to about 58% of polling stations, according to Golos. Golos monitors witnessed local government officials at the premises of most territorial electoral commissions during vote counting. In his congratulations to Medvedev, Putin on March 3 stated that the duo would start to restructure the government even before Medvedev's inauguration, planned for May 7. Putin also asked Medvedev to immediately assume leadership over the State Council. Medvedev in turn stated that the election results were an endorsement of Putin's policies and a mandate for the duo to continue them "for years to come." Putin immediately convened a cabinet meeting and directed the ministries to work out detailed plans as early as May to implement the 2020 development goals. He also called for the ministries to "immediately submit concrete proposals" on carrying out national project goals on urban policy, agricultural lands, and social sector reforms. He called for plans to promote finished goods processing of natural resources, to strengthen the home mortgage system and banking system, and to streamline rules for setting up and running small businesses. He reminded the ministers that he recently had ordered increases in various social benefits, and stated that revenues must be found to cover these expenses. Some observers suggest that Putin will retain the levers of power and Medvedev will be a "ceremonial" president. Putin himself asserted on February 14 that he would have substantial constitutional powers as a prime minister, including "formulating ... and presenting budgets to the legislature, formulating ... monetary and credit policy, tackling social, health care, educational and environmental issues, creating conditions to ensure the country's defense capability ... and carrying out foreign economic policies.... There are enough powers [for me]." These observers also speculate that Medvedev was chosen with the expectation that he would not touch the personal assets of—or otherwise reverse policies benefitting—the Putin-era "siloviki" (literally, "strong ones," referring to many of Putin's associates with ties to the security agencies). Other observers argue that since Medvedev prevailed during in-fighting in the Kremlin, he may well have a strong will as president. They predict that, just as Putin moved against some of the so-called oligarchs late in his first term in office, Medvedev also may move slowly to assert himself vis-à-vis the "siloviki." A few analysts suggest that the power-sharing arrangement with Putin may prove workable and may bolster possible democratization. Russian analyst Dmitriy Trenin argues that if Putin strengthens the ministerial system vis-à-vis the presidency, other institutions may also attempt to garner some autonomy, such as the legislature and the judicial system, creating a better balance of powers between these institutions. The election also may have strengthened the constitutional norm of two presidential terms. Putin asserted on February 14 that he would hold the prime ministership as long as he felt he was meeting his own objectives and as long as Medvedev was president, apparently not considering that he and Medvedev would ever clash or that Medvedev would exercise his constitutional power to dismiss the prime minister. Alexander Voloshin, Putin's former chief of staff, has predicted that the two leaders will eventually clash, even if only because of the different institutions they head. Some observers have raised concerns that inter-bureaucratic clashes will come to paralyze the government. A few have even warned that during a similar period of dual power centers in 1993, then-President Boris Yeltsin used military forces to defeat a strong legislative speaker. Medvedev faces several domestic problems at the outset of his presidency. It may be hard for Medvedev to build on or sustain the economic boom that occurred during most of Putin's presidency, since the world economy may be facing problems and the Russian economy needs restructuring. Rising inflation is one pressing economic concern. Other domestic problems include increasing terrorism and civil disorder in the North Caucasus area. An approved opposition march was held in St. Petersburg on March 3, but a similar unsanctioned demonstration in Moscow the same day was forcibly dispersed, perhaps a troubling sign after the election. Instead, Moscow officials sanctioned a large march by the pro-Putin Nashi ("Ours") youth group, which picketed the U.S. embassy to protest alleged Western meddling in Russia's affairs. Medvedev has not traveled extensively abroad or had extended responsibility for foreign affairs within the Putin administration. On March 3, he announced that he would focus on foreign policy. He has accepted invitations to visit Belarus, Turkmenistan, Venezuela, and Germany. Some international problems may have ameliorated recently, providing Medvedev with some breathing room, including Russia's vote in the UN Security Council on March 3 favoring new sanctions against Iranian uranium enrichment and possibly improved relations with Georgia. However, among the first international issues confronting the president-elect, Medvedev on March 4 urged Ukrainian President Viktor Yushchenko to quickly pay the country's gas debt. Before the Russian election, President Bush stated that he and a future U.S. president should work to have a personal relationship with a new Russian president, "a trustworthy relationship, to be able to disagree and yet maintain common interests in other areas." Areas of common U.S.-Russian interest, Bush stated, include non-proliferation and Iranian nuclear issues. He wondered who would represent Russia at the next Group of 8 Summit (G8; conclave of major industrial democracies), appearing to oppose calls by some U.S. observers to oust Russia from the G8. On March 4, President Bush called Medvedev to urge the continuation of cooperation on counter-terrorism, counter-proliferation, transnational crime, and other issues, and reportedly stated that he had "read with interest" Medvedev's campaign commitments on human rights, independent media, the rule of law, and combating corruption. Issues on which the United States and Russia disagree include U.S. missile defenses in Eastern Europe, Kosovo's independence, and NATO enlargement. Putin on February 14, 2008, threatened to consider targeting Poland and the Czech Republic if they move forward with hosting elements of U.S. intermediate ballistic missile defenses, and to target Ukraine if it joins NATO. Medvedev visited Serbia in February 2008 and backed its opposition to independence for Kosovo. Medvedev's chairmanship of Gazprom heavily involved economic relations with Europe, so Medvedev is likely to continue to focus on such ties, including by influencing the future chairman. Some observers stress that Gazprom has acted as a trusted agent of the Putin government in using energy as a political weapon, and that this probably will not change under Medvedev. Signs of such a continued policy include Gazprom's reduction of gas supplies to Ukraine on March 3. More broadly, German Chancellor Angela Merkel met with Medvedev and Putin in Moscow on March 8 and reportedly suggested that "there will be continuity" in Russia's relations with the West, and that "I do not think that the controversies [in relations] will just disappear." Other observers argue that Medvedev may work toward better energy and other ties with Europe. Some observers suggest that Medvedev's reformist statements and career might augur his eventual emergence as a reformist president of Russia and to improved U.S.-Russia ties. Russian analyst Alexey Pushkov argues that U.S. policy analysts erroneously have focused on the possible negative ramifications of increased authoritarianism in Russia under Putin, rather than on Russia's growing economic stability. Others are less sanguine. Andrey Illarionov, Putin's former economic advisor, calls Russia a unique historical "siloviki dictatorship," and argues that Medvedev has used his legal background to reverse democratization in the country. He warns that recent Russian actions such as cyber attacks on Estonia, the radiation poisoning of Alexander Litvinenko in England, and the closure of the British Council offices in Russia are typical of such a regime. | This report discusses the campaign and results of Russia's March 2, 2008, presidential election and implications for Russia and U.S. interests. Popular outgoing President Vladimir Putin endorsed his First Deputy Prime Minister, Dmitriy Medvedev, who easily won an election viewed by some observers as not free and fair. This report will not be updated. Related products include CRS Report RL33407, Russian Political, Economic, and Security Issues and U.S. Interests, by [author name scrubbed]; and CRS Report RS22770, Russia's December 2007 Legislative Election: Outcome and Implications, by [author name scrubbed]. For more background and prospects, see CRS Report RL34392, Russia's 2008 Presidential Succession, by [author name scrubbed]. |
The Federal Perkins Loan program is one of three postsecondary student financial aid programs that are collectively referred to as the campus-based programs. The Perkins Loan program authorizes the allocation of federal funds to institutions of higher education (IHEs) to assist them in capitalizing revolving loan funds for the purpose of making low-interest loans to students with exceptional financial need. The program is authorized under Title IV, Part E of the Higher Education Act (HEA). It supersedes Title II—Loans to Students in Institutions of Higher Education—of the National Defense Education Act of 1958 (P.L. 85-864), which was incorporated into the HEA through the Education Amendments of 1972 (P.L. 92-318). Previously, these loans were known as National Defense Student Loans and National Direct Student Loans. Institutions capitalize revolving loan funds created under the program with a combination of federal and institutional capital contributions (FCCs and ICCs, respectively). Each institution's ICC must equal one-third of the FCC received. The FCC is allocated according to statutorily prescribed procedures. After making loans, IHEs recapitalize their loan funds by depositing the principal and interest repaid by students who borrowed under the program, as well as any other charges or earnings associated with the operation of the program. Perkins Loans are available to undergraduate and graduate and professional students. They must be made reasonably available to all eligible students, with priority given to students with exceptional financial need. Interest on Perkins Loans is fixed at a rate of 5% per year, and no interest accrues prior to a student beginning repayment, nor while repayment is suspended during deferment. Individuals who have engaged in a variety of public service endeavors (e.g., full-time elementary or secondary school teachers employed at a public or private nonprofit school in which low-income students are more than 30% of total enrollment, full-time law enforcement officers) are eligible to have part or all of their Perkins Loan cancelled. The Secretary of Education (the Secretary) is required to reimburse IHEs for Perkins Loans cancelled for students engaged in public service. Funds for reimbursing institutions for loan cancellations may not come from appropriations designated for FCCs; rather, these funds are appropriated under a separate authorization. In academic year 2013-2014, approximately 1,500 IHEs disbursed $1.2 billion in new Perkins Loans to approximately 539,000 students. The authorization of appropriations under HEA Section 461(b)(1), for the purpose of enabling the Secretary to make FCCs to IHEs for their revolving Perkins Loan funds, expired at the end of FY2014. However, Section 422 of the General Education Provisions Act (GEPA) provides that, generally, in the absence of legislation to extend or repeal a program administered by the Department of Education (ED), the authorization of appropriations, or the duration of a program, is extended for one additional fiscal year beyond its terminal year. The authorized level of appropriations for a program in the additional year shall be the same as that for the terminal year of the program. Thus, because Congress did not extend or repeal the Perkins Loan program prior to its expiration on September 30, 2014, the authorization of appropriations for the program was automatically extended for an additional year, through FY2015. ED considers the authorization of appropriations under HEA Section 461(b)(1) to control the duration of the Perkins Loan program and has interpreted this section, along with the automatic one-year extension under GEPA Section 422, to mean that the Perkins Loan program is authorized through September 30, 2015. HEA Section 461(b)(1) authorizes discretionary appropriations to enable the Secretary to make FCCs to student loan funds established and operated at individual IHEs. Under this section $300 million in appropriations are authorized annually for FY2009 through FY2014, and through FY2015 under GEPA Section 422. However, discretionary appropriations for FCCs were last provided in FY2004. Along with the regular authorization of appropriations, HEA Section 465(b) states that the Secretary "shall pay to each institution ... an amount equal to the amount of loans from its student loan fund which are cancelled" for employment in specified public service jobs. Although there is no explicit authorization of appropriations language, in the past Congress has appropriated funds specifically for reimbursing IHEs for Perkins Loans cancellation. Funds for the reimbursement of Perkins Loans cancellations were last appropriated in FY2009. Although funds to make new FFCs to the Perkins Loan program have not been appropriated in several years, IHEs continue to extend new Perkins Loans to borrowers. Because Perkins Loan funds are revolving and, thus, institutions recapitalize their loan funds by depositing the principal and interest repaid by students who borrowed under the program, most participating IHEs still have the ability to extend new Perkins Loans and many continue to do so. Additionally, IHEs may transfer up to 25% of their federal allotments under the Federal Work-Study program to their Federal Perkins Loan fund. This transfer of funds may also enable some IHEs to continue extending new loans to students, despite not receiving new FCCs under the Perkins Loan program. Perkins Loan cancellation is considered an entitlement to those individuals who complete the service requirements. Thus, IHEs must cancel those individuals' loan balances. However, because borrowers are relieved of the requirement to repay their Perkins Loans upon completion of their service requirements, the principal and interest that would have been repaid by such borrowers are not deposited into institutions' revolving student loan funds—and because IHEs are not receiving a reimbursement for that lost stream of capital, the revolving loan fund may have less money to extend new Perkins Loans to students. Although IHEs have not been reimbursed for Perkins Loans cancellations in several years, ED annually calculates the reimbursement payments a school would be eligible to receive and maintains a record of those amounts. It is unknown whether IHEs will be reimbursed for costs associated with loan cancellations in the future. As described above, the statutory authority under the HEA to appropriate funds for the Perkins Loan program expired on September 30, 2014, and has been automatically extended through FY2015 under GEPA Section 422, and ED has interpreted this language to control the overall duration of the program. Absent congressional action prior to October 1, 2015, authorization of appropriations for the Perkins Loan program will expire. Recently, ED issued guidance describing the steps IHEs participating in the Perkins Loan programs should take if Congress does not enact legislation extending or repealing authorization of the program before the end of FY2015. Specifically, IHEs may not extend Federal Perkins Loans to new borrowers after September 30, 2015. However, if prior to October 1, 2015, an IHE makes a first disbursement of a Perkins Loan to a student for the 2015-2016 award year, then the IHE may make remaining disbursements on that loan after September 30, 2015. Also, HEA Section 461(b)(2) includes a grandfathering provision that authorizes additional appropriations to enable IHEs to make Federal Perkins Loans to students who received Perkins Loans for academic years ending prior to October 1, 2015. These students may receive Perkins Loans for up to five additional years (through September 30, 2020) to assist them in continuing or completing their courses of study. Borrowers with currently outstanding Perkins Loans would remain responsible for making payments on the balance of those loans. Additionally, because cancellation benefits are considered entitlements to the borrower, written into the terms of the loan agreement, they would remain eligible for cancellation benefits upon completion of service requirements. ED has not yet issued guidance to IHEs regarding how they should treat outstanding Perkins Loans should the program's authorization of appropriations not be extended. However, when IHEs end their participation in the Perkins Loan program, they are required to assign any outstanding loans to ED for collection. This process results in ED becoming the holder of the loans and collecting on balances owed by borrowers. It is possible similar procedures would be used in the event the Perkins Loan program ceases to operate beyond FY2015. HEA Section 466(a) provides that, beginning September 30, 2003, and no later than March 31, 2004, there was to be a capital distribution of the balance of each IHE's Perkins Loan fund (i.e., a distribution of assets). Under this provision, each participating IHE was to pay the Secretary an amount of the fund proportional to the FCCs paid by the Secretary and IHEs would have retained the remaining balance. Similarly, HEA Section 466(b) provides that after October 1, 2012, each participating IHE was to pay the Secretary the same proportion of any borrower payments in principal and interest on student loans made under the program (this is known as a distribution of late collections), with the IHE retaining any remaining balance. Although the HEA required the start of the distribution of assets and late collections by October 1, 2012, at the latest, ED determined that Section 461 of the HEA, which authorized appropriations for the Perkins Loan programs through FY2014, and Section 422 of GEPA, which authorizes an automatic one-year extension of appropriations through FY2015, supersede the October 1, 2012, distribution provisions. Thus, under ED's interpretation, IHEs need not begin a distribution of Perkins Loan assets and late collections until the end of FY2015. Presumably, if a distribution occurs, IHEs would be required to liquidate and close out their Perkins Loan portfolios following procedures similar to those IHEs are required to follow when they end their participation in the program. However, in recent guidance to IHEs regarding future disbursements of Perkins Loans to borrowers, ED stated it intends to provide information on additional wind-down procedures, including the disposition of IHEs' Perkins Loan portfolios. This information has not yet been released. It is not yet clear what the cost would be to the federal government if authorization of appropriations for the Perkins Loan program is extended. Based on the Section 466 distribution of assets and late collections provisions, it could be argued that the federal government is expecting federal funds to be returned to it. If so, then continuing the program could postpone the return of these funds and thereby create a cost to the government, as it would be "losing" an expected stream of revenue. However, the Congressional Budget Office has indicated it has not yet determined how to calculate cost estimates in this novel situation. | The Federal Perkins Loan program authorizes the allocation of federal funds to institutions of higher education to assist them in capitalizing revolving loan funds for the purpose of making low-interest loans to students with exceptional financial need. Institutions participating in the program are required to provide matching funds equal to one-third of the federal funds they receive. Authorization of appropriations for the Perkins Loan program is due to expire at the end of FY2015, and the future operation of the program is uncertain. This report answers several frequently asked questions regarding the current and future status of the Federal Perkins Loan program, including the following: Is the Perkins Loan program currently authorized? What is the funding status of the Perkins Loan program? Without new appropriations, how does the program continue to function? What happens if authorization of appropriations for the Perkins Loan program expires? What would be the cost to the federal government if authorization for the Perkins Loan program is extended? The Federal Perkins Loan program is one of three federal student aid programs authorized by the Higher Education Act, which are collectively known as the campus-based programs. The Federal Work-Study program and the Federal Supplemental Educational Opportunity Grant program are the two other campus-based programs. For an overview of each of the campus-based programs, see CRS Report RL31618, Campus-Based Student Financial Aid Programs Under the Higher Education Act, by [author name scrubbed] and [author name scrubbed]. |
RS21502 -- India-U.S. Economic Relations Updated February 10, 2005 Upon achieving independence from British rule in 1947, India pursued policies that sought to assert government planningover most sectors of the economy and strove to promote relative economic self-sufficiency. These policies includedextensive government spending on infrastructure, the promotion of government-owned companies, pervasiveregulatoryauthority over private sector investment, and extensive use of trade and investment barriers to protect local firmsfromforeign competition. While these policies achieved some economic goals (such as rapid industrialization), theoverall effectwas to promote widespread inefficiency throughout the economy (e.g., unprofitable state-run firms and a constrainedprivate sector) and to greatly restrict the level of foreign direct investment (FDI) in India. India's real GDP growthwasrelatively stagnant during the 1970s, averaging about 2.7%. Piecemeal economic reforms and increased governmentspending during the 1980s helped boost average real GDP growth to 6.0%. (1) 1991 Economic Crisis and Reforms. India suffered a major economic crisis in 1991, largely due to the effects of oil price shocks (resulting from the 1990 Gulf War), the collapse of theSovietUnion (a major trading partner and source of foreign aid), and a sharp depletion of its foreign exchange reserves(causedlargely by large and continuing government budget deficits). (2) The economic crisis led the Indian government to cut thebudget deficit and implement a number of economic reforms, including sharp cuts in tariff and non-tariff barriers,liberalization of foreign direct investment (FDI) rules, exchange rate and banking reforms, and a significantreduction inthe government's control over private sector investment (by removing licensing requirements). These reformshelpedboost economic growth and led to a surge in FDI flows to India in the mid-1990s (annual FDI rose from about $100millionin 1990 to $2.4 billion by 1996; more than one-third came from U.S. investors). Reform efforts stagnated, however,underthe weak coalition governments of the mid-1990s. The 1997/1998 Asian financial crisis and U.S.-imposed sanctionsonIndia (as a result of its May 1998 nuclear tests) further dampened the economic growth. (3) Following parliamentaryelections in 1999, the government launched second-generation economic reforms, including major deregulation,privatization, and tariff-reducing measures. Current Economic Conditions. India's economic growth has been relatively robust over the past few years. Real GDP grew by 8.2% in 2003 and by an estimated 5.7% in 2004. GlobalInsight , an economic forecasting firm, projects India's real GDP will rise by 6.3% in (FY)2005 and 6.0% in2006. (4) Bysome measurements, India is among the world's largest economies. While on a nominal U.S. dollar exchange ratebasis,India's 2003 GDP was $577 billion. However, on a purchasing power parity (PPP) basis (which factors indifferences inprices across countries), India's GDP is estimated at close to $3 trillion. By this measurement, India is the world'sfourth-largest economy (after the United States, China, and Japan). (5) However, its per capita GDP on a PPP basis (acommon international measurement of a nation's living standards) was $2,780, equal to only 7.4% of U.S. levels. Povertyis perhaps India's greatest problem. According to the World Bank, India has 433 million people (44.2% of thepopulation)living below the international poverty measurement of less than $1 per day. (6) India's trade is relatively small. According to the World Trade Organization (WTO), India was the world's 31st-largestmerchandise exporter, and the 25th- largest importer, in 2003. (7) Merchandise exports and imports totaled $63 billion and$77 billion, respectively. India's principal exports were pearls and precious and sem-precious stones (14.8% oftotal),textiles (10.8%), and clothing (10.5%). Its top three imports were petroleum (27.0% of total), pearls and preciousandsem-precious stones (9.6%), and gold and silver (8.3%). (8) India's major export markets were the United States (18.1% oftotal), the United Arab Emirates, and Hong Kong, and its top sources for imports were the United States (6.5% oftotal),China, and Belgium. India's IT Sector. The Indian government has made the development of India's Information Technology (IT) a top priority. Over the past few years, IT has been one of India'sfastest-growingeconomic sectors and a major source of service exports. (9) For example, software and service exports in 2003 totaled $12.5billion, 30% higher than the previous year. The Indian government's Information Technology Action Plan seeksto boostsoftware and service exports to$50 billion by 2008 and to increase the contribution of IT to India's GDP from thecurrentlevel of 2% to 7.7%. Currently, more than 60% of India's software and service exports go to North America, mainlyto theUnited States. (10) Comparisons Between India and China. Many analysts argue that India's economy has failed to live up to its potential, especially relative to other developing countries, such as China,whichhas a comparable population size but has enjoyed far greater economic development in recent years. In 1990, India'seconomy (GDP on PPP basis) was about three-quarters the size of China's, but by 2003 it had fallen to 44% ofChina'ssize. India's living standards (per capita GDP on PPP basis) were slightly greater than China's in 1990, but by 2003theyhad fallen to about half of China's. India made small gains in FDI flows relative to China from 1990 to 2003 (risingfrom2% to 7%); however, the total level of FDI stock in China remains substantially higher than in India. In fact, FDIflows toChina in 2003 alone (nearly $54 billion) were 54% higher the cumulative stock of FDI in India through 2003 (about$35billion). Many economists attribute the sharp widening economic gaps between India and China to differences inthe paceand scope of economic and trade reforms undertaken by each country, where China has substantially reformed itstrade andinvestment regimes (which has contributed to sharp rises in GDP growth, trade, and FDI flows), India's economicreformshave been far less comprehensive and effective. For example, China's average tariff has fallen from 43% in 1992to12% in2002. India's average tariff during this period dropped substantially, from 128% to 32%, but still remains amongthehighest in the world. Trade between the United States and India is relatively small, but has risen sharply over the past few years. In 2004, U.S.merchandise exports to and imports from India are estimated to have totaled $6.1 billion and $15.5 billion,respectively(see Table 1 ), making India the 24th largest U.S. export market and the18th largest supplier of U.S. imports. (11) In 2004,U.S. merchandise exports to India rose by 22.6%, while imports rose by 18.4%, over 2003 levels. Major U.S.exports toIndia included electrical machinery, chemicals, unfinished diamonds. Top U.S. imports from India werenon-metallicmanufactured minerals (mainly processed diamonds), clothing and apparel, and miscellaneous manufactured items(mainlyjewelry). According to Indian government data, the United States is India's second largest source of FDI with cumulative FDI at$4.1 billion or 10.6% of total FDI in India. Major sectors for U.S. FDI include energy, telecommunications, andelectricalequipment. Table 2. U.S.-India Merchandise Trade: 2001-2004* ($ millions) *Data for 2004 estimated based on actual data for January-November 2004. Source : U.S. International Trade Commission DataWeb. Major U.S.-Indo Trade Issues. India's sizable population and large and growing middle class make it a potentially large market for U.S. goods and services. (12) However, a number of factorshamper increased economic ties. First, in addition to maintaining high tariff rates on imports (especially on productsthatcompete with domestic products), India also assesses high surcharges and taxes on a variety of imports. Majornon-tariffbarriers include sanitary and phytosanitary restrictions, import licenses, regulations that mandate that only publicsectorentities can import certain products, discriminatory government procurement practices, and the use of exportsubsidies. (13) A variety of restrictions are placed on foreign services providers and on the level of permitted FDI in certainindustries. Second, India continues to maintain a number of inefficient structural policies which affects it trade, including pricecontrols for many "essential" commodities, extensive government regulation over many sectors of the economy, andextensive public ownership of businesses, many of which are poorly run. Third, despite India's attempt to developinternationally competitive IT industries (such as software), U.S. government officials charge that India has a poorrecordin protecting intellectual property rights (IPR), especially for patents and copyrights. The International IntellectualProperty Alliance estimated U.S. losses of $420 million due to trade piracy in 2003 -- nearly three-quarters of thisin thecategories of business and entertainment software -- and noted "very little progress in combating piracy." India's extensive array of trade and investment barriers has been criticized by U.S. government officials and businessleaders as an impediment to its own economic development, as well as to stronger U.S.-Indian ties. (14) For example, in September 2004, Alan Larson, U.S. Under Secretary of State for Economic, Business, and Agricultural Affairs,stated that"trade and investment flows between the U.S. and India are far below where they should and can be," adding thatAmerican exports to India "have not fared as well" as have Indian exports to the United States and that "the pictureforU.S. investment is also lackluster." He identified the primary reason for the suboptimal situation as "the slow paceofeconomic reform in India." Some U.S. interest groups have expressed concern that closer U.S.-India economic ties could accelerate the practice bysome U.S. firms of outsourcing IT and customer service jobs to India. (15) Various proposals have been made in Congressand various State governments to restrict outsourcing. work overseas. Bush Administration officials have expressedopposition to government restrictions on outsourcing, but have told Indian officials that the best way to counter such"protectionist" pressures in the United States is to further liberalize its markets. Other U.S. interest groups haveraisedconcern over the outsourcing of financial services (such as call centers) to other countries that entail transmittingprivateinformation of U.S. consumers. (16) U.S. officialshave urged India to enact new privacy and cybersecurity laws to addressU.S. concerns over identify theft. (17) Prospects for India's Further Economic Reform. India faces a number of significant challenges to its goals of sustaining healthy economic growth and further reducing poverty. Many economists argue that India needs to substantially liberalize its trade and investment regimes, accelerateprivatization ofstate firms, cut red tape and crack down on corruption, and substantially boost spending on its in physical and humaninfrastructure. (18) However, large and continuinggovernment deficits, and the high level of public debt (equal to 62% ofGDP in 2003) severely hamper the ability of the government to boost spending for needed infrastructure projects,withoutmajor reforms to the tax system and significant cuts in government subsidies. In October 2004, the World Bankcountrydirector for India lauded the country's economic achievements, but called accelerating reforms "essential" forsustainedgrowth and poverty reduction there, and a top International Monetary Fund official said that "India remains arelativelyclosed economy" and urged greater trade liberalization and regional economic integration. (19) Organized resistance to desired reforms has come from Hindu nationalist groups that were influential under the BJPgovernment from 1998 to 2004. As a "sister organization" to the Rashtriya Swayamsevak Sangh (RSS) -- a leadingHindunationalist organization -- the Swadeshi Jagaran Manch (SJM) has taken the lead in efforts to forward the swadeshi (orself reliance) cause. According to the SJM, "The Western notion of a global market does not fit into the swadeshi approach," nor does the "Western notion of individual freedom, which fragments and compartmentalizes family,economy,culture, and social values ..." Such anti-globalization policies continue to enjoy limited, but still substantial backingamongIndians. Moreover, the surprise May 2004 election upset defeat of the BJP seated a new national coalition led bytheCongress Party that is supported by a group of communist parties. Early alarm was sounded that the influence ofcommunists in New Delhi might derail India's economic reform efforts; however, Indian industrial leaders havesought toassure foreign investors that Left Front members are not "Cuba-style communists," but can be expected to supportthe UPAreform agenda. The communist Chief Minister of West Bengal has himself actively sought corporate investmentin hisstate. (20) Despite the sometimes considerable resistance to further progress with India's economic reforms, most analysts believethat the Congress-led coalition will not alter New Delhi's policy direction in any meaningful way. Prime MinisterandOxford-educated economist Manmohan Singh served as finance minister from 1991-1996 and has been the architectofmajor Indian economic reform and liberalization efforts. The new government's first budget, released in July 2004,generally was lauded by Indian industrial groups as "progressive and forward-looking." (21) Still, New Delhi's movement onkey reform issues could remain slow in the near- and medium-term. | India is a country with a long history and a large population (more than onebillion people, nearly half living in poverty). Given that it is the world's most populous democracy, a U.S. ally inanti-terrorism efforts, and a potentially major export market, India's economic development and its trade relationswith theUnited States are of concern to Congress. This report will be updated as events warrant. |
As in the previous Congress, management of the federal workforce continues to be an issue ofinterest to the Senate and the House of Representatives in the 108th Congress. S. 129 ,the Federal Workforce Flexibility Act of 2003, passed the Senate with an amendment by unanimousconsent on April 8, 2004. Senator George Voinovich introduced the bill on January 9, 2003, and itwas referred to the Senate Committee on Governmental Affairs. On October 22, 2003, thecommittee ordered the bill to be reported with an amendment in the nature of a substitute; and it wasreported on January 27, 2004. (1) The committeesubstitute, as amended, was agreed to by unanimousconsent on April 8, 2004. In the House of Representatives, the Subcommittee on Civil Service andAgency Organization of the House Committee on Government Reform marked up S. 129on May 18, 2004. Before forwarding the legislation to the full committee, the subcommittee agreedby voice vote to an amendment in the nature of a substitute offered by Representative Jo Ann Davisand en bloc amendments offered by Representative Danny Davis. On June 24, 2004, the Housecommittee ordered the bill to be reported to the House of Representatives by voice vote, afteragreeing, by voice vote, to an amendment in the nature of a substitute offered by Representative JoAnn Davis. Another bill related to management of the federal workforce was introduced in the House of Representatives on April 3, 2003. Representative Jo Ann Davis introduced H.R. 1601 ,the Federal Workforce Flexibility Act of 2003, and it was referred to the House Committee onGovernment Reform. As introduced, S. 129 and H.R. 1601 were identicalexcept for one provision relating to personnel demonstration projects. (2) On April 8, 2003, theSubcommittee on Oversight of Government Management, the Federal Workforce, and the Districtof Columbia of the Senate Committee on Governmental Affairs, along with the Subcommittee onCivil Service and Agency Organization of the House Committee on Government Reform, conducteda joint hearing on the federal government's human capital challenge. (3) A hearing that includeddiscussion of H.R. 1601 was conducted by the House Subcommittee on Civil Serviceand Agency Organization on February 11, 2004. (4) Both S. 129 and H.R. 1601include a number of the provisions that were in S. 2651 , the Federal WorkforceImprovement Act of 2002, introduced by Senator Voinovich in the 107th Congress. Several of theS. 2651 provisions, including those on agency Chief Human Capital Officers, alternativeranking and selection procedures, voluntary separation incentive payments, the repeal ofrecertification requirements for the Senior Executive Service, academic degree training, andmodifications to the National Security Education Program, were enacted in P.L. 107-296 , HomelandSecurity Act of 2002, signed by President George Bush on November 25, 2002 and are applicablegovernmentwide. (5) S. 129 , as passed by the Senate and as ordered to be reported to the House, would amend current law provisions on critical pay, civil service retirement system computation forpart-time service, agency training, and annual leave. The bill also would amend current lawprovisions on recruitment and relocation bonuses and retention allowances (which would be renamedbonuses). As ordered to be reported to the House, S. 129 would amend the current 5U.S.C. ��5753 and 5754 language on such bonuses and allowances. As passed by the Senate, itwould add new sections 5754a and 5754b on recruitment, relocation, and retention bonuses to Title5 United States Code . Therefore, if S. 129, as passed by the Senate, were enacted, agencieswould be able to use the current law provisions on recruitment and relocation bonuses and retentionallowances at 5 U.S.C. ��5753 and 5754 and the enhanced authority for recruitment, relocation, andretention bonuses proposed at 5 U.S.C. ��5754a and 5754b. (6) S. 129 , as ordered to be reported to the House, would amend current law provisions on pay administration. These amendments were included in S. 129, as introduced, but theywere dropped during Senate committee markup and are not included in the Senate-passed versionof the bill. Provisions that would amend current law on retirement service credit for cadet ormidshipman service and compensatory time off for travel were added to S. 129 duringSenate committee markup and are included in the legislation as passed by the Senate and as orderedto be reported to the House. Added during Senate Committee markup as well were provisions onSenior Executive Service authority for the White House Office of Administration that are in theSenate-passed bill, but are not in the legislation as ordered to be reported to the House (theprovisions were removed from the House version of the bill during the full House committeemarkup). Other provisions that would have amended current law provisions relating to contributionsto the Thrift Savings Plan, annuity commencement dates, and retirement for air traffic controllerswere included in S. 129, as forwarded by the House Civil Service and AgencyOrganization Subcommittee to the House Government Reform Committee, but were removed duringthe full committee markup. In the 107th Congress, Senator Voinovich introduced S. 1603 , the Federal Human Capital Act of 2001, on October 31, 2001 and S. 1639 , the Federal EmployeeManagement Reform Act of 2001, on November 6, 2001. Senator Fred Thompson introduced S. 1612 , the Managerial Flexibility Act of 2001, on November 1, 2001. (7) The bills werereferred to the Senate Committee on Governmental Affairs. Representative Constance Morellaintroduced H.R. 4580 , the Good People, Good Government Act, on April 24, 2002, andit was referred to the House Committee on Government Reform. Earlier, on October 15, 2001, theAdministration of President George W. Bush submitted a legislative proposal entitled TheManagerial Flexibility Act of 2001 to Congress. The Office of Management and Budget (OMB)described the proposal as "a key component of the Bush Administration's 'Freedom to Manage'initiative . . . to eliminate legal barriers to effective management." (8) The proposal included provisionson personnel management flexibilities, including voluntary separation incentive payments, voluntaryearly retirement, recruitment and retention bonuses and relocation allowances, academic degrees,the Senior Executive Service, personnel management demonstration projects, and direct hire. On March 18 and 19, 2002, the Subcommittee on International Security, Proliferation, and Federal Services of the Senate Committee on Governmental Affairs conducted hearings on severalof the civil service bills. Following the hearings, Senator Voinovich, joined by Senators Thompsonand Cochran, revised some of the provisions in S. 1603 and S. 1639 , asintroduced, and merged them into one bill, S. 2651 . As mentioned above, several ofthe S. 2651 provisions were enacted in P.L. 107-296 . No further action was taken on anyof the other 107th Congress bills. This report compares each of the provisions in S. 129 , as passed by the Senate and as ordered to be reported to the House, with current law. The information in this report is presentedaccording to the sequential organization of Title 5 United States Code as current law. PatrickPurcell, Specialist in Social Legislation, Domestic Social Policy Division, Congressional ResearchService (CRS), prepared the rows in Table 1 on retirement provisions under 5 U.S.C. Chapters 83and 84. [author name scrubbed], Analyst in American National Government, Government and FinanceDivision, CRS, prepared the rows in Table 1 on Senior Executive Service Authority for the WhiteHouse Office of Administration under 3 U.S.C. Chapter 2. | A bill related to the management of the federal workforce is being considered by the 108th Congress. S. 129 , the Federal Workforce Flexibility Act of 2003, passed the Senatewith an amendment by unanimous consent on April 8, 2004. In the House, the Subcommittee onCivil Service and Agency Organization forwarded S. 129 to the House Committee onGovernment Reform on May 18, 2004, after amending it by voice vote. On June 24, 2004, theHouse committee ordered the bill to be reported to the House of Representatives, after amending it,by voice vote. The bill was introduced by Senator George Voinovich on January 9, 2003. A similarbill, H.R. 1601 , the Federal Workforce Flexibility Act of 2003, was introduced in theHouse of Representatives by Representative Jo Ann Davis on April 3, 2003. S. 129 , as passed by the Senate and as ordered to be reported to the House, would amend current law provisions on critical pay, civil service retirement system computation forpart-time service, agency training, and annual leave. The bill also would amend current lawprovisions on recruitment and relocation bonuses and retention allowances (which would be renamedbonuses). As ordered to be reported to the House, S. 129 would amend the current 5U.S.C. ��5753 and 5754 language on such bonuses and allowances. As passed by the Senate, itwould add new sections 5754a and 5754b on recruitment, relocation, and retention bonuses to Title5 United States Code . Therefore, if S. 129, as passed by the Senate, were enacted, agencieswould be able to use the current law provisions on recruitment and relocation bonuses and retentionallowances at 5 U.S.C. ��5753 and 5754 and the enhanced authority for recruitment, relocation, andretention bonuses proposed at 5 U.S.C. ��5754a and 5754b. S. 129 , as ordered to be reported to the House, would amend current law provisions on pay administration. These amendments were included in S. 129 , as introduced, butthey were dropped during Senate committee markup and are not included in the Senate-passedversion of the bill. Provisions that would amend current law on retirement service credit for cadetor midshipman service and compensatory time off for travel were added to S. 129 duringSenate committee markup and are included in the legislation as passed by the Senate and as orderedto be reported to the House. Added during Senate Committee markup as well were provisions onSenior Executive Service authority for the White House Office of Administration that are in theSenate-passed bill, but are not in the legislation as ordered to be reported to the House. Otherprovisions that would have amended current law provisions relating to contributions to the ThriftSavings Plan, annuity commencement dates, and retirement for air traffic controllers were includedin S. 129, as forwarded by the House Civil Service and Agency OrganizationSubcommittee to the House Government Reform Committee, but were removed during the fullcommittee markup. This report compares each of the provisions in S. 129 , as passed by the Senate and as ordered to be reported to the House, with current law. |
The federal government supplies subsidies to PHAs to help make up the difference between what low-income tenants pay in rent and the cost of operating low-rent public housing. The formula for providing these operating funds changed in January 2007. Under the formula change, some PHAs were eligible to receive an increase in federal operating funds compared to the previous formula, and others qualified for a decrease. Both the increases and the decreases are phased in; PHAs facing decreases had an opportunity to limit their formula eligibility losses through the adoption of management changes. However, the amount that a PHA qualifies for under the new operating fund formula (whether it is an increase or a decrease) is reduced if Congress appropriates less money than is necessary to fund all agencies at 100% of their eligibility (as Congress has done in most recent years). This report is designed to provide a brief overview of the changes to the public housing operating fund formula that began in January 2007. Public housing costs are divided into two main categories: capital costs and operating costs. Capital costs are the costs of major renovations or modernizations. Operating costs are the day-to-day costs of running a building, such as utility, administrative, and routine maintenance costs. Operating costs vary based on many factors, including the age of a building, its heating and cooling systems, and its location. In the early years of the public housing program, PHAs were expected to meet their operating costs through the rents they collected. Over time, tenant rents were no longer sufficient to cover public housing operating expenses, in part because tenants became poorer and therefore unable to pay as much in rent, and in part because the costs of maintaining the buildings increased as they aged. In the late 1960s, Congress began providing operating subsidies to PHAs to supplement the low rents paid by tenants. The system in place for providing those subsidies until 2001 was the Performance Funding System (PFS). In a 1998 public housing reform law, Congress responded to criticisms that the PFS formula was outdated by creating a new Public Housing Operating Fund. The law required the Department of Housing and Urban Development (HUD) to use negotiated rulemaking to develop a new formula for distributing the funds. A negotiated rulemaking committee convened in 1999 involved PHAs and other stakeholder groups. During deliberation, it was agreed that sufficient data were not available to determine the true costs of operating public housing and that a study should be undertaken. Until the results of the study were available, the committee agreed to use a modified version of the PFS to create an interim operating fund formula. This interim formula took effect in 2001. HUD contracted with the Harvard Graduate School of Design to conduct the public housing operating cost study; its results were published in 2003. Another negotiated rulemaking committee was established to use the results of the study to develop a final formula to replace the interim formula. HUD published a proposed rule in the spring of 2005, but the rule was criticized for differing significantly from the agreements made during negotiated rulemaking. HUD published a final rule in the fall of 2005 that more closely resembled the initial agreement of the negotiated rulemaking committee. The new formula took effect in January 2007. PHAs, which are funded on a calendar year basis, began receiving funding under the new formula in CY2007. The operating fund provides subsidies to PHAs to make up the difference between what it costs to run public housing and what low-income tenants pay in rent. Under the interim formula, the calculation for determining a PHA's operating subsidy eligibility used two components: formula expenses (meant to represent the cost of running public housing) and formula income (meant to represent the amount collected in tenant rents). HUD subtracts a PHA's formula income from its formula expenses and the amount by which the income is short of the expenses is the PHA's operating subsidy eligibility. The new operating fund formula uses the same principle, but a more complex equation with changes to the way certain components are calculated. Formula expenses are the sum of three categories of estimated expenses: non-utility expenses, utility expenses, and other add-ons. Non-utility expense levels are per unit estimates of the basic non-utility operating costs of maintaining public housing. Under the old formula, the non-utility expense levels set for a PHA were called Allowable Expense Levels (AELs). They were set for most PHAs under the PFS in 1975 and subsequently updated for inflation. The AELs were modified in 1992 and again in 2001 when the interim rule was adopted. To calculate the non-utility expense component of a PHA's formula expenses under the interim operating fund formula, the number of public housing units in a PHA's inventory was multiplied by the agency's AEL. The new operating fund formula sets new non-utility expense levels for PHAs based on the data from the Harvard study and adjusted for inflation. These new project expense levels (PELs) are not applied at the agency level (as under the interim rule), rather, they differ for each project within a PHA's portfolio based on the characteristics of that project. To calculate the non-utility expense component of a PHA's formula expenses under the new operating fund formula, the number of eligible public housing units in each project in a PHA's inventory is multiplied by each project's PEL and those amounts are then summed. For the CY2007 funding cycle, HUD developed weighted average project expense levels (WAPELs) for each PHA, and applied the WAPEL to all PHA units; for CY2008 and beyond, HUD has used individual PELs. Utility expense levels (UELs) are estimates of the utility costs that can be attributed to a unit of public housing. They are calculated for each utility based on a PHA's consumption level and the applicable rates for that utility. The interim formula had aspects designed to encourage PHAs to adopt more energy-efficient practices and reduce consumption. The Harvard Cost Study did not make recommendations for changing utility expense levels, citing a lack of available data. The final rule largely maintains the existing formula for calculating UELs, although the rule does state that HUD will study options for calculating utility costs and will convene a negotiated rulemaking committee to come up with a new formula. In addition to basic utility and non-utility expenses, the interim operating fund formula included some add-on costs that PHAs could qualify to include in their formula expenses. Some of these add-ons were flat per-unit per-month or per-unit per-year fees; others were open-ended reimbursements. The new operating fund formula includes several new add-ons, including the reasonable cost of a self sufficiency program; an asset management fee for PHAs in compliance with asset management requirements ($4 per unit per month for PHAs with more than 250 units and $2 per unit per month for PHAs with 250 units or less); information technology fees ($2 per unit per month); asset repositioning fees (for units being removed from the public housing stock that are not eligible for operating funds); reasonable costs for energy conservation measures; and payment in lieu of taxes (PILOT) costs (which were included in the AELs under the old formula). Formula income represents the income a PHA collects from rents. Under the interim rule, formula income was calculated by computing a PHA's average monthly rental charge per unit, applying an upward trend factor, and multiplying it by the number of units expected to be occupied. Under the new operating fund rule, formula income was initially calculated by taking the average rent charged by each PHA in its 2004 fiscal year and multiplying it by the PHA's eligible units. Each PHA's formula income was frozen at this 2004 level through the CY2009 funding cycle. Because tenants in public housing pay an income-based rent, as their incomes rise, so does the amount they pay in rent. With formula income frozen at the 2004 level, PHAs were provided an incentive to encourage families to increase their incomes, as the increased revenue from rents was not used when calculating a PHA's operating fund eligibility until after 2009. According to HUD, "unfreezing" income in 2010 resulted in the accounting for an additional $400 million in rental income over 2009. Under the new formula, some PHAs were "gainers," meaning that they were eligible for an increase in funding under the new formula as compared to the amount of funding they would have received under the old formula. Others were "decliners," meaning that they qualified for less funding under the new formula then they would have if the old formula had been maintained. A HUD analysis found that 74% of PHAs would have qualified for higher funding if the new operating fund formula had been in place in 2004; 26% of PHAs would have qualified for less funding. To help ease the transition, losses will be phased in over five years; gains were phased in over two years (see Table 1 for the phase-in schedule). To implement the phase-in, HUD calculated a transition amount for each PHA. The transition amount was the difference between a PHA's operating subsidy eligibility in 2004 and what the PHA's eligibility would have been if the new formula had been in effect. The transition amount for each PHA was adjusted by each year's phase-in level and then either added to or subtracted from each PHA's operating subsidy eligibility level for that year. For example, if a PHA's operating subsidy eligibility was $500,000 in 2004 but would have been only $450,000 if the new formula had been in place, the PHA would be considered a decliner, and its transition amount would be $50,000. Under the phase-in schedule, declines are limited to 5% in the first year, and so $47,500 (50,000 x 95%), would have been added to the PHA's 2007 operating subsidy eligibility. If the situation were reversed and the PHA would have gone from $450,000 under the old formula to $500,000 under the new formula, the PHA would be considered a gainer. Its transition amount would still be $50,000, but since gains are limited to 50% in the first year, $25,000 would have been subtracted from the PHA's 2007 operating subsidy eligibility. PHAs wishing to limit their losses can transition to asset-based management before the 2011 deadline (discussed below). PHAs that transition to asset-based management in the preceding year stopped their losses for the following year and thereafter at that year's phase-in rate. For example, a PHA that adopted asset-based management by the deadline in the first year would have limited its losses to 5%, meaning that HUD will add 95% of its transition amount to its operating subsidy eligibility each year. One major recommendation of the Harvard study was that PHAs should transition to asset-based management. In the past, PHAs budgeted and were funded on an agency-wide basis, rather than on a project-by-project basis. They were also permitted to manage all of their units from a central office. This system differed from private market multifamily housing norms, where each property is treated as an individual asset and managed on an individual basis. In the final operating fund rule, HUD directed PHAs to adopt project-based budgeting and project-based accounting by PHA FY2007, and project-based management by PHA FY2011. The amount of operating subsidy a PHA is eligible to receive is not necessarily the amount of funding it will actually receive. The amount of funding appropriated by Congress for the operating fund is generally less than the amount necessary to fund all PHAs at 100% of their eligibility. As a result, HUD must apply an across-the-board cut to PHAs' operating subsidy levels in order to stay within the amount appropriated by Congress. The percentage of formula eligibility PHAs receive after the across-the-board cut is referred to as the proration level. As shown in Table 2 , for several years proration levels were declining, meaning that PHAs were receiving a smaller and smaller share of the total funding for which they are eligible. Proration levels began increasing in recent years and reached over 100% in CY2010. The substantial increase in proration in CY2010 appears to be due, in part, to the effect of "unfreezing" formula income, which accounted for an additional $400 million in formula eligibility that did not have to be met through subsidy. Without the "unfreezing" of formula income, the proration level in CY2010 would have been about 94%. The Harvard Operating Cost study found that, on the whole, the government has been under-funding the operating costs of PHAs. HUD's own transition analysis indicated that if the new formula had been in place in 2004, PHAs would have been eligible for an additional $264 million. That means that if the new formula had been in place in 2004, with the same appropriations level, the proration level for 2004 would have been lower (and PHAs would have received less than 98% of their funding eligibility). | The local public housing authorities (PHAs) that administer the federal public housing program began receiving their annual federal operating subsidies under a new formula in January 2007. As a result of this formula change, some PHAs were eligible for an increase in their eligibility for funding and others were eligible for a decrease. Both the increases and the decreases were phased in (over two and five years, respectively) and PHAs that faced declines were eligible to limit their losses by adopting management reforms—which were also a part of the new operating fund requirements—earlier than required. Since the formula is only used to determine eligibility for funding, the amount that a PHA qualifies for under the formula (whether it is an increase or a decrease) will be reduced if Congress appropriates less money than is necessary to fund all agencies at 100% of their eligibility, which it has done in the past. |
A July 2005 Joint Statement resolved to establish a U.S.-India "global partnership" through increased cooperation on economic issues, on energy and the environment, on democracy and development, on non-proliferation and security, and on high-technology and space. U.S. policy is to isolate Iran and to ensure that its nuclear program is used for purely civilian purposes. India has never shared U.S. assessments of Iran as an aggressive regional power. India-Iran relations have traditionally been positive and, in January 2003, the two countries launched a "strategic partnership" with the signing of the "New Delhi Declaration" and seven other substantive agreements. Indian leaders regularly speak of "civilizational ties" between the two countries, a reference to the interactions of Persian and Indus Valley civilizations over a period of millennia. As U.S. relations with India grow deeper and more expansive in the new century, some in Washington believe that New Delhi's friendship with Tehran could become a significant obstacle to further development of U.S.-India ties. However, India-Iran relations have not evolved into a strategic alliance and are unlikely to derail the further development of a U.S.-India global partnership. At the same time, given a clear Indian interest in maintaining positive ties with Iran, especially in the area of energy commerce, New Delhi is unlikely to abandon its relationship with Tehran, or accept dictation on the topic from external powers. Many in Congress voice concern about India's relations with Iran and their relevance to U.S. interests. Some worry about New Delhi's defense relations with Tehran and have sought to link this with congressional approval of U.S.-India civil nuclear cooperation. There are further U.S. concerns that India plans to seek energy resources from Iran, thus benefitting financially a country the United States seeks to isolate. Indian firms have in recent years taken long-term contracts for purchase of Iranian gas and oil, and India supports proposed construction of a pipeline to deliver Iranian natural gas to India through Pakistan. The Bush Administration expresses strong opposition to any pipeline projects involving Iran, but top Indian officials insist the project is in India's national interest. Some analysts believe that geostrategic motives beyond energy security, including great power aspirations, drive India's pursuit of closer relations with Iran. Of immediate interest to some Member of Congress are press reports on Iranian naval ships visiting India's Kochi port for "training." Indian officials downplayed the significance of the port visit, and Secretary Rice challenged the report's veracity, although she did state that, "The United States has made very clear to India that we have concerns about their relationship with Iran." Such concerns include the proposed gas pipeline. Secretary of Energy Sam Bodman, visiting New Delhi in March 2007, reiterated U.S. opposition to the pipeline project. According to the 2006-2007 annual report of the Indian Ministry of External Affairs, India's relations with Iran are underlined by historical, civilizational and multifaceted ties. The bilateral cooperation has acquired a strategic dimension flourishing in the fields of energy, trade and commerce, information technology, and transit. During 2006-07, relations with Iran were further strengthened through regular exchanges. Past reports have lauded "further deepening and consolidation of India-Iran ties," with "increased momentum of high-level exchanges" and "institutional linkages between their National Security Councils." Iranian leaders, always looking for new allies to thwart U.S. attempts to isolate Iran, reciprocate New Delhi's favorable view and insist that warming U.S.-India relations will not weaken their own ties with New Delhi. However, there are signs that, following the 2005 launch of a U.S.-India "global partnership" and plans for bilateral civil nuclear cooperation, New Delhi intends to bring its Iran policy into closer alignment with that of the United States. Yet India is home to a sizeable constituency urging resistance to any U.S. pressure that might inhibit New Delhi-Tehran relations or which prioritize relations with the United States in disregard of India's national interests. While top Indian leaders state that friendly New Delhi-Tehran ties will continue concurrent with—or even despite—a growing U.S.-India partnership, some observers see such rhetoric as incompatible with recent developments. The Indian government has made clear that it does not wish to see a new nuclear weapons power in the region and, in this context, it has aligned itself with international efforts to bring Iran's controversial nuclear program into conformity with Non-Proliferation Treaty and IAEA provisions. At the same time, New Delhi's traditional status as a leader of the "nonaligned movement," its friendly links with Tehran, and a domestic constituency that includes tens of millions of Shiite Muslims, have presented difficulties for Indian policymakers. There are also in New Delhi influential leftist and opposition parties which maintain a high sensitivity toward indications that India is being made a "junior partner" of the United States. These political forces have been critical of proposed U.S.-India civil nuclear cooperation and regularly insist that India's closer relations with the United States should not come at the expense of positive ties with Iran. The current Indian National Congress-led coalition government has thus sought to maintain a careful balance between two sometimes conflicting policy objectives. India's main opposition, the Bharatiya Janata Party, has voiced its approval of the present government's policy toward Iran's nuclear program. There were reports in 2005 that India would oppose bringing Iran's nuclear program before the U.N. Security Council and was likely to abstain on relevant IAEA Board votes. However, on September 24, 2005, in what many saw as the first test of India's position, New Delhi did vote with the majority (and the United States) on an IAEA resolution finding Iran in noncompliance with its international obligations. The vote brought waves of criticism from Indian opposition parties and independent analysts who accused New Delhi of betraying a friendly country by "capitulating" to U.S. pressure. In January 2006, the U.S. ambassador to India explicitly linked progress on proposed U.S.-India civil nuclear cooperation with India's upcoming IAEA vote, saying if India chose not to side with the United States, he believed the U.S.-India initiative would fail in the Congress. New Delhi rejected any attempts to link the two issues, and opposition and leftist Indian political parties denounced the remarks. Yet, on February 4, 2006, India again voted with the majority in referring Iran to the Security Council, even as it insisted that its vote should not be interpreted as detracting from India's traditionally close relations with Iran. Overt U.S. pressure may have made it more difficult for New Delhi to carry out the policy it had already chosen. Some independent observers saw India's IAEA votes as demonstrating New Delhi's strategic choice to strengthen a partnership with Washington even at the cost of its friendship with Tehran. In July 2006, the House passed legislation ( H.R. 5682 ) to enable proposed U.S. civil nuclear cooperation with India. The bill contained non-binding language on securing India's cooperation with U.S. policy toward Iran (an amendment seeking to make such cooperation binding was defeated by a vote of 235-192). The Senate version of enabling legislation ( S. 3709 ) contained no language on Iran. The resulting "Hyde Act," which became P.L. 109-401 in December, preserved the House's "statement of policy" language and added a prerequisite that the President provide to Congress, inter alia , a description of India's efforts to participate in U.S. efforts to prevent Iran from obtaining weapons of mass destruction. In their explanatory statement ( H.Rept. 109-721 ), congressional conferees called securing India's participation "critical" and they emphasized an "expectation" of India's full cooperation on this matter. In recent years there have been occasional revelations of Indian transfers to Iran of technology that could be useful for Iran's purported weapons of mass destruction (WMD) programs. These transfers do not appear to be part of an Indian-government-directed policy of assisting Iran's WMD, but could represent unauthorized scientific contacts that have resulted from growing India-Iran energy and diplomatic ties. Some Indian persons have been sanctioned by the Bush Administration under the Iran Non-Proliferation Act (INA, P.L. 106-178 ). According to determinations published in the Federal Register, in 2003 an Indian chemical industry consultancy was sanctioned under the Iran-Iraq Arms Nonproliferation Act ( P.L. 102-484 ). In a September 2004 determination, two Indian nuclear scientists, Dr. Chaudhary Surendar and Dr. Y.S.R. Prasad, were sanctioned under the INA. The two formerly headed the Nuclear Power Corp. of India and allegedly passed to Iran heavy-water nuclear technology. Surendar denied ever visiting Iran and sanctions against him were ended in December 2005. In that same December determination, two Indian chemical companies were sanctioned under the INA for transfers to Iran. In August 2006, the United States formally sanctioned two additional Indian chemical firms under the INA for sensitive material transactions with Iran. The firms denied any WMD-related transfers and New Delhi later said the sanctions were "not justified." In February 2007, India moved to impose restrictions on nuclear-related exports to Iran in accordance with U.N. Security Council Resolution 1737 of December 2006. India and Iran have established steady but relatively low level defense and military relations since the formation of an Indo-Iran Joint Commission in 1983, three years after the start of the Iran-Iraq war. There is no evidence that India provided any significant military assistance to Iran during that war, which ended in 1988. Iran reportedly received some military advice from Pakistan during the conflict. Following the war, Iran began rebuilding its conventional arsenal with purchases of tanks, combat aircraft, and ships from Russia and China. No major purchases from India were reported during this time. However, Iran reportedly turned to India in 1993 to help develop batteries for the three Kilo-class submarines Iran had bought from Russia. The submarine batteries provided by the Russians were not appropriate for the warm waters of the Persian Gulf, and India had substantial experience operating Kilos in warm water. There have been expectations that Iran-India military ties would further expand under the 2003 "New Delhi Declaration," in which the two countries "decided to explore opportunities for cooperation in defense and agreed areas, including training and exchange of visits." Some experts see this as part of broad strategic cooperation between two powers in the Persian Gulf and Arabian Sea, but the cooperation has generally stalled since it was signed and has not evolved into a noteworthy strategic alliance. Instead, the cooperation appears to represent a manifestation of generally good Indo-Iranian relations and an opportunity to mutually enhance their potential to project power in the region. India had reportedly hoped the Declaration would pave the way for Indian sales to Iran of upgrades of Iran's Russian-made conventional weapons systems. Major new Iran-India deals along these lines have not materialized to date, but Iran reportedly has sought Indian advice on operating Iran's missile boats, refitting Iran's T-72 tanks and armored personnel carriers, and upgrading Iran's MiG-29 fighters. Under the Declaration, the two countries have held some joint naval exercises, most recently in March 2006. The first joint exercises were in March 2003. In March 2007, apparently at Iran's request, the two countries formed a joint working group to implement the 2003 accord, which Iran apparently feels has languished. During a visit of the commander of Iran's regular Navy—the first such high level exchange since 2003—India reportedly deferred specific Iranian requests, such as an exchange of warship engineers. India-Iran commercial relations are dominated by Indian imports of Iranian crude oil, which alone account for some 90% of all Indian imports from Iran each year. The value of all India-Iran trade in the fiscal year ending March 2007 topped $9 billion (by comparison, U.S.-India trade was valued at about $32 billion in 2006). Iran possesses the world's second-largest natural gas reserves, while India is among the world's leading gas importers. With a rapidly growing economy, India is building energy ties to Iran, some of which could conflict with U.S. policy and the Iran Sanctions Act (ISA). ISA requires certain sanctions on investments over $20 million in one year in Iran's energy sector. Under a reportedly finalized 25-year, $22 billion deal, the state-owned Gas Authority of India Ltd. (GAIL) is to buy 5 million tons of Iranian liquified natural gas (LNG) per year. To implement the arrangement, GAIL is to build an LNG plant in Iran, which Iran does not now have. Some versions of the deal include development by GAIL of Iran's South Pars gas field, which would clearly constitute an investment in Iran's energy sector. India currently buys about 100,000-150,000 barrels per day of Iranian oil, or some 7.5% of Iran's oil exports. It is also widely reported that Indian refineries supply a large part of the refined gasoline that Iran imports. Gasoline is heavily subsidized and sells for about 40 cents per gallon in Iran, and Iranian refining capacity is insufficient to meet demand. The purchase of Iranian petroleum product is not generally considered an ISA violation. A major aspect of the Iran-India energy deals is the proposed construction of a gas pipeline from Iran to India via Pakistan, with a possible extension from Pakistan to China. Some of the Indian companies that reportedly might take part in the pipeline project are ONGC, GAIL, Indian Oil Corporation, and Bharat Petroleum Corporation. Iran, India, and Pakistan have repeatedly reiterated their commitment to the $4 billion-$7 billion project, which is tentatively scheduled to begin construction later in 2007 and be completed by 2010. Pakistani President Musharraf said in January 2006 that there is enough demand in Pakistan to make the project feasible, even if India declines to join it. Since January 2007, the three countries have agreed on various outstanding issues, including a pricing formula, and the Indian and Pakistani split of the gas supplies, but talks continue on several unresolved issues, including the pipeline route, security, transportation tariffs, and related issues. During her March 2005 visit to Asia, Secretary of State Rice expressed U.S. concern about the pipeline deal. Other U.S. officials have called the project "unacceptable," but no U.S. official has directly stated that it would be considered a violation of ISA. Successive administrations have considered pipeline projects that include Iran as meeting the definition of "investment" in ISA. India and Iran are tacitly cooperating to secure their mutual interests in Afghanistan. Iran has perceived the Sunni Islamic extremism of the Taliban regime as a threat to Iran's Shiite sect. India saw the Taliban as a manifestation of Islamic extremism that India is battling in Kashmir, and which is held responsible for terrorist attacks in India. India and Iran both supported Afghanistan's minority-dominated "Northern Alliance" against the Taliban during 1996-2001 (in contrast to Pakistan, which supported the Taliban). Both countries also seek to prevent a Taliban return to power and have each given substantial economic aid to the U.S.-backed government in Kabul. India's presence in Afghanistan is viewed by Pakistan as a potential security threat as a policy of "strategic encirclement." | India's growing energy needs and its relatively benign view of Iran's intentions will likely cause policy differences between New Delhi and Washington. India seeks positive ties with Iran and is unlikely to downgrade its relationship with Tehran at the behest of external powers, but it is unlikely that the two will develop a broad and deep strategic alliance. India-Iran relations are also unlikely to derail the further development of close and productive U.S.-India relations on a number of fronts. See also CRS Report RL33529, India-U.S. Relations, and CRS Report RL32048, Iran: U.S. Concerns and Policy Responses. This report will be updated as warranted by events. |
A t the beginning of each Congress, the House of Representatives must adopt rules to govern its proceedi ngs. The House does this by readopting the rules of the previous Congress along with any changes that will apply in the new Congress. On January 3, 2017, the House passed H.Res. 5 , adopting the standing rules for the House of Representatives for the 115 th Congress. In addition to the standing rules, H.Res. 5 includes several additional provisions, called separate orders, that also govern proceedings in the House. A number of the provisions adopted both as part of the standing rules of the House and as separate orders affect budgetary legislation. In many cases, these provisions are similar to provisions adopted in previous Congresses. The 104 th Congress (1995-1996) added a provision to clause 2(d) of House Rule X requiring that each standing committee adopt (by February 15 of the first session of a Congress) its own oversight plan for the Congress. H.Res. 5 (115 th Congress) adds a requirement that committees also include a statement concerning authorizations for programs or agencies within their jurisdiction. These statements are required to identify programs or agencies with lapsed authorizations that received funding in the prior fiscal year, as well as programs or agencies with a permanent authorization that have not been subject to a comprehensive review by the committee in the prior three Congresses. The new rule also requires a description of each such program or agency to be authorized in the current or next Congress and a description of any oversight planned to support such authorizations. In addition, the committees are to include recommendations for: the consolidation or termination of such programs or agencies that are duplicative, unnecessary, or "inconsistent with the appropriate roles and responsibilities of the Federal Government"; changes to existing law in order to convert mandatory funding to discretionary appropriations, where appropriate; and changes to existing law related to federal rules, regulations, statutes, and court decisions affecting such programs and agencies that are inconsistent with Congress's authority under Article I of the Constitution. Finally, each committee chair is expected to coordinate with other committees of jurisdiction to ensure that programs and agencies are subject to routine, comprehensive authorization efforts. Although congressional rules establish a general division of responsibility under which questions of policy are kept separate from questions of funding, House rules provide for exceptions in certain circumstances. One such circumstance allows for the inclusion of legislative language in general appropriations bills or amendments thereto for "germane provisions that retrench expenditures by the reduction of amounts of money covered by the bill." This exception appears in clause 2(b) of House Rule XXI and is known as the Holman rule, after Representative William Holman of Indiana, who first proposed the exception in 1876. Since the period immediately after its initial adoption, the House has interpreted the Holman rule through precedents that have tended to incrementally narrow its application. Under current precedents, for a legislative provision or amendment to be in order, the legislative language in question must be germane to other provisions in the measure and must produce a clear reduction of appropriations in that bill. In addition, the House has also adopted a separate order for the first session of the 115 th Congress that provides that retrenchments of expenditures by a reduction of amounts of money covered by the bill shall be construed as applying to: any provision or amendment that retrenches expenditures byâ (1) the reduction of amounts of money in the bill; (2) the reduction of the number and salary of the officers of the United States; or (3) the reduction of the compensation of any person paid out of the Treasury of the United States. This language mirrors language that had previously appeared in Rule XXI prior to the 98 th Congress. Precedents from that period may be illustrative for understanding what may be in order. The Holman rule applies only when an obvious reduction of funds in a general appropriations bill is achieved by a legislative provision, such as the cessation of specific government activities, a specific reduction of federal employees, a consolidation or elimination of offices, a reduction in pay for a class of employees, or a specific reduction of total appropriations in the bill. The rule does not allow for retrenchments that would be applicable to funds other than those appropriated in the pending general appropriations bill. In addition, the requirement for germaneness would likely prohibit legislative provisions that would expand the scope of the bill. One change to the standing rules related to the appropriations process incorporates text into House Rule XXI that was in effect as a separate order in the 112 th , 113 th , and 114 th Congresses. This provision prohibits amendments to general appropriations bills that would result in a net increase in the level of budget authority in the bill. This does not, however, prohibit amendments that would increase budget authority in the bill if the amendment also includes an equal or greater decrease in budget authority. This standing order has been in effect each Congress since the 112 th Congress. The order, which previously included the provision described above, seeks to ensure that during House consideration of appropriations bills, any "savings" that occurs as a result of a floor amendment reducing total spending is not available as an "offset" for another amendment. To accomplish this goal, the order requires that any general appropriations bill include a spending reduction account. This "account" is a provision in the last section of the bill that functions as a temporary deposit box into which budget authority is transferred so that it is not available for further appropriation during consideration of that bill. The standing order requires that such an account be included in a general appropriations bill by (1) giving authority to the chairman of the House Appropriations Committee to add the spending reduction account to the bill after the bill has been ordered reported and (2) prohibiting consideration of a general appropriations bill in the Committee of the Whole unless it includes a spending reduction account. During floor consideration of the general appropriations bill, it is in order to consider en bloc amendments proposing to transfer appropriations from one or more sections of the bill into the spending reduction account. When considered en bloc under this rule, it is in order to amend portions of the bill not yet read (i.e., open for) for amendment, and such amendments are not subject to a demand for a division of the question. A point of order under Section 302(f) prohibits the consideration of measures or amendments that would cause the measure to exceed an allocation made pursuant to Section 302(a) or, in the case of appropriations bills, suballocation pursuant to Section 302(b). In order to supplement this and provide for additional enforcement, during the 109 th Congress (2005-2006), the House adopted a resolution ( H.Res. 248 ) providing that a motion that the Committee of the Whole rise and report an appropriations bill to the House is not in order if the bill, as amended, exceeds an applicable suballocation of new budget authority under Section 302(b) of the Congressional Budget Act of 1974. This provision has been adopted as a separate order in each subsequent Congress. This prohibition allows a Member to make a point of order against the motion to rise and report and, if it is sustained, requires the chair to submit the question of whether to rise and report to a vote. Prior to the vote, the question is debatable for 10 minutes, equally divided between a proponent and an opponent. If the Committee of the Whole votes in the affirmative, the committee may rise and report the bill. If the Committee of the Whole votes in the negative, one proper amendment is in order that would bring the measure into compliance with Section 302(b) suballocations. The amendment is debatable for 10 minutes equally divided and controlled. The point of order does not apply to a motion to rise and report offered by the majority leader under clause 2(d) of Rule XXI. Although budget authority for most federal programs is provided through annual appropriations actions that allow those funds to be obligated during the ensuing fiscal year, funding for certain programs is provided with a different period of availability. The term "advance appropriations" is applied to funds that will become available for obligation one or more fiscal years after the budget year covered by the appropriations act. In recent years the House has adopted limits on the level of advance appropriations that may be provided as well as the programs or activities for which it may be provided. In some instances, these limits have been established in a budget resolution, as in S.Con.Res. 13 (111 th Congress) and S.Con.Res. 11 (114 th Congress). In other instances, the House has adopted the limit as a separate order as part of the resolution adopting the chamber's rules, as in H.Res. 5 (112 th Congress) and now H.Res. 5 (115 th Congress). In the 115 th Congress, a separate order prohibits advance appropriations that exceed $28,852,000,000 in new budget authority for programs or activities identified in a list submitted to the Congressional Record by the chair of the Budget Committee under the heading "Accounts Identified for Advance Appropriations" and $66,385,032,000 in new budget authority for programs and activities identified under the heading "Veterans Accounts Identified for Advance Appropriations." For either instance, the limit applies to funding provided in FY2017 appropriations acts that are to become available in any fiscal year following FY2017. The standing order, related to direct spending, is often referred to as the long-term spending point of order. It reprises a provision that has been in effect in some form in the House since the 112 th Congress. It was included twice as part of House rules package and twice as part of the budget resolution. This standing order has three main components: 1. It requires the Congressional Budget Office (CBO) to estimate whether certain legislation would cause a net increase in spending in excess of $5 billion in any of the four 10-year periods beginning with the fiscal year 10 years after the current fiscal year. 2. It prohibits the House from considering legislation that would cause such an increase. 3. It states that the prohibition does not apply to (1) legislation repealing the Patient Protection and Affordable Care Act and Title I and subtitle B of Title II of the Health Care and Education Affordability At of 2010, (2) legislation reforming the Patient Protection and Affordable Care Act and the Health Care and Education Affordability Reconciliation Act of 2010, or (3) legislation for which the Budget Committee chair has made adjustments to the levels in the most recently adopted budget resolution. This provision establishes a point of order against the consideration of legislation that would reduce the actuarial balance of the Federal Old-Age and Survivors Insurance (OASDI) Trust Fund. The point of order would apply against legislation that would reduce the present value of future taxable payroll of the Trust Fund for the 75-year period used in the most recent annual report of the Board of Trustees by more than 0.01%. The point of order would not apply to legislation that would improve the combined actuarial balance of the OASDI Trust Fund and the Disability Insurance Trust Fund over the same 75-year period. An identical separate order was previously adopted in the 114 th Congress, and a point of order was also previously included as Section 3301 of S.Con.Res. 11 (114 th Congress), the Concurrent Resolution on the Budget for FY2016. A section-by-section analysis was inserted into the Congressional Record at the time that the rules for the 114 th Congress were adopted, indicating that the intent of the provision was to prevent the consideration of legislation that would transfer funds from the OASDI Trust Fund to the Disability Insurance Trust Fund. One standing order applies specifically to the budgetary treatment of any legislative provision requiring or authorizing a conveyance of federal land to a state, local government, or tribal entity. The standing order states that in the House, such provisions shall not be considered as increasing spending or providing new spending, nor shall it be considered as decreasing revenues. This standing order is not expected to change the way CBO estimates the budgetary impact of such provisions. It will, however, likely affect House enforcement of budgetary points of order as well as the enforcement of House leadership protocols, meaning that such provisions will likely not be subject to budgetary points of order or leadership protocols related to budgetary legislation. | On January 3, 2017, the House passed H.Res. 5 , adopting the standing rules for the House of Representatives for the 115 th Congress. In addition to the standing rules, H.Res. 5 included several separate orders. This report provides information on the standing rules and separate orders that might affect the congressional budget process. |
Based on legislation passed in the 111 th Congress, Supplemental Nutrition Assistance Program (SNAP, formerly the Food Stamp program) benefits, which were temporarily increased beginning in April 2009, are scheduled to be reduced after October 31, 2013. This report explains the increase that has been in place since April 2009, the scheduled end to the increase, and the impact on SNAP households. This report does not describe the rules of SNAP eligibility and benefit calculation; see CRS Report R42505, Supplemental Nutrition Assistance Program (SNAP): A Primer on Eligibility and Benefits , for that background. As of July 2013, SNAP provided food assistance to a monthly average of 47.6 million people in 23.1 million households. The Congressional Budget Office (CBO) projects that SNAP spending will peak at $83 billion in FY2013 before falling beginning in FY2014. SNAP participation and costs have increased markedly since FY2007, mostly as a result of automatic and legislated responses to the 2007-2009 recession. The American Recovery and Reinvestment Act of 2009 (ARRA, P.L. 111-5 ) provided the legislated response to the recession, which included an across-the-board increase in SNAP benefits. Once a household applies and is found eligible for the SNAP program, the household's benefit amount is calculated. Actual benefits vary by the household size, amount and type of household income, certain living expenses (like high shelter costs), and to a smaller extent, geographic location. The household's benefit amount is the result of certain subtractions from a maximum benefit . (The calculation of SNAP benefits is discussed in CRS Report R42505, Supplemental Nutrition Assistance Program (SNAP): A Primer on Eligibility and Benefits .) Maximum SNAP benefits are normally indexed for food-price inflation at the beginning of each fiscal year—every October 1. Each October's inflation-indexing of SNAP benefits is based on the cost of the Agriculture Department's Thrifty Food Plan (TFP) in the immediately preceding June. For example, for FY2008 (before ARRA), USDA's calculation of the Thrifty Food Plan in June 2007 formed the basis for the maximum benefits in place from October 1, 2007, through September 30, 2008. ARRA ( P.L. 111-5 ) effectively overrode the annual SNAP inflation-indexing rules discussed above. ARRA instituted an across-the-board benefit increase, effective April 2009. Maximum monthly benefits were increased substantially, increasing the June 2008 TFP calculation by 13.6%. In FY2009, for a one-person household, the added benefit was $24 a month; for two persons, $44 a month; for three persons (the most typical household), $63 a month; for four persons, $80 a month; and for larger households, higher amounts. The average SNAP benefit for a household increased from $250 for October 2008 through March 2009 to $291 for April 2009 through September 2009, an increase of 16.4%. Note: This report focuses on the impact of ARRA's increase to the SNAP maximum benefit (and the impact of an end to that increase), but ARRA also increased the SNAP minimum benefit (for households of 1-2), as well as the funding levels of block grants received by Puerto Rico and American Samoa in lieu of SNAP. Figure 1 illustrates ARRA's increase to the maximum SNAP allotment for a family of four—the actual maximum benefit as provided under ARRA is shown in red, and what the maximum benefit would have been had ARRA not been enacted is shown in blue. The figure shows these amounts for October 1, 2009, through October 1, 2013. ARRA raised the maximum SNAP allotment on April 1, 2009; for a four-person household, the maximum allotment was increased from $588 per month to $668 per month. It has been at the $668 per month level since then, but this increase is scheduled to end after October 31, 2013. Had ARRA not been enacted, changes in food prices would have actually resulted in a decrease in the maximum SNAP allotment for FY2010 and FY2011. That is, deflationary pressures in the midst of the recession caused food prices to decline. However, benefit increases would have resumed at the beginning of FY2012, FY2013, and FY2014. When enacted originally, the ARRA benefit increase was to continue until food-price inflation caught up with the ARRA add-on. That is, looking at Figure 1 , the red area would continue until the blue area caught up with it. There was no specific termination date when it was enacted originally. However, legislation enacted subsequent to ARRA did set a specific termination (sunset) date on the benefit increase, now scheduled to terminate after October 31, 2013. (For a discussion of this legislative history, please see " Further Background: Legislative History of the October 31, 2013, Sunset of the ARRA SNAP Benefit Increase ," later in this report.) Since regular food-price inflation (blue area) has been well below ARRA's 13.6% increase to FY2009 maximum benefits, the sunset of the ARRA benefit will result in a reduction in the maximum benefit after October 31, 2013, and therefore a reduction in all benefit amounts calculated based on the maximum benefit. Beginning November 1, 2013, the SNAP maximum monthly allotments are scheduled to revert back to what they would be without the increase legislated in ARRA. USDA has already instructed the states through their regional offices to make adjustments to their benefit determination systems on October 1, 2013, and again on November 1, 2013, in line with the statute. As noted above, the maximum benefit for a family of four in October 2013 is $668 because of ARRA's increase. If not for ARRA, the FY2014 maximum monthly benefit for a four-person household would be $632. Because the ARRA increase sunsets on October 31, 2013, as of November 1, 2013, and for the remainder of the fiscal year, the maximum monthly benefit will revert to the standard benefit level without the ARRA increase, or $632 a month for a four-person household. Table 1 shows the maximum monthly SNAP allotment by household size both before the ARRA benefit increase sunsets (through October 31, 2013) and after it sunsets for the remainder of FY2014 as scheduled under current law. The result of the sunset is a scheduled reduction in maximum SNAP benefits on November 1, 2013, of about 5.5%. Although the actual percentage reduction will vary for each household, it can be said, for most SNAP households, that if no household circumstances change, the benefit reduction is scheduled to be $11 a month for a one-person household; $20 a month for a two-person household (the average sized household) ; $29 a month for a three-person household; and $36 a month for a four-person household. The reductions will be higher as household size increases. The President's FY2014 budget proposed to delay the sunset of the ARRA benefit increase to March 31, 2014. This is the date that the ARRA increase was first scheduled to sunset, before the enactment of the child nutrition reauthorization legislation ( P.L. 111-296 , see below). According to Administration cost estimates, extending the ARRA benefit increase for an additional five months of FY2014 would cost approximately $2.26 billion. The 113 th Congress is developing a reauthorization of SNAP as part of the next farm bill. Neither the House nor the Senate conference farm bill proposals contain any changes to the ARRA increase and its sunset. (For a discussion of legislative history and the contents of the House and the Senate proposals, see CRS Report R43076, The 2013 Farm Bill: A Comparison of the Senate-Passed (S. 954) and House-Passed (H.R. 2642, H.R. 3102) Bills with Current Law . ) As previously discussed, the ARRA benefit increase was originally to continue until food-price inflation caught up with the ARRA add-on. That is, there was no sunset of the ARRA benefit increase. However, to finance additional spending for other legislative priorities under congressional pay-as-you-go (PAYGO) budget rules, Congress twice reduced additional spending attributable to the SNAP ARRA benefit increase. This reduction came through setting a termination date, or a sunset, to the ARRA SNAP benefit increase. This legislative history is also illustrated in archived CRS Report R41374, Reducing SNAP (Food Stamp) Benefits Provided by the ARRA: P.L. 111-226 and P.L. 111-296 . The 2010 law that provided funding for Medicaid and education jobs ( P.L. 111-226 ; enacted August 10, 2010) included, as an offset for its costs, a significant reduction in future ARRA-based SNAP benefits. At the time P.L. 111-226 was enacted, CBO projected the savings from the SNAP benefit changes at $11.9 billion from FY2014 to FY2018. P.L. 111-226 achieved these savings (in Section 203) by terminating the ARRA increase effective after March 31, 2014. On December 13, 2010, the Healthy, Hunger-Free Kids Act of 2010 ( P.L. 111-296 ) was enacted. This law, which reauthorizes, revamps, and expands child nutrition programs and the Special Supplemental Nutrition Program for Women, Infants, and Children (the WIC program), includes as a partial offset for its costs a provision further reducing ARRA-based SNAP benefits by some $2.5 billion. The child nutrition/WIC legislation achieved its savings (in Section 442) by moving up the date on which the ARRA-generated SNAP benefit increase will terminate—to October 31, 2013. | The American Recovery and Reinvestment Act of 2009 (ARRA; P.L. 111-5) included an across-the-board increase in benefits provided under the Supplemental Nutrition Assistance Program (SNAP, formerly the Food Stamp program), effective in April 2009. ARRA substantially raised maximum monthly benefits, by 13.6% in FY2009. For a one-person household, the added benefit was $24 a month; for two persons, $44 a month; for three persons (the most typical household), $63 a month; for four persons, $80 a month; and for larger households, higher amounts. As a result, average household SNAP benefits (typically less than the maximum) were boosted by more than 15%. (Note: A household's SNAP benefit is calculated by subtracting the household-specific countable (or "net") income from the maximum benefit; percentage increases varied on a case-by-case basis.) Originally, the ARRA increase was to be effective until regular SNAP cost-of-living adjustments "caught up" with the 13.6% increase (as compared to FY2009) to the maximum benefit, but Congress amended the law so that the increase is now scheduled to sunset after October 31, 2013. (Under "regular" SNAP law, maximum SNAP benefits are adjusted annually for changes in food prices on October 1.) To help meet congressional pay-as-you-go rules, the 111th Congress made two changes to this effective date, which resulted in savings to offset other new spending. First, P.L. 111-226 (a law providing funding for Medicaid and education jobs) added a March 31, 2014, sunset date to the ARRA benefit increase. Second, in the child nutrition reauthorization legislation (the Healthy, Hunger-Free Kids Act of 2010; P.L. 111-296), the sunset date was moved to October 31, 2013. The sunset date in current law means that maximum SNAP benefits will decrease by about 5.5% on November 1, 2013. For a one-person household, the benefits will decrease by $11 a month; for two persons, $20 a month; for three persons, $29 a month; for four persons, $36 a month; and for larger households, higher amounts. President Obama's FY2014 budget proposed to delay the sunset of the ARRA benefit increase to March 31, 2014. This is the date the benefit increase was to sunset before the enactment of the child nutrition legislation (P.L. 111-296). The Administration estimates that this extension of the increase for five months would cost approximately $2.26 billion. Neither the House (H.R. 2642) nor the Senate (S. 954) 2013 farm bill proposals would delay the sunset date. |
Pursuant to House Rule X, clause 6, the Committee on House Administration (CHA) reports an omnibus, biennial "primary expense resolution" to cover the expenses of each standing and select committee, except the Appropriations Committee. The resolution is based in part on committee requests for funds to cover their necessary expenses for the two years of a Congress. The budgetary requests include estimated salary needs for staff, costs of consulting services, printing costs, office equipment and supply costs, and travel costs for committee members and staff. Some costs, such as pension and insurance contributions for committee employees, are paid from other appropriated funds, and are excluded from committee budgets. Some committees discuss and approve their proposed budgets at committee organization meetings. Committee chairs normally introduce House resolutions to provide their committees with the requisite funds for the two years of the Congress. These individual resolutions are then referred to the Committee on House Administration, which may hold a public hearing on the committee's request. The chair and the ranking minority member from each committee typically testify at these hearings. The chair of CHA then typically introduces an omnibus funding resolution, which, after its referral to the CHA, typically serves as the legislative vehicle for a full committee markup. The measure is then considered by the House. Table 1 provides the requested and authorized levels of funding for committees for the 115 th Congress. Table 2 through Table 12 provide committee funding requests and primary expense resolution authorizations in nominal dollars for House committees in the 104 th -114 th Congresses. Table 13 through Table 23 provide the authorization levels, calculated in constant (January 2017) dollars, for the 104 th through 114 th Congresses. All tables calculate the absolute and percentage differences between the total requested and the total authorized funding levels. | Pursuant to House Rule X, clause 6, the Committee on House Administration reports an omnibus, biennial "primary expense resolution" to cover the expenses of each standing and select committee, except the Appropriations Committee. The resolution is based, in part, on committee requests for funds to cover their necessary expenses for the two years of a Congress. This report provides committee funding requests and authorizations as adopted pursuant to primary expense authorizations for House committees in the 104th through 115th Congresses. For further information on the committee funding process, see CRS Report R42778, House Committee Funding: Description of Process and Analysis of Disbursements, by [author name scrubbed]. |
When Senator Leahy introduced S. 618 in the 110 th Congress, with the co-sponsorship of Senators Specter, Lott, Reid, and Landrieu, he did so by first noting that the insurance industry "has operated largely beyond the reach of federal antitrust laws for more than six decades." Concerned primarily by the manner in which insurers operating in the Gulf Coast region after Hurricanes Katrina and Rita had been interpreting their policy-related responsibilities, he stated that "[i]f there ever was, there is no longer any justification to exempt the insurance industry from federal government oversight." H.R. 1081 , an identical bill, was introduced on the same day by Representative DeFazio, with similar, bi-partisan co-sponsorship (Representatives Taylor, Melancon, Alexander, and Jones of North Carolina). Both bills remained in their respective Judiciary Committees (the Senate Judiciary Committee did, however, hold hearings on S. 618 ); neither the House Committee on Energy and Commerce nor the Committee on Financial Services, where the House bill had been referred "for consideration of such provisions as fall within the jurisdiction of the committee concerned," reported H.R. 1081 . Similar legislation may be introduced in the 111 th Congress. Currently, 15 U.S.C. § 1012(b) declares that the antitrust laws "shall be applicable to the business of insurance to the extent that such business is not regulated by State law." Since virtually all states regulate the insurance industry, the effect is to immunize "the business of insurance" from application of the federal antitrust laws. Both bills would have removed the "to the extent ..." language so that the federal antitrust laws would have been applicable to the "business of insurance." The single exception to the blanket application of federal antitrust law to the "business of insurance," is, however, that both bills would have specified that the Federal Trade Commission (FTC) Act, "as it relates to areas other than unfair methods of competition" would continue to be applicable to the "business of insurance to the extent that such business is not regulated by State law." Both measures would have deleted 15 U.S.C. § 1013, in which the 79 th Congress (1) made the antitrust laws inapplicable to the "business of insurance" until June 30, 1948; but (2) specified, at the same time, that the antitrust laws would nevertheless be applicable to boycotts, coercion, or intimidation, or agreements to create or further those activities. In addition, they would each have restored the authority of the Federal Trade Commission, pursuant to its 15 U.S.C. § 46(a) powers, to investigate the insurance industry; that authority was removed in 1980 by Section 5 of P.L. 96-252 , "Federal Trade Commission Antitrust Improvements Act of 1980," except to the extent that such studies were specifically requested by Congress. Lastly, each would have permitted the Department of Justice and the FTC to "issue joint statements of their antitrust enforcement policies regarding joint activities in the business of insurance." The Senate Judiciary Committee held a hearing on the issue entitled "The McCarran-Ferguson Act and Antitrust Immunity: Good for Consumers?" on March 7, 2007. No hearings to consider the issue were held by any of the other committees involved. Competitors in many industries have an economic incentive to cooperate in ways, such as creating cartels or price-fixing, that could result in general inefficiency and, ultimately, harm to the consumer. This possible consumer harm is one of the underlying reasons for the antitrust laws. Due to the specific economics of the insurance industry, however, cooperation among insurers may very well result in greater efficiencies and, possibly, lower prices for consumers. Insurance depends critically on insurers possessing a large quantity of information to allow them to judge and price risks accurately. In a theoretical world of perfect information and competition, every consumer would pay a premium that covered his risk, and the resulting overall amount paid by consumers would be the lowest possible amount that would cover the aggregate losses to the group as a whole. If insurers can pool their information, the resulting rates can more accurately reflect risk and thus be lower for consumers as a whole, although some individual consumers may pay higher rates. Small insurers particularly benefit from information sharing, as they do not have a large volume of information of their own to analyze. The theoretically perfect world, however, assumes competition between insurers that would serve to reduce premium rates; too much cooperation between insurers could dampen this competition, reducing the consumer benefit that comes from allowing insurers to share information. Insurer cooperation and information sharing revolves around advisory organizations, also known as ratings bureaus. Some form of these organizations has existed for nearly as long as insurance has existed in the United States. At their most basic form, they gather data from the various insurers, aggregate and analyze this data, and provide the aggregated data back to the insurers for use in setting future rates. In practice, they have done, and continue to do, a good deal more than this. Historically, rating bureaus formulated final rates that insurers might charge for particular policies and in some cases required participating insurers to use the bureau's suggested rates. Having a central organization create insurance rates, whether mandatory or not, raised serious antitrust concerns. By the early 1990s, the main advisory organizations had ceased publishing fully formed rates. Advisory organizations continue, however, to collect, aggregate, and analyze data, providing not only historical loss data but also estimates of future loss data and future insurer expense data. Some maintain that this estimation of future data, known as "trending" raises antitrust concerns similar to those inherent in the creation of final rates. Another primary activity of advisory organizations is the creation and filing of insurance policy forms. Insurance policy forms are complex legal documents, and, as controversies over insurance coverage for New York's World Trade Center and for buildings damaged in Hurricane Katrina have shown, many millions of dollars may ride on the interpretation of a handful of words. Joint creation of these forms allows for the sharing of the legal talent needed to create the forms, and, some would argue, promotes comparison shopping by consumers by reducing the confusion that could result from multiple policy forms being offered by different companies. Since the states generally require the filing of policy forms for state approval, using a jointly created form that has already been filed with the states significantly reduces the regulatory burden on a single insurer. The uniformity of policy forms, however, also may reduce consumer choice. If one were shopping for a particular policy feature that was not a part of the standard form, it might be impossible, or very costly, to find an insurance policy that would meet this particular need. Further industry cooperation, both through the advisory organizations and other state-created mechanisms, occurs in state residual market mechanisms and state guaranty funds. Residual market mechanisms are often created to insure availability of insurance that is legally mandated, such as workers compensation or auto insurance. While such mechanisms differ significantly between states, they may have advisory organizations administering them or require some other joint action by insurers, such as splitting up high-risk insureds who are unable to find insurance in the regular market; such "splitting" might be considered market allocation. State guaranty funds are intended to protect the policyholders in the case of insurer insolvency. In general, states require insurers to join these associations, which may open the possibility of challenges alleging unfair collaboration or collusion. If McCarran-Ferguson antitrust protection for "the business of insurance" is, in fact, curtailed or abolished, many lawsuits challenging some of these insurer practices as violations of the federal antitrust laws are likely. If all of the cited examples of cooperation were found to be in violation, it would necessitate major changes in the operation of insurers, particularly small insurers which do not have large pools of information from their own experience. Should additional data be unavailable to small insurers in some way, it would, ironically, likely spur further consolidation in the insurance industry as small insurers merge in order to gain the competitive advantage of additional information. This outcome, however, is only one of a range of possibilities. It is also possible that many of the cooperative activities that insurers engage in would be found to be permissible under the "state action" doctrine. Given the possibility of numerous, perhaps lengthy, lawsuits to clarify which practices of insurers are antitrust violations, and of significant upheaval in the insurance industry, Congress might take note of its solution to another litigation-related problem that arose more than 20 years ago. Congress was confronted then with the concerns of municipalities facing antitrust suits on account of certain activities. The prospect of treble-damage antitrust liability in suits brought against municipalities—challenging, e.g. , municipal designation of an "authorized" taxicab company, operation of an airport, or the awarding of cable television franchises—was unsettling to municipalities even though defendants were often found not liable. Many municipalities voiced concerns about expenditures of both time and tax dollars (read, in the insurance context, "costs often translated into increased insurance premiums") during hearings or in other communications to Congress. In response, Congress enacted the Local Government Antitrust Act of 1984, which, inter alia , prescribes that No damages, interest on damages, costs or attorney's fees may be recovered under ... (15 U.S.C. 15, 15a, or 15c) in any claim against a person based on any official action directed by a local government, or official or employee thereof acting in an official capacity. Subsequent to the enactment of the Local Government Act, the number of challenges to municipal activity significantly abated. While inserting a similar provision into any bill to limit the antitrust exemption provided by McCarran-Ferguson would reduce the financial incentive to file suit for insurer antitrust violations, the absence of private damages does not remove the authority of the courts to issue injunctive relief when an antitrust violation by insurers is found. In fact, inasmuch as courts also retain jurisdiction over an injunction, oversight to insure that an injunction is followed, and contempt-of-court citations if it is not, would remain possibilities. Another possible solution that has been part of past legislation is inclusion of some form of "safe harbor" provisions specifically protecting cooperation that might be pro-consumer, e.g. , the sharing of historical loss information that is essential to the viability of small companies. A " Provided that " clause could be inserted in the provision making the antitrust laws applicable to the "business of insurance" to clarify that information sharing is permitted—at least under certain circumstances and conditions. Similar provisions were included in, for example, S. 84 , introduced by Senator Metzenbaum in the 103 rd Congress to repeal McCarran-Ferguson's antitrust exemption. The clause might also include, as did the measures that addressed cooperative research and production joint ventures, a limitation to single damages for successful challenges to certain kinds of conduct deemed necessary. | Identical, bipartisan bills, S. 618 and H.R. 1081, that would have eliminated the antitrust exemption for the "business of insurance" in the McCarran-Ferguson Act (15 U.S.C. §§ 1011-1015), in force since 1945, were introduced in the 110th Congress, and similar legislation may be introduced in the 111th Congress. The impact of S. 618 and H.R. 1081, had they been enacted, is unclear. They would each have amended 15 U.S.C. § 1012(b) to make the antitrust laws and the Federal Trade Commission (FTC) Act "as it relates to unfair methods of competition" specifically applicable to such business. The FTC Act, "as it relates to areas other than unfair competition" (emphasis added) would, however, have continued to apply to the "business of insurance" "to the extent that [it] is not regulated by State law." Due largely to the importance of information sharing to insurers, the insurance industry in the past has cooperated in a variety of ways, including sharing loss information, jointly developing policy forms and rates, operating residual market mechanisms, and participating in state guaranty funds. Some forms of cooperation, particularly joint rate making and mandatory advisory rates, have already been curtailed because of antitrust concerns. Other forms of industry cooperation, however, might be considered illegal under federal antitrust laws if legislation such as S. 618 or H.R. 1081 were to be enacted. The precise impact of such bills on the insurance industry would depend critically on future court decisions. The cooperation that insurance companies currently undertake might be judged legally permissible, however, even notwithstanding any deletion of the antitrust exemption for "the business of insurance," under the "state action" doctrine. That doctrine immunizes from the federal antitrust laws actions by public or private entities that are legislatively mandated or authorized by the states. Similarly, before this area of law were settled, however, it would arguably involve numerous lawsuits. This report will be updated as events warrant. |
This report compares selected recommendations of the President's Commission on Care for America's Returning Wounded Warriors (PCCWW), often called the Dole-Shalala Commission in reference to its co-chairs, and the Veterans' Disability Benefits Commission (VDBC). The recommendations presented are those that relate to the transition of injured servicemembers from military service to civilian life and/or veteran status. This report does not examine certain other recommendations, such as those in the VDBC report regarding benefits for survivors of deceased servicemembers, or regarding evaluation of presumptive disability , i.e., establishing service connection for certain long-term health effects of hazardous exposures. Congress, the two commissions, and others have determined that certain programs and systems that involve both the Department of Defense (DOD) and the Department of Veterans Affairs (VA) are particularly problematic in providing continuity and quality of care and services to injured servicemembers. In January 2008, Congress passed the National Defense Authorization Act for Fiscal Year 2008 ( P.L. 110-181 ). Titles XVI and XVII of the act address matters related to the care and treatment of servicemembers and former servicemembers (i.e., veterans) who were wounded, or who contracted an illness, while serving on active duty. Among the problems addressed in the act are the efficient maintenance and transfer of servicemembers' health and benefits records between the departments, and the separate evaluations of disability by each department. Efforts to address these and other transition problems were already under way in both departments, partly in response to the recommendations of the PCCWW, the VDBC, and several other commissions or task forces. These legislative and administrative actions constitute the first wave of responses to the recommendations of these bodies. Further congressional and administrative actions are anticipated. As this report is limited to a comparison of the final recommendations of the PCCWW and the VDBC, it will not be updated. The commissions were given different charges. The PCCWW was established by Executive Order 13426 in March 2007, and was to focus on the needs of a specific population, namely, seriously injured servicemembers returning from combat theaters in support of Operations Enduring Freedom and Iraqi Freedom (OEF/OIF). The commission was asked to look broadly at services and benefits provided by all relevant Cabinet departments—principally the Departments of Defense (DOD) and Veterans Affairs (VA)—as well as the private sector, and at a broad slate of services and benefits, including health care, disability, traumatic injury, education, employment, and other benefits. The PCCWW was to study individuals' experiences as servicemembers and, for those who were retired or separated from military service, their transition from military to civilian and/or veteran status, problems in providing services and benefits across that transition, and subsequent experiences in civilian life. Though the PCCWW's recommendations were to apply narrowly to seriously injured OEF/OIF servicemembers, it could prove difficult, politically and administratively, to implement the recommendations in this fashion. Doing so could run counter to existing policies, such as compensating service-connected disabilities equally whether or not they are combat related, and prioritizing groups of veterans to receive VA health care. The VDBC was established in Title XV of the National Defense Authorization Act of 2004 ( P.L. 108-136 ) to study benefits provided to veterans and their survivors to compensate for service-connected disabilities and deaths. The VDBC was to consider these benefits regardless of the time or manner in which a disability or death occurred, and whether it occurred during a conflict or during peace time. While the VDBC examined certain transition issues for injured OEF/OIF servicemembers who were retired or separated from military service, this was not its principal focus. The VDBC examined services and benefits for veterans across their life spans, making a more comprehensive assessment of the full complement of veterans' benefits than did the PCCWW, but a less comprehensive assessment of DOD services, benefits, authorities and policies. The PCCWW made six broad recommendations, each with several specific action steps directed to the Congress, DOD and/or VA, and published a matrix of the 23 action steps in its main report. The six broad recommendations are as follows: 1. Implement comprehensive recovery plans for returning injured servicemembers. 2. Restructure the military and veterans disability and compensation systems. 3. Improve care for people with post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI). 4. Strengthen support for families. 5. Transfer patient information across the DOD and VA systems. 6. Support Walter Reed Army Medical Center (WRAMC) until its closure. The VDBC made 113 recommendations , also directed to the Congress, DOD and/or VA, designating 13 of them as priority recommendations. Recommendations were made in the following broad categories: disability evaluation and compensation; determining eligibility for benefits; appropriateness of the benefits; appropriateness of the level of benefits; survivors and dependents; disability claims administration; transition; and establishing an executive oversight group to implement recommendations. The attached Table 1 compares selected action steps from the PCCWW and recommendations from the VDBC that relate to the transition of injured servicemembers from military service to civilian life and/or veteran status. Since the PCCWW focused on these individuals, all of its action steps are discussed, and the table is organized according to the PCCWW's six broad recommendations. The table does not include all of the VDBC recommendations, but only those that relate to the transition of injured servicemembers or that are otherwise comparable to recommendations of the PCCWW. Each table entry notes the entity (Congress, DOD and/or VA) to whom the recommendation is directed. Bracketed notations show the relevant numbered recommendation(s) from the PCCWW and VDBC respectively. Because the commissions had distinct charges and areas of emphasis, head-to-head comparison of their recommendations must be made with care. For example, the commissions largely agreed on the proposed end point for a revised disability compensation system, namely, that DOD would evaluate the fitness of injured servicemembers for continued duty, while VA would evaluate for disability compensation. But the commissions differed in their priorities for implementing this revised system, reflecting their focus on different populations. When comparing PCCWW and VDBC recommendations, it must be borne in mind that unless otherwise stated, PCCWW recommendations would apply, at least initially, only to injured OEF/OIF servicemembers and veterans, while VDBC recommendations would apply to all servicemembers or veterans, including those from previous conflicts, who are otherwise eligible for the service or benefit being discussed. The following CRS Reports discuss the variety of DOD and VA programs and benefits that are addressed by the commissions and referred to in this report: CRS Report RL33991, Disability Evaluation of Military Servicemembers , by [author name scrubbed] et al.; CRS Report RL33537, Military Medical Care: Questions and Answers , by [author name scrubbed]; CRS Report RS22366, Military Support to the Severely Disabled: Overview of Service Programs , by [author name scrubbed]; CRS Report RL33446, Military Pay and Benefits: Key Questions and Answers , by [author name scrubbed]; CRS Report RL33449, Military Retirement, Concurrent Receipt, and Related Major Legislative Issues , by [author name scrubbed]; CRS Report RL33985, Veterans' Benefits: Issues in the 110th Congress , coordinated by [author name scrubbed]; CRS Report RL33993, Veterans' Health Care Issues , by [author name scrubbed]; CRS Report RL33113, Veterans Affairs: Basic Eligibility for Disability Benefit Programs , by [author name scrubbed]; CRS Report RL33323, Veterans Affairs: Benefits for Service-Connected Disabilities , by [author name scrubbed]; CRS Report RS22666, Veterans Benefits: Federal Employment Assistance , by [author name scrubbed]; CRS Report RS22804, Veterans' Benefits: Pension Benefit Programs , by [author name scrubbed] and [author name scrubbed]; CRS Report RL34371, "Wounded Warrior" and Veterans Provisions in the FY2008 National Defense Authorization Act , by [author name scrubbed], [author name scrubbed], and [author name scrubbed]; CRS Report RL34169, The FY2008 National Defense Authorization Act: Selected Military Personnel Policy Issues , by [author name scrubbed] et al.; CRS Report RL31760, The Family and Medical Leave Act: Legislative and Regulatory Activity , by [author name scrubbed]; and CRS Report RL34055, Walter Reed Army Medical Center: Realignment Under BRAC 2005 and Options for Congress , by [author name scrubbed] and [author name scrubbed]. | This report compares selected recommendations of the President's Commission on Care for America's Returning Wounded Warriors (PCCWW), often called the Dole-Shalala Commission in reference to its co-chairs, and the Veterans' Disability Benefits Commission (VDBC). The VDBC was established in 2004 to study veterans' benefits in a broad context. The PCCWW was established in 2007 following reports of problems among injured servicemembers returning from Iraq and Afghanistan with medical rehabilitation and access to benefits. The PCCWW was charged to focus specifically on the needs of these individuals. The recommendations presented in this report are those that relate to the transition of injured servicemembers from military service to civilian life and/or veteran status. This report does not examine certain other recommendations, such as those in the VDBC report regarding benefits for survivors of deceased servicemembers, or regarding evaluation of presumptive disability, i.e., establishing service connection for certain long-term health effects of hazardous exposures. As this report is limited to a comparison of the final recommendations of the PCCWW and the VDBC, it will not be updated. |
C ongress regularly considers legislative proposals to designate lands using a variety of titles, such as national park, national wildlife refuge, national monument, national conservation area, national recreation area, and many others. Additionally, Congress provides oversight of land designations made by executive branch entities. These congressional and executive land designations may bring few management changes to a site or may involve significant management changes, based on individual designating laws and/or general authorities governing a land system. Often, the designations are applied to federally owned lands (including lands already under federal administration and those that the designating law may authorize for federal acquisition), but some federal designations are conferred on lands that remain nonfederally owned and managed. The designations may authorize federal funding for an area, but they do not always do so. This report addresses questions about which federal title or designation might be appropriate for particular areas. What do the different land titles signify, and how does each type of unit differ? Who has authority to confer each designation? Which agency or nonfederal entity is responsible for managing the land under each designation, and which statutes would govern management decisions? What types of uses would be allowed on the land under each designation, and what uses would be prohibited? The report compares a variety of federal land designations with respect to these factors. It is beyond the scope of this report to assess the benefits or drawbacks of conferring federal designations on lands, although such questions often arise when federal designations are contemplated. For any given area, some stakeholders might favor a federal designation (for example, to bring federal funding to an area, to promote visitation, or to bring new resource protections) and others might oppose one (for example, to forestall the federal government's becoming a stakeholder in regional land use decisions or to preserve federal funds that might be spent on area management for allocation to other priorities). Additional CRS products, cited at the end of this report, explore such questions in greater detail for specific land designations. This report begins by briefly discussing some general factors that Congress may consider when determining which, if any, federal land designations might be suitable for a given area. It then compares selected designations across multiple attributes ( Table 1 ). A primary question for stakeholders often is which federal agency would manage the land under a given designation. Table 1 indicates the federal agency or agencies that have responsibilities for area management under selected designations. It also lists some designations in which lands typically remain in nonfederal management (while receiving technical and/or financial assistance from a federal agency). Four agencies manage almost all federal land in the United States: the Bureau of Land Management (BLM), U.S. Fish and Wildlife Service (FWS), and National Park Service (NPS) in the Department of the Interior (DOI), and the U.S. Forest Service (FS) in the Department of Agriculture. These agencies administer their lands under different statutorily defined missions. Both BLM and FS manage most of their lands for sustained yields of multiple uses, including recreation, grazing, timber, mineral production, watershed, wildlife and fish habitat, and conservation. FWS, by contrast, has a dominant-use mission for most of its lands—to conserve plants and animals for the benefit of present and future generations—although other priority uses are provided for if compatible. NPS administers its lands with the dual purpose of preserving valued resources and providing for their enjoyment by the public. Within these broad missions, each agency manages sites with a variety of titles, management provisions, and allowed uses. In some cases, the management framework for an individual site may differ from the overall framework for the agency, depending on the statutory authorities pertaining to the specific site. An area's physical characteristics may suggest certain types of designations over others. For example, specific natural features may suit themselves to some designations, such as national seashore or wild and scenic river. Some features may suggest management by a particular agency—for example, FS in the case of a forest—although in practice Congress has assigned a range of sites to each agency (e.g., agencies other than FS manage many forested areas). If the site consists primarily of built structures with historical, cultural, or commemorative significance, designations such as national historic site or national memorial might be considered. Each agency manages some historic and cultural assets, but many sites with primarily historical and cultural features either are managed by NPS or are federally designated but nonfederally owned and managed. A closely related question concerns the values for which designation is sought. Stakeholders may seek to protect a site's scenic qualities, its flora and fauna, its historical and cultural significance, its recreational opportunities, or combinations of these or other values. Some land designations may indicate the importance Congress places on a particular value—for instance, public recreation in the case of a national recreation area, or history in the case of a national historic site. Additionally, certain values (such as wildlife conservation) may be particularly aligned with the mission of a certain agency (such as FWS). Although the agency missions provide a broad guide, each agency also manages sites whose congressionally established values differ from the overall mission. For example, in national monuments or wilderness areas on BLM or FS lands, certain uses typically associated with these agencies' multiple-use, sustained-yield missions often are restricted or prohibited. Some designations pertain to statutorily defined land systems, whose laws may specify requirements for areas to qualify for the system designation. For example, under the Wild and Scenic Rivers Act, a water body designated as a wild river is to be free from any impoundments (e.g., dams), among other attributes. Congress could choose to ignore or modify system requirements when designating a new site in the system, but the criteria typically have been given weight when Members contemplate applying a designation. Other designations are not associated with statutorily defined land systems. For example, Congress has established 49 individual national heritage areas (primarily on nonfederal lands) but has not enacted a law defining a system of heritage areas with parameters for area inclusion. Where no law defines qualifying criteria for a particular designation, Congress has often, but not always, followed past precedents when conferring the same designation on a new site. Most federal land designations are made by an act of Congress, but in some cases Congress has authorized executive branch officials, such as the President and the Secretaries of Agriculture and the Interior, to confer specific land designations. For example, under the Antiquities Act of 1906, the President may proclaim national monuments on federally owned land. Individual agencies may establish some protective designations on lands they manage (such as BLM's Areas of Critical Environmental Concern), and the Secretaries of the Interior and Agriculture may make certain designations on nonfederal lands . Members sometimes choose to work with executive entities to pursue a federal designation for a site rather than introducing legislation to designate the site. Among other reasons, an executive designation may be seen as a faster route to achieve the designation than moving a bill through the legislative process. (Typical timelines for executive designations vary widely, however, and can extend to several years or more.) Alternatively, limitations on executive authorities, such as a lack of federal funding associated with the designation, might make executive designations less attractive in some cases. Some executive designations—especially the President's authority to proclaim national monuments under the Antiquities Act—have been controversial at times, because the designations may restrict previously available uses of public land. Table 1 discusses some of the uses typically permitted or prohibited in different types of designated areas, based on authorities pertaining to the administering agency and/or land system. In general, National Park System lands are among those most strictly protected from uses that may consume or damage resources (sometimes called consumptive uses ), given NPS's mandate to preserve park resources "unimpaired" while providing for their enjoyment by the public. On FWS lands in the National Wildlife Refuge System, wildlife-related activities such as hunting, fishing, and bird-watching are considered priority uses; other uses (motorized recreation, timber cutting, grazing, mineral development) may be allowed to the extent that they are compatible with the mission of the system and the purposes of a specific unit. BLM and FS lands, as discussed, generally allow consumptive uses such as timber production, grazing, and mineral development. Also, some cross-cutting land systems affect certain lands across all four land management agencies. Of these, the Wilderness Act provides the highest level of protection. On designated wilderness lands, commercial activities, motorized uses, roads, structures, and facilities generally are prohibited, and resources are to be preserved "untrammeled" by human presence. Regardless of such general authorities, Congress may decide to allow, limit, or prohibit particular uses in an individual area through site-specific laws. Within all four agencies' lands are units with varying restrictions or allowances of land uses. For example, although hunting typically is prohibited in the National Park System, some individual units, such as many national preserves, allow hunting as authorized or mandated by site-specific laws. Mineral development is allowed on most BLM lands, but new development is prohibited by law or executive action in some BLM areas, such as many national monuments. In contrast to federal lands, Congress has limited authority to control uses of nonfederal land. Accordingly, congressional designations for nonfederal lands typically do not prohibit the nonfederal landowner from engaging in particular land uses, even where the use might adversely affect the values for which the area was designated. However, activities incompatible with the values of a designation—such as modernizing a designated national historic landmark—may lead to a withdrawal of the federal designation; also, federal funds or permits to carry out projects that compromise these values may be restricted. When a federal designation is contemplated for land not already in federal management, Members may consider whether or not the federal government should acquire the land. Many designations involve federal land acquisition, but as shown in Table 1 , under certain designations nonfederal entities typically continue to own and manage the land. Also, for any specific site, Congress may make individual provisions regarding federal land acquisition. Members may weigh, among other issues, the cost and effort to the federal government of acquiring and managing the land; the resources available to state, local, or private owners to maintain and protect the land; potential benefits of federal management (such as ongoing federal funding or a potentially higher public profile for the land if managed as part of a federal system); potential drawbacks of federal management (such as a loss of local control over management decisions or a reduction to the state and local tax base); and stakeholder positions on the size of the federal estate generally. Table 1 , below, compares selected designations used by Congress and the executive branch for federal lands and other areas. The table begins with designations that are common to multiple agencies and then lists designations exclusively or primarily related to an individual agency. The four agencies appear in order of the overall amount of land each agency manages (BLM, then FS, FWS, and NPS). The table provides information on the entity that confers each designation (e.g., Congress, the President, the Interior or Agriculture Secretary); statutory authorities for the designation; the agency or agencies that administer each type of area (also noting designations for which the area typically remains in nonfederal management); selected characteristics of the areas; and examples of each type of area. Designations for nonfederally owned and managed sites are listed according to the agency with administrative responsibility for the designation (e.g., responsibility for evaluating site qualifications and providing technical and/or financial assistance to designated sites). The table reflects a selection of titles that have been used repeatedly for multiple areas. It is not comprehensive. For example, Congress has designated many sites with unique titles (such as "national park for the performing arts" or "national tallgrass prairie") that are not reflected in the table. CRS Report R41658, Commemorative Works in the District of Columbia: Background and Practice , by Jacob R. Straus. CRS Report R41285, Congressionally Designated Special Management Areas in the National Forest System , by Katie Hoover. CRS In Focus IF10585, The Federal Land Management Agencies , by Katie Hoover. CRS Report R43429, Federal Lands and Related Resources: Overview and Selected Issues for the 115th Congress , coordinated by Katie Hoover. CRS Report RL33462, Heritage Areas: Background, Proposals, and Current Issues , by Laura B. Comay and Carol Hardy Vincent. CRS Report R41330, National Monuments and the Antiquities Act , by Carol Hardy Vincent. CRS Report R41816, National Park System: What Do the Different Park Titles Signify? , by Laura B. Comay. CRS Report R43868, The National Trails System: A Brief Overview , by Sandra L. Johnson and Laura B. Comay. CRS Report R42614, The National Wild and Scenic Rivers System: A Brief Overview , by Sandra L. Johnson and Laura B. Comay. CRS Report RL31447, Wilderness: Overview, Management, and Statistics , by Katie Hoover. | This report provides a brief guide to selected titles—such as national park, national wildlife refuge, national monument, national conservation area, national recreation area, and others—that Congress and the executive branch have used to designate certain U.S. lands. These designations primarily apply to federal lands administered by land management agencies, including the Bureau of Land Management (BLM), U.S. Fish and Wildlife Service (FWS), and National Park Service (NPS) in the Department of the Interior and the U.S. Forest Service (FS) in the Department of Agriculture. The report also discusses certain designations that Congress and executive branch entities have bestowed on nonfederally managed lands to recognize their national significance. It addresses questions about what the different land titles signify, which entity confers each designation, who manages the land under each designation, which statutes govern management decisions, and what types of uses may be allowed or prohibited on the land. Depending on the authorities governing each land designation, congressional and executive designations may bring few management changes to a site or may involve significant management changes. The designations may authorize new federal funding for an area, but they do not always do so. The report begins by briefly discussing some general factors that Congress may consider when contemplating which, if any, federal designation might be suitable for a given area. It then compares selected designations across multiple attributes. |
98-733 -- Terrorism: U. S. Response to Bombings in Kenya and Tanzania: A New Policy Direction? Updated September 1, 1998 On August 7, 1998, the U.S. Embassies in Kenya and Tanzania were bombed. At least 252 people died (including 12 U.S. citizens) and more than 5,000 wereinjured. Secretary of State Albright pledged to "use all means at our disposal to track down and punish" thoseresponsible. On August 20,1998, the United Stateslaunched missile strikes against training bases in Afghanistan used by groups affiliated with radical extremist andterrorist financier Usama bin Laden. U.S.officials have said there is convincing evidence he was a major player in the bombings. A pharmaceutical plant inSudan, identified by U.S. intelligence as aprecursor chemical weapons facility with connections to bin Laden, was hit as well. The United States has bombed terrorist targets in the past in retaliation for anti-U..S. operations (Libya, in 1986 following the Berlin Disco bombing and Iraq in1993 as a response to a plot to assassinate former President Bush) and an increasingly proactive law enforcementpolicy has resulted in bringing roughly 10suspected terrorists to the U.S. for trial since 1993. However, this is the first time the U.S. has given such primaryand public prominence to the preemptive , notjust retaliatory, nature and motive of a military strike against a terrorist organization or network. This may besignaling a more proactive and globalcounter-terrorism policy, less constrained when targeting terrorists, their bases, or infrastructure. (1) The proactive nature of the U.S. response, if official Administration statements are to be taken at face value, can readily be interpreted to signal a new direction inanti-terrorism policy. A series of press conferences, TV interviews and written explanations given byAdministration officials reveal what appears to be acarefully orchestrated theme that goes well beyond what could characterized as one-time, isolated-show-of-strength-statements. Defense Secretary William S.Cohen, in words similar to those of National Security Adviser, Sandy Berger, characterized the response as "the longterm, fundamental way in which the UnitedStates intends to combat the forces of terror" and noted that "we will not simply play passive defense." Secretaryof State Albright stressed in TV interviews that:"We are involved in a long- term struggle.... This is unfortunately the war of the future.." and National Security Adviser Sandy Berger stressed in public mediaappearances that "You can't fight this enemy simply in defense. You also have to be prepared to go on the offense". In what some see as a warning to otherterrorist groups who may seek weapons of mass destruction, President Clinton in his August 20thstatement from Martha's Vineyard, gave as one of four reasonsfor ordering the attacks :" because they are seeking to develop chemical weapons and other dangerous weapons". (2) Statements aside, the fact remains that this is the first time the U.S. has: (1) launched and acknowledged a preemptive strike against a terrorist organization ornetwork, (2) launched such a strike within the territory of a state which presumably is not conclusively,actively and directly to blame for the action triggeringretaliation, (3) launched military strikes at multiple terrorist targets within the territory of more than one foreignnation, and (4) attacked a target where theavowed goal was not to attack a single individual terrorist, but an organizational infrastructure instead. Moreover,in the case of the facility in Sudan, the targetwas characterized as one that poses a longer term danger rather than an immediate threat. Inherent in Administration statements and actions are allusions to a terrorism policy which, in response to immediate casualties and a global vision of higherlevels of casualties is: (1) more global, less defensive, and more proactive; (2) more national security oriented andless traditional law enforcement oriented, (3)more likely to use military force and other proactive measures, (4) less likely to be constrained by nationalboundaries when sanctuary is offered terrorists or theirinfrastructure in instances where vital national security interests are at stake, and (5) generally more unilateral whenother measures fail, particularly if othernations do not make an effort to subscribe to like-minded policies up front. A policy with such elements can becharacterized as one shifting from a long termdiplomatic, economic and law enforcement approach to one which more frequently relies on employment ofmilitary force and covert operations. Implied in sucha policy shift is the belief that though terrorism increasingly poses a threat to all nations, all nations maynot sign up with equal commitment in the battle against itand bear the full financial and retaliatory costs of engagement. In such an environment, the aggrieved nations withthe most at stake must lead the battle and mayneed to take the strongest measures alone. Arguments in favor of a proactive deterrent policy. Such a policy: (1) shows strength and world leadership-- i.e ., other nations are less inclined to support leadersthat look weak and act ineffectively; (2) provides disincentives for other would be terrorists; (3) is morecost-effective by thwarting enemy actions rather than trying to harden all potential targets, waiting for the enemy to strike, and suffering damage; (4) may truly damageor disrupt the enemy--dry up hissafehavens--sources of funds and weapons and limit his ability to operate, and (5) provides governments unhappywith the U.S. response an incentive to pursuebilateral and multilateral diplomatic and law enforcement remedies to remain active players. Argumentsagainst a proactive military/covert operations orienteddeterrent terrorism policy : Such a policy: (1) undermines the rule of law, violating the sovereignty of nationswith whom we are not at war ; (2) could increase,rather than decrease, incidents of terrorism at least in the short run; (3) leaves allies and other nations feeling leftout, or endangered--damaging future prospectsfor international cooperation; (4) may be characterized as anti-Islamic, and (5) may radicalize some elements ofpopulations and aid terrorist recruitment; and (6)may result in regrettable and embarrassing consequences of mistaken targetting or loss of innocent life. The U.S. government has employed a wide array of policy tools to combat international terrorism, from diplomacy, international cooperation and constructiveengagement to economic sanctions, covert action, protective security measures and military force. Implementationof policy is often situation-driven and a militaryresponse is more likely in close time proximity to a terrorist attack when public world outrage is high and credibleaccountability can quickly be established. When combating non-state sponsors of terrorism like bin Laden's networks, direct economic or politicalpressure on sanctuary states and indirect pressure throughneighboring states may be an effective policy tool in restricting activities and sanctuary locations as well creatinga favorable climate for legal approaches such ascriminal prosecution and extradition which is gaining prominence as an active tool in bring terrorists to trial.Working with other victim states through the U.N.and the Organization of African Unity are options which would build on the March 1996 Sharm al-Sheikhpeacemaker/terrorism summit. Enhanced intelligencetargeting of non-state "amorphous" groups and intelligence coordination and sharing among agencies,governments, and with the private security community iscritical, but mechanisms to achieve such intelligence objectives must be in place. All agree that more effectivehuman intelligence sources must be developed. Inthis regard, other nations such as Saudi Arabia and Kenya may be more effective in penetrating terrorist groups thanthe U.S. Another option is not tooverpersonalize conflicts against terrorist organizations and networks. Publically focusing on individualslike bin Laden (instead of on their networks ororganizations) too often glamorizes such persons--drawing funding and recruits to their cause and misses thepurpose of countermeasures --e.g. disabling terroristcapabilities. Enhanced unilateral use of covert operations , (3) though not without downsides, holds promise as an effective long-term policy alternative to highprofile use ofmilitary force. A seeming industrial explosion at a factory believed to be producing nerve gas chemicals draws lessformal criticism and political posturing byother nations than an openly announced missile attack. The dangers here are that the United States is not especiallycompetent at secret-keeping and thatcounter-terror can be misequated to terrorism. Effective use of covert policy alternatives requires institutionalization of covert action capability tapping into thebest that each agency has to offer. In a world where state sponsorship for terrorism is drying up, private fundingbecomes critical to the terrorist enterprise.Terrorist front businesses and banking accounts could increasingly become the target of creative covert operations.To support such efforts and effective lawenforcement oriented approaches to curbing money flows, assisting personnel in other countries in tracing andstopping money flows to terrorists, theirorganizations and front companies may warrant consideration. So-called "grey" area or "black" area information operations which bring to light vulnerabilities inthe personalities of key terrorist leaders ( i.e .corruption, deviant sexual behavior, drug use), promoteparanoia, and inter-organizational rivalries, warrantincreased attention as well. One can assassinate a person physically only once; but "character assassination" in themedia can be done daily. (4) U.S. terrorismpolicy lacks a multifaceted information offensive aspect which is not merely reactive in nature. Issues of special concern to Congress include: (1) U.S. domestic and overseas preparedness for terrorist attacks and retaliatory strikes, (2) the need for consultationwith Congress over policy shifts which might result in an undeclared type of war, and (3) sustaining public supportfor a long-term policy which may prove costlyin: (a) dollars; (b) initial clearly seen loss of human lives, as well as (c) potential restrictions on civil liberties. Whether the Presidential ban on assassinationsshould be changed and whether Afghanistan should be placed on the "terrorism" list warrants consideration aswell. (5) An important issue brought to the forefront in the wake of the U.S. military response to the August 7, 1998 embassy bombings is that of U.S. preparedness fordomestic and overseas terrorist and retaliatory attacks . There is no absolute preparedness; a determinedterrorist can always find a soft target somewhere. Thus,advance intelligence is perhaps the most critical element of preparedness. Good working relationships with foreignintelligence services are important here. Otherkey elements of preparedness include: (1)the ability through law enforcement channels and covert means to activelythwart terrorist actions before they occur, (2)high profile physical security enhancement measures; (3) and the ability to limit loss of life and mass hysteria,confusion and panic in the face or wake of terroristattacks. Particularly in situations involving weapons of mass destruction, effective mechanisms to minimize panicand ensure coordinated dissemination of criticallife saving information is important, as is planning on practical matters such as how to dispose of bodies. Essentialis the ability to maintain and promptlydispatch emergency teams to multiple disaster sites. A central issue of concern is Administration consultation with Congress over policy shifts which may result in an undeclared war. To paraphrase a familiarcongressional adage: We need to be there for the takeoffs if you expect us to support you on the crash landings. Itcan be argued that given the need for secrecyand surprise, and given the fact that the Administration's timing of the miliary response was dependent to largedegree on the configuration of events and theactivities of terrorist operatives on the ground, the Administration made reasonable efforts to inform Congress inadvance of the August action to be taken as wellas the targets and rationale of the pending missile-strike-response (6) . Notwithstanding Administration efforts to brief Congress on the attack, has theAdministration been remiss in its failure to consult with and brief Congress on any new policy or major change inpolicy emphasis or direction? Questions forCongressional inquiry might include: What is the policy; how exactly is it different; how does it fit in with otherpolicy options; what consequences areforeseeable; how is it to be implemented; how is effectiveness to be measured; how is it to be coordinated; whatfunding, organizational mechanisms orlegislative authority are required to implement it effectively, and how is international support for, and cooperationin, this strategy to be pursued? In justifying the U.S. missile response under Article 51 of the U.N. Charter (self defense), the Clinton Administration has invoked 22 USC 22377 note (otherwiseknown as) Section 324(4) of the Antiterrorism and Effective Death Penalty Act of 1996 P.L. 104-132 whichprovides: "The Congress finds that.... The Presidentshould use all necessary means, including covert action and military force, to disrupt, dismantle, and destroyinternational infrastructure used by internationalterrorists, including overseas terrorist training facilities and safehavens." Does 22 USC 2377, as passed by Congressin 1996, amount to the counter-terrorismanalogue to the Vietnam era Gulf of Tonkin Resolution? Some analysts suggest that such authority is too broad andopen-ended and may pave the way for aquagmire of unconventional violent exchanges, and consequently amendment of the statute may be warranted.Others, however, feel that such broad authority isessential to allow a president maximum flexibility to counter mounting terrorist threats and stress that potential forabuse can be checked through activecongressional oversight and reporting to Congress. Another issue involving presidential authority is how thepresidential ban on assassinations (E.O. 12233) fitsinto any policy shift and if it should be modified or rescinded. A more proactive terrorism policy may prove costly in dollars (even in relatively quiet times) as well as in potential restrictions on civil liberties. Unresolvedquestions include: (1) what is the potential dollar cost; and is the public prepared to accept the loss of lives and otherconsequences of such a "war of the future?" In this regard, should there be a more active federal role in public education? An informed, involved, and engagedpublic is critical to sustain an activeanti-terrorism response. The American public will be more likely to accept casualties if they understand why theywill be sustained and that sometimes it ischeaper to pay the cost up front. | On August 20,1998, the United States launched retaliatory and preemptive missile strikes against training bases andinfrastructure in Afghanistan used by groups affiliated with radical extremist and terrorist financier Usama binLaden. A "pharmaceutical" plant in Sudan, makinga critical nerve gas component, was destroyed as well. This is the first time the U.S. has unreservedly acknowledgeda preemptive military strike against a terroristorganization or network. This has led to speculation that faced with a growing number of major attacks on U.S.persons and property and mounting casualties,U.S. policymakers may be setting a new direction in counter-terrorism-- a more proactive and global policy, lessconstrained when targeting terrorists, their bases, or infrastructure. Questions raised include: What is the nature and extent of any actual policy shift; what are its prosand cons; and what other policy optionsexist? Issues of special concern to Congress include: (1) U.S. domestic and overseas preparedness for terroristattacks and retaliatory strikes; (2) the need forconsultation with Congress over policy shifts which might result in an undeclared type of war; and (3) sustainingpublic and Congressional support for a long termpolicy which may prove costly in: (a) dollars; (b) initial up-front loss of human lives, and (c) potential restrictionson civil liberties. Whether to change thepresidential ban on assassinations and whether to place Afghanistan on the "terrorism" list warrants attention as well.This short report is intended for Membersand staffers who cover terrorism, as well as U.S. foreign and defense policy. It will be updated as events warrant.For more information, see CRS Issue Brief IB95112, Terrorism, the Future and U..S. Foreign Policy and CRS Report 98-722(pdf), Terrorism:Middle East Groups and State Sponsors. |
Members of Congress have more choices and options available to communicate with constituents than they did 20 years ago. In addition to traditional modes of communication such as townhall meetings, telephone calls, and postal mail, Members can now engage their constituents via email, websites, tele-townhalls, online videos, social networking sites, and other electronic-based communications applications. The rise of electronic communications has altered the traditional patterns of communication between Members and constituents. Although virtually all Members continue to use traditional communications tools, the use of new technology is increasing. For example, past research on the adoption of Twitter has shown that by August 2009, 29% of Members had adopted it. The percentages of Members who adopted had increased to 38% by September 2009, 57% by December 2010, and 79% by January 2012. By January 2013, 100% of Senators and 90% of Representatives had adopted Twitter. More recently, Members have begun to adopt video and picture sharing social media services. This report examines Members' use of one of these new electronic communications platforms: Vine. After providing an overview of Vine, the report analyzes patterns of Members' use of Vine. Finally, the report offers a discussion of the implications of the rise of video sharing services like Vine, and of social media more generally. Vine is a social media video sharing service, owned by Twitter, which allows users to create six-second videos that can be short snippets of conversation, a series of still shots, or a moving panorama that automatically repeats in a loop. These videos (Vines) can be shared with Vine followers and on Twitter and Facebook. Vine is primarily designed for use on mobile devices such as iPhone, Android, and Windows supported devices. Vine combines many features of Twitter—short posts and hashtags—with the ability to share short, looping videos or compilations of pictures. It also allows users to reach followers with both text and video images. Up to 140 characters of text can accompany a Vine post. This report analyses the following questions related to Members' use of Vine: What proportion of Members use Vine? How often do Members use Vine? What do Members Vine about? In June 2014, the Congressional Research Service (CRS) collected data on the adoption and use of Vine. To collect the data, CRS first determined which Representatives and Senators had registered with Vine. Using the Vine search engine, CRS searched for each Representative and Senator by name. The adoption data were the basis for analyzing Members' use of Vine. CRS examined all Vines for all registered Representatives and Senators to create a second dataset capturing Members' use of Vine. The unit of analysis of this second dataset was individual Vines. This dataset includes a total of 487 Vines. To categorize each Vine, CRS devised a comprehensive set of coding categories. The researchers then examined each Vine and recorded the appropriate coding results. Several caveats accompany the results presented. First, the analysis treats all Member Vines as structurally identical, because each individual Vine reveals no information about who physically took the video. In some cases, Members might personally appear in a Vine, whereas other Members might choose to highlight constituents, staff, or other items. CRS draws no distinction between the two. Second, as with any new technology, the number of Members using Vine and the patterns of use may change rapidly in short periods of time. Thus, the conclusions drawn from these data cannot be easily generalized. Finally, these results cannot be used to predict future behavior. As of June 25, 2014, 141 of all 541 Members of Congress (26.1%) had an account registered with Vine. This represents an increase from 105 Members (19.4%) who, according to a January 2014 CRS report, had adopted Vine. When examined by chamber, 21% of registered Members were found to be Senators and 79% Representatives. When examined by party, 57% of Vine-registered Members were found to be Republicans and 43% Democrats. The proportion of adoption by party is consistent with previous research on the adoption of other social media platforms—such as Twitter and Facebook. Figure 1 shows the percentage of Member adoption of Vine by political party and chamber. Earlier studies of social media adoption found that House Republicans were the most likely early adopters of Twitter. That finding also appears to be true for Vine; House Republicans had the most adoptions—with a total of 69 Members on Vine. Adoptions for House Democrats (42), Senate Democrats (19), and Senate Republicans (11), were lower. By percentage, the majority party in each chamber—the House Republicans and the Senate Democrats—had the highest proportion of Members adopt Vine. On February 6, 2013, the first Member Vine was posted. Between that date and June 25, 2014, a total of 487 Vines were posted by Representatives and Senators, for an average of 29 Vines per month. Representatives posted an average of 74 Vines per month. Senators posted an average of seven per month. Figure 2 shows the total number of Vines posted per month, divided by chamber. House Republicans posted a majority of the Vines (51%). Next were House Democrats (24%), then Senate Democrats (18%), and Senate Republicans (8%). Figure 3 shows the proportion of Vines by chamber and party. CRS created six major message categories for classifying Members' Vines: position taking, homestyle, official action, personal/family, information, and other. Each observed Member Vine post was coded as belonging in one category based on the primary contents of the message. Following are definitions of the categories: In these Vines, a Representative or Senator took a position on a policy or political issue. The expressed position could concern a specific bill under consideration or a general policy issue. The Member might or might not have appeared. These Vines featured a Representative or Senator highlighting the district in an official capacity. The Member could be discussing a trip, visit, or event in the district or state; highlighting a factory or district or state feature; or engaging in some other non-Washington official action, such as travel to or from the district. In these Vines, a Representative or Senator described, showed, or recounted an official action. Examples included signing letters, voting on the floor or in committee, and introducing legislation. These were Vines in which a Representative or Senator discussed events in his or her personal life or provided opinions concerning matters that were explicitly unrelated to the Member's work in Congress. In this category of Vines, a Representative or Senator gave factual information on a variety of topics, such as historical events, holidays, Congressional staff, or interns. The Member might or might not have appeared. Vines that did not fit into other categories were classified as "other." Figure 4 shows the percentages of total Vines posted by Representatives and Senators that were in the each of the six categories. Overall, position-taking Vines were the most common (33.5%). This category was followed by information (29.6%), then homestyle (16%), personal/family (11.7%), official action (7.1%), and other (2.3%). When Members were examined by chamber, Senators were found to have Vined most often about information (9%), followed by homestyle (7%), and personal/family and position taking (roughly 4% each). Representatives Vined most often about position taking (30%), followed by information (20%), and homestyle (9%). At this early stage of the Vine adoption and use process, Member posts are similar to early use of Twitter, when Members primarily used the platform to provide information, often in the form of press releases. Further, Members were visible in 53% of Vines overall, and 61% of Vines appear to have been recorded in the District of Columbia, judging from images of Members' offices, DC landmarks, and Members' tagging posts to indicate their locations. Vine provides an opportunity for Members to be seen directly by followers in a way that is not possible on Twitter—where it can be difficult to know whether the Member is personally tweeting or has delegated that action to a staff member. After coding each Vine for contents, CRS recorded the issue area that was mentioned in each of the position-taking Vines. Some Vines covered more than one issue. A total of 38 issue areas received mention in 163 Vines. Six issues were mentioned most frequently. They were: Patient Protection and Affordable Care Act (19 Vines—12%); immigration (19 Vines—12%); unemployment benefits (17 Vines—10%); better wage or minimum wage (17 Vines—10%); 2013 government shutdown (14 Vines—9%); and jobs (10 Vines—6%). The remaining 32 issues were each mentioned in six Vines or fewer. Overall, Members are using Vine to take positions on specific policy issues (see Figure 4 ). The most common issue areas generally reflect the contents of congressional media coverage; the Patient Protection and Affordable Care Act, immigration, jobs, and the government shutdown have dominated media coverage of the 113 th Congress (2013-2014). The use of Vine by Members of Congress is an evolving phenomenon. As Members continue to embrace new technologies, their use of social media applications, like Vine and other platforms, may increase. Vine allows Members to communicate directly with constituents (and others) in a potentially interactive way that is not always possible using more traditional modes of communication. For Members and their staff, the ability to transmit real time information through videos and pictures, and observe how that information is shared across the Internet, could be influential for issue prioritization, policy decisions, and voting behavior. Unlike other forms of social media such as Twitter, Vine's emphasis is on visual instead of written communication. Whereas Twitter's focus is on communicating short bursts of information in 140 characters or fewer, Vine has the ability to translate those written thoughts into short series of pictures or videos that could potentially allow Members of Congress to disseminate their messages more effectively. One strength of social media, including Vine, is the potential for posts to go "viral," which would allow Members to communicate policy ideas, stake out positions, or announce events to an audience potentially far wider than just their followers. Further, Vine allows for a clear distinction between Member and staff postings. Twitter, and other text-centric social media platforms, can obscure whether posts are coming directly from a Representative or Senator or from a staff member. To combat this problem, some offices have the Member sign his or her tweets, often with initials, to indicate that the post came directly from the Member. For Vine, this process can be straightforward because a Member can appear on camera to deliver his or her message directly. If the Member does not appear in the Vine, then the public may assume that staff posted the message. Even with the ability to provide short video contents, Vine is currently not nearly as popular as Twitter or many other social media sites. While specific analysis on the percentage of adults using Vine is not currently available, the Pew Internet Research Project conducted a study on the use of Vine-like applications to watch videos on smartphones and the web. The Pew Project found that "... apps such as Vine are emerging which allow users to easily record and share short videos. Among online video consumers, 17% say they watch videos using a cell phone app like Vine. And among online video posters, 23% say that they have posted a video using this kind of app." The use of video sharing applications is becoming more popular. Consequently, the opportunities for Members of Congress to use these applications and websites to disseminate public policy positions and constituent services information are also increasing. How Members use social media continues to evolve. Some reports have suggested that Members are dedicating additional staff (or hiring new staff) to handle social media as part of their messaging and communications strategy. In the current budget climate, how Members allocate staff—especially in the House of Representatives, which limits the number of full time staff that a Member can hire—is crucial. If Members spend more resources on social media, the priorities of other representational functions possibly could change. Further research on the adoption and use of social media platforms—such as Vine—could provide insight into the changing approaches to representation, messaging to constituents and non-constituents, internal congressional communications (i.e., Members interacting with other Members through social media), and potential regulations. Also, while official Member communications cannot include campaign rhetoric, what Members say on official House or Senate social media accounts arguably can be used in elections. The impact of a video sharing service like Vine, as compared to a text-based service like Twitter, is unknown. Potential challengers could possibly use a Member's appearance in a Vine more directly than a Member's Twitter statement. The potential use of a Vine as part of a campaign commercial, for example, could alter a Member's decision on the type of contents included in future Vines. Electronic communications have also raised some concerns. While a complete discussion of this topic is beyond the scope of this report, a few observations warrant mentioning. First, existing law and chamber regulations on the use of communications media such as the franking privilege have proven difficult to adapt to new electronic technologies. Currently, House regulations largely treat social media communications as similar to franked mail. Several key differences, however, exist between electronic communications and franked mail—most notably the lack of marginal cost for sending electronic communications, the inability to differentiate between constituents and non-constituents, the opt-in nature of social media, and the ability of campaign challengers to adopt and utilize identical applications. These factors raise questions about both the suitability and necessity of applying the franking model to social media communications. Second, the use of social media communications is rapidly changing. In 2012, Vine did not exist. Going forward, there is no way to predict whether Vine, or other similar video-sharing services, will continue to enjoy popularity. Policy makers thus may choose to seek general rather than specific structures when considering social media regulation, to avoid the need to revisit policies as new technologies are developed. Similarly, Members of Congress may choose to adopt social media platforms that provide similar user experiences in order to simplify messaging and the impact on staff time. | In the past 10 years, the rise of social media has expanded the number of options available for communication between Members of Congress and their constituents. Virtually all Members, including all 100 Senators, use Twitter as a tool to communicate legislative, policy, and official actions to interested parties; and the use of other forms of social media, including Facebook, has also proliferated. The adoption of these technologies has enhanced the ability of Members of Congress to fulfill their representational duties by providing greater opportunities for constituents to communicate with Members and their staff. Electronic communications have also raised some concerns. Existing law and chamber regulations on the use of communications media such as the franking privilege have proven difficult to adapt to new technologies. More recently, Members have begun to adopt video and picture sharing social media services. This report examines Members' use of one of these new electronic communications platforms: Vine. After providing an overview of Vine, the report analyzes patterns of Members' use of Vine. This report is inherently a snapshot of a dynamic process. As with any new technology, the number of Members using Vine and the patterns of use may change rapidly. Thus, the conclusions drawn from these data cannot be easily generalized, nor can these results be used to predict future behavior. For more information on the adoption and use of social media by Members of Congress, see CRS Report R43018, Social Networking and Constituent Communications: Members' Use of Twitter and Facebook During a Two-Month Period in the 112th Congress, by [author name scrubbed], [author name scrubbed], and [author name scrubbed] and CRS Report R43477, Social Media in the House of Representatives: Frequently Asked Questions, by [author name scrubbed] and [author name scrubbed]. |
In 2006, expenditures on energy-related goods and services represented nearly 10% of total expenditures for older households. There are two main components of energy expenditures. Over half (57%) are for utilities and fuel to operate, heat, and cool homes; the remaining 43% are for gasoline and motor oil. Within the category of utilities and fuel, electricity comprises the largest share of spending, representing nearly two-thirds (62.8%) of this category. Second is natural gas (27.6%), and the remaining 9.6% are petroleum-based fuels like fuel oil and propane. However, the reliance on certain fuels varies widely by geographic region. Natural gas is the most commonly used source in the Northeast (55%), Midwest (79%) and West (66%), while electricity is the most commonly used source in the South (52%). In the Northeast, heating oil is also a significant fuel source, where it is reported second to natural gas as a primary fuel source (see Table 1 ). Petroleum-based products like fuel oil, propane, and gasoline comprise about 50% of household energy expenditures. Increases in costs in this category reflect the significant increases in the price of crude oil over the past five years. Over the past five years, the price per barrel of crude oil has risen nearly 200%. Over the same period, prices charged to consumers for petroleum-based energy costs (energy commodities) increased 117%, while prices charged for energy services increased 38% (see Table 2 ). Growth in overall energy spending is driven by two key factors: the price charged to the consumer and the quantity demanded. Energy prices to consumers have increased 70% between 2000 and 2007 as compared to a 20% rise in overall prices over the same time period. More recently, in 2007, overall energy prices rose 17.4% as compared to a 4.1% rise in overall prices (see Table 2 ). In fact, the increase in energy prices in December of 2007 accounted for about one-third of the overall CPI increase in that month. Beyond the direct effect of rising energy prices on household spending, there are also indirect effects on overall consumer prices that must be taken into account. All of the non-energy goods and services consumed by households rely to some degree on energy for their production. It takes energy to run a plant, and gasoline to fuel trucks and other forms of transport to take goods to the store to sell. Higher energy prices to manufacturers may be passed through to the consumer and thus increase overall inflation rates of goods and services. The consumer price index, excluding energy, has been rising in recent years, increasing from 1.5% in 2003 to 2.8% in 2007, suggesting that higher energy prices are affecting other areas of consumption as well. Older households account for approximately 20% of our nation's total consumption on energy-related products. Yet, they are disproportionately affected by higher energy costs. Although in actual dollar terms older households spend slightly less on energy-related consumption than households headed by a person under age 65, they spend a higher share of their income on energy-related expenditures. As shown in Table 3 , in 2006, older households spent 9.5% of their income on energy-related services compared to 7.4% for younger households in 2006. Among older households, lower-income elderly spend significantly more as a share of income for energy-related services compared to those with higher incomes. Older households with less than $15,000 in household income spent approximately 20% of their income for energy-related expenditures, as compared to 7.3% for elderly households with incomes over $15,000 in 2006. For utilities and fuel, these same households spent 13% of their income to heat and operate their homes, compared to only 4.7% for older households with $15,000 or more in income (see Table 4 ). The $15,000 threshold for household income in Table 4 is a close approximation to older households that have incomes below or near 150% of poverty. The 150% of poverty threshold is used by current public programs that provide low-income energy assistance to households (see discussion below). In 2006, about 22% of older Americans had family incomes below 150% of the poverty thresholds. These estimates are for 2006 and do not reflect the additional 17% increase in energy prices that occurred in 2007. Over time, growth in energy expenditures has increased faster than income of older households (see Figure 1 ). However, among older households, the data indicate that energy-related spending for low-income households is not increasing as fast as overall energy prices or energy-related spending for higher-income households. Average annual energy-related spending for low-income households (after adjusting for inflation) has increased only 5.9% since 2000, compared to 20% for higher-income households (see Table 4 ). This difference may reflect lower-income households changing their behavior in response to rising energy costs. According to an AARP survey, older Americans with household incomes below $25,000 are significantly more likely to reduce their savings and other spending to offset higher gasoline prices. Other alternatives that households explore in response to rising energy costs have included replacing heating and cooling systems with more energy-efficient units, installing energy-efficient windows, and purchasing more fuel-efficient cars. Although these alternatives may save costs in the longer-run, many lower-income households do not have sufficient funds to purchase them. The key public program that provides energy assistance to low-income households is the Low-Income Home Energy Assistance Program (LIHEAP). LIHEAP was established in 1981 ( P.L. 97-35 ) and is a block grant program under which the federal government makes annual grants to states, territories, and tribes to operate home energy assistance programs for low-income households. The LIHEAP statute authorizes two types of funds: block grant funds, which are allocated to all states using a statutory formula, and contingency funds, which are allocated to one or more states at the discretion of the Administration. Federal law limits LIHEAP eligibility to households with incomes up to 150% of the federal poverty guidelines (or, if greater, 60% of the state median income). States may adopt lower income limits, but no household with income below 110% of the poverty guidelines may be considered ineligible. In FY2004 (the most recent year for which data are available), 40% of low-income households eligible for LIHEAP had a member aged 60 or older. Over time, while energy costs have risen as a share of income, public programs like LIHEAP have faced declining funding. While utility and fuel expenditures have increased 34.6% from 2000 to 2005, the average benefit for LIHEAP has increased 12.6% over the same time period. These estimates do not include growth rates between 2005 and 2007, during which time energy prices increased another 20.8%. In the FY2008 Consolidated Appropriations Act ( P.L. 110-161 ), Congress appropriated $1.98 billion in LIHEAP funds and an additional $590 million in contingency funds. In the 110 th Congress, two bills have been introduced that would appropriate an additional $1 billion in LIHEAP contingency funds. Both bills, H.R. 4275 and S. 2405 , are entitled the "Keeping Americans Warm Act." In addition, a number of bills have been introduced that would provide additional funds for LIHEAP through various means, including penalties collected from energy suppliers and profits from carbon allowance trading. S. 1238 , the "Energy Security and Corporate Accountability Act of 2007," has also been introduced in the 110 th Congress and would allow low-income households eligible under the LIHEAP program to be eligible for state funds to assist them in paying transportation expenses associated with gasoline and motor oil purchases as well as public transportation. | Energy-related expenditures include spending for utilities and fuel to operate, heat, and cool homes and spending for gasoline and motor oil for private transportation. Energy prices to consumers have increased 70% between 2000 and 2007, driven largely by growth in prices for energy commodities such as petroleum. Petroleum-based products such as fuel oil, propane and gasoline comprise about 50% of household energy expenditures. Older Americans are disproportionately affected by higher energy costs. As a share of income, households headed by a person age 65 or older spend more on energy-related expenditures than their younger counterparts. In addition, low-income households (those with less than $15,000 in household income) spent nearly 20% of their household income on energy-related expenditures in 2006 (the latest year for which data are available). This compares to 7.3% spent by older households with incomes above $15,000. These estimates are for 2006 and do not reflect the additional 17% increase in energy prices that occurred in 2007. The key public program that provides energy assistance to low-income households is the Low-Income Home Energy Assistance Program (LIHEAP). Approximately 40% of low-income households that were eligible for LIHEAP have a household member aged 60 or older. Funding for the LIHEAP Program has not kept pace with recent increases in energy costs of older Americans. This report will explore the burden of rising energy costs on older Americans and discuss implications for public policies. This report will be updated when new data is released. |
Urban Search and Rescue (USAR) task forces have been designated by the Department of Homeland Security (DHS) to provide specialized assistance after buildings or other structures collapse. The task forces work to stabilize damaged structures, locate and extricate victims, identify risks of additional collapses, and meet other needs at disaster sites. Each task force is comprised of at least 70 persons whose skills as unit members include engineering, emergency medicine, canine handling, firefighting, hazardous material handling, communications, logistics, and other areas. The Federal Emergency Management Agency (FEMA) administers federal funding for the task forces. Although the USAR task forces are local government entities, they may be considered part of the federal emergency response network as they receive funding, training, and accreditation from the federal government. Congress authorized emergency search and rescue response activities in 1990 as part of an earthquake hazards reduction program, and federal involvement in the urban search and rescue field has increased since the establishment of the task forces in the 1990s. The successful deployment of task forces after the terrorist attacks of 2001, the bombing of the Murrah federal building in Oklahoma City in 1995, actions taken after Hurricane Katrina, and other disasters appears to have established general support for the task force concept. Most recently, task forces from New York, Virginia, Utah, California, and other states dedicated weeks to the recovery efforts in Haiti after earthquakes destroyed much of the nation's infrastructure. The Obama Administration requested $28 million for the task forces in FY2012, the same amount requested for FY2011. Both the FY2011 and the FY2012 requests are $4.5 million below the $32.5 million appropriated for FY2010 (a reduction in funding of almost 14%). As Congress debates the FY2012 budget it is unclear whether Congress will accept the Administration's proposal. During the course of the debate, several interim continuing resolutions have been introduced and enacted. Generally, continuing resolutions do not provide the same level of budget detail as regular appropriation bills, and USAR is not specifically mentioned in each resolution. However, there may be indications that Congress might provide funding above the Obama Administration request. For example, the continuing resolution H.R. 3082 provided $38 million for USAR task forces. Debate on the FY2012 USAR budget may involve a discussion on the appropriate level of federal financial support for teams that have a shared federal and local government responsibility. In a hearing on the FY2011 budget request, one Member noted that the cost of each team ranges from $1.8 million to $2.2 million per year, with the federal contribution accounting for roughly $1 million of that amount. Given the financial distress many local governments face at the present time, Members may question whether the existing level of federal support is sufficient for FY2012. Some may contend that the task forces, as shared responsibilities that provide assistance on a daily basis to their local jurisdictions, should be funded in large measure by local resources. It may also be noted that the training, equipment, and capabilities of the teams are, in large measure, associated with the federal support that has been provided in past years. The recognition given to the task forces' successful rescue efforts in Haiti, and extensive media coverage of their deployment to Japan, may presage calls for greater reliance on the USAR concept for international crises. The federal role in urban search and rescue efforts has developed slowly over the past decades. Its roots may be traced to congressional enactment of the Earthquake Hazards Reduction Act of 1977 to stimulate research and planning related to preparation for, and response to, the devastation of earthquakes. The statute recognized that federal and non-federal entities, both public and private, must exercise responsibilities to reduce losses and disruptions from earthquakes. The primary mandate given to the President in the 1977 statute was to designate responsible agencies to establish and maintain "a coordinated earthquake hazards reduction program," one primarily oriented toward earthquake prediction and mitigation. Objectives that were to be incorporated in the program included "organizing emergency services" and educating the public and state and local officials on "ways to reduce the adverse consequences of an earthquake." Following establishment of the Federal Emergency Management Agency (FEMA) in 1979, Congress amended the 1977 statute to require FEMA to serve as lead agency for the program. More recently, the 108 th Congress transferred that authority to the National Institute of Standards and Technology of the Department of Commerce. The most significant program change relevant to the history of the USAR task forces was the 1980 requirement that the director of FEMA submit an "interagency coordination plan for earthquake hazard mitigation and response " [emphasis added] to Congress. This provision indicates that Congress, perhaps for the first time, authorized federal action and responsibility for disaster response efforts traditionally considered the responsibility of state and local governments. As a consequence of the Loma Prieta earthquake of 1989, Congress and FEMA revisited the scope of NEHRP. FEMA established the National Urban Search and Rescue Response System that same year. Also in the aftermath of that earthquake, Congress enacted the National Earthquake Hazards Reduction Program Reauthorization Act of 1990. These amendments to the 1977 statute expanded the federal response authority to include the following charge: develop, and coordinate the execution of, federal interagency plans to respond to an earthquake, with specific plans for each high-risk area which ensure the availability of adequate emergency medical resources, search and rescue personnel and equipment, and emergency broadcast capability. In 2004, the 108 th Congress further amended the 1977 earthquake hazards act. The amendment required that the Under Secretary of Homeland Security for Emergency Preparedness and Response, who also served as the director of FEMA, develop and coordinate the National Response Plan and support state and local plans "to ensure the availability of adequate emergency medical resources, search and rescue personnel and equipment, and emergency broadcast capability." The Post-Katrina Emergency Management Reform Act of 2006 authorizes the FEMA Administrator to "lead the nation's efforts to prepare for, protect against, respond to ... the risk of natural disasters, acts of terrorism, and other man-made disasters, including catastrophic incidents." In addition, the statute established in FEMA the Urban Search and Rescue Response System. Under this authority the FEMA Administrator, and his designees, coordinate the activities of USAR task forces when called to service. As indicated earlier in the report, in addition to domestic applications, USAR task force teams have also been deployed for international disasters. In 2010, four rescue teams were deployed to Haiti and in 2011 two task force teams were deployed to Japan. The assessments of search and rescue work performed in Haiti appear to be positive. However, rescue efforts by the task force teams in Japan were unable to locate survivors due to the sheer devastation of the event. DHS generally activates up to three task forces located closest to a disaster in the United States, if it requires the assistance of USAR task forces. Task forces must be able to deploy all personnel and equipment within six hours of activation, and must be able to sustain themselves for the first 72 hours of operations. Each task force must include a wide range of emergency response capabilities, a requirement that calls upon each task force member to complete a significant amount of training, and must consist of a deployable roster of at least 70 fully trained individuals. DHS has established a goal for each position on the task force to be staffed to ensure that each position has at least two alternates in reserve. Task force members must hold the following specialist skills: technical search, rescue, emergency medicine, structural engineering, logistics, communications, canine search, and hazardous materials handling. A task force must continue training and evaluation to maintain the accreditation status received from DHS. Members commonly work in 12-hour shifts. Task forces are supported by Incident Support Teams (ISTs), which provide technical assistance to state and local emergency managers, coordinate the activities of multiple task forces, and provide logistical support. Task forces remain on-site until the Incident Commander determines that no victims could possibly remain alive. Comprehensive information on USAR funding is not readily available, although some data have been published. Federal funding for the activities of the task forces in responding to catastrophes is provided through the Disaster Relief Fund administered by FEMA. In general, host employers of task force members (generally units of local government) serve as the primary source of funds for the task forces. The federal government provides funding for costs incurred when they are activated by FEMA. Federal funding to prepare, equip, and maintain USAR teams is provided through FEMA's Management and Administration account. Some historical information is available on funds Congress appropriates to ensure that the supplies and capabilities of the task forces are maintained. In FY1998 and FY1999 roughly $4 million in federal funding was provided to the teams. In FY2001, FEMA allocated approximately $6.4 million to the USAR program for training and equipment, which was distributed to the task forces based on need. According to program officials, state and local governments expected to pay 80% of the long-term costs associated with sponsoring a USAR task force. In FY2001, FEMA also allocated $3 million for upgrading six task forces to weapons of mass destruction capability (WMD). This new capability was meant to enable the task forces to search collapsed structures in an environment with chemical, biological, or radiological contamination. Following the terrorist attacks of September 2001, USAR task forces received federal funds to cover costs associated with responding to the World Trade Center and Pentagon sites. Out of its discretionary funds in the emergency supplemental appropriation ( P.L. 107-38 ), the Administration allocated funds to the task forces. Congress also allocated roughly $32.4 million to the USAR program in FY2002 supplemental appropriations ( P.L. 107-206 ). For FY2003, Congress provided $60 million for the 28 existing task forces. The conference report accompanying the appropriation bill ( P.L. 108-7 ) stated that the funds could be used for operational costs, equipment, and, training. The report also emphasized readiness for operating in an environment contaminated by a weapon of mass destruction. In similar fashion, Congress appropriated another $60 million for the task forces in FY2004. President Bush did not request funding in FY2005 for the task forces, but Congress appropriated $30 million for the teams in the FY2005 appropriations legislation for homeland security. In recent years (FY2009 and FY2010) Congress has appropriated roughly $32 million for the USAR task forces and administration of the system. Twenty-eight task forces have been established throughout the United States, as shown in the following map. Members of Congress might elect to consider the following issues as they consider the emergency response needs of communities. The deployment of USAR teams to Haiti and Japan may also present opportunities for modifying existing USAR practices or reconsidering priorities. Some may contend USAR deployments should be increased to reduce the number of lives lost in an incident. A counterargument, however, would be that increased deployments, even if limited to domestic incidents, would require the establishment of more task forces. The increased number of teams might dilute the available funding to train, equip, and manage the task force network. Another potential implication would be that state and local governments might begin to perceive USAR as the primary entity responsible for search and rescue efforts. As a result, state and local governments may eliminate or minimize their own search and rescue programs. Another potential concern is that in the past five years the State and Local Programs account has been the subject of proposed funding reductions and program eliminations. Should these proposals be accepted, USAR teams may not receive adequate funding to sustain their operations. Furthermore, other state and local programs that rely on the same funding source would have to compete with USAR for scarce resources and funding. Members of Congress may consider several options with regard to this issue during the 112 th Congress: (1) adopt language in the appropriations legislation for DHS that directs the department to establish additional task forces, whether in specified states or at the discretion of DHS officials; (2) consider legislation that statutorily establishes USAR task forces, such as H.R. 119 , which as introduced in the 111 th Congress. The USAR task forces have developed over time through administrative actions taken by FEMA (now DHS) in response to the general authority provided by Congress in the earthquake statute discussed above. Since the role of the task forces has evolved, Members of Congress might elect to consider legislation that specifies attributes of the task forces, identifies requirements, and establishes permanent funding accounts. Examples of measures authorizing the establishment of a USAR response system include two bills introduced—but not acted upon—in the 111 th Congress are H.R. 706 and Section 105 of H.R. 3377 . Funding for USAR task forces, like other aspects of homeland security, could be increased to ensure that sufficient equipment (and reserves) are available to task forces. Congress might consider legislation (such as S. 930 , considered in the 108 th Congress but not acted upon) that would require the Secretary of DHS to provide grants to task forces to ensure that operational, administrative, and training costs continue to be met. Others may argue, however, that federal support and involvement in task forces should be minimized, as the federal need for USAR task forces occurs relatively infrequently, and task forces primarily serve local government purposes. Congress may wish to debate how USAR task forces fit into the broader scope of federal disaster response efforts. A report issued by the General Accounting Office prior to the terrorist attacks of 2001 identified 24 types of teams, administered by eight federal agencies, capable of responding to terrorist incidents involving weapons of mass destruction. The extent to which USAR task forces duplicate the capabilities and authorities of other federal response teams might be considered. The allocation of five USAR task forces to Haiti after earthquakes destroyed much of the capital city and other parts of the nation in January 2010 arguably demonstrated the best use of the USAR capabilities. Lives were saved and local and international burdens were shared. Funds for the work of the task forces in Haiti were provided by the Department of State, U.S. Agency for International Development (USAID). Deployments to other countries may help save lives, reduce human suffering, and foster goodwill between the United States and other countries. However, some may question whether USAR forces should be deployed to foreign countries on the grounds that overseas deployments may limit the number of teams and equipment available for domestic incidents. According to the FEMA Administrator, discussions are underway with the head of USAID to determine whether additional teams should be deemed qualified for international crises. If USAR continues to be used for international response efforts, Congress may wish to appropriate funds for USAR from multiple sources through regular order appropriations. Congress may also contemplate limiting their use to domestic incidents, or limiting the number of USAR teams that can be deployed overseas at one time. | Since the early 1990s, Urban Search and Rescue (USAR) Task Forces have been certified, trained, and funded by the federal government. Twenty-eight task forces are located in 19 states. Department of Homeland Security (DHS) officials may call out the task force (or forces) in closest proximity to the disaster to help locate and extricate victims from collapsed buildings and structures. The task forces represent a partnership involving federal, local government, and private sector experts. Most recently, USAR teams received extensive media coverage for their missions to Haiti after the earthquakes of early 2010, and Japan after the earthquake and tsunami in the spring of 2011. This report will be updated as events warrant. |
Section 612 of the Communications Act of 1934, as amended, imposes a requirement upon cable operators to lease a certain percentage of their channel capacity to unaffiliated persons; eliminates a cable operator's editorial control over the content provided on leased channels except in certain narrow circumstances; grants the FCC the authority to set maximum reasonable rates, terms, and conditions for use, and procedures for dispute resolution; and sets out procedures for challenging a cable operator's refusal or failure to make channel capacity available pursuant to Section 612. Subsection (g) of Section 612 states that when cable systems with 36 channels or more reach 70% of U.S. households and 70% of households "passed" by these cable systems actually subscribe to that service, the FCC "may promulgate any additional rules necessary to provide a diversity of information sources." The FCC previously had determined that the first prong of the so-called "70/70" test had been met. However, subsection (g) remains dormant because, though data have suggested that the second prong of the test had been met, the FCC has not made an affirmative finding. On November 27, 2007, the FCC preliminarily adopted the 13 th Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming . In this report, the FCC has found that, based on data supplied by Warren Communications News, the second prong of the 70/70 test has been met. Other data sources, according to the FCC, indicate that the second prong has not yet been met. As a result, the FCC is requiring the cable industry to submit further information regarding the number of homes "passed" by their systems and the number of actual subscribers to those services. The FCC asserts that this data will help the agency to accurately measure the percentage of households actually subscribing to cable services and determine if the second prong of the 70/70 test has indeed been met. If the FCC determines that the test has been met, the Commission will then have the authority to "promulgate any additional rules necessary to provide a diversity of information sources." The scope of authority Section 612(g) grants remains a matter of contention. The FCC has previously solicited comment on the extent of its authority under the subsection. The current Commission, however, remains undecided as to the extent of the authority the provision grants and the continued necessity of the provision itself, in light of increased competition in the market for providing video programming. On December 6, 2007, H.R. 4307 , entitled the Consumer Freedom of Choice in Cable Act, was introduced in the House of Representatives. H.R. 4307 would repeal Subsection 612(g). Section 612 originally was enacted as part of the 1984 Cable Communications Policy Act. The 1984 Cable Act was accompanied by a House Report that briefly explained Section 612 and Subsection 612(g). Under the 1984 version of Section 612, the FCC was not permitted to determine maximum reasonable rates cable operators could charge for leased access channels, develop procedures for the expedited resolution of disputes, or promulgate rules related to the terms and conditions of access under the section. The House Report seems to suggest that Subsection 612(g) was intended to grant the FCC power to promulgate such rules in the event the 70/70 test was met. H.Rept. 98-934 states, in pertinent part, It is clear that as the cable industry more fully develops, and programming industry desires for pursuing leased access opportunities more fully emerge, new and different requirements relating to leased access may be necessary in order that a nationally mandated leased access scheme fully meet the First Amendment goal of assuring diversity. Thus, subsection 612(g) provides a mechanism to assure there is adequate flexibility to develop new rules and procedures with respect to the use of leased access channels as the cable industry develops and serves more citizens in the future. At such time as cable systems with 36 or more activated channels are available ( i.e. households that are passed by cable) to 70 percent of households in the country, and as these cable systems are actually subscribed to by 70 percent of those households which have availability to them, the FCC is granted authority to promulgate any additional rules necessary to assure that leased access channels provide as wide as possible a diversity of information sources to the public. Along these lines, the Commission may develop any additional procedures for the resolution of disputes between cable operators and unaffiliated programmers and may provide rules or new standards for the establishment of rates, terms and conditions of access for such programmers. In 1992, however, Congress enacted the Cable Television Consumer Protection Act, which amended Section 612 to give the FCC more authority to regulate leased access. Specifically, the FCC was granted the authority to determine the maximum reasonable rates that a cable company could charge for leased access, establish reasonable terms and conditions for such use, and establish procedures for the expedited resolution of disputes concerning rates or carriage. In other words, all of the powers Congress, in the House Report, had suggested would be conferred upon the FCC under 612(g) were granted expressly to the Commission by the 1992 Cable Act revisions of Section 612. Congress did not, however, repeal Subsection 612(g) when it enacted the 1992 Cable Act. Furthermore, in the 1984 House Report, the regulations Congress indicated the FCC could promulgate regarding leased access under 612(g) seemed to be illustrative rather than an exhaustive list. The scope of the FCC's authority under 612(g), therefore, remains an open question. Some commenters argue that the provision confers upon the FCC broad authority to promulgate any rule that would encourage a diversity of information sources, including those that would apply outside of the channels designated for leased access. However, the legislative history of 612(g) and its context within a provision that solely governs leased access might suggest otherwise. When the plain language of a statute is unambiguous, courts generally do not find it necessary to look to legislative history to interpret a statute's meaning. Proponents of broad authority under 612(g) argue that if Congress granted the FCC the power to promulgate "any" rule to promote a diversity of information sources, Congress meant to do exactly as it said and did not mean to restrict the FCC's powers to leased access. The word "any," according to the Supreme Court, "has an expansive meaning, that is 'one or some indiscriminately of whatever kind.'" These commenters argue that under this interpretation of 612(g) the FCC has the authority to promulgate any rule so long as it would promote a diversity of information sources. Furthermore, proponents of this interpretation argue that a broad grant of authority is consistent with the purpose of Section 612. Section 612(a) indicates that the purpose of the provision is to "promote competition in the delivery of diverse sources of video programming and to assure that the widest possible diversity of information sources are made available to the public." The broad intent of the statutory provision coupled with the broad language of Subsection 612(g), some commenters argue, grants the FCC far-reaching regulatory powers. Such powers, if upheld by the courts, would allow the FCC to promulgate many new regulations for the cable industry, above and beyond new rules that would encourage leased access of channels to unaffiliated persons. Other commenters argue that the provision confers upon the Commission only the power to promulgate regulations related to the leased access of cable channel capacity to unaffiliated persons. These commenters argue that the context of Subsection 612(g) and the provision's legislative history make it clear that Congress intended 612(g) to apply solely to leased access and not to grant broad regulatory authority. Subsection 612(g) appears in a section that governs only leased access to cable channel capacity by unaffiliated persons. Proponents of a narrow reading of 612(g) argue that the explanation of Subsection 612(g) in the House Report accompanying the original legislation and its placement within the leased access section of the statute appears to indicate that Congress intended 612(g) to govern leased access only. The Supreme Court has noted that Congress "does not ... hide elephants in mouseholes." Subsection 612(g), in this line of reasoning, is a small and long-dormant provision in a narrowly drawn section of the statute that should not be read to grant expansive authority to re-regulate an industry Congress has chosen repeatedly to deregulate. If Congress had intended to include a provision that granted the FCC such broad power, it would have done so expressly and would not have placed the provision in the leased access section of the statute, according to these commenters. Proponents of a narrow reading of 612(g) further argue that Section 624(f) of the Telecommunications Act makes clear that the FCC's authority to regulate cable programming services is narrow. Section 624(f) provides that "any Federal agency, State or franchising authority may not impose requirements regarding the provision or content of cable services, except as expressly provided in [Title VI]." Commenters supporting a narrow reading of 612(g) argue that the placement and legislative history of that provision make clear Congress granted the FCC authority expressly to regulate only leased access under 612(g); and therefore, under 624(f), the FCC does not have the power to read Subsection 612(g) to grant broad authority. If a court adopted this line of reasoning, the FCC would have the power only to regulate more stringently leased access to cable services by unaffiliated persons. Judicial review of the scope of the FCC's power to promulgate rules under 612(g) would likely begin with a determination of whether or not the court is required to defer to the agency's interpretation of its authority. The court must first ask "whether Congress has directly spoken to the precise question at issue. If Congress has done so, the inquiry is at an end; the court 'must give effect to the unambiguously expressed intent of Congress.'" A federal court determining whether Congress has spoken directly to the scope of an agency's authority under a statutory provision likely would begin its analysis with the language of the statute itself. Statutes must be read as a harmonious whole, and in determining whether Congress has spoken directly to an issue, "a reviewing court should not confine itself to examining a particular statutory provision in isolation." Ambiguity of meaning may be clarified when placed in context. Justice Scalia has stated that "[s]tatutory construction ... is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme—because the same terminology is used elsewhere in a context that makes its meaning clear, or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law." It seems, therefore, that when an agency's interpretation of the scope of its authority is at issue, a reviewing court will look first to the statutory context in which the provision granting the authority appears (i.e., the intent of the statute as a whole, the structure of the statute, and inferences that can be drawn from the placement of the provision under review) to determine the precise scope of the power Congress has delegated. With these principles in mind, it seems likely that a court would begin its analysis of the authority Congress granted under Subsection 612(g) by noting the subsection's broad language. On its face the subsection appears to grant broad authority to promulgate any rule that would ensure a diversity of information sources once the statutory test has been satisfied. However, because statutory construction "is a holistic endeavor," the court likely would analyze the broad language of Subsection 612(g) within the context of the entire statute in which the subsection resides. Subsection (g) appears within Section 612, which applies solely to leased access to cable systems. Congress has provided other avenues of access to cable systems in the statute, beyond leased access, such as the provision requiring carriage of local television channels ("must-carry"), the provision requiring carriage of non-commercial educational channels, and the provision requiring carriage of public education and government (PEG) channels. The court would then weigh a narrow interpretation against legal arguments for a broader one. It should also be noted that Congress in the 1984 Cable Act stated its intent to ease regulatory burdens on the cable industry. If 612(g) grants broad authority, as some commenters argued, it would allow the FCC to regulate many different areas related to the provision of video programming. This result would arguably run contrary to the deregulatory intent of the statute. Although not beyond question, it appears that a court likely would adopt the narrow interpretation of Subsection 612(g), because the narrow reading appears to "produce a substantive effect that is compatible with the rest of the law." A narrow reading appears to comport with the entire statute's overarching theme of avoiding unnecessary regulation, and seems consistent with the placement of the subsection within the section dealing exclusively with leased access. | The Federal Communications Commission (FCC or Commission) recently issued a report requesting data to aid in determining whether the so-called "70/70" test for cable market penetration has been met. Under Section 612(g) of the Cable Communications Policy Act of 1984, when 70% of households in the United States are able to subscribe to cable services of 36 channels or more and 70% of those households actually subscribe to such services, the FCC will be empowered to "promulgate any additional rules necessary to provide a diversity of information sources." A House Report issued when the provision was enacted indicated that 612(g) was intended to provide "a mechanism to assure there is adequate flexibility to develop new rules and procedures with respect to the use of leased access channels as the cable industry develops and serves more citizens in the future." Subsequent amendments to Section 612 granted the FCC greater power to regulate leased access to cable systems. In fact, all of the powers Congress, in the House Report, had suggested would be conferred upon the FCC under 612(g) were granted expressly to the Commission by the subsequent revisions of Section 612. Congress did not, however, repeal Subsection 612(g). The scope of the FCC's authority under 612(g), therefore, remained an open question. The FCC has yet to determine whether the level of market penetration required to trigger 612(g) has been met. Consequently, neither the courts nor the FCC has interpreted the extent of the FCC's authority to promulgate new regulations that would "provide a diversity of information sources." Two main arguments have been made regarding the scope of the Commission's power under the 70/70 provision. The first argument would grant the FCC broad authority to promulgate any rule that encourages a "diversity of information sources." The second argument would grant the FCC more narrow authority to promulgate new rules relating to leased access of cable systems by unaffiliated persons. This report will be updated as events warrant. |
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 length of time a congressional staff member spends employed in Congress, or job tenure, is a source of recurring interest among Members of Congress, congressional staff, those who study staffing in the House and Senate, and the public. There may be interest in congressional tenure information from multiple perspectives, including assessment of how a congressional office might oversee human resources issues, how staff might approach a congressional career, and guidance for how frequently staffing changes may occur in various positions. Others might be interested in how staff are deployed, and could see staff tenure as an indication of the effectiveness or well-being of Congress as an institution. This report provides tenure data for 13 staff position titles that are typically used in House committees, and information for using those data for different purposes. The positions include the following: Chief Clerk Chief Counsel Communications Director Counsel Deputy Staff Director Minority Professional Staff Member Minority Staff Director Press Secretary Professional Staff Member Senior Professional Staff Member Staff Assistant Staff Director Subcommittee Staff Director Publicly available information sources do not provide aggregated congressional staff tenure data in a readily retrievable or analyzable form. Data in this report are based on official House pay reports, from which tenure information arguably may be most reliably derived, and which afford the opportunity to use complete, consistently collected data. Tenure information provided in this report is based on the House's Statement of Disbursements (SOD), published quarterly by the House Chief Administrative Officer, as collated by LegiStorm, a private entity that provides some congressional data by subscription. House committee staff tenure data were calculated for each year between 2006 and 2016. Annual data allow for observations about the nature of staff tenure in House committees over time. For each year, all staff with at least one week's service on March 31 were included. All employment pay dates from October 2, 2000, to March 24 of each reported year are included in the data. Utilizing official salary expenditure data from the House may provide more complete, robust findings than other methods of determining staff tenure, such as surveys; the data presented here, however, are subject to some challenges that could affect the interpretation of the information presented. Tenure information provided in this report may understate the actual time staff spend in particular positons, due in part to several features of the data. Figure 1 provides potential examples of congressional staff, identified as Jobholders A-D, in a given position. Some individuals, represented as Jobholder A, may have an unknown length of prior service before October 2, 2000, when the data begin. In the data captured for this report, no jobholders fall into this category. The earliest date at which House committee staff included in this report received pay was October 4, 2000. Thus, the tenure periods of all staff for which data are provided completely begin within the observed period of time; some tenure periods, as represented by Jobholders B and C, also end within the observed period. The data last capture those who were employed in House committees as of March 31, 2016, represented as Jobholder D, and some of those individuals likely continued to work in the same roles after that date. Data provided in this report represent an individual's consecutive time spent working in a particular position in a House committee. They do not necessarily capture the overall time worked in a House office or across a congressional career. If a person's job title changes, for example, from staff assistant to professional staff member, the time that individual spent as a staff assistant is recorded separately from the time that individual spent as a professional staff member. If a person stops working for the House for some time, that individual's tenure in his or her preceding position ends, although he or she may return to work in Congress at some point. No aggregate measure of individual congressional career length is provided in this report. Other data concerns arise from the variation across committees and lack of other demographic information about staff. Potential differences might exist in the job duties of positions with the same or similar title, and there is wide variation among the job titles used for various positions in congressional offices. The Appendix provides the number of related titles included for each job title for which tenure data are provided. Aggregation of tenure by job title rests on the assumption that staff with the same or similar 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 the interpretation of their time in a particular position. As presented here, tenure data provide no insight into the education, age, work experience, pay, full- or part-time status of staff, or other potential data that might inform explanations of why a congressional staff member might stay in a particular position. Tables in this section provide tenure data for selected positions in House committees and detailed data and visualizations for each position. Table 1 provides a summary of staff tenure for selected positions since 2006. The data include job titles, average and median years of service, and grouped years of service for each positon. The "Trend" column provides information on whether the time staff stayed in a position increased, was unchanged, or decreased between 2006 and 2016. Table 2 - Table 14 provide information on individual job titles over the same period. In all of the data tables, the average and the median length of tenure columns provide two different measures of central tendency, and each may be useful for some purposes and less suitable for others. The average represents the sum of the observed years of tenure, divided by the number of staff in that position. It is a common measure that can be understood as a representation of how long an individual remains, on average, in a job position. The average can be affected disproportionately by unusually low or high observations. A few individuals who remain for many years in a position, for example, may draw the average tenure length up for that position. A number of staff who stay in a position for only a brief period may depress the average length of tenure. Another common measure of central tendency, the median, represents the middle value when all the observations are arranged by order of magnitude. The median can be understood as a representation of a center point at which half of the observations fall below, and half above. Extremely high or low observations may have less of an impact on the median. Generalizations about staff tenure are limited in at least three potentially significant ways, including the following: the relatively brief period of time for which reliable, largely inclusive data are available in a readily analyzable form; how the unique nature of congressional work settings might affect staff tenure; and the lack of demographic information about staff for which tenure data are available. Considering tenure in isolation from demographic characteristics of the congressional workforce might limit the extent to which tenure information can be assessed. Additional data on congressional staff regarding age, education, and other elements would be needed for this type of analysis, and are not readily available at the position level. Finally, since each House committee serves as its own hiring authority, variations from committee to committee, which for each position may include differences in job duties, work schedules, office emphases, and other factors, may limit the extent to which data provided here might match tenure in a particular office. Despite these caveats, a few broad observations can be made about staff in House committees. Between 2006 and 2016, staff tenure, based on the trend of the median number of years in the position, appears to have increased by six months or more for staff in nine position titles in House committees. The median tenure was unchanged for four positions. This may be consistent with overall workforce trends in the United States. Although pay is not the only factor that might affect an individual's decision to remain in or leave a particular job, staff in positions that generally pay less typically remained in those roles for shorter periods of time than those in higher-paying positions. Some of these lower-paying positions may also be considered entry-level positions in some House committees; if so, House office employees in those roles appear to follow national trends for others in entry-level types of jobs, remaining in the role for a relatively short period of time. Similarly, those in more senior positions, which often require a particular level of congressional or other professional experience, typically remained in those roles comparatively longer, similar to those in more senior positions in the general workforce. There is wide variation among the job titles used for various positions in congressional offices. Between October 2000 and March 2016, House and Senate pay data provided 13,271 unique titles under which staff received pay. Of those, 1,884 were extracted and categorized into one of 33 job titles used in CRS Reports about Member or committee offices. Office type was sometimes related to the job titles used. Some titles were specific to Member (e.g., District Director, State Director, and Field Representative) or committee (positions that are identified by majority, minority, or party standing, and Chief Clerk) offices, while others were identified in each setting (Counsel, Scheduler, Staff Assistant, and Legislative Assistant). Other job title variations reflect factors specific to particular offices, since each office functions as its own hiring authority. Some of the titles may distinguish between roles and duties carried out in the office (e.g., chief of staff, legislative assistant, etc.). Some offices may use job titles to indicate degrees of seniority. Others might represent arguably inconsequential variations in title between two staff members who might be carrying out essentially similar activities. Examples include the following: Seemingly related job titles, such as Administrative Director and Administrative Manager, or Caseworker and Constituent Advocate Job titles modified by location, such as Washington, DC, State, or District Chief of Staff Job titles modified by policy or subject area, such as Domestic Policy Counsel, Energy Counsel, or Counsel for Constituent Services Committee job titles modified by party or committee subdivision. This could include a party-related distinction, such as a Majority, Minority, Democratic, or Republican Professional Staff Member. It could also denote Full Committee Staff Member, Subcommittee Staff Member, or work on behalf of an individual committee leader, like the Chair or Ranking Member. The titles used in this report were used by most House committees, but a number of apparently related variations are included to ensure inclusion of additional offices and staff. Table A-1 provides the number of related titles included for each position used in this report or related CRS Reports on staff tenure. A list of all titles included by category is available to congressional offices upon request. | The length of time a congressional staff member spends employed in a particular position in Congress—or congressional staff tenure—is a source of recurring interest to Members, staff, and the public. A congressional office, for example, may seek this information to assess its human resources capabilities, or for guidance in how frequently staffing changes might be expected for various positions. Congressional staff may seek this type of information to evaluate and approach their own individual career trajectories. This report presents a number of statistical measures regarding the length of time House committee staff stay in particular job positions. It is designed to facilitate the consideration of tenure from a number of perspectives. This report provides tenure data for a selection of 13 staff position titles that are typically used in House committee offices, and information on how to use those data for different purposes. The positions include Chief Clerk, Chief Counsel, Communications Director, Counsel, Deputy Staff Director, Minority Professional Staff Member, Minority Staff Director, Press Secretary, Professional Staff Member, Senior Professional Staff Member, Staff Assistant, Staff Director, and Subcommittee Staff Director. House committee staff tenure data were calculated as of March 31, for each year between 2006 and 2016, for all staff in each position. An overview table provides staff tenure for selected positions for 2016, including summary statistics and information on whether the time staff stayed in a position increased, was unchanged, or decreased between 2006 and 2016. Other tables provide detailed tenure data and visualizations for each position title. Between 2006 and 2016, staff tenure, based on the trend of the median number of years in the position, appears to have increased by six months or more for staff in nine position titles in House committees. The median tenure was unchanged for four positions. These findings may be consistent with overall workforce trends in the United States. Pay may be one of many factors that affect an individual's decision to remain in or leave a particular job. House committee staff holding positions that are generally lower-paid typically remained in those roles for shorter periods of time than those in generally higher-paying positions. Lower-paying positions may also be considered entry-level roles; if so, tenure for House committee employees in these roles appears to follow national trends for other entry-level jobs, which individuals hold for a relatively short period of time. Those in more senior positions, where a particular level of congressional or other professional experience is often required, typically remained in those roles comparatively longer, similar to those in more senior positions in the general workforce. Generalizations about staff tenure are limited in some ways, because each House committee serves as its own hiring authority. Variations from office to office, which might include differences in job duties, work schedules, office emphases, and other factors, may limit the extent to which data provided here might match tenure in another office. Direct comparisons of congressional employment to the general labor market may have similar limitations. Change in committee leadership, for example, may cause staff tenure periods to end abruptly and unexpectedly. This report is one of a number of CRS products on congressional staff. Others include CRS Report R43947, House of Representatives Staff Levels in Member, Committee, Leadership, and Other Offices, 1977-2016, by [author name scrubbed], [author name scrubbed], and [author name scrubbed] and CRS Report R44322, Staff Pay Levels for Selected Positions in House Committees, 2001-2014, coordinated by [author name scrubbed]. |
Like most states, Ohio provides various tax incentives to encourage businesses to locate or expand operations in the state. In 1998, DaimlerChrysler agreed to construct a new assembly plant in Ohio in exchange for various benefits, which were valued at $280 million. One benefit the company was qualified to receive because of the plant construction was Ohio's investment tax credit. This credit was a non-refundable credit against the state's corporate franchise tax for taxpayers who purchased new manufacturing machinery and equipment and installed it in the state. Taxpayers from Ohio and Michigan then brought suit against DaimlerChrysler, Ohio, and several other defendants, alleging, among other things, that the investment tax credit violated the Commerce Clause of the U.S. Constitution. As discussed below, the U.S. district court held that the credit was constitutional, whereas the Sixth Circuit Court of Appeals held the opposite. In 2006, the Supreme Court ordered the case be dismissed because the plaintiffs lacked standing to bring suit in federal court. The Commerce Clause grants Congress the power to regulate interstate commerce. Congress's authority to regulate interstate commerce has been described as plenary and limited only by other constitutional provisions. On the flip side of the issue, the Supreme Court has long held that the states may not unduly burden interstate commerce in the absence of federal regulation. This restriction is founded in what is referred to as the dormant Commerce Clause. A state tax provision does not violate the dormant Commerce Clause if four qualifications are met: (1) the activity taxed has a substantial nexus with the state, (2) the tax is fairly apportioned to reflect the degree of activity that occurs within the state, (3) the tax does not discriminate against interstate commerce, and (4) the tax is fairly related to benefits provided by the state. In the Cuno case, the only issue with respect to the Commerce Clause was whether the tax incentive was discriminatory. There is no simple definition of the term "discriminatory." Instead, the Supreme Court has provided general principles, which are then applied to the specific tax at issue. For example, the Court has declared that a "fundamental principle" of the Commerce Clause is that states may not "impose a tax which discriminates against interstate commerce...by providing a direct commercial advantage to local business." Another general rule is that a state may use its tax system to encourage intrastate commerce and may compete with other states for interstate commerce so long as the state does not "discriminatorily tax the products manufactured or the business operations performed in any other [s]tate." The Supreme Court has not addressed whether an investment tax credit similar to the one at issue in Cuno is discriminatory. Thus, the district court and court of appeals were left to look at the general principles found in the Court's decisions and analogize the Ohio credit to the tax credits in the prior cases. As shown by the opposite outcomes of the two lower courts (discussed below), it is possible to come to different conclusions about the meaning of the Supreme Court's prior cases. The decisions by the district court and court of appeals broadly represent two viewpoints of the Court's jurisprudence. The district court's decision represents the idea that the purpose of the Commerce Clause is to prevent economic protectionism by the states (i.e., to prevent states from helping in-state businesses by penalizing out-of-state businesses). The court of appeals' decision represents the view that the Clause's purpose is to encourage free trade by limiting the state's ability to use its taxing power to coerce taxpayers into conducting business in that state. As seen in the two opinions, there is support in the Supreme Court's prior decisions for both interpretations. The Supreme Court, in holding that the plaintiffs lacked standing to bring suit in federal court, did not address whether the tax credit violated the Commerce Clause. The U.S. district court, in granting the defendants' motion to dismiss the case for failure to state a claim, held that the investment tax credit did not violate the Commerce Clause. The court began by describing what it believed were the two types of state taxation schemes the Supreme Court had found to be discriminatory. The first was that states could not tax goods imported from other states without imposing a tax on in-state goods, and the court found this was not an issue with the Ohio credit. The second was that a state's tax could not be based on the proportion of a business's activities carried on in that state to the amount carried on in other states. The court described the tax scheme in Westinghouse Electric Co. v. Tully as the "paradigmatic example" of what was not allowed under this second rule. In Westinghouse , the Supreme Court held that a New York corporate tax credit that lowered the effective tax rate on a company's income as its subsidiary's exports from New York increased relative to those from other states was discriminatory. The district court in Cuno noted that the New York and Ohio credits were similar in that an increase in New York activity increased the New York credit and an increase in Ohio activity increased the Ohio credit. However, the court distinguished between the two cases: although an increase in activity conducted outside New York decreased the New York credit, an increase in activity conducted outside Ohio did not decrease the Ohio credit. Based on this distinction, the court held the Ohio credit was not discriminatory. The plaintiffs appealed the district court's decision. The U.S. Court of Appeals for the Sixth Circuit held that the investment tax credit violated the Commerce Clause and reversed this part of the lower court's decision. The court began by rejecting the defendants' argument, accepted by the district court, that prior Supreme Court opinions had held that only two types of taxes were unacceptable: those that functioned as tariffs and those that determined the taxpayer's effective tax rate using both in-state and out-of-state activities. The court characterized this view as "primarily concerned with preventing economic protectionism," and the court rejected it because it "rests on the distinction between laws that benefit in-state activity and laws that burden out-of-state activity." The court described this distinction as "tenuous" because the Supreme Court had stated that "virtually every discriminatory statute . . . can be viewed as conferring a benefit on one party and a detriment on the other, in either an absolute or relative sense." Instead, the court of appeals compared the Ohio tax incentives with state tax schemes that the Supreme Court had found to be discriminatory because they involved a state using its taxing power to encourage investment in the state at the expense of investment in other states. The court looked at three cases: Boston Stock Exchange v. State Tax Commission , 429 U.S. 318 (1977), where the Court invalidated part of a New York securities transfer tax. New York imposed a tax on a transfer of securities if a taxable event occurred in the state. Since New York was the only state that taxed securities transfers, the tax placed New York brokers at a disadvantage. The state created incentives to encourage New York sales: if a sale occurred in New York, then nonresidents were taxed at a lower rate and both residents and nonresidents could not be taxed above a certain amount. The court of appeals quoted the Supreme Court as finding that the incentives "foreclosed tax-neutral decisions" and that New York was improperly using "its power to tax an in-state operation as a means of requiring [other] business operations to be performed in the home state," which was "wholly inconsistent with the free trade purpose of the Commerce Clause." Maryland v. Louisiana , 451 U.S. 725 (1981), where the Supreme Court invalidated a Louisiana severance tax credit that favored in-state natural gas producers. The appeals court quoted the Supreme Court as finding that since the credit "favored those who both own [offshore] gas and engage in Louisiana production" and that the "obvious economic effect of this Severance Tax Credit [was] to encourage natural gas owners involved in the production of [offshore] gas to invest in mineral exploration and development within Louisiana rather than to invest in further [offshore] development or in production in other States," the credit "unquestionably discriminated against interstate commerce in favor of local interests." Westinghouse Electric Corp. v. Tully , which was discussed above in the section on the district court's opinion and was distinguished by that court. The court of appeals quoted the Supreme Court as stating that the tax scheme "penalized increases in the [export] shipping activities in other states," which meant it placed "a discriminatory burden on commerce to its sister States." The court of appeals found the Ohio credit to be analogous to these other tax incentives in that the credit, by reducing a business's pre-existing franchise tax liability, coerced businesses into making in-state investments. A business with activities in Ohio would be subject to the state's franchise tax regardless of whether the business made an investment in new property eligible for the tax credit. The business could, however, reduce its existing franchise tax liability by making new investments that would qualify for the tax credit. On the other hand, if the business chose to make the new investments outside of Ohio, it could not reduce its Ohio franchise tax liability. This meant, in the court's view, that Ohio was using its power to tax to coerce businesses subject to the Ohio franchise tax to expand in Ohio rather than in another state. As a result, it held the credit was discriminatory. Ohio and the other defendants appealed the decision as it related to the investment tax credit to the U.S. Supreme Court. In 2006, the Court held that the plaintiffs did not have standing to bring the case in federal court and vacated and remanded that part of the court of appeals' opinion for dismissal. The issue of standing had not been addressed by the court of appeals. It was briefly an issue before the district court after the defendants asked for the case, which the plaintiffs had initially brought in state court, to be removed to federal court. The plaintiffs used their potential lack of standing as one reason why the suit should not be removed, but the district court, in approving the removal, stated that the plaintiffs had standing to challenge the tax credit under the "municipal taxpayer standing" rule. That rule derives from a Supreme Court case, Massachusetts v. Mellon , in which the Court indicated that a municipal resident could have standing to challenge the illegal spending of money by a municipality because of the special relationship that arose between the resident and municipality due to the latter's corporate status. The district court apparently felt that the Cuno plaintiffs had standing to challenge the state investment tax credit because they had standing to challenge the other benefits provided to DaimlerChrysler, specifically a property tax exemption provided by an Ohio municipality as authorized under Ohio law. Before the Supreme Court, the Cuno plaintiffs claimed they had standing due to their status as Ohio taxpayers who were injured because the credit reduced the funds available in the Ohio fisc to be used for lawful purposes and therefore imposed a disproportionate burden on them. The Supreme Court, in rejecting their claim, began by noting that standing is an integral part of the "case or controversy" requirement in Article III of the U.S. Constitution and requires plaintiffs show a "personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." The Court noted that federal taxpayers generally do not have standing solely because of their taxpayer status to challenge an expenditure of federal funds. This is because such taxpayers' injuries are (1) not particularized to those plaintiffs, but rather common to the general taxpaying public, and (2) hypothetical because whether they will occur or be redressed depends on future actions by a legislative body. The Court concluded that the same reasons for denying standing to federal taxpayers applied to deny standing to state taxpayers, including the plaintiffs in Cuno. The Court also rejected the plaintiffs' contention that there should be an exception to the general rule disallowing taxpayer standing for Commerce Clause challenges, similar to the exception that exists for Establishment Clause challenges. The Court distinguished between the two situations, noting that the injury in taxpayer suits alleging violation of the Establishment Clause was the taxing and spending itself and that the injury could be redressed by enjoining the taxing and spending activity without requiring further legislative action. The Court also reasoned that allowing an exception for Commerce Clause suits would lead to the creation of exceptions for any constitutional provision that implicates a government's taxing and spending powers, and thus be inconsistent with the general rule that disallows taxpayer standing. Finally, the Court rejected the argument that the plaintiffs had standing to challenge the investment tax credit under the theory of supplemental jurisdiction (which would have allowed them to challenge the investment tax credit because they had standing as municipal taxpayers to challenge the property tax exemption provided to DaimlerChrysler by an Ohio municipality), stating that the plaintiffs must have standing for each claim presented. The Economic Development Act of 2005 ( H.R. 2471 and S. 1066 ) would give states the authority to offer incentives like the investment tax credit struck down by the Sixth Circuit in Cuno . The act would generally allow the states to provide discriminatory tax incentives that are for an economic development purpose, including any legally permitted activity for attracting, retaining, or expanding business activity, jobs, or investment in a state. Some incentives would not be allowed, including those that depend on state of incorporation or domicile, require the recipient to acquire or use services or property produced in the state, are reduced as a direct result of an increase in out-of-state activity, result in a loss of a compensating tax system, require reciprocal tax benefits from another jurisdiction, or reduce a tax not imposed on apportioned interstate activities. The act would apply to all qualifying tax incentives, regardless of their date of enactment. | In 2005, the Sixth Circuit Court of Appeals held in Cuno v. DaimlerChrsyler that Ohio's investment tax credit violated the Commerce Clause of the U.S. Constitution. The case received significant attention because most states have similar credits. In 2006, the Supreme Court held that the Cuno plaintiffs lacked standing to challenge the credit in federal court. Because the Supreme Court based its decision on the issue of standing, it did not address whether the credit violated the Commerce Clause. Introduced prior to the Supreme Court's decision, the Economic Development Act of 2005 ( H.R. 2471 and S. 1066 ) would authorize states to offer tax incentives similar to Ohio's investment tax credit. |
Section 706 of the Communications Act of 1934, as amended by 47 U.S.C. §606, authorizes the President, among other things, to address national security and emergency preparedness (NS/EP) telecommunications issues and assign federal department, agency, and entity NS/EP telecommunications responsibilities. On July 6, 2012, President Barack Obama issued an Executive Order 13618 to assign those NS/EP communications functions effective immediately. Generally, EO 13618 states that the federal government must have the ability to communicate at all times and under all circumstances. Specifically, the order outlines the federal government's need and responsibility to communicate during national security and emergency situations and crises and provides direction for such communications. The federal government uses numerous NS/EP communications systems and programs to effectively communicate during incidents and emergencies. Some of these systems and programs include the Government Emergency Telecommunications Service (GETS), Wireless Priority Service (WPS), and classified messaging related to the Continuity of Government Condition (COGCON). These systems and programs use both classified and nonclassified communications systems to assist the national leadership, and affected entities such as state and local governments, non-governmental organizations, the private sector, and the public, in communicating during emergencies and crises. These communications systems are both federally and privately owned and operated. The 2010 National Security Strategy , the primary federal government guidance on national security, reiterates the notion that reliable and secure telecommunication is necessary to effectively manage emergencies, and that the United States must prevent disruptions to critical communications. Following the enactment of the Communications Act of 1934, numerous Presidents have issued executive orders addressing NS/EP communications. For example, in 1962 President John F. Kennedy issued EO 10995 that assigned federal telecommunications management functions; in March 1978, President Jimmy Carter issued EO 12046 that transferred certain federal telecommunication functions; on September 13, 1982, President Ronald Reagan issued EO 12382 that established the National Security Telecommunications Advisory Committee; and President William Clinton issued EO 12919 on June 3, 1994, that addressed national security telecommunications related to national defense industry resources preparedness. EO 13618, however, changes federal NS/EP communications functions by dissolving the National Communications System (NCS), establishing an executive committee to oversee federal NS/EP communications functions, establishing a programs office within the Department of Homeland Security (DHS) to assist the executive committee, and assigning specific responsibilities to federal government entities. This report addresses EO 13618 salient provisions and provides a summary of EO 13618. Three sections of EO 13618 affect the federal government's NS/EP communications functions: Section 3 "NS/EP Communications Executive Committee," Section 4 "Executive Committee Joint Program Office," and Section 5 "Specific Department and Agency Responsibilities." These three sections direct federal department and agency actions. It appears as if DHS is assigned increased NS/EP communications functions. Specifically, EO 13618 affects DHS by dissolving NCS; creating a new committee, the NS/EP Communications Executive Committee and assigning DHS the responsibility of co-chairing that committee with DOD; establishing and supporting the Executive Committee Joint Program Office; and leading non-military federal department and agency NS/EP communications activities. These changes are described in the next section. EO 13618 changes the management of federal NS/EP communications functions and activities by dissolving NCS and placing NCS activities with the newly established NS/EP Communications Executive Committee. The NCS was responsible for coordinating the planning of NS/EP communications for the federal government under all circumstances, including crisis or emergency, attack, recovery and reconstitution. Arguably, the Committee replaces NCS's Committee of Principles (COP) and COP's Committee of Representatives, which were responsible for coordinating the federal government's NS/EP communications. It is possible, though not stated, that the Committee will participate in industry-government planning that NCS conducted with the National Security Telecommunications Advisory Committee because EO 13618 guidance (Section 3.3(g)) instructs the Committee to "enable industry input." Again, this executive order does not change existing NS/EP programs or their activities, however, it affects the management of these programs. The NS/EP Communications Executive Committee is the primary policy forum for addressing national NS/EP communications issues. It is composed of Assistant Secretary-level representatives. It is co-chaired by DHS and DOD and is responsible for advising the President on enhancing NS/EP communications survivability and resilience. The Committee is directed by EO 13618 to develop strategy which includes funding requirements and plans. The Committee is the primary federal entity responsible for NS/EP communications policy discussions. The Committee is similar to other interagency policy committees formulated and established under the National Security Council per PPD-1. DHS's National Communications System (NCS) was tasked with a similar mission as that which is assigned to the NS/EP Communications Executive Committee. In 1963, President John F. Kennedy established NCS following the Cuban Missile Crisis and the issues associated with the communications among the United States and the Soviet Union. In 1984, President Ronald Reagan broadened NCS NS/EP capabilities and responsibilities with the issuance of EO 12472. Following 9/11 and the enactment of the Homeland Security Act, NCS was transferred to DHS. On November 15, 2005, NCS was internally transferred to DHS's Directorate of Preparedness. EO 13618, however, dissolves NCS by revoking EO 12472. DHS states that Although many of the NCS programs will continue to support NS/EP communications, oversight of these programs now fall to the Department of Homeland Security's Office of Cybersecurity and Communications, part of the National Protection and Programs Directorate (NPPD). The activities and responsibilities of the Committee are supported by the Executive Committee Joint Program Office. EO 13618 requires DHS to establish an Executive Committee Joint Program Office (JPO). JPO is to support Committee activities. Even though DHS is to establish and administratively support JPO, the Committee, as a whole, is responsible for providing JPO personnel. DHS, however, is responsible for providing resources and funding to JPO. Arguably, JPO will assume some of the former NCS's day-to-day activities. JPO is specifically required to coordinate programs that support NS/EP missions, priorities, goals, and policy, which was the case for NCS. JPO is also required to support and convene governmental and non-governmental groups and meetings. Additionally, JPO is to coordinate activities and develop policies for senior (Committee) official review and approval. One might expect, though the executive order does not explicitly state, that the JPO would be managed, administered, and staffed in a similar manner as the Homeland Security Operations Center which is a different interagency entity that is managed, administered, and staffed by detailed personnel from participating federal departments and agencies. EO 13618 details federal department and agency responsibilities related to NS/EP communications functions. The executive order specifically identifies Departments of Defense (DOD), DHS, the Department of Commerce, the Administrator of General Services, the Director of National Intelligence, and the Federal Communications Commission responsibilities. DHS, however, is tasked with a significant portion of NS/EP communications responsibilities. DOD is tasked with a continuation of its responsibilities in oversight of the development, testing, implementation, and sustainment of NS/EP communications that directly affect the national security needs of the President, Vice President, and senior national leadership. In addition, DOD is now responsible for ensuring the security and survivability of this NS/EP communications. DOD is also newly tasked with providing the Committee technical support and provide, operate, and maintain communication services and facilities associated with the Intelligence Community consistent with EO 12333. DOD has always been responsible for these responsibilities, EO 13618 reiterates this assignment of responsibilities. DHS, like DOD, is tasked with overseeing the development, testing, implementation, and sustainment of NS/EP communications associated with non-DOD communications systems or responsibilities. This includes Continuity of Government (COG), and all levels of government emergency preparedness and response, non-DOD communications systems, and critical infrastructure protection networks. Similar to DOD, DHS is responsible for ensuring the security and survivability of NS/EP communications. DHS is to provide technical support to the Committee. As the lead federal agency, DHS is to receive, integrate, and disseminate NS/EP communications information to other federal, state, local, territorial, and tribal governments to establish a common operating picture and situational awareness. As stated earlier, DHS is to establish the JPO and serve as the lead federal agency for the prioritization restoration of NS/EP communications. Finally, within 60 days of the EO 13618 issuance, DHS is to submit a detailed plan to the President that describes DHS's organization and management structure for its NS/EP communications functions due to NCS's dissolution. The Commerce Secretary is responsible for providing advice and guidance to the Committee in identifying and using technical standards and metrics for enhancing NS/EP communications. Additionally, the Commerce Secretary is to develop and maintain radio frequencies as they relate to NS/EP communications. The GSA Administrator is to provide and maintain a common acquisition approach for federal NS/EP communications. The Director of National Intelligence (DNI) may issue policy directives and guidance deemed necessary to implement EO 13618. Finally, the Federal Communications Commission (FCC) is to continue its practice of licensing and regulating radio frequencies. Table 1 below provides more detailed information about the specific responsibilities. Generally, EO 13618 states that the federal government must have the ability to communicate at all times and under all circumstances. It assigns executive office responsibilities through Presidential Policy Directive 1 (PPD 1). It establishes the NS/EP Communications Executive Committee and the Executive Committee Joint Program Office. EO 13618 assigns specific and general federal department and agency responsibilities. Finally, it identifies previous executive orders that are amended and revoked. EO 13618 is a continuation of presidential authority assigned in the Communications Act of 1934, and modifies or revokes other executive orders related to federal NS/EP communications. As identified earlier in this report, EO 13618 changes federal national security and emergency preparedness communications functions by dissolving the National Communications System, establishing an executive committee to oversee federal national security and emergency preparedness communications functions, establishing a programs office within the Department of Homeland Security to assist the executive committee, and assigning specific responsibilities to federal government entities. Again, this executive order does not modify or end any NS/EP communications systems or programs, instead it assigns the management and administration of these systems and programs to specific federal departments, agencies, and entities. | In the event of a national security crisis or disaster, federal, state, local, and territorial government and private sector communications are important. National security and emergency preparedness communication systems include landline, wireless, broadcast and cable television, radio, public safety systems, satellite communications, and the Internet. For instance, federal national security and emergency preparedness communications programs include the Government Emergency Telecommunications Service, Wireless Priority Service, and classified messaging related to the Continuity of Government Condition. Reliable and secure telecommunications systems are necessary to effectively manage national security incidents and emergencies. On July 6, 2012, President Barrack Obama issued Executive Order (EO) 13618 which addresses the federal government's need and responsibility to communicate during national security and emergency situations and crises by assigning federal national security and emergency preparedness communications functions. EO 13618 is a continuation of older executive orders issued by other presidents and is related to the Communications Act of 1934 (47 U.S.C. §606). This executive order, however, changes federal national security and emergency preparedness communications functions by dissolving the National Communications System, establishing an executive committee to oversee federal national security and emergency preparedness communications functions, establishing a programs office within the Department of Homeland Security to assist the executive committee, and assigning specific responsibilities to federal government entities. This report provides a summary of EO 13618 provisions, and a brief discussion of its salient points. |
Campaign-related activity by entities commonly referred to as 527 groups or 527s has increased over the past several election cycles. These groups are a subset of the political organizations that qualify for tax-exempt status under Section 527 of the Internal Revenue Code (IRC). Beginning in earnest in the late 1990s, 527 groups have funded broadcast communications that discuss the position of federal candidates on public policy issues, but carefully avoid expressly advocating for or against a candidate. Although these "issue advocacy" communications are widely viewed as intending to influence elections, some argue that they are not regulated—and cannot be constitutionally regulated—by the Federal Election Campaign Act (FECA) due to an interpretation of the Supreme Court's campaign finance law jurisprudence only permitting regulation of communications expressly advocating for the election or defeat of a clearly identified candidate. It was also in the late 1990s that the Internal Revenue Service (IRS) issued several private rulings indicating that some issue advocacy activities qualify as "exempt function" activities under IRC § 527, thereby permitting these groups to qualify for § 527 status. As a result, 527 groups have been able to utilize this "regulatory gap" between the IRC and FECA: while their issue advocacy and campaign activities are sufficient to qualify for § 527 tax-exempt treatment, arguably, they are not sufficiently election-related to trigger regulation under FECA. By the 2000 election cycle, as the campaign activity of 527s continued to grow, they were often referred to as "stealth PACs" because they were not reporting to the Federal Election Commission (FEC), and only had contact with the IRS if they had to file a tax return. In response, Congress amended IRC § 527 in 2000 and 2002 to generally require that most § 527 political organizations report information to the IRS, the FEC, or a state. Section 527 political organizations that are not FEC-regulated political committees are generally required to report to the IRS their existence within 24 hours of formation and periodically disclose information on contributors who have given at least $200 during the year and expenditures made to persons who have received at least $500 during the year, in addition to annual information and tax return requirements. There are exceptions for small organizations, state and local candidate political committees, and state and local political party committees, among others. Following enactment of the Bipartisan Campaign Reform Act of 2002 (BCRA), which amended FECA and eliminated the flow of unregulated money to political parties, the prominence of 527 groups continued to increase. As unregulated political party soft money was no longer available, there was greater reliance on 527 groups to help candidates compete in increasingly expensive election campaigns. FECA regulates "political committees," which it defines to include "any committee, club, association, or other group of persons which receives contributions aggregating in excess of $1,000 during a calendar year or which makes expenditures aggregating in excess of $1,000 during a calendar year." In addition, FECA defines both "contribution" and "expenditure" as monies or anything of value "for the purpose of influencing any election for Federal office." Under FECA, a registered political committee is required to raise and spend funds subject to FECA contribution limits, source restrictions, and disclosure requirements. IRC § 527 provides beneficial tax treatment to qualifying "political organizations." These are any organization, including a party, committee, association, or fund, that is organized and operated primarily to directly or indirectly accept contributions and/or make expenditures for an "exempt function." An "exempt function" is the "influencing or attempting to influence the selection, nomination, election, or appointment of any individual to any Federal, State, or local public office or office in a political organization, or the election of Presidential or Vice-Presidential electors.... " It is immediately apparent that the IRC definition of "political organization" is broader than that of FECA's definition of "political committee" because it includes organizations intending to influence state and local campaigns and non-elective offices. With respect to federal election activities, the two terms, based purely on their statutory definitions, nonetheless appear to encompass the same types of groups. However, there is a disconnect between them that stems from the Supreme Court's campaign finance jurisprudence establishing the constitutional limitations on Congress's ability to regulate election activity. In order to preserve FECA's regulation of contributions and expenditures against invalidation for constitutional vagueness, the Supreme Court in its 1976 landmark decision, Buckley v. Valeo, construed the terms "contribution" and "expenditure" to encompass only funds donated for or spent for express advocacy (that is, voter communications using explicit phrases and words such as "vote for," "vote against," "elect," and "defeat"). Likewise, the Court construed the term "political committee" to include only "organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate." In so doing, the Buckley Court established the "major purpose test," which determines whether or not an organization, if it raises more than $1,000 in "contributions" or makes more than $1,000 in "expenditures," is subject to regulation under FECA as a "political committee." Neither FECA nor the Supreme Court, however, has yet defined precisely how to ascertain the major purpose of an organization. Indeed, how the major purpose test works, and to what groups it applies, are at the heart of a debate concerning the circumstances under which non-party organizations and non-candidate committees can constitutionally be considered FECA-regulated "political committees." Some observers proffer that it is relevant to examine an organization's activities beyond express advocacy to ascertain its major purpose, while others maintain that Supreme Court precedent still limits FECA regulation through the designation of "political committee" status to only those organizations engaging in express advocacy. These same constitutional concerns do not arise under the IRC. In other words, the "express advocacy" and "major purpose" tests developed under the Supreme Court's campaign finance jurisprudence do not apply in determining whether an entity is a § 527 political organization under the tax laws. Thus, an "exempt function" does not necessarily involve explicitly advocating for or against a candidate. In 2004, after considering but not adopting several approaches for classifying 527 groups as political committees under FECA, the FEC adopted a regulation relevant to political committees. The rule provides that political groups are regulated under FECA based on whether they conduct fundraising with solicitations that include appeals to "support or oppose" the election of a federal candidate. Funds or anything of value collected as a result of such solicitations are considered a contribution under FECA. Therefore, any organization with $1,000 or more in such contributions is subject to FECA regulation. Notably, it was reported that the FEC acknowledged that the new rule failed to address the key question of, if and when, based on their solicitation messages, nonparty groups—such as 527s—are required to register with the FEC as political committees. In 2007, the FEC issued a "Supplemental Explanation and Justification" to more fully explain the basis for its 2004 rule and the reasons it declined to revise the regulatory definition of "political committee" in such a manner to specifically regulate 527 groups. According to the FEC, § 527 status is insufficient evidence alone to determine whether an organization is a political committee under FECA. It found that an organization's § 527 status does not necessarily satisfy FECA and the Supreme Court's contribution, expenditure, and major purpose requirements. In addition, the FEC determined that the IRS's requirements for granting tax exemptions under § 527 are based on "a different and broader set of criteria" than is used by the FEC in determining political committee status. Pursuant to FECA and Supreme Court precedent, the FEC stated that it will continue to determine political committee status based on whether an organization received contributions or made expenditures over $1,000 in a calendar year and whether the organization's "major purpose" was campaign activity. To that end, the FEC noted that it will consider whether any of the organization's solicitations resulted in contributions "because the solicitations indicated that any portion of the funds received would be used to support or oppose the election of a clearly identified Federal candidate," and will analyze whether any of the organization's expenditures for communications, made independently of a candidate, "constituted express advocacy" under its regulations. The FEC concluded that its case-by-case enforcement actions and guidance—provided through publicly available advisory opinions and filings in civil enforcement cases—constitute a "very effective mechanism for regulating organizations that should be registered as political committees under FECA, regardless of that organization's tax status." In its first significant 527 enforcement action, in late 2006, the FEC imposed civil penalties totaling approximately $630,000 on three 527 organizations that had been active during the 2004 election cycle: MoveOn.org Voter Fund, the League of Conservation Voters 527, and the Swiftboat Veterans and POWs for Truth, finding that they were required to register and be regulated as political committees under FECA. Proponents of 527 regulation criticized the ruling as "too little, too late," while the anti-regulatory community argued that the FEC enforcement action was an unconstitutional infringement on First Amendment rights of speech and association. Because of this tension, this may be an area of law that is ripe for litigation. In the 110 th Congress, the 527 Reform Act of 2007 ( H.R. 420 and S. 463 ) would have amended FECA to define "political committee" to include any committee, club, association, or group of persons that has given notice to the IRS of its status as a § 527 political organization. Exceptions would have existed for organizations that are not required to give the IRS such notification (i.e., small organizations, and state and local candidate and party committees); are exclusively for paying certain office-related expenses or expenses of qualifying newsletter funds; consist solely of state or local candidates or officeholders so long as the organization refers only to non-federal candidates or applicable state or local issues in all of its voter drive activities and does not refer to a federal candidate or a political party in any such activities; or whose election or nomination activities relate exclusively to elections where no federal candidate is on the ballot, to non-federal elections or non-elected offices, or state or local ballot issues. No exception would exist for an organization that spends more than $1,000 for either (1) public communications that promote, support, attack, or oppose a clearly identified federal candidate within one year of the general election in which that candidate is seeking office or (2) voter drive efforts unless the effort meets strict criteria ensuring the group and its efforts are involved in non-federal election activities. In addition, the act would have established allocation and funding rules for certain expenses relating to federal and non-federal activities by political committees. It expressly provided that no section of the act would affect FEC regulations, the definition of political organization, or the determination as to whether a tax-exempt IRC § 501(c) organization is a political committee. If an action is brought for declaratory or injunctive relief to challenge its constitutionality, the act would have provided for the action to be heard by a three-judge court convened by the U.S. District Court for the District of Columbia, with direct appeal to the U.S. Supreme Court; would have provided for expedited judicial review; and would have allowed any Member of Congress to bring or intervene in such a case. If the 527 Reform Act had been enacted, it is likely that its constitutionality would have been challenged. By requiring most 527s to register with the FEC as "political committees," such groups would have been required to use only federally regulated hard money contributions to fund advertisements that promote or attack federal candidates, without regard to whether the communications expressly advocate election or defeat of a clearly identified candidate. As some interpret Supreme Court precedent to limit regulation through the designation of "political committee" status to only those organizations engaging in express advocacy, it is likely that litigation would have occurred. Legislation regulating 527 organizations has not yet been introduced in the 111 th Congress. | During recent election cycles, there has been controversy regarding the increased campaign-related activity of 527 groups and to what extent they are regulated under federal law. The controversy stems from the intersection between the Federal Election Campaign Act (FECA), which regulates "political committees," and Section 527 of the Internal Revenue Code (IRC), which provides tax-exempt status to "political organizations." Some groups that qualify for beneficial tax treatment as "political organizations" seemingly intend to influence federal elections in ways that may place them outside the FECA definition of "political committee." This report refers to this subset of Section 527 political organizations as 527 groups or 527s. Considerable debate has been generated about the extent to which FECA currently regulates 527 groups as "political committees" and the constitutional parameters of such regulation. In the 110th Congress, the 527 Reform Act of 2007 (H.R. 420 and S. 463) would have amended FECA to generally treat all Section 527 political organizations active in federal elections as "political committees." Similar legislation has not yet been introduced in the 111th Congress. |
The Environmental Education Act of 1970 (P.L. 91-516) established an Office of Environmental Education in the Department of Health, Education, and Welfare to award grants for developing environmental curricula and training teachers. Congress moved the office to the newly formed Department of Education in 1979. However, in response to the Reagan Administration's efforts to transfer the federal role in many programs to the states, Congress eliminated the Office of Environmental Education in 1981. Several years later, the 101 st Congress enacted the National Environmental Education Act of 1990 ( P.L. 101-619 ) to renew the federal role in environmental education and reestablish an office of environmental education within EPA. In the law's findings, the 101 st Congress stated that existing federal programs to educate the public about environmental problems and train environmental professionals were inadequate at that time and that increasing the federal role in this area was therefore necessary. P.L. 101-619 authorizes EPA to work with educational institutions, nonprofit organizations, the private sector, tribal governments, and state and local environmental agencies to educate the public about environmental problems and encourage students to pursue environmental careers. Environmental education involves learning ecological concepts to understand the relationships between human behavior and environmental quality, and developing the knowledge and skills to analyze environmental problems and create solutions. The goal of EPA's environmental education program is to increase public knowledge about environmental issues and provide the public with the skills necessary to make informed decisions and take responsible actions to protect the environment. The program supports activities to achieve these goals primarily through the awarding of grants. Since the beginning of the program in FY1992, EPA has awarded grants for environmental education projects in each of the 50 states, the District of Columbia, and U.S. territories for educating elementary and secondary school students, training teachers, purchasing textbooks, developing curricula, and other educational activities. This report summarizes major provisions of the National Environmental Education Act of 1990, discusses appropriations for activities authorized in that statute, examines the implementation of these activities, and analyzes key issues and relevant legislation. The original funding authorization for EPA's environmental education program expired at the end of FY1996. Congress has continued to fund the program since then through the annual appropriations process without enacting reauthorizing legislation. Congress has appropriated approximately $9 million annually in recent years, with the exception of $5.6 million in FY2007. Congress returned funding to previous levels in FY2008, appropriating $8.9 million. Although funding for the program has continued, the President has proposed to eliminate its funding in his annual budget requests each year since FY2003, including his FY2009 budget request. The President has used the environmental education program's performance rating by the Office of Management and Budget (OMB) as the main justification for his recurring proposal to eliminate the program's funding. OMB has repeatedly given the program a "Results Not Demonstrated" rating as part of its annual government-wide assessment of federal programs with its Program Assessment Rating Tool (PART). OMB asserts that the absence of performance metrics for grant activities supported by the environmental education program makes it difficult to determine whether the program is achieving its goal of improving the quality of environmental education. Opponents of the President's proposal to eliminate the program's funding have noted that there are long-standing disagreements among educators about how to evaluate the quality of education, and that the lack of performance metrics for educational activities is not unique to EPA's environmental education program. Such critics have countered OMB's characterization of the program's effectiveness by arguing that grant awards have had a national impact with a small amount of funding relative to EPA's total budget. The activities supported by these grants also have generated significant state and local support. In response, Congress has continued the program's funding each year. The National Environmental Education Act authorizes EPA to award grants for developing environmental curricula and training teachers, support fellowships to encourage the pursuit of environmental professions, and select individuals for environmental awards. EPA also consults with the National Environmental Education Advisory Council and the Federal Task Force on Environmental Education in conducting the above activities and coordinating its efforts with related federal programs. The act also established a nonprofit foundation to encourage cooperation between the public and private sectors to support environmental education. Each activity is discussed below. Section 4 of the act directed EPA to establish an "office" of environmental education to implement programs authorized under the act and to coordinate its activities with related federal programs. EPA originally established an Office of Environmental Education within the Office of Public Affairs to perform these functions. The agency has since reorganized these functions into an Environmental Education Division within the Office of Children's Health Protection and Environmental Education, part of the Office of the EPA Administrator. EPA developed the Environmental Education and Training Program to train education professionals to develop and teach environmental curricula. Section 5 of the act directs EPA to award an annual grant to a higher educational institution or nonprofit organization to operate the program under a multiple-year agreement. The act requires EPA to reserve 25% of the annual funding for its environmental education program to support the Environmental Education and Training Program. Teachers, administrators, and related staff of educational institutions as well as staff of state and local environmental agencies, tribal governments, and nonprofit organizations are eligible to participate. The University of Wisconsin at Stevens Point has been implementing this training program, under agreement with EPA, since October 2000. The Environmental Education Grant Program supports activities that would educate elementary and secondary school students, train teachers, increase understanding of environmental issues, and accomplish related goals. Educational institutions, state and local agencies, tribal governments, and nonprofit organizations are eligible to apply for these grants. Section 6 of the act requires EPA to reserve 38% of the environmental education program's annual funding to support these grants. The act limits a single grant to $250,000, and requires EPA to award 25% of the grants for amounts of $5,000 or less, to ensure a greater number of grant awards among recipients. Notably, fulfilling this latter requirement with respect to smaller grants has become increasingly impractical, as the dollar amount of proposed grants has risen with inflation and price increases over time since the 1990 enactment of the statute. The act also requires each grant recipient to provide at least 25% of a project's costs in matching funds, but grants EPA the discretion to provide up to full federal funding under certain circumstances. In practice, EPA reports that many of its grant recipients now provide more than the minimum 25% in matching funds, underscoring local commitments to funded projects. Since the first year of the grant program in FY1992, EPA has awarded nearly $42 million in grants for more than 3,200 environmental education projects in all 50 states, the District of Columbia, and U.S. territories. With authority provided in Section 7 of the act, EPA administers the National Network for Environmental Management Studies to encourage post-secondary students to pursue environmental careers. Students work with an environmental professional at EPA on a specific project or conduct university research under EPA's direction. In recent years, EPA has awarded approximately 40 fellowships annually to students at more than 400 participating universities. EPA administers the Presidential Environmental Youth Awards Program to recognize outstanding projects that promote local environmental awareness. Elementary and secondary students are eligible to compete annually to receive these awards from the EPA regional offices. The award recipients receive national recognition from the President or Vice President of the United States and the EPA Administrator. Section 8 of the act also created four national awards to recognize outstanding contributions to environmental education and training. EPA announced the first recipients in 1993. The awards commemorate Theodore Roosevelt for teaching, Henry David Thoreau for literature, Rachel Carson for communications media, and Gifford Pinchot for natural resources management. EPA established a National Environmental Education Advisory Council and a Federal Task Force on Environmental Education under Section 9 of the act. The council consists of members representing public and private expertise in environmental education and training. The council consults with EPA and reports to Congress periodically on the quality of environmental education, the implementation of the act, and its recommendations to improve environmental education and training. The council's most recent report was released in 2005. The task force coordinates EPA's environmental education and training activities with related federal programs. The National Environmental Education and Training Foundation encourages cooperation between the public and private sectors to support environmental education and training. Section 10 of the act established the foundation as a private, nonprofit organization with a board of 13 directors responsible for ensuring that its activities adhere to EPA's policies. The foundation operates several priority programs, including those that focus on public health and the environment, "green" business, environmental literacy of secondary school students, and weather and the environment. The foundation also awards competitive challenge grants to encourage innovative activities in environmental education and presents National Environmental Education Achievement Awards to honor outstanding and scientifically accurate environmental education programs. Additionally, the foundation supports annual research projects which examine the public's perception, awareness, and action regarding the environment, pollution control regulations, and personal responsibility. The act requires EPA to reserve 10% of the environmental education program's annual funding to award a noncompetitive grant to help support the foundation's activities. Although Members of Congress have broadly supported the role of the federal government in environmental education on a bipartisan basis, there has been continuing controversy over its role in the classroom. There appears to be general consensus that educating students in the natural and social sciences to examine the potential impacts of human behavior on the environment is appropriate for instruction. However, some critics argue that certain textbooks and curricula misinform students by advocating specific measures to address environmental problems, or by presenting unbalanced or scientifically inaccurate data. In response, EPA has issued guidelines specifying that the environmental education grants it awards cannot be used for projects that would recommend a specific course of action or advocate a particular viewpoint, and that activities must be based on "objective and scientifically sound information" to be eligible for funding. However, the National Environmental Education Act does not include requirements to insure that activities funded by EPA adhere to these guidelines. Whether to include such requirements in federal statute has been an issue. Interest in the federal government's role in environmental education has become broader in response to public desire for better understanding of complex environmental issues affecting human health, sustainability of natural resources, biological diversity, and other societal objectives. The complexity of such issues, and the ability of schools to address them, have motivated some educators to question whether EPA or other federal agencies should play a more prominent role in environmental education. In the 110 th Congress, at least two bills would broadly address the federal role in environmental education. As introduced on August 2, 2007, the No Child Left Inside Act of 2007 ( S. 1981 ) would expand the federal role in environmental education by creating an Office of Environmental Education within the Department of Education to administer new grant programs intended to supplement EPA's existing program. As passed by the House on September 18, 2008, the No Child Left Inside Act of 2008 ( H.R. 3036 ) would directly amend the National Environmental Education Act of 1990 for a similar purpose of authorizing a new grant program within the Department of Education to supplement EPA's existing efforts. This new grant program would differ from EPA's current program by focusing more on the outcome of environmental education in terms of achieving academic standards and demonstrating environmental literacy. Three amendments to the bill were agreed to in House floor debate that would expand the eligibility of recipients of the new grants to include municipalities, to make instruction in environmental justice issues an eligible use of grant funds, and to specify the eligibility of activities that involve partnering with state and local park and recreation departments. In addition to creating a new role for the Department of Education, H.R. 3036 would further amend the National Environmental Education Act of 1990 to reauthorize funding for EPA's existing program in FY2009 and to require the integration of certain activities into EPA's teacher training program, such as "scientifically valid" research (as defined in the bill), technology-based teaching, interdisciplinary instruction, and outdoor learning. Although these activities would become required elements, current law does not necessarily preclude their integration under the existing program. H.R. 3036 also would include new "accountability" requirements for EPA's existing program, the proposed Department of Education program, and existing programs of the National Environmental Education and Training Foundation. The bill would establish several indicators of program quality to evaluate their respective outcomes. Some of these indicators are aligned with commonly held goals of environmental education, such as enhancing the understanding of the natural and built environment and improving the understanding of how human and natural systems interact. Other indicators have a more academic emphasis, such as the impact of environmental education on achievement in related core subjects including mathematics and science. Two other bills in the 110 th Congress would address environmental education within the more specific contexts of environmental justice and climate change. As introduced on April 24, 2008, the Getting Youth Re-invested in Environmental Education Now Act ( H.R. 5902 ) would authorize the Secretary of Education to award grants to states and local educational agencies to support the development of environmental justice curricula and to provide career development opportunities to students. These grants would be made available for such efforts aimed at secondary school students in urban communities that may be disproportionately affected by environmental issues. As introduced on June 19, 2008, the Climate Market, Auction, Trust, and Trade Emissions Reduction System Act of 2008 ( H.R. 6316 ) would establish a dedicated Citizen Protection Trust Fund to support a variety of environmental and social purposes intended to offset the effects of climate change. The trust fund would be supported with revenues associated with a cap and trade system designed to reduce greenhouse gas emissions. A fixed percentage (0.4%) of revenues to the fund would be dedicated to environmental education. These revenues would be divided equally among EPA, the Department of Education, and the National Oceanic and Atmospheric Administration. The bill does not specify how these funds would be used to support environmental education, presumably leaving that decision to the discretion of the agencies within their existing authorities. | The federal role in environmental education has been an ongoing issue. For nearly two decades, EPA has been the primary federal agency responsible for providing financial assistance to schools to support environmental education. The National Environmental Education Act of 1990 ( P.L. 101-619 ) established a program within EPA to award grants for educating elementary and secondary school students and training teachers in environmental subjects, and to fund other related activities. The President has proposed to eliminate this program in his annual budget requests each year since FY2003, and did not include any funding for the program in his FY2009 budget request. In response to strong interest at the state and local level, Congress has continued to fund the program each year, appropriating $8.9 million for FY2008. Although Congress has continued to fund the program through the appropriations process, the original funding authorization in the National Environmental Education Act of 1990 expired at the end of FY1996. As passed by the House, H.R. 3036 would reauthorize funding for EPA's environmental education program in FY2009, require the integration of certain elements into the agency's teacher training program, and expand the federal role in environmental education by authorizing a new grant program within the Department of Education. As introduced, S. 1981 also would create a new role for the Department of Education in supporting environmental education, but would not reauthorize funding for EPA's existing program nor amend any aspects of it. As introduced, H.R. 5902 and H.R. 6316 would address environmental education in the more specific contexts of environmental justice and climate change, respectively. |
The Senate biennial committee funding process applies to all Senate committees except Appropriations and Ethics, which have permanent authorizations for their staff and operating expenses. The Senate Committee on Rules and Administration has jurisdiction over committee funding resolutions and issues regulations governing committee funding and staff. Committee funding and staff are also regulated by Senate rules, especially Rule XXVI, clause 9, and Rule XXVII, as well as by statute. The funds authorized and allocated by resolution are appropriated in legislative branch appropriations acts. Authorization of funding for Senate committees (except the Committee on Appropriations and Select Committee on Ethics) is governed by Senate Rule XXVI, paragraph 9. In recent practice, during the first few months of a new Congress, each Senate committee (except Appropriations and Ethics) typically reports a two-year funding resolution providing for its expenses. These resolutions are then incorporated by the Committee on Rules and Administration into a single, omnibus committee funding resolution . Since the 106 th Congress, committee funding resolutions have divided funds among three calendar periods—from March 1 to September 30 of the first year of a Congress, from October 1 to September 30 of the following year, and from October 1 to end of the following February—to align with the fiscal calendar. This permits the Senate to identify the amounts authorized for each fiscal year and the subsequent appropriations required. On February 28, 2017, the Senate adopted by unanimous consent S.Res. 62 , authorizing expenditures by Senate committees for the period March 1, 2017, through September 30, 2017, the period October 1, 2017, through September 30, 2018, and for the period October 1, 2018, through February 28, 2019. Table 1 provides the requested and the authorized levels of funding for committees for the 115 th Congress. Table 2 through Table 10 provide committee funding requests and authorizations for Senate committees in the 106 th through 114 th Congresses. Table 11 through Table 19 provide the same information, calculated in constant (January 2017) dollars. | In the Senate a biennial funding process applies to all Senate committees except Appropriations and Ethics, which have permanent authorizations for their staff and operating expenses. The Senate Committee on Rules and Administration has jurisdiction over committee funding resolutions and issues regulations governing committee funding and staff. On February 28, 2017, the Senate adopted by unanimous consent S.Res. 62, authorizing expenditures by Senate committees for the period March 1, 2017, through September 30, 2017, the period October 1, 2017, through September 30, 2018, and for the period October 1, 2018, through February 28, 2019. This report, which provides committee funding requests and authorizations for Senate committees in the 106th through 115th Congresses, will be updated as warranted. For further information on the committee funding process, see CRS Report R43160, Senate Committee Funding: Description of Process and Analysis of Disbursements, by [author name scrubbed]. |
The Americans with Disabilities Act has often been described as the most sweeping nondiscrimination legislation since the Civil Rights Act of 1964. It provides broad nondiscrimination protection and, as stated in the act, its purpose is "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." Title III of the ADA prohibits discrimination against individuals with disabilities by places of public accommodations, and has been the basis of numerous legal actions. Several of these have involved the filing of multiple law suits by an individual with a disability based on de minimus violations. Of the actions which have resulted in judicial decisions, some have rejected the allegations, finding that the plaintiff was a vexatious litigant, while others have rejected the suits finding that the plaintiff had no standing since the plaintiff could not establish an intent to return to the entity with the alleged ADA violations. Some courts, however, have upheld the plaintiff's action even where numerous previous suits had been filed. Legislation has been introduced since the 106 th Congress to require that a plaintiff provide notice of non compliance with the ADA to an entity prior to commencing a legal action. Title III of the ADA provides that no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. Entities covered by the term "public accommodation" are listed and include, among others, hotels, restaurants, theaters, auditoriums, laundromats, museums, parks, zoos, private schools, day care centers, professional offices of health care providers, and gymnasiums. Although the sweep of Title III is broad, there are some limitations on its nondiscrimination requirements. A failure to remove architectural barriers is not a violation unless such a removal is "readily achievable." "Readily achievable" is defined as "easily accomplishable and able to be carried out without much difficulty or expense." Reasonable modifications in practices, policies or procedures are required unless they would fundamentally alter the nature of the goods, services, facilities, or privileges. No individual with a disability may be excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the goods, services, or facilities or would result in an undue burden. An undue burden is defined as an action involving "significant difficulty or expense." The remedies and procedures of section 204(a) of the Civil Rights Act of 1964 are incorporated in Title III of the ADA. This allows for both private suit and suit by the Attorney General when there is reasonable cause to believe that there is a pattern or practice of discrimination against individuals with disabilities. Monetary damages are not recoverable in private suits but may be available in suits brought by the Attorney General. Section 204(c) of the Civil Rights Act requires that when there is a state or local law prohibiting an action also prohibited by Title II, no civil action may be brought "before the expiration of thirty days after written notice of such alleged act or practice has been given to the appropriate State or local authority...." The ADA does not specifically incorporate this requirement, and the courts which have considered the issue have generally found that this requirement was not incorporated in the ADA. Although situations involving the filing of multiple law suits by an individual with a disability based on de minimus violations have generally been settled out of court, there have been judicial decisions involving these issues. Generally, the cases that have gone to court have addressed questions concerning whether the plaintiff is a vexatious litigant or whether the plaintiff has standing. In Molski v. Mandarin Touch Restaurant a California district court found that the plaintiff was a vexatious litigant who filed hundreds of law suits designed to harass and intimidate business owners into agreeing to cash settlements. The plaintiff, Jack Molski, had a physical disability which required that he use a wheelchair and had filed between 300-400 lawsuits in federal courts since 1998. The district court reviewed the cases and found that "many are nearly identical in terms of the facts alleged, the claims presented, and the damages requested." In fact, the court noted in one complaint Mr. Molski claimed that on May 20, 2003, he went to El 7 Mares restaurant which he alleged lacked adequate parking and had a food counter that was too high. After the meal, the plaintiff alleged that he attempted to use the restroom but because the toilet's grab bars were improperly installed, he injured his shoulder and he was also unable to wash his hands due to faulty design. In two other cases, Mr. Molski alleged that he encountered almost identical problems in another restaurant and at a winery on the same day, May 20, 2003. The court found these complaints to be indicative of a clear intent to harass businesses. Even though the court noted that it was "possible, even likely, that many of the businesses sued were not in full compliance with the ADA," the court found the sanctions for bad faith were not therefore barred, especially where the motive was to garner funds. The district court ordered the plaintiff to obtain the leave of the court prior to filing any other claims under the ADA observing that "in addition to misusing a noble law, Molski has plainly lied in his filings to this Court. His claims of being the innocent victim of hundreds of physical and emotional injuries over the last four years defy belief and common sense." In a related suit, the California district court also found against the counsel in the Molski case holding that the counsel was required to seek leave of the court before filing any additional ADA claims. These two cases were upheld on appeal to the ninth circuit in Molski v. Evergreen Dynasty Corp . After a detailed examination of the cases in light of standards for vexatious litigation, the ninth circuit noted: For the ADA to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individuals to bring serial litigation advancing the time when public accommodations will be compliant with the ADA. But as important as this goal is to disabled individuals and to the public, serial litigation can become vexatious when, as here, a large number of nearly-identical complaints contain factual allegations that are contrived, exaggerated, and defy common sense. Similarly, the court of appeals held that the district court was within its discretion to impose a pre-filing order. The ninth circuit observed "[t]hat the Frankovich Group filed numerous complaints containing false factual allegations, thereby enabled Molski's vexatious litigation, provided the district court with sufficient grounds on which to base its discretionary imposition of sanctions." Several courts have addressed the standing issue. Some courts have found that a plaintiff lacks standing to bring an ADA claim for injunctive relief under Title III if the plaintiff cannot establish that he or she intends to return to the entity with the alleged ADA violations. For example, in Harris v. Stonecrest Care Auto Center, the district court questioned the plaintiff's credibility due to the fact that he had brought at least twenty other ADA related lawsuits, and carefully examined the requirements of standing. Noting that Title III of the ADA was intended to remedy discrimination in the area of public accommodation by providing injunctive relief, the court concluded that since the plaintiff had visited the gas station "solely for the purpose of bringing a Title III claim and supplemental state claims, any injunctive relief (the court) might grant would not satisfy the redressability requirement of standing." Similarly, in Tampa Bay Americans with Disabilities Association, Inc. v. Nancy Markoe Gallery, Inc., the court found that the plaintiff failed to demonstrate a real and immediate threat of future injury since her visits to the store were infrequent, there was a gap in time between visits, and she did not live in the same city as the store. The court also noted "with some concern" that the Tampa Bay Americans with Disabilities Association had filed 16 previous ADA cases and the individual plaintiff had filed 14. However, in Hollynn D'Llil v. Best Western Encina Lodge and Suites , the Ninth Circuit held that the plaintiff's declaration and testimony were sufficient to confer standing despite her past ADA litigation which involved about 60 ADA suits. The court, emphasizing the plaintiff's testimony detailing her intent to return to Santa Barbara and noting her friends who lived there, found that her past litigation did not impugn her credibility. Changes in the ADA's statutory language to address the issue of vexatious law suits have been proposed since the 106 th Congress. Proponents of such legislation have argued that notification requirements would help prevent the filing of suits designed to generate money for plaintiffs and law firms. Those opposed to the legislation have argued that it would undermine enforcement of the ADA and that vexatious suits are best dealt with by state bar disciplinary procedures or by the courts. Representative Hunter introduced H.R. 881 , the ADA Notification Act of 2011, 112 th Congress, on March 2, 2011. This bill is identical to H.R. 2397 which Representative Hunter introduced in the 111 th Congress. H.R. 881 would amend Title III of the ADA to deny state or federal court jurisdiction in a civil action brought under Title III of the ADA, or under a state law that conditions a violation of its provisions on a violation of Title III, except in certain situations. The courts would have jurisdiction if a plaintiff provides the defendant written notice of the alleged violation by registered mail prior to filing a complaint; the written notice identifies the facts that constitute the alleged violation, including the location and date of the alleged violation; a remedial period of 90 days elapses after the date on which the plaintiff provides the written notice; the written notice informs the defendant that the plaintiff is barred from filing the complaint until the end of the remedial period; and the complaint states that, as of the date on which the complaint is filed, the defendant has not corrected the alleged violation. H.R. 881 also provides that a court may extend the remedial period by not more than thirty days if the defendant applies for an extension. The legislation in previous Congresses is similar, but not identical, to that in the 111 th and 112 th . H.R. 3479 , 110th Congress, and H.R. 2804 , 109th Congress, had essentially the same notification provisions as those in H.R. 881 , 112 th Congress. However, the notification provisions would not have applied to civil actions brought under Rule 65 of the Federal Rules of Civil Procedure or civil actions under state or local court rules requesting preliminary injunctive relief or temporary restraining orders. H.R. 728 , 108 th Congress, differed from the more recent legislation by, for example, allowing notice to be provided in person, not just by registered mail. Although the bill was not passed in the 108 th Congress, the House Subcommittee on Rural Enterprises, Agriculture, and Technology of the House Small Business Committee held hearings on the bill on April 8, 2003. The two ADA Notification Acts in the 107 th Congress, H.R. 914 and S. 792 , like their predecessors H.R. 3590 and S. 3122 , 106 th Cong., contained similar language. Hearings were held by the Subcommittee on the Constitution of the House Committee on the Judiciary on H.R. 3590 on May 18, 2000. | The Americans with Disabilities Act (ADA) provides broad nondiscrimination protection in employment, public services, and public accommodation and services operated by private entities. Since the 106th Congress, legislation has been introduced to require plaintiffs to provide notice to the defendant prior to filing a complaint regarding public accommodations. In the 112th Congress, H.R. 881 was introduced by Representative Hunter to amend Title III of the ADA to require notification. |
Special order speeches (commonly called "special orders") usually take place at the end of the day after the House of Representatives has completed all legislative business. During the special order period , individual Representatives can deliver speeches on topics of their choice for up to 60 minutes. Special order speeches give Members a chance to speak outside the time restrictions that govern legislative debate in the House and the Committee of the Whole. These speeches also provide one of the few opportunities for non-legislative debate in the House, where debate is almost always confined to pending legislative business. This report examines current House practices for reserving special order speeches and securing recognition for these speeches. It discusses the differences between inserted and delivered special orders, various uses of special orders, and current reform proposals. The rules of the House do not provide for special order speeches. Instead, special orders have evolved as a unanimous consent practice of the House. Although any Member can object to the practice of holding daily special order speeches, this happens infrequently. During the special order period, Members must abide by the rules of the House, the chamber's precedents, and the "Speaker's announced policies," in that order. Relevant House rules include those governing debate, decorum, and the Speaker's power of recognition. For example, a Representative cannot deliver a special order longer than 60 minutes because this would violate House Rule XVII, clause 2, which limits individual Members to "one hour in debate on any question." When a Member's 60-minute special order expires, he or she cannot even ask unanimous consent to address the House for an additional minute. The Member can speak again, however, if time is yielded under another Representative's special order. Individual Representatives with reserved special order speeches will commonly yield time to colleagues during the speech. House precedents discuss how the chamber has interpreted and applied its rules. These precedents are published in several parliamentary reference publications. Under House precedents, for example, individual Members cannot deliver more than one special order each legislative day. The term Speaker's announced policies refers to the Speaker's policies on certain aspects of House procedure (e.g., decorum in debate, conduct of electronic votes, recognition for special orders). These policies are usually announced on the opening day of a new Congress. In practice, the Speaker's current policies on special orders (announced on January 6, 2015) govern recognition for special order speeches and the reservation and television broadcast of these speeches. Recognition for special orders is the prerogative of the Speaker. Although special orders routinely begin once legislative business is completed, the Speaker is not required to recognize Members for special orders as soon as legislative business ends. Under his power of recognition (House Rule XVII, clause 2), the Speaker can first recognize other Members for "unanimous-consent requests and permissible motions." The Speaker may also interrupt or reschedule the special order period to proceed to legislative or other business. Moreover, the Speaker can recognize Representatives for special orders earlier in the day (e.g., when the House plans to consider major legislation through the evening hours). A majority party Representative appointed as Speaker pro tempore usually presides in the chair during special orders. In recognizing Members, the chair observes the following announced policies of the Speaker: Representatives are first recognized for five-minute special order speeches, and then for longer speeches that do not exceed 60 minutes. Recognition alternates between the majority and minority for both the initial special order and subsequent special orders in each time category (i.e., five-minute special orders; longer special orders). In recognizing individual Members, the chair follows the order specified in the list of special order requests submitted by each party's leadership (see " Reservation of Special Orders " section). No special orders are allowed after midnight on any day . On Tuesdays , after all legislative business is completed, the chair can recognize Members for five-minute special orders and unlimited longer special orders until midnight. On every day but Tuesday, after the five-minute special orders, the chair can recognize Members for no more than four hours of longer special orders. The four hours are divided equally between the majority and minority. Each party can reserve the first hour of longer special orders for its leadership or a designee (a so-called leadership special order—see below for more information). When less than four hours remains until midnight, each party's two-hour period is prorated. Each party's leadership usually chooses a designee to deliver a leadership special order during the party's first hour of longer special orders. This designee will sometimes lead a thematic special order and yield time to other party Members. For example, on May 7, 1997, the minority leader's designee delivered a 60-minute special order on H.R. 3 (juvenile crime control legislation), with participation from other Democratic Members. The majority leader's designee then led a 60-minute special order on the 1997 balanced budget agreement, during which he yielded time to other Republican Members. To summarize, under the Speaker's current announced policies, there are generally three stages to each day's special order period: 1. five-minute special orders by individual Members ; 2. special orders longer than five minutes (normally 60 minutes in length) by the party's leadership or designee ; and 3. special orders longer than five minutes (length varies from 6 minutes to 60 minutes) by individual Member s . Members reserve five-minute and longer special orders through their party leadership: Democratic Members reserve time through the Office of the Majority Leader, and Republican Members reserve time through the Republican cloakroom or the party leadership desk on the House floor. Under the Speaker's announced policies, Members cannot reserve special orders more than one week in advance. Moreover, the date of the reservation does not affect the order in which the chair recognizes Members for special orders. The Speaker's announced policies require that the majority and minority leadership give the chair a list each day showing how the party's two hours of longer special orders will be allocated among party Members. The chair follows this list in recognizing Members for longer special orders. For five-minute special orders, the majority and minority leadership compile a list of five-minute special order reservations each day. This list is given to a party Member who asks unanimous consent that each Member on the list be allowed to address the House for five minutes on a specific date. Permission is routinely granted by the House. A notice of granted five-minute special orders appears in the House section of the daily Congressional Record (under the heading "Special Orders Granted") and on the inside page of the daily "House Calendar" (formally called "Calendars of the United States House of Representatives and History of Legislation"). Individual Members may also ask unanimous consent to give a special order speech at the last minute, to use another Representative's reserved special order time, or to deliver a reserved special order out of the established sequence for that day. These unanimous consent requests are made infrequently and permission is usually granted. House Rule V places the broadcasting of House proceedings under the Speaker's exclusive direction. The Speaker's announced policies prohibit House-controlled television cameras from panning the chamber during special orders. Instead, a caption (also known as a "crawl") appears at the bottom of the television screen indicating that legislative business has been completed and the House is proceeding with special orders. Instead of delivering a special order speech on the House floor, Members may insert their speech in either the House pages of the Congressional Record or the section known as the "Extensions of Remarks." Special orders inserted in the House section are published in a distinctive typeface alongside the special orders delivered that day on the House floor. Members must decide in advance to insert special orders in the House section. They make this decision when reserving the special order through their party's leadership. A Representative who wants to participate in another Member's reserved special order can also decide in advance to insert his remarks in the House section. This decision is coordinated with the Member holding the special order reservation. The Representative's inserted remarks appear in a distinctive typeface during the other Member's reserved special order. Members who are not present when recognized for their special order speech routinely have the option of inserting this speech in the Extensions of Remarks section. Permission of the House is required to insert any material in this section. When the House grants unanimous consent to special order requests, it typically gives Representatives permission to "revise and extend" their remarks and to "include extraneous material." This permission is usually reported in the House pages of the Congressional Record under the Special Orders Granted heading (see above). Special order speeches inserted in the Extensions of Remarks section appear alongside other inserted material (e.g., legislative statements not delivered on the floor, newspaper articles, letters from constituents) and are not identified as special orders. All materials in the Extensions of Remarks section appear in a distinctive typeface. The practical difference between inserting and delivering a special order speech is twofold. First, inserted special orders are available only to readers of the hard copy and online versions of the Congressional Record . By contrast, special orders delivered on the House floor reach a larger audience through C-SPAN's televised coverage of House floor proceedings. Second, inserted special order speeches incur less cost than those delivered on the House floor. Although both inserted and delivered special orders involve Congressional Record printing costs, only delivered speeches entail the expenses of keeping the House in formal session (e.g., electricity, salaries of House officers and staff ). Members often use special orders to address subjects unrelated to legislation before the House. They deliver speeches on broad policy issues, a bill they have introduced, and local, national, or international events. They also present eulogies and tributes. Special orders are also used to debate specific legislation and policy issues outside the time restrictions that govern legislative debate in the House and the Committee of the Whole. As mentioned earlier, each party's leadership sometimes reserves a 60-minute special order to present party views on a particular bill or policy issue. In addition, Members of both parties may coordinate their special orders to debate legislation. For example, in the 104 th Congress, the two parties reserved consecutive, 60-minute special orders to conduct a "real give-and-take kind of debate" of H.J.Res. 159 (a proposed constitutional amendment to require two-thirds majorities for bills increasing taxes). Majority and minority Members participated in each party's 60-minute special order. In a departure from regular practice, these special orders took place in the middle of the day before the House considered the joint resolution. The special order period also provides a forum where Members can practice and hone their debate skills. Veteran Representatives have advised new Members, in particular, to reserve special orders for this purpose: ... before you participate in general debate on a bill ... get some practice. Get a special order and have a few of your friends participate with you. Get the feel of being in the well of the House, how the lectern can move up and down, how the microphones work. Practice in the somewhat stilted language of yielding to other colleagues and so forth, so that when you do get into the real legislative fight it isn't all new; you have a little bit of the feel of debating in the House. During special orders, freshmen majority Members also have an opportunity to gain experience presiding as Speaker pro tempore. The Speaker's current announced policies on special orders build upon earlier policies, mainly those implemented on February 23, 1994. These 1994 policies significantly changed special order procedures by imposing new restrictions (e.g., four-hour limitation on longer special orders, no special order reservations more than one week in advance). Before early 1994, special orders could be reserved months in advance and it was not unusual to have more than 10 hours of special orders reserved for a single day. Special order speeches also could be delivered after midnight and all-night special orders took place on occasion. The Speaker's announced policies before 1994 required that Members be recognized for five-minute special order speeches first and then for longer speeches, and that recognition alternate between majority and minority Members. When studying special order speeches before February 23, 1994, it is useful to remember these speeches were reserved and delivered under the Speaker's earlier, less restrictive policies. The House Rules Committee's Subcommittee on Rules and Organization of the House held hearings on April 17, 1997, and May 1, 1997, to discuss issues raised in Civility in the House of Representatives (hereinafter referred to as Civility ), a report prepared for the March 1997 bipartisan retreat of House Members. Civility examined the public's perception of rising incivility in the House and recommended actions to reduce this perception and actual breaches in decorum. The report pointed out that incivility was more likely to take place during special orders and one-minute speeches than during other periods of House floor proceedings. According to Civility , unparliamentary language "that would be taken down in regular debate was more likely to be tolerated or 'cautioned'" during special orders. The report attributed this situation to the low number of Members present during special orders—it was unlikely a Member would make a timely demand that unparliamentary words be taken down and, even if this demand was made, "it would be all but impossible to locate the Members needed to vote" on an appeal of the chair's ruling. On this last point, the report recommended that the House change its rules to require that appealed rulings of the chair after regular business be voted on the next legislative day. This rules change, the report argued, would encourage the chair to intervene more frequently against unparliamentary language in special orders. The 1999 report provided data on the 105 th Congress generally, and the December 1998 impeachment debate specifically. No recommendations were included. The House Rules Committee held hearings on the 1999 report in April 1999. As discussed earlier, daily special orders entail Congressional Record printing expenses for delivered and inserted special orders and the costs of keeping the House in formal session for delivered special orders (e.g., electricity, salaries of House staff and officers). On February 9, 1999, Representative Lynn Rivers introduced H.Res. 47 , a resolution to amend House rules to require that "the expenses of special-order speeches be paid from the Members' Representational Allowances of Members making such speeches." Each Representative has a Members' Representational Allowance (MRA) for expenses related to official and representational duties (e.g., employment of staff, travel, franked mail, supplies). H.Res. 47 was referred to the House Committee on Rules upon introduction but did not receive committee action in the 106 th Congress. Representative Rivers introduced identical resolutions ( H.Res. 97 ) in the 105 th Congress and ( H.Res. 263 ) in the 104 th Congress, but no action was taken on either measure. | Special order speeches (commonly called "special orders") usually take place at the end of the day after the House has completed all legislative business. During the special order period, individual Representatives deliver speeches on topics of their choice for up to 60 minutes. Special orders provide one of the few opportunities for non-legislative debate in the House. They also give Members a chance to speak outside the time restrictions that govern legislative debate in the House and the Committee of the Whole. The rules of the House do not provide for special order speeches. Instead, special orders have evolved as a unanimous consent practice of the House. Recognition for special orders is the prerogative of the Speaker. During the special order period, Members must abide by the rules of the House, the chamber's precedents, and the "Speaker's announced policies," in that order. The term Speaker's announced policies refers to the Speaker's policies on certain aspects of House procedure. In practice, the Speaker's current policies on special orders (announced on January 6, 2009) govern recognition for special order speeches as well as the reservation and television broadcast of these speeches. Under these announced policies, there are generally three stages to each day's special order period: 1. five-minute special orders by individual Members; 2. special orders longer than five minutes (normally 60 minutes in length) by the party's leadership or a designee; and 3. special orders longer than five minutes (length varies from 6 to 60 minutes) by individual Members. Members usually reserve special orders in advance through their party's leadership. Instead of delivering a special order speech on the House floor, Members may choose to insert their speech in either the House pages of the Congressional Record or the section known as the "Extensions of Remarks." Reform proposals were advanced in recent Congresses to address both concerns about breaches in decorum during special order speeches and the costs of conducting these speeches. This report will be updated if rules and procedures change. |
The Constitution gives Congress the power of the purse, that is, the power to spend, collect revenue, and borrow. It does not, however, establish procedures by which Congress must consider budget-related legislation. Instead, it states that each chamber may "determine the Rules of its Proceedings." Over time, Congress has therefore developed various rules and practices to govern consideration of budgetary legislation. The basic framework that is used today for congressional consideration of budget policy was established in the Congressional Budget and Impoundment Control Act of 1974 (the Budget Act). This act provides for the annual adoption of a concurrent resolution on the budget as a mechanism for setting forth aggregate levels of spending, revenue, the surplus or deficit, and public debt. The Budget Act also established standing committees in both chambers of Congress with jurisdiction over, among other things, the concurrent resolution on the budget. This report describes the structure and responsibilities of the Committee on the Budget in the House of Representatives. The rules of the House require that the Budget Committee's membership be composed of five members from the Committee on Ways and Means, five members from the Committee on Appropriations, and one member from the Committee on Rules. In addition, House rules require that the committee include one member designated by the majority party leadership and one member designated by the minority party leadership. The Committee on Ways and Means exercises sole jurisdiction over revenue-raising matters, and the Appropriations Committee exercises sole jurisdiction over discretionary spending. Granting these committees guaranteed representation on the Budget Committee provides them with an avenue for continuing involvement with decisions affecting their committee's jurisdiction. The Congressional Budget Act originally provided for 23 members to serve on the Budget Committee. Over time, the number of Budget Committee members has varied, and is currently 39. Under House rules, members of the House Budget Committee may not serve more than four in any six successive Congresses. Originally, the Budget Act limited service on the Budget Committee to two in any five successive Congresses. The rotating and representational membership on the Budget Committee affords Members of the House an increased level of participation in the activities of the Budget Committee. The House Democratic Caucus outlines additional term limits for its members serving on the House Budget Committee. Its rules state that no Member, other than the Member designated by leadership, shall serve more than three Congresses in any period of five successive congresses. The House Republican Conference has no comparable rule. Both Democrats and Republicans designate the Budget Committee as a nonexclusive committee. In general, this means that besides the House rule restricting any Member from serving on more than two standing committees, few restrictions apply to Budget Committee members regarding their other committee assignments. Although the Budget Act does not prohibit the creation of subcommittees, the Budget Committee has never had them. The committee, however, sometimes establishes ad hoc task forces to study specific issues. For example, there have been task forces on such subjects as entitlements, tax policy, economic policy, and budget reform. The jurisdiction of the House Budget Committee is derived from the Budget Act as well as House Rule X. This jurisdiction is protected under the Budget Act, which states that no bill, resolution, amendment, motion, or conference report dealing with any matter within the jurisdiction of the Budget Committee shall be considered in the House unless it is a bill or resolution that has been reported by the Budget Committee or unless it is an amendment to a bill or resolution reported by the Budget Committee. House Rule X, clause 1(d) states that the Budget Committee will have jurisdiction over the concurrent resolution on the budget; other matters required to be referred to it pursuant to the Budget Act; establishment, extension, and enforcement of special controls over the federal budget; and the budget process generally. Over the years, the duties and responsibilities of the Budget Committee have been established in statute, as well as House Rules. This report discusses the Budget Committee's responsibilities under the following categories: the budget resolution, reconciliation, budget process reform, oversight of the Congressional Budget Office, revisions of allocations and adjustments, and scorekeeping. The Budget Committee is responsible for developing the annual budget resolution. The budget resolution is a mechanism for setting forth aggregate levels of spending, revenue, the deficit or surplus, and public debt. Its purpose is to create enforceable parameters within which Congress can consider legislation dealing with spending and revenue. The budget resolution also often includes other matters such as reconciliation directives or procedures necessary to carry out the Budget Act. The Budget Committee can use the budget resolution as a means for initiating changes in tax and spending policy, but the other House committees having jurisdiction over those issues would be responsible for any legislation that would implement those changes. So rather than drafting program- or agency-oriented legislation as most other committees do, the Budget Committee, similar to the House Rules Committee, devotes most of its time to developing the parameters within which the House may consider legislation. In developing the budget resolution, the Budget Committee examines a budget outlook report that includes baseline budget projections presented to Congress by the Congressional Budget Office (CBO). The Budget Committee also receives and examines the budget request submitted by the President, and then holds hearings at which they hear testimony from officials who justify and explain the President's budget recommendations. These include the Director of the Office of Management and Budget (OMB), the Chair of the Federal Reserve Board, and secretaries of each department, as well as other presidential advisors. In addition, CBO issues a report that analyzes the President's budget and compares it to CBO's own economic and technical assumptions. The Budget Committee also gathers information from the other committees of the House. The Budget Committee holds hearings at which individual Members testify. In addition, Committees each submit their "views and estimates" to the Budget Committee, providing information on the preferences and legislative plans of that committee regarding budget matters within its jurisdiction. These "views and estimates" must include an estimate of the total amount of new budget authority and budget outlays for federal programs that are anticipated for all bills and resolutions within the committee's jurisdiction that will be effective during that fiscal year. House rules require that committees submit "views and estimates" to the Budget Committee within six weeks of the President's budget submission or at such time as the Budget Committee may request. During deliberation on the budget resolution, it has been the policy of the Budget Committee to use as a starting point the baseline data prepared by CBO. The Budget Committee then develops and marks up the budget resolution before reporting it to the full House. In marking up the budget resolution, the Budget Committee first considers budget aggregates, functional categories, and other appropriate matter, allowing the offering of amendments. During mark-up, the Budget Committee allows subsequent amendments to be offered to aggregates, functional categories, or other appropriate matters, even if they have already been amended in their entirety. Following adoption of the aggregates, functional categories, and other appropriate matter, the text of the budget resolution is considered for amendment. At the completion of this, a final vote on reporting the budget resolution occurs. Because the budget resolution is a concurrent resolution, once the House and Senate each adopt their own version of the budget resolution, they typically agree to go to conference to reconcile the differences between the two versions. Members of the Budget Committee represent the House in these inter-chamber negotiations. Upon agreement on a conference report, a joint explanatory statement is written to accompany the report. Within this joint explanatory statement are allocations required under Section 302(a) of the Budget Act that establish spending limits for each committee. The text of the budget resolution establishes congressional priorities by dividing spending among the 20 major functional categories of the federal budget. These 20 functional categories do not correspond to the committee jurisdictions under which the House or Senate operate. As a result, the spending levels in the 20 functional categories must subsequently be allocated to the committees having jurisdiction over spending. These totals are referred to as 302(a) allocations and hold committees accountable for staying within the spending limits established by the budget resolution. Members of the conference committee and their staff work to determine appropriate 302(a) allocations to be included in the joint explanatory statement accompanying the conference report on the budget resolution. Budget resolutions sometimes include reconciliation instructions that instruct committees to develop legislation that will change current revenue or direct spending laws to conform with policies established in the budget resolution. The Budget Committee can choose to include this in the budget resolution that they report to the full chamber. If the adopted budget resolution does include reconciliation instructions, committees respond by drafting legislative language to meet their specified targets. The Budget Committee is responsible for packaging "without any substantive revision" the legislative language recommended by committees into one or more reconciliation bills. If only a single committee is instructed to recommend reconciliation changes, then those changes are reported directly to the chamber without packaging by the Budget Committee. The Budget Committee is not permitted to revise substantively the reconciliation legislation as recommended by the instructed committees, even if a committee's recommendations do not reach the dollar levels in the reconciliation instructions included in the budget resolution. The Budget Committee, however, may sometimes collaborate with House leadership to develop alternatives that may be offered as floor amendments to the reconciliation bill. Since 1995, House Rules have provided that the Budget Committee shall have jurisdiction over the budget process generally. This includes studying on a continuing basis proposals to improve or reform the budget process, including both singular and comprehensive changes to the budget process. These rule changes can be proposed as a provision in the budget resolution, or as a separate measure. When considering budget reform, the Budget Committee may create a task force (the Budget Committee does not have subcommittees, but sometimes creates ad hoc task forces to address specific issues) to research potential reform issues. The task force may hold hearings where they listen to testimony from current and past Members of Congress, as well as representatives from the Administration, to help determine the need for reform. For example, during the 105 th Congress the Budget Committee created a Task Force on Budget Process, also known as the Nussle-Cardin Task Force, that examined budget reform issues. This task force held hearings and eventually released several recommendations, including making the budget resolution a joint resolution. Although budget process reform measures or budget resolutions may include provisions that have an impact on House rules, jurisdiction over the rules of the House is under the Rules Committee. The Budget Act specifically provides that a budget resolution reported from the Budget Committee that includes any matter or procedure that would change any rule of the House would trigger a referral to the House Rules Committee. In addition to creating the House and Senate Budget Committees, the Budget Act also established the Congressional Budget Office. House rules state that the Budget Committee shall be responsible for oversight of the CBO. Specifically, the rules state that the Committee shall review on a continuing basis the conduct by the CBO of its functions and duties. This oversight can include hearings at which CBO's practices are examined. For example, during the 107 th Congress the House Budget Committee held a hearing titled, "CBO Role and Performance: Enhancing Accuracy, Reliability, and Responsiveness in Budget and Economic Estimates." The Budget Committee also plays a role in the selection of the Director of CBO. The Budget Act states that the Speaker of the House and the President pro tempore of the Senate shall appoint the Director of the CBO after receiving recommendations from the House and Senate Budget Committees. Provisions in individual budget resolutions, as well as the Budget Act, grant the Budget Chair (not the entire Budget Committee) the authority to revise or adjust budget levels and other matters included in the annual budget resolution in certain circumstances. For instance, Congress frequently includes provisions referred to as "reserve funds" in the annual budget resolution, which provide the chairs of the House and Senate Budget Committees the authority to adjust committee spending allocations if certain conditions are met. Typically these conditions consist of a committee reporting legislation dealing with a particular policy or an amendment dealing with that policy being offered on the floor. Once this action has taken place, the Budget Committee Chair submits the adjustment to his respective chamber. Reserve funds frequently require that the net budgetary impact of the specified legislation be deficit neutral. Deficit-neutral reserve funds provide that a committee may report legislation with spending in excess of its allocations, but require the excess amounts be offset by equivalent reductions elsewhere. The Budget Committee Chair may then increase the committee spending allocations by the appropriate amounts to prevent a point of order under Section 302 of the Budget Act. The Budget Committee Chair is also authorized to make adjustments to the budget resolution levels under the "fungibility rule." The "fungibility rule" applies when a committee has been instructed through reconciliation directions to develop legislation that will change both revenue and direct spending laws to conform with policies established in the budget resolution. Under this rule, the Budget Committee Chair is then authorized to submit for printing in the Congressional Record appropriate changes in budget resolution levels, and committee spending allocations. The Budget Act also allows for further revisions to the budget resolution. For more information on revisions and adjustments related to the budget process, see CRS Report RL33122, Congressional Budget Resolutions: Revisions and Adjustments , by [author name scrubbed]. The Budget Committee is responsible for making summary budget scorekeeping reports available to the Members of the House on at least a monthly basis. Scorekeeping is the process of measuring the budgetary effects of pending and enacted legislation against the levels recommended in the budget resolution, in general to determine if proposed legislation would violate the levels set forth in the budget resolution. If a Member raises a point of order that legislation or an amendment being considered on the floor violates fiscal limits, the Parliamentarian relies on the estimates provided by the Budget Committee in the form of scorekeeping reports to advise the presiding officer regarding whether the legislative matter is out of order. Similarly, if a member raises a point of order that legislation or an amendment violates Rule XXI, clause 10, known as the PAYGO rule, the Parliamentarian relies on estimates provided by the Budget Committee. The Budget Committee played a similar role under certain expired budget enforcement statutes such as the Balanced Budget and Emergency Deficit Control Act of 1985 (also known as the Gramm-Rudman-Hollings Act) and the Budget Enforcement Act of 1990. To assist the Budget Committee in scorekeeping, the Director of CBO is required to issue an up-to-date tabulation of congressional budget action to the Budget Committees on at least a monthly basis. Specifically, this report details and tabulates the progress of congressional action on bills and joint resolutions providing new budget authority or providing an increase or decrease in revenues or tax expenditures for each fiscal year covered by the budget resolution. It has been the policy of the Budget Committee that its scorekeeping reports be prepared by the Budget Committee staff, transmitted to the Speaker in the form of a Parliamentarian's Status Report, and printed in the Congressional Record . | The basic framework that is used today for congressional consideration of budget policy was established in the Congressional Budget and Impoundment Control Act of 1974. This act provides for the annual adoption of a concurrent resolution on the budget as a mechanism for setting forth aggregate levels of spending, revenue, and public debt. The act also established standing committees in both chambers of Congress with jurisdiction over, among other things, the concurrent resolution on the budget. This report describes the structure and responsibilities of the Committee on the Budget in the House of Representatives. House and party rules specify the composition of the committee's membership and also stipulate that most members of the House Budget Committee may not serve more than four in any six successive Congresses. Unlike most other committees, the Budget Committee does not have subcommittees. Instead, the committee sometimes establishes ad hoc task forces to study specific issues. In addition to committee structure, this report covers the House Budget Committee's responsibilities divided into categories related to the annual budget resolution, reconciliation, budget process reform, oversight of the Congressional Budget Office, revisions and adjustments of allocations, and scorekeeping. This report will be updated as needed. |
The Dayton peace agreement, reached in November 1995 with U.S. leadership, ended a brutal three and one-half year ethnic and territorial conflict in Bosnia-Herzegovina that erupted after the dissolution of the state of Yugoslavia. The Dayton agreement outlined a common state of Bosnia and Herzegovina comprised of two entities, the Bosniak (Muslim)-Croat Federation and the Republika Srpska (RS), under the authority of an international representative and a NATO-led peacekeeping presence. Central Bosnian governmental institutions include a three-member presidency, Prime Minister and Council of Ministers, and bicameral state Parliament. Under the Dayton constitution, central governing powers were kept weak, with many governing functions remaining at the Federation and RS entity level, which have their own governments and parliaments. Below the entity level are cantons and municipalities in the Federation and municipalities only in the RS. At the international level, Dayton mandated an Office of the High Representative (OHR) to oversee international activities in Bosnia and bear authority to impose decisions and remove officials. As the security situation improved, NATO gradually reduced its presence in Bosnia and turned over peacekeeping duties to the European Union (EU) in December 2004. Most observers agree that Dayton was a great achievement in that it ended the war and laid the foundation for consolidating peace. However, many also believe that the Dayton agreement, as a document derived from compromises and reflecting wartime circumstances, cannot by itself insure Bosnia's future as a functioning democratic state. In particular, Bosnia's multi-layered and ethnically-defined governing structures have presented significant challenges to its efforts to integrate into the European Union and NATO. Political differences among Bosnia's leaders and vested interests in the status quo continue to hinder efforts to strengthen Bosnia's central governing institutions and administrative capacity. The pull of Euro-Atlantic integration has fostered a degree of cooperation on this front, but political consensus across ethnic lines on key governing arrangements is still elusive. Over the years, the Bush Administration has assisted Bosnia's development as a functioning democratic state, supported its Euro-Atlantic aspirations, and encouraged Bosnia's leaders to consolidate state structures. U.S. and international officials have underscored the regional importance of progress in Bosnia, and have decried the divisive nationalist rhetoric that has dominated Bosnian politics over the past year or so. They reject initiatives by opposing Bosnian politicians that seek to undermine Bosnia's territorial integrity, such as calls for the RS to secede or for the entity structure to be eliminated. Some Members of the 110 th Congress retain an interest in Bosnia's progress since Dayton, its path toward NATO membership and EU integration, as well as its record of cooperation on war crimes issues. For FY2009, the Administration has requested over $37 million in bilateral foreign assistance to Bosnia, an increase from FY2008 levels (estimated $33.3 million) that reflects U.S. concern about Bosnia's recent uneven progress in reforms. In recent years, the Bush Administration and the EU have sought to promote further constitutional reform to improve the governing effectiveness of Bosnia's political institutions and overcome some of the dysfunctional aspects of the post-Dayton legacy. In March 2005, the Council of Europe's Venice Commission concluded that Bosnia's current constitutional arrangements were neither efficient nor rational, and that state-level institutions needed to become far more effective for Bosnia to move closer to EU integration. Several political and economic reforms have been reached over the years, often with extensive input from and pressure by the international community. For example, the Bosnian parties agreed in early 2005 to comprehensive defense and security reforms on merging the formerly rival forces into an integrated army controlled by the central government. Additional landmark agreements on intelligence and information services, state prosecution offices and justice ministry, and border and customs services, among others, further expanded central state competencies and institutions. Bosnia's economy has also achieved significant growth in recent years, although unemployment still exceeded 40% in 2007. At a Washington meeting in November 2005 to commemorate the 10 th anniversary of the Dayton accords, Bosnia's leaders signed a "Commitment to Pursue Constitutional Reform," pledging them to embark on a process of constitutional reform to create stronger and more efficient democratic institutions. Some envisioned reforms included creating a single presidency instead of the current tri-partite presidency, strengthening the Prime Minister's office, and strengthening the Bosnian parliament. Negotiations on a reform package continued through early 2006, with the intention to complete them in time for scheduled general elections in October. In March 2006, seven Bosnian parties agreed to a package of constitutional reforms, and the tri-partite Bosnian presidency likewise adopted it. Despite this broad consensus, the measure failed in Bosnia's lower house of parliament on April 24, missing the required two-thirds majority by two votes. Some Bosnian Croat and opposition Muslim deputies opposed the bill. Its failure was widely viewed as a major setback to the state consolidation process. After the vote, several parties reiterated their commitment to continue negotiations toward reaching a consensus on constitutional reforms, which many recognize to be essential for eventual integration with the European Union. Subsequent political realities, however, have severely diminished prospects for constitutional reform in the near term. On October 1, Bosnia held elections for the three-member Bosnian presidency, the Bosnian parliamentary assembly, the parliaments of the two entities, the RS presidency, and the Federation's cantonal assembly. Overall turnout was 55% and the conduct and administration of the electoral process were generally praised. While the hold on power of the wartime nationalist parties was weakened, the relatively hardline positions of the victorious parties pointed to significant new challenges to building national consensus across ethnic lines on key issues. For example, the Party for BiH (headed by former Prime Minister Haris Silajdzic), has promoted the dismantling of the entity structure in favor of greater state centralization. Conversely, Milorad Dodik, the leader of Alliance of Independent Social Democrats in the RS, has promoted greater federalism, and has on occasion threatened to call for a referendum on independence for the RS. Ethnic Croat parties are generally supportive of greater rights for the country's ethnic Croat community. After several months of negotiations, a new seven-party coalition government was formed in February 2007, headed by Bosnia's first ethnic Serb Prime Minister, Nikola Spiric. Bosnia's new leading politicians retained much of their hardline and uncompromising positions throughout 2007, contributing to a deteriorating political environment and provoking intermittent political crises. Some speculated that the international High Representative would use his authority to remove Silajdzic and Dodik from power. Bosnia Prime Minister Spiric actually did resign late in the year in protest of the High Representative's decision to streamline central Bosnian decision-making processes, but was later reinstated. Above all, the issue of police reform and restructuring took over as a proxy for the earlier (and still ongoing) debate over constitutional reforms, and became tied up with Bosnia's efforts to secure an association agreement with the EU (see below). Police reforms have been a particularly thorny area of security sector reform because they relate to the power relationship between the entities and the central government. The governing parties reached a major milestone in this area in October-November 2007 by agreeing on a set of principles and action plan on police reforms that appeared to meet EU conditions on police consolidation; further progress, however, would still take several additional months. Despite this sign of compromise, Bosnia's leaders have been challenged in 2008 to implement their commitments on the police as well as search for areas of consensus in revived efforts to achieve constitutional reforms. International officials have decried the increased nationalist rhetoric and "destructive tendencies" of leading politicians in Bosnia. Inter-ethnic tensions threatened to spike after Kosovo declared independence from Serbia in February 2008. U.S. recognition of Kosovo prompted several protest rallies in Banja Luka in the RS. RS President Milorad Dodik appears to have stepped back from earlier hints about calling for the RS to secede from Bosnia, but has rigorously defended the continued existence and prerogatives of the RS entity. Leaders from all three major Bosnian communities may cater to nationalist sentiments in the run-up to local elections scheduled for October 2008. Along with the other western Balkan states, Bosnia and Herzegovina seeks eventual full membership in the European Union and NATO. Both institutions have committed to the region's full integration, once various conditions have been met. For a variety of reasons, Bosnia has encountered a greater degree of difficulty in meeting some of the conditions compared to other western Balkan countries. At its June 2003 Thessaloniki summit, the EU committed to integrate all of the countries of the western Balkans and created new instruments to foster closer ties to the EU, including the Stabilization and Association Agreement (SAA), the first step toward eventual EU accession. Numerous hurdles slowed Bosnia's progress in negotiating and concluding a SAA. Progress in defense and security sector reforms, including the latest breakthrough commitments on police reforms, paved the way for the EU to "initial" a SAA with Bosnia in December 2007. Bosnia's governing institutions finally approved a compromise agreement in April 2008 on new police laws to establish greater coordinating mechanisms for, rather than the unification of, the country's police forces. Brussels viewed this more limited achievement as sufficient to meet SAA conditions. Bosnia signed the SAA agreement in Brussels on June 16, the last country in the western Balkans to do so. On several occasions, the EU has recommitted to the vision of full EU membership for all of the western Balkan states; many observers, however, have been concerned about growing "enlargement fatigue" among EU member states. Beyond the defense and police reform issue, the EU has also prioritized the need for further reforms in Bosnia's public administration and public broadcasting. Bosnia's level of cooperation with the international war crimes tribunal has also been of concern. While the RS has dramatically improved its cooperation with The Hague in recent years, the ongoing ability of wartime Bosnian Serb leaders Radovan Karadzic and Ratko Mladic to elude capture has kept international attention on this issue. For several years, Bosnia lagged behind some other western Balkan states in forming closer relations with NATO. NATO leaders at the November 2006 Riga summit invited Bosnia, Serbia, and Montenegro to join its Partnership for Peace (PfP) program, despite still incomplete cooperation with The Hague war crimes tribunal. At its Bucharest summit on April 2-4, 2008, NATO took several actions related to enlargement, including inviting Albania and Croatia to join the alliance. NATO also agreed to begin with Montenegro and Bosnia-Herzegovina an Intensified Dialogue, a possible step closer to a Membership Action Plan. A small, residual NATO presence in Sarajevo has provided the Bosnian government with advice and assistance on defense reform issues, and is also engaged in efforts to capture and detain remaining war criminals. The international community has long played a dominant role in postwar Bosnian affairs. The international community's role has been in a state of transition for some time, moving toward shifting greater responsibility for governance and security to Bosnian authorities. Both the Office of the High Representative, which wielded extensive political authority for many years, and the international security presence have evolved considerably since the end of the war. Successive High Representatives have frequently exercised considerable executive power, under the so-called "Bonn powers" authority, to push difficult reforms forward and even remove obstructionist leaders. An earlier High Representative, Lord Paddy Ashdown, freely wielded his powers during his tenure, making binding decisions and taking action against or removing officials thought to support Radovan Karadzic. While an effective mechanism, the High Representative's office came under increasing criticism for allegedly stymieing Bosnia's political development. Ashdown's successor, German politician Christian Schwartz-Schilling, emphasized a more "hands off" approach, but did not stay in the post for long; he was succeeded in July 2007 by the current High Representative, Slovak diplomat Miroslav Lajcak. In June 2006, the Peace Implementation Council (PIC), which oversees the OHR, decided to "immediately begin preparations to close" (OHR) by June 30, 2007, in "the interest of all for Bosnia to take full responsibility for its own affairs." Instead, the Office of the EU Special Representative was to be enhanced but without the OHR's Bonn powers. Behind the rationale of the planned OHR closure was the belief the EU accession process could provide sufficient impetus for Bosnia's political leaders to carry out sustainable reforms. Critics have been concerned that Bosnia's prospects for EU membership remain distant and may not provide enough of an incentive for competing political leaders to pursue reforms. Perhaps in recognition of Bosnia's stalled progress, the PIC decided in late February 2007 to extend the OHR until mid-2008, without reducing its powers. The PIC meeting on February 26-27, 2008, indefinitely extended the mandate for the High Representative "to help counter destructive tendencies." At the end of 2004, NATO concluded its SFOR mission in Bosnia and turned over peacekeeping duties to a European Union military force, EUFOR, to ensure continued compliance with Dayton and contribute to a secure environment in Bosnia. Initially at a strength of over 6,000 multinational troops, EUFOR was reconfigured in 2007 and reduced to about 2,500 troops backed up by over-the-horizon reserves (its strength in mid-2008 was about 2,100). NATO maintains a small headquarters presence in Sarajevo that provides assistance to the Bosnian government and undertakes counter-terrorism and intelligence operations and missions to detain indicted war criminals. On November 21, 2007, the U.N. Security Council extended the authorization for the EU and NATO presence in Bosnia for another year (Resolution 1785). The EU also took over the U.N. police monitoring and advisory mission in Bosnia in 2003. The EU Police Mission (EUPM) in Bosnia currently comprises about 150 international police officers and its mandate runs through 2009 (as requested by the Bosnian presidency). The mission of the EUPM is to assist Bosnia achieve a sustainable, professional, and multi-ethnic police service. A major focus of EUPM activity has been on combating organized crime and corruption. | Over 12 years since the Dayton accords ended the 1992-1995 Bosnian war, Bosnia's future is still somewhat in question. Despite the country's numerous postwar achievements, political and ethnic divisions remain strong, with many of Bosnia's political leaders maintaining sharply polarized views on institutional and constitutional reforms, especially those concerning the Dayton-mandated entities (the Bosniak-Croat Federation and the Republika Srpska) and the central Bosnian government. In general, the Bosniak (or Muslim) parties have emphasized a stronger central government, while the Bosnian Serb and Bosnian Croat communities favor more decentralization. (Bosnia's population includes 48% Bosniaks (Muslims), 37.1% Serbs, and 14.3% Croats (2000 estimate) [CIA, The World Factbook , 2008]). Nevertheless, Bosnia recently achieved new milestones in its path toward full integration with NATO and the European Union (EU). An international High Representative continues to provide hands-on diplomatic guidance, and an EU-led military force remains deployed to provide for a secure environment in Bosnia; both international missions derive from the Dayton agreement and neither has a set end-date. This report provides an overview of prominent current issues in Bosnia that may be of interest to Members of the 110 th Congress. It may be updated as events warrant. |
Section 202 of the Social Security Act states that benefits are paid through the month before the month in which a beneficiary dies. Thus, no benefits are paid for the month of death. This rule has been in the law since 1939. The rule does not apply to Medicare, which provides benefits up to the date of death. Social Security benefits are paid on a monthly basis. The check (or direct bank deposit) for each month's benefit is issued in the following month. For example, the check that an individual receives in February is the benefit payable for January. This is referred to as a retrospective payment system. If a beneficiary dies late in the month, family members or the executor of the estate may not notify the Social Security Administration (SSA) in time to stop the payment. Subsequently, they are informed that the check must be returned to the government. Members of Congress are asked often to support legislation that would provide a full or partial benefit payment for the month of death. The following section presents common arguments for and against paying Social Security benefits for the month of death. Critics of the current policy argue that withholding benefits for the month of death does not make sense. They maintain that a person's bills do not stop at the beginning of the month in which they die. Moreover, the deceased beneficiary's family members or estate have to pay funeral and burial expenses. The unfairness of the policy is often illustrated with a comparison of the individual who dies on the last day of the month and receives no benefit for that month, and the individual who dies at 12:05 a.m. the next day and receives a full benefit for the preceding month. Critics complain that the current policy is cruel in that it adversely affects individuals who are already distressed by the death of a family member. They find the circumstances in which a check must be returned to the government to be the most incomprehensible. Persons who are affected often ask questions such as Do you mean my father (or mother) had to live each day of their final month to get a benefit for that month? Why are family members placed at a disadvantage when a beneficiary dies at the end of the month after having incurred living expenses throughout most of the month? How could the government have established such a policy? Critics contend that the public views the policy as an anomaly—as a mistake in the design of the Social Security system. If the policy was intended to reduce the cost of the system, they see it as a "poor" device to do so. They argue that the policy discredits the system by creating the impression that it is arbitrary, unbending, and thoughtlessly bureaucratic. They maintain that benefits should be paid at least for the part of the month that the beneficiary was alive. Supporters of the current policy argue that paying benefits for the month of death would be costly. SSA estimates that paying full benefits for the month of death would cost $1.6 billion annually. Alternatively, paying 50% of the benefit if the beneficiary dies in the first half of the month, and a full benefit if the beneficiary dies in the second half of the month, would cost an estimated $1.2 billion annually. Pro-rating the benefit based on the number of days the beneficiary was alive during the final month would cost an estimated $800 million annually. SSA also estimated the increase in benefit payments under a proposal in which (1) a full benefit for the month of death would be payable to a surviving spouse (the surviving spouse would not be required to have been living with the beneficiary when the death occurred or to be entitled to benefits), or (2) if there is no surviving spouse, a pro-rated benefit based on the number of days the beneficiary was alive during the final month would be payable. SSA estimated that the proposal would increase benefit payments by $13.2 billion over 10 years (2004-2013). Supporters of the current policy also point out that the system pays benefits to an individual beginning with his or her first month of entitlement, regardless of when entitlement began during the month, and that this provides rough balance in the system for not paying benefits for the month of death. Moreover, survivor benefits are payable to eligible family members beginning with the deceased beneficiary's month of death, regardless of when the death occurred during the month. In addition, the spouse who was living with the worker, or a spouse or child eligible for survivor benefits, may receive a Social Security lump-sum death payment of $255. They contend that there is little appreciation for the administrative difficulties (and potential costs) involved in determining who should receive the deceased beneficiary's benefit for the month of death. Because SSA cannot simply mail a check to the deceased beneficiary, SSA would have to determine who should receive the payment. Given that more than 2 million beneficiaries die each year, this would require a labor-intensive process, similar to the taking of regular benefit applications. Each case would have to be investigated, and if there are multiple family members, the payment may have to be split. Careful attention would have to be given to determining the proper payee(s) in each case. | Social Security benefits are not paid for the month in which a beneficiary dies. In most cases, the check that an individual receives in a given month represents payment for the preceding month. In other words, by design, the check (or direct bank deposit) arrives after the month for which it applies. In cases where a beneficiary dies late in the month, the Social Security Administration often is not notified of the death in time to stop the payment. When family members are informed that the check must be returned, they often complain that the policy is unfair and creates a financial hardship because the deceased beneficiary incurred expenses for part (or even most) of the month. Over the years, legislation has been introduced that would provide a full benefit for the month of death or a pro-rated benefit based on the proportion of the month that the beneficiary was alive. Supporters of such legislation argue that withholding benefits for the month of death does not make sense given that a person's bills do not stop at the beginning of the month in which they die. They argue that the public views the policy as anomalous in a system designed to provide monthly income to retirees, the disabled, and survivors of deceased workers. Critics of such legislation argue that paying full benefits for the month of death would cost an estimated $1.6 billion annually (excluding administrative costs). They point out that a deceased beneficiary's spouse and children can collect survivor benefits for the month of death, regardless of when the death occurred; that survivors may be entitled to a $255 lump-sum death payment; and that those seeking to have benefits paid for the month of death have little appreciation for the administrative difficulties involved in determining who should get the more than 2 million final benefit checks issued each year. |
Jared Lee Loughner was arrested on January 10, 2011, on a complaint charging him with attempting to kill a Member of Congress and of killing and attempting to kill federal officers and employees in the performance of the their official duties in violation of 18 U.S.C. 351(c), 1114, 1111, and 1113. What follows is a description of the federal procedures and attendant legal provisions generally associated with the prosecution of such cases. Comparable attributes of state law are beyond the scope of this report. If probable cause exists to believe that Mr. Loughner committed the offenses charged, he may be prosecuted under state or federal law or both. Ordinarily, federal crimes of violence are also crimes under the laws of the state in which they occur. Nevertheless, at first glance, the Constitution's double jeopardy ban might be thought to preclude prosecution by both state and federal authorities. The ban, however, only applies when the same defendant is prosecuted for the same crime by the same sovereign . Following the Oklahoma City bombing, Timothy McVeigh and Terry Nichols were prosecuted and convicted in federal court. Mr. Nichols, who unlike Mr. McVeigh had not been sentenced to death following his federal conviction, was subsequently tried and convicted for the bombing and resulting deaths in Oklahoma state court. First degree murders committed in violation of 18 U.S.C. 1114 are punishable by death or imprisonment for any term of years or for life. The decision to seek the death penalty rests ultimately with the Attorney General. A number of procedural consequences flow from the prosecutor's decision to seek the death penalty. When the prosecutor believes the circumstances justify the death penalty, he must notify the court and the defendant prior to trial or prior to the court's acceptance of the defendant's guilty plea, if the defendant elects to forgo a trial. Federal law permits imposition of the death penalty when authorized by statute as in the case of the first degree murder of a federal official or employee during the performance of his duties. In such cases, imposition of the death penalty requires a finding of at least one aggravating factor. The statutory list of aggravating factors includes instances, for example, when (1) the death occurred during the course of an assault on a Member of Congress or some other designated felony; (2) the homicide was committed in a particular heinous, cruel, or depraved manner; (3) a federal judge was a victim of the offense; (4) the defendant killed or attempted to kill more than one person in a single criminal episode; or (5) when "any other aggravating factor for which notice has been given exists." The Constitution affords defendants charged with a federal felony or capital offense the right to grand jury indictment. Although a defendant charged only with noncapital offenses may waive the right to grand jury indictment, capital offenses will ordinarily be prosecuted by indictment. When the prosecutor intends to seek the death penalty, the indictment must include the aggravating factors upon which the government intends to rely. The defendant in capital cases is entitled, upon request, to the assignment of two counsel, at least one of whom is "learned in the law applicable to capital cases." The right attaches at least upon indictment. Most appellate courts have concluded that the government's decision not to seek the death penalty extinguishes the statutory right. In addition to counsel, the court may authorize payment for investigative, expert, and other services "reasonably necessary" for the defense of an indigent defendant. The Sixth Amendment guarantees the criminally accused "the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." In doing so, it reinforces the declaration which appears earlier in Article III: "The trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trials shall be held in the State where the said Crimes shall have been committed." In order to secure trial by an impartial jury in a high profile case, an accused may feel compelled to not be tried in, or by a jury of, the place where the crime occurred. In rare instances, the proximity, extent, and character of pretrial media coverage may be such that the courts will presume that trial by an impartial jury in a particular location is impossible. The Federal Rules of Criminal Procedure acknowledge such a possibility by providing that "Upon the defendant's motion, the court must transfer the proceeding against that defendant to another district if the court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair trial there." The anticipated trial of Timothy McVeigh in Oklahoma after the Oklahoma City bombing presented such a case. His actual trial in Denver did not. Exceptional cases of extraordinary circumstances aside, however, the courts will ordinarily seek other means to secure trial by an impartial jury—granting continuances, instructing prospective jurors to avoid further pretrial publicity, imposing secrecy orders upon the participants, and questioning potential jurors thoroughly to ensure their impartiality (voir dire)—before granting a request for a change of venue as a last resort. Justice Department guidelines generally describe the types of information which prosecutors may release concerning a criminal case and the types of prejudicial information which they should not. Local Rules of Criminal Procedure of the U.S. District Court for Arizona contain similar provisions applicable to prosecutors and defense counsel alike and authorize the court to make special efforts in "widely publicized or sensational criminal case[s]." The courts are loath to deny the press and the public access to judicial proceedings and records, particularly those that have historically been publicly available. Yet in the face of substantial countervailing interests, they will close proceedings and seal records. In the Timothy McVeigh prosecution, the court took several steps in the name of jury impartiality among others. It prohibited (1) court personnel from disclosing without court approval any information related to the case that was not part of the public record; and (2) attorneys appearing in the cases and anyone associated with them from public statements or leaking information concerning (a) the defendants' criminal record, character, or reputation; (b) the results of any tests that the defendants had taken or refused to take, or any statements that the defendants had made or refused to make to authorities; (c) the identity of any prospective witnesses or the specifics or creditability of their anticipated testimony; (d) the prospect or specifics of any anticipated or negotiated plea bargain; or (e) any speculation of the guilt, strength of evidence, or merits of the case. The court also placed under seal (a) portions of Mr. Nichols's suppression motion; (b) certain FBI notes relating to its interview of Mr. Nichols; (c) portions of the defendants' motions for severance; (d) the information relating to the compensation for defense services provided prior to trial; (e) transcripts of material witness proceedings; (f) motions and orders relating to Mr. McVeigh's conditions of confinement; and (g) proposed questionnaires for prospective jurors. In the Jared Loughner prosecution, the court only authorized the disclosure of sealed search warrant material after the final indictment had been filed. The insanity defense is an affirmative defense which the defendant must establish by clear and convincing evidence. It is available as a federal criminal defense, when at the time of the commission of the offense, the defendant "as a result of a severe mental disease or defense, was unable to appreciate the nature and quality or the wrongfulness of his acts." A defendant must notify the prosecutor, if he wishes to assert the insanity defense at trial or to introduce expert evidence of a mental disease or defect at trial or at his capital sentencing hearing. Notice of a defendant's intent to claim an insanity defense triggers the obligation of the court to refer the defendant for a psychiatric examination upon the motion of the prosecutor. The Constitution does not permit the criminal trial of a mentally incompetent defendant. It requires that a defendant have the mental capacity "to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in the preparing of his defense." The claim of incompetence to commit the offense in the form of an insanity defense notice raises the question of a defendant's competence to stand trial. Consequently, the Federal Rules authorize the court, in the face of such a claim, to order a psychiatric examination of the accused. If the court determines, after a hearing, that the defendant lacks the competence to stand trial, it may commit him to the custody of the Attorney General for medical treatment. Under narrow circumstances, such treatment may include involuntary medication designed to render a defendant competent to stand trial. The court in the Jared Loughner prosecution granted the government's motion for a psychiatric examination to determine the defendant's competence to stand trial. On May 25, 2011, the court found the defendant incompetent to be tried at the time. Pretrial victims' rights consist primarily of a right to notice, the right to confer, a right to attend, and a right to be heard. For purposes of the federal victim rights statute, a victim is "a person directly and proximately harmed as a result of the commission of a federal offense," and includes "[i]n the case of a crime victim who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardians of the crime victim or the representatives of the crime's estate, family members, or any other persons appointed as suitable by the court." On its face, the definition does not include victims of state crimes. The statute affords victims the right to "reasonable, accurate, and timely" notice of, and generally not to be excluded from, any public judicial proceedings involving the offense. Victims enjoy a reasonable right to confer with prosecutors. In capital cases, the U.S. Attorneys Manual instructs United States Attorneys to consult with families of victims concerning the decision to seek the death penalty and to notify them of the Attorney General's decision. Victims also have a right to be reasonably heard at public judicial proceedings involving the acceptance of an offender's plea. These rights preclude a court approved failure to notify victims until after a plea agreement has been executed, but they do not give victims the right to veto a proposed plea agreement. Both the prosecution and the defense enjoy pretrial discovery rights. The government's failure to advise the defendant of exculpatory evidence or of evidence that undermines the testimony of its witnesses may undo the defendant's conviction. The prosecution has other disclosure obligations under the Federal Rules, including providing the defense with earlier statements of the defendant in its possession. Each side has an obligation to present, upon request, a summary of expert witness testimony upon which they intend to rely. Rules govern the general attributes and procedures of a federal criminal trial. For example, the federal rules ban cameras from the courtroom. They assure the defendant the right to be present at every stage of the trial, a right he may waive by choice or persistent disruptive behavior. They supply the evidentiary standards within which a trial must be conducted. Yet application of the rules and control of a federal criminal trial rests primarily with the trial judge. "[T]he trial judge has the responsibility to maintain decorum in keeping with the nature of the proceeding; 'the judge ... is the governor of the trial for the purpose of assuring its proper conduct.'" Traditionally, witnesses—even victims—could only be present at trial while they were testifying, lest their testimony be influenced by what they heard before they took the stand. Federal law now gives victims, even if they are also witnesses, "[t]he right not to be excluded from [trial], unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding." In capital cases, the right is reinforced by another statutory prohibition—one against victim exclusion from a trial simply because the victim might provide an impact statement during a subsequent sentencing proceeding. Special procedures apply after a defendant is found guilty of a federal capital offense. A sentencing hearing is held before a jury to determine whether the defendant should be sentenced to death. First, in a murder case, the jury must determine whether the defendant acted with the intent necessary to qualify for imposition of the death penalty. If it does so, the penalty may be imposed only if the jury also finds one or more of a series of aggravating factors and finds that the aggravating factor or factors outweigh any mitigating factors to an extent justifying a sentence of death. As noted earlier, the statutory list of aggravating factors includes instances, for example, when (1) the death occurred during the course of an assault on a Member of Congress of some other designated felony; (2) the homicide was committed in a particular heinous, cruel, or depraved manner; (3) a federal judge was a victim of the offense; (4) the defendant killed or attempted to kill more than one person in a single criminal episode; or (5) when "any other aggravating factor for which notice has been given exists." Mitigating factors include, for example, (1) the defendant's impaired capacity; (2) the absence of a significant prior criminal record; (3) commission of the offense "under severe mental or emotional disturbance." Mitigating factors may also be found "in the defendant's background, record, or character or any other circumstance of the offense." A federal death sentence is subject to appellate review. If upheld, the defendant is committed to the custody of the Attorney General for execution. The sentence of death, however, may not be carried out if the defendant lacks the mental capacity, as a result of mental disability, "to understand the death penalty and why it was imposed." In a capital case when the jury finds the defendant eligible for the death penalty but fails to unanimously recommend the death penalty, the court sentences the defendant to "life imprisonment without possibility of release or some other lesser sentence." When the prosecution elects not to seek the death penalty and when the defendant is convicted of a noncapital offense, the court sentences the defendant, without benefit of a jury. Although the federal Sentencing Guidelines are no longer binding, noncapital sentencing begins there. The Guidelines provide a series of sentencing ranges beneath the statutory maximum for the offense of conviction, calibrated to reflect the seriousness of the offense and the extent of the defendant's criminal record. A sentencing court, with reasonable justification, may sentence a defendant outside the applicable Guideline recommended sentencing range. Victims have a right to be reasonably heard during the capital sentencing hearing. Victims of a federal crime of violence are also entitled to an order of restitution, covering the cost of medical expenses, rehabilitation costs, and, in the case of a homicide, funeral expenses. Victims do not have a right to attend the execution of a defendant convicted of murdering a family member, although they may do so at the discretion of the Director of the Bureau of Federal Prisons and, to a more limited extent, at the discretion of the Warden. | Jared Lee Loughner was arrested for the attempted murder of Representative Gabrielle Giffords, the murder of United States District Court Judge John Roll, and the murder or attempted murder of several federal employees. The arrest brings several features of federal law to the fore. Federal crimes of violence are usually violations of the law of the state where they occur; an offender may be tried in either federal or state court or both. Ordinarily, federal crimes must be tried where they occur, but in extraordinary cases a defendant's motion for a change of venue may be granted. In capital cases, the decision to seek the death penalty rests with the Attorney General. Should a defendant elect to assert an insanity defense, he must provide pretrial notification. In the face of that notice, the court may order an examination to determine the defendant's competence to stand trial. Federal law affords victims, including families of the deceased or incapacitated, the right to confer with prosecutors, and to attend the trial and other public judicial proceedings. Defendants, convicted of a murder for which the prosecution seeks the death penalty, are entitled to a jury determination of whether they acted with the intent necessary to qualify for the death penalty and whether the balance of aggravating and any mitigating factors are sufficient to warrant the jury's recommendation that the defendant be put to death. Defendants, convicted of attempted murder or some other noncapital offense, are sentenced by the court without the benefit of a jury. Sentencing in such cases begins with the federal Sentencing Guidelines, from whose recommendations a sentencing court may depart only with reasonable justification. Comparable provisions of state law are beyond the scope of this report. |
The American Recovery and Reinvestment Act of 2009 (ARRA; P.L. 111-5 ) created an Emergency Contingency Fund (ECF) within the Temporary Assistance for Needy Families (TANF) block grant. The fund expired on September 30, 2010. It helped states, Indian tribes, and territories pay for additional costs of providing economic aid to families during the current economic downturn for FY2009 and FY2010. The TANF block grant provides states, Indian tribes, and territories with federal funding for a wide range of benefits and services to ameliorate the effects of, or address the root causes of, economic disadvantage for families with children. The bulk of federal TANF funding is in a basic block grant of $16.5 billion. Under the basic block grant, each state receives an amount that has remained the same, without adjustment, since the 1996 welfare reform law. States—taken together—are also required to contribute a minimum of $10.4 billion to TANF-funded or related programs under a maintenance of effort (MOE) requirement. This amount, too, has not been adjusted since the 1996 welfare reform law. TANF is best known for funding cash welfare payments for very low-income families with children. However, states may use TANF funds "in any manner reasonably calculated" to help states achieve the broad statutory purpose of the block grant. In FY2009, only 28% of federal and related state TANF funds were expended on basic assistance, the category of spending that most closely corresponds to traditional cash welfare. The cash welfare rolls had declined to 1.7 million families by July 2008, down from a historical peak of 5.1 million families in March 1994. TANF also provided considerable funding for state subsidized child care programs, programs that address child abuse and neglect, pregnancy prevention programs, youth programs, and early childhood development (e.g., pre-Kindergarten) programs. Absent additional TANF funds, the limited and fixed nature of the block grant means that states bear the full cost of increased costs (e.g., increases in cash welfare). To share this risk during periods of recession, the 1996 welfare reform law created a $2 billion Contingency Fund. This fund, hereafter in this report called the "regular" contingency fund, provides capped matching grants to states that meet criteria of economic need and increased state spending to help states meet recession-related costs. The overall cash assistance caseload began to rise in August 2008. From March 2008 to March 2010, the national caseload increased by 13%—with some states experiencing faster caseload growth. The regular TANF contingency fund provided 19 states with additional funding in FY2009 and early FY2010. However, some states (e.g., California and Florida) experienced substantial increases in their TANF cash assistance caseloads, and met the criterion of economic need required to draw regular contingency funds, but failed to draw them because of the increased state spending requirement of the regular fund. The ARRA included a number of provisions related to taxes and benefit payments, designed to partially offset the declines in family income and purchasing power resulting from the increased joblessness caused by the recession. As part of this package, the ARRA established within TANF a $5 billion ECF for FY2009 and FY2010. The ECF provided states, tribes, and territories with capped additional funding to help meet additional costs or create new programs to respond to the current economic downturn. Subject to a cap on state grants from the ECF, the fund paid states, tribes, and territories 80% of the increased costs of expenditures in the three categories of expenditures discussed below. While TANF funds a wide range of economic aid and human services to families, the ECF reimbursed for only three categories of activities: basic assistance, non-recurrent short-term aid, and subsidized employment. These categories typically are those that provide direct aid to families, rather than fund services. This category represents spending on what most people think of as cash welfare. Generally, it is a monthly check (or deposit on an electronic benefit card) to help very low-income families meet ongoing basic needs. In order to qualify for funding for increased basic assistance, a state must experience both an increase in the number of families receiving assistance benefits as well as an increase in expenditures for basic assistance. To determine eligibility for ECF grants on the basis of increased cash assistance, the average number of families receiving cash assistance in a current fiscal quarter in FY2009 or FY2010 was compared with the number of families receiving cash assistance in the comparable quarter in the "base year." The base year was defined as either FY2007 or FY2008, whichever had the lowest cash assistance caseload. If a state, tribe, or territory experienced an increase in the cash assistance caseload, it was reimbursed for 80% of the increased costs (if any) of basic assistance from the comparable quarter in the base year to the current quarter. This category represents spending on aid that is to meet a specific family situation and aid is limited to a four-month timeframe. States, tribes, and territories had broad latitude in defining the types of "short-term aid" that they provide to families under the ECF. Moreover, short-term aid was provided to families both on and off the cash assistance rolls. If a family received only non-recurrent short-term aid, and not ongoing TANF assistance, that family was not subject to the rules that apply to TANF cash welfare families (e.g., work participation, time limit, and child support enforcement requirements). Unlike basic assistance, which required both increased expenditures and that more families be assisted, ECF funding for non-recurrent short-term aid was based solely on increased expenditures. The expenditures on non-recurrent short-term aid in a current quarter in FY2009 or FY2010 were compared with expenditures in the comparable quarter in the base year. The base year for non-recurrent short-term aid was either FY2007 or FY2008, whichever had the lowest expenditures for this category of expenditures. The base year for non-recurrent short-term aid could have been different from that used to determined ECF eligibility for basic assistance. The ECF reimbursed 80% of the increased expenditures on short-term non-recurrent aid from the comparable quarter in the base year to the current quarter. This category represents work subsidies: payments to employers or third parties to help cover the costs of employee wages, benefits, supervision, and training. The subsidized job could have been in the private or public sector. As with non-recurrent short-term aid, states were permitted to subsidize jobs for those on the cash assistance rolls as well as for other persons. If a person's only ongoing TANF benefit was an employment subsidy, his or her family was not subject to the rules that apply to TANF families receiving cash welfare. To draw ECF grants for subsidized employment, a state only needed to show that it had increased its expenditures for subsidized employment. The comparison used to determine increased costs for subsidized employment was the same type of comparison used for short-term benefits, as discussed above. Expenditures for subsidized employment for a current quarter in FY2009 or FY2010 were compared to those in the comparable quarter in the base year. The base year for subsidized employment was FY2007 or FY2008, whichever year had the lowest expenditures in the category, and could have differed from the base years used for basic assistance and short-term non-recurrent aid. The ECF reimbursed 80% of the increased expenditures on subsidized employment from the comparable quarter in the base year to the current quarter. Each state was limited on what they can draw combined from the ECF and the TANF regular contingency fund. Over the two-year period, FY2009 and FY2010, a state could draw up to 50% of its basic block grant from the two funds. The ECF did not pay for the full increase in expenditures for basic assistance, short-term aid, or subsidized employment. It provided for an 80% reimbursement for these increased costs. This is sometimes referred to as an 80% match rate, though this is somewhat misleading because states, tribes, and territories did not need to come up with "new money" to cover the remaining 20%. They were able to use funding reallocated from other activities funded from the basic TANF block grant or MOE monies to cover these costs. Additionally, states were permitted to count the value of in-kind, third party payments toward the 20%. This was particularly important for subsidized employment. According to guidance from the Department of Health and Human Services (HHS), the state could have counted the value of employers' supervisory time toward the 20%. The limit on supervisory time was 25% of an employee's wage. At the end of FY2010 (September 30, 2010), all $5 billion appropriated to the ECF was awarded to states, tribes, and territories. Figure 1 shows the TANF ECF grant awards by category of spending. The figure shows cumulative grant awards. It shows that $1.6 billion, 32% of the total grant awards, was to help finance increases in expenditures for basic assistance. Another $2.1 billion, 41% of the total, was for non-recurrent short-term aid and $1.3 billion, 26% of the total, was for subsidized employment. A total of 49 states, the District of Columbia, Puerto Rico, and the Virgin Islands were awarded ECF funds. Only Wyoming and Guam failed to receive ECF grants. Table 2 shows ECF grant awards by category of expenditures, showing the dollar awards in each category as well as the percent of the total awards for each category by state. Most of these jurisdictions (48) were awarded funds for increases in their basic assistance caseload, with 44 jurisdictions awarded funds for non-recurrent short-term aid and 42 jurisdictions receiving funds for subsidized employment. Only three states (Nevada, New Hampshire, and New Mexico) received funding only for basic assistance. In addition, 25 tribes and tribal organizations were awarded ECF grants. These grants total $14.2 million. Twelve states (Colorado, Delaware, Maryland, Michigan, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Tennessee, and Washington State) received their maximum allotment of contingency funds, and some others were close to receiving their maximums. As discussed above, states, tribes, and territories were limited to receiving only up to 50% of their basic TANF block grant in combined grants from the regular and emergency contingency funds over the two years, FY2009 and FY2010. Table 2 shows state awards from the regular TANF contingency fund and the ECF, comparing the sum of these awards with their maximum grants. States are sorted in descending order, so that states closest to exhausting their maximum allotments are shown at the top of the table. The TANF ECF was enacted as a temporary measure to help finance extra economic support to families to help them weather the recession. Though the economy grew in the last half of 2009 and the first three quarters of 2010, unemployment remained high. Unemployment is typically considered a "lagging" indicator and falls only after an economic expansion has already been underway for some time. Historically, the trend in the cash welfare caseload has sometimes followed economic conditions, but sometimes not. After the 1990-1991 recession, welfare caseloads actually peaked in March 1994, before beginning their decline. President Obama's FY2011 budget proposal sought to establish a new Emergency Fund for FY2011. It would have been funded at $2.5 billion for that year. The House voted twice in 2010 to extend the ECF, though such proposals failed to clear the Senate. A provision of the Claims Resolution Act of 2010 ( P.L. 111-291 ) extended the basic TANF program through the end of FY2011 without the ECF. | The American Recovery and Reinvestment Act of 2009 (ARRA; P.L. 111-5) created a $5 billion Emergency Contingency Fund (ECF) within the Temporary Assistance for Needy Families (TANF) block grant to help states, Indian tribes, and the territories pay for additional economic aid to families during the current economic downturn. It was part of a package of tax and benefit program provisions aimed at stemming the decline in family incomes and purchasing power caused by increased unemployment. The ECF was a temporary fund for two years, FY2009 and FY2010, and expired on September 30, 2010. All of the available $5 billion was awarded by the fund's expiration date to states, tribes, and territories. Though the economy grew in the last half of 2009 and the first three quarters of 2010, unemployment remained high. Historically, the trend in the cash welfare caseload has sometimes followed economic conditions, but sometimes not. After the 1990-1991 recession, welfare caseloads actually peaked in March 1994 before beginning their decline. The 111th Congress considered legislation in 2010 to extend the ECF beyond September 30, 2010. However, though the House twice passed bills to extend the ECF, none of these measures received Senate approval. A provision of the Claims Resolution Act of 2010 (P.L. 111-291) extended the basic TANF program through the end of FY2011 without the ECF. TANF is best known for funding cash welfare payments for low-income families, but it actually provides funds for a wide range of benefits and services to ameliorate the effects of, or address the root causes of, economic disadvantage among families with children. While TANF funds a wide range of both economic aid and human services to families with children, the ECF was limited to funding three categories of expenditures: basic assistance, a category that most closely resembles traditional cash welfare; non-recurrent short-term (e.g., emergency) aid; and subsidized employment. These categories typically are those that provide direct aid to families, rather than fund services. States, Indian tribes, and the territories were reimbursed 80% of the costs of increased expenditures in these categories. To qualify for ECF grants for increased basic assistance expenditures, a state, tribe, or territory had to aid more families on its assistance rolls than it did in FY2007 or FY2008. Qualification of states, tribes, and territories for ECF grants supporting short-term aid or subsidized employment were dependent only on increased expenditures from FY2007 or FY2008. ARRA placed a limit on total ECF and other TANF contingency fund payments to states, at a combined 50% of a state's basic block grant over the two years, FY2009 and FY2010. A total of 49 states, the District of Columbia, Puerto Rico, and the Virgin Islands had their applications for ECF grants approved. Additionally, 25 tribes and tribal organizations had approved ECF applications. Of the total $5 billion awarded, $1.6 billion was for basic assistance, $2.1 billion for short-term aid, and $1.3 billion for subsidized employment. Twelve states (Colorado, Delaware, Maryland, Michigan, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Tennessee, and Washington State) have received their maximum ECF grants. |
Section 103(a) of the Patent Act provides one of the statutory bars for patentability of inventions: a patent claim will be considered invalid if "the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains." In other words, for the subject matter of an alleged invention or discovery to be patentable, it must be "nonobvious" at the time of its creation. The nonobviousness requirement is met if the subject matter claimed in a patent application is beyond the ordinary abilities of a person of ordinary skill in the art in the appropriate field. In the landmark 1966 case Graham v. John Deere Co . of Kansas City, the Supreme Court established an analytic framework for courts to determine "nonobviousness." The so-called Graham test describes several factors that must be assessed: While the ultimate question of patent validity is one of law ... the § 103 condition, which is but one of three conditions, each of which must be satisfied, lends itself to several basic factual inquiries. Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or nonobviousness of the subject matter is determined. Such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented. As indicia of obviousness or nonobviousness, these inquiries may have relevancy. While a single prior art reference could form the basis of a finding of nonobviousness, multiple prior art references are often involved in the analysis. In such a situation, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) had developed an approach in which an invention would be considered obvious only if there was an explicit or implicit "teaching, suggestion, or motivation" that would lead a person of ordinary skill to combine multiple prior art references to produce an invention. Such a "teaching, suggestion, or motivation" (TSM) could have come from either (1) the references themselves, (2) knowledge of those skilled in the art, or (3) the nature of a problem to be solved, leading inventors to look to references relating to possible solutions to that problem. Because § 103 of the Patent Act requires that an invention's obviousness be determined from the standpoint of a person having ordinary skill in the art "at the time the invention was made," the TSM test was designed, in part, to defend against "the subtle but powerful attraction of a hindsight-based obviousness analysis." The patents at issue in KSR International v. Teleflex pertain to an adjustable pedal system (APS) for use with automobiles having electronic throttle-controlled engines. Teleflex Inc. holds an exclusive license for the patent on this device that allows a driver to adjust the location of a car's gas and break pedal so that it may reach the driver's foot. KSR International Co. also manufactures an adjustable pedal assembly. Initially, KSR supplied APS for cars with engines that use cable-actuated throttle controls; thus, the APS that KSR manufactured included cable-attachment arms. In mid-2000, KSR designed its APS to incorporate an electronic pedal position sensor in order for it to work with electronically controlled engines, which are being increasingly used in automobiles. In 2002, Teleflex filed a patent infringement lawsuit against KSR after KSR had refused to enter into a royalty arrangement, asserting that this new design came within the scope of its patent claims. In defense, KSR argued that Teleflex's patents were invalid because they were obvious under § 103(a) of the Patent Act—that someone with ordinary skill in the art of designing pedal systems would have found it obvious to combine an adjustable pedal system with an electronic pedal position sensor for it to work with electronically controlled engines. The U.S. District Court for the Eastern District of Michigan agreed with KSR that the patent was invalid for obviousness, granting summary judgment in favor of KSR. The court determined that there was "little difference between the teachings of the prior art and claims of the patent-in-suit." Furthermore, the court opined that "it was inevitable" that APS would be combined with an electronic device to work with electronically controlled engines. Teleflex appealed the decision to the Federal Circuit. The appellate court vacated the district court's ruling, after finding that the district court had made errors in its obviousness determination. Specifically, the Federal Circuit noted that the district court had improperly applied the TSM test by not adhering to it more strictly—the district court had reached its obviousness ruling "without making findings as to the specific understanding or principle within the knowledge of a skilled artisan that would have motivated one with no knowledge of [the] invention to make the combination in the manner claimed." The Federal Circuit explained that district courts are "required" to make such specific findings pursuant to Federal Circuit case law establishing the TSM standard. In regard to the patent in the case, the appellate court found that the prior art in adjustable pedal design had been focused on solving the "constant ratio problem" (described as when "the force required to depress the pedal remains constant irrespective of the position of the pedal on the assembly"); whereas the motivation behind the patented invention licensed to Teleflex was "to design a smaller, less complex, and less expensive electronic pedal assembly." In the Federal Circuit's view, unless the "prior art references address the precise problem that the patentee was trying to solve," the problem would not motivate a person of ordinary skill in the art to combine the prior art teachings—here, the placement of an electronic sensor on an adjustable pedal. The Supreme Court granted certiorari on June 26, 2006, to review the KSR case, in which the central question before the Court was whether the Federal Circuit had erred in crafting TSM as the sole test for obviousness under § 103(a) of the Patent Act. On April 30, 2007, the Court unanimously reversed the Federal Circuit's judgment, holding that the TSM test for obviousness was incompatible with § 103 and Supreme Court precedents. Associate Justice Anthony Kennedy, delivering the opinion of the Court, explained that the proper framework for a court or patent examiner to employ when determining an invention's obviousness is that set forth in the Court's 1966 opinion Graham v. John Deere Co. of Kansas City. That analytical framework provides "an expansive and flexible approach" to the question of obviousness that the "rigid" and "mandatory" TSM formula does not offer. Justice Kennedy observed that the Graham approach, as further developed in three subsequent Supreme Court cases decided within ten years of that case, is based on several instructive principles for determining the validity of a patent based on the combination of elements found in the prior art: When a work is available in one field of endeavor, design incentives and other market forces can prompt variations of it, either in the same field or a different one. If a person of ordinary skill can implement a predictable variation, it is likely obvious under § 103 and unpatentable. If a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill. Justice Kennedy then provided additional guidance for courts in following these principles. To determine whether there was an apparent reason to combine the known elements in the manner claimed by the patent at issue, courts should explicitly engage in an analysis that considers the following elements: the interrelated teachings of multiple patents, the effects of demands known to the design community or present in the marketplace, and the background knowledge possessed by a person having ordinary skill in the art. He further explained that a court should not solely take into account the "precise teachings" of the prior art, but rather can consider the "inferences and creative steps" that a person of ordinary skill in the art would likely use. The Federal Circuit's TSM test, and its mandatory application, is contrary to Graham and its progeny because it limits the obviousness analysis and is too formalistic, Justice Kennedy argued. In addition, he believed that the TSM test hindered the ability of courts and patent examiners to rely upon "common sense." In dicta, the Court's opinion appears to imply that the TSM test could have contributed to issued patents or unsuccessful challenges to the validity of certain patents that do not reflect true innovation: "Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may, for patents combining previously known elements, deprive prior inventions of their value or utility." Finally, Justice Kennedy criticized the Federal Circuit for "overemphasizing the importance of published articles and the explicit content of issued patents." However, Justice Kennedy allowed that TSM provides "a helpful insight"—that a patent comprised of several elements is not obvious just because each of those elements was, independently, known in the prior art. This "essence" of the TSM test is not necessarily inconsistent with the Graham analysis, and thus he predicted that the Federal Circuit has likely applied the TSM test on many occasions in ways that accord with the Graham principles. It is the Federal Circuit's rigid application of its TSM rule, however, that the Court deemed was problematic in this case. Justice Kennedy identified four specific legal errors committed by the Federal Circuit. First, the appellate court had held that courts and patent examiners should look only to the problem the patentee was trying to solve, rather than other problems addressed by the patent's subject matter. Second, the appellate court had assumed that a person of ordinary skill trying to solve a particular problem will be led only to those elements of prior art designed to solve the same problem; however, "common sense teaches ... that familiar items may have obvious uses beyond their primary purposes, and in many cases a person of ordinary skill will be able to fit the teachings of multiple patents together like pieces of a puzzle." The third error of the lower court was its erroneous conclusion that a patent claim cannot be proved obvious by showing that the combination of elements was "obvious to try"; instead, Justice Kennedy noted, "the fact that a combination was obvious to try might show that it was obvious under § 103." The final error was the Federal Circuit's adherence to "rigid preventative rules" to avoid the risk of hindsight bias on the part of courts and patent examiners, because such rules "deny factfinders recourse to common sense." As to the specific patent claim at issue in this case, the Court adopted the obviousness analysis of the district court and expressly held that the claim "must be found obvious" in light of the prior art. The KSR decision potentially may generate litigation over the validity of some patents issued and upheld under the Federal Circuit's TSM standard; the uncertainty over the enforceability of certain patents thus has ramifications for lawsuits between alleged patent infringers and patent holders, as well as between patentees and their licensees (for example, a patent licensee may want to challenge the validity of the patent to avoid paying royalties or even the imposition of an injunction). While the KSR Court rejected TSM as the sole test for obviousness, the Court did not expressly invalidate it either. Instead, the Supreme Court explained that courts and patent examiners, in evaluating a patent's claimed subject matter for obviousness under § 103, must use common sense, ordinary skill, and ordinary creativity in applying the Graham factors and principles to the specific facts of the case. | The Patent Act provides protection for processes, machines, manufactures, and compositions of matter that are useful, novel, and nonobvious. Of these three statutory requirements, the nonobviousness of an invention is often the most difficult to establish. To help courts and patent examiners make the determination, the U.S. Court of Appeals for the Federal Circuit developed a test called "teaching, suggestion, or motivation" (TSM). This test provided that a patent claim is only proved obvious if the prior art, the nature of the problem to be solved, or the knowledge of those skilled in the art, reveals some motivation or suggestion to combine the prior art teachings. In KSR International Co. v. Teleflex Inc. (550 U.S. ___ , No. 04-1350, decided April 30, 2007), the U.S. Supreme Court held that the TSM test, if it is applied by district courts and patent examiners as the sole means to determine the obviousness of an invention, is contrary to Section 103 of the Patent Act and to Supreme Court precedents that call for an expansive and flexible inquiry, including Graham v. John Deere Co. of Kansas City, 383 U.S. 1 (1966). |
We must modernize the Air Force. This isn't optional. We must do it. And it will be painful because we will have to make hard choices.—General Mark Welsh, Chief of Staff, U.S. Air Force We can't – particularly with $17 billion less in 2017 – we're not going to be able to do it all. — Deborah Lee James, Secretary of the Air Force The U.S. Air Force is in the midst of an ambitious modernization program, driven primarily by the age of its curren t aircraft fleets. It has undertaken three major programs, repeatedly declared to be the service's top procurement priorities: the F-35A strike fighter, to replace several aircraft types whose designs date from the 1970s; the KC-46A tanker, to replace KC-135s designed in the 1950s; the Long-Range Strike Bomber (LRS-B), initially to replace B-52s and B-1s, whose designs date from the 1950s and 1970s, respectively. In addition, the Air Force continues to procure variants of the C-130 cargo aircraft and a relatively small number of remotely piloted aircraft systems (RPA, as the Air Force refers to unmanned aerial systems). Together, these five programs account for $67.2 billion over the FY2016-2020 Future Years Defense Program (FYDP). In FY2016, the four procurement programs (F-35A, KC-46, C-130, and RPA) account for 99% of the Air Force's aircraft acquisition budget; LRS-B is 5% of the Air Force overall research and development (R&D) budget, but 60% of the budget for Advanced Component Development & Prototypes. Those are not the Air Force's only modernization requirements. The FY2016-2020 FYDP also includes initial funding for JSTARS recapitalization, to develop a successor for the E-8 intelligence, surveillance, and reconnaissance aircraft, with a projected entry into service of FY2022; a new combat rescue helicopter (CRH) to retrieve downed airmen and other personnel, to succeed the HH-60G; a Presidential Aircraft Replacement (PAR) program to develop and acquire a replacement for two VC-25 aircraft popularly referred to as Air Force One; and a new advanced trainer aircraft, called the T-X, to replace T-38 trainers designed in the 1950s. Perhaps notably, no funded plan exists for recapitalizing the E-3 AWACS fleet, based on the same airframe as the KC-135 and E-8. The current plan also includes no funding for the long-expected CVLSP helicopter replacement program. Any such programs would add to the outyear funding issue discussed below. The total investment required for these nine programs, combined with the budgetary restrictions in place as a consequence of the Balanced Budget Act of 2013 ( P.L. 113-67 ), or BBA, poses a significant challenge to Air Force budgeters. Because defense budget exhibits project only five years into the future, however, that challenge may not be immediately evident. A more detailed explanation follows. As Figure 1 shows, projected program spending for F-35A and KC-46 procurement is substantial and steady, while RPAs add a relatively small share and spending on the C-130 declines over time. (As this report went to press, the Air Force announced a plan to acquire 75 more MQ-9 Reaper RPAs; the cost of that acquisition is not reflected in these figures.) The major R&D programs offer a different picture. Spending for the LRS-B, following its recent contract award and entering its engineering and manufacturing development phase, is projected to triple over the course of the FYDP. The newer programs begin with relatively low spending in the current FYDP; the challenge will come if those programs proceed to advanced development and eventually procurement. With F-35A and KC-46 slated to continue for many years (and, in KC-46's case, a successor KC-Y programmed to immediately follow), procurement spending on established programs will continue to be substantial. How will the future Air Force procurement budget accommodate the new programs as well? LRS-B complicates the picture further. It is funded (at least through the current FYDP) in the R&D budget, where both the program's size and its increasing budget requirements will place pressure on the newer programs. At some point, LRS-B may shift from R&D to the procurement budget, but that appears to be somewhere beyond FY2020 at the earliest—which is when CRH, PAR, T-X, and JSTARS Recap might also be expected to move from R&D to procurement, exacerbating the rivalry for resources. The net effect of starting these new programs atop a full procurement budget is a classic "bow wave" of procurement, with increasing numbers of programs with growing budgets all trying to fit within a fixed budget topline at the same time while building requirements for increased future funding. One might expect the chart of a procurement "bow wave" to show expenses increasing in the outyears. Figure 1 and Figure 2 both show an increase in FY2018 and FY2019, then a drop for FY2020. Also, the increases for FY2018 and FY2019 do not appear very large in Figure 1 . If an Air Force modernization bow wave exists, why doesn't it show more vividly on the charts? There are three reasons. Two are substantive; one is purely graphical. First, because the FYDP includes only six years' data (the year currently executed, the requested year, and the following four years), the effects of the bow wave are difficult to portray, as the highest development and procurement costs of the new starts and LRS-B would take place after FY2020. What is seen in Figure 1 and Figure 2 can be considered the seeds of the challenge, with the full effects coming in the years beyond the chart. Second, the Air Force has been managing its current programs to remain under its topline budget cap. This has the effect of flattening all spending, as programs that might otherwise grow are constrained, extended, and/or delayed ("moved right," in budget parlance) to keep the modernization accounts under their caps. It is not unreasonable to hypothesize that absent the caps, the program budgets might show greater growth. The purely graphical reason that Figure 1 appears to show virtually flat spending is that the sums for the current procurement programs (F-35A, KC-46, C-130, and RPA) are so large that even significant variations in the smaller programs are visually minimized. By omitting the larger established programs, Figure 2 shows the shape of those newer programs more clearly. It may be tempting to say that because the Air Force has been able to fit its current major procurement and R&D programs into its budget, there is no current modernization budget challenge. In response, one could note that some of those programs, like T-X and CRH, have been delayed from when they were initially required, leading to additional costs to keep the older aircraft that would otherwise have been replaced operating past their designed service lives. Those costs come from the operations and maintenance budgets, and are thus not reflected here, but keeping modernization programs under a current cap does result in costs elsewhere in the Air Force. Perhaps the most significant potential change in the Air Force's budgetary landscape is the end of the BBA-mandated budget caps in FY2021. The end of caps does not mean that the Air Force will get more money, but the R&D programs appear all to be timed such that the bulk of their funding requirements will come after the caps end. Whether this is a deliberate strategy on the part of the Air Force or a coincidence of timing is unclear, but it appears that the Air Force is gambling that the budget caps will not be extended or replaced. Even with the current caps, normal program growth and program changes (like the eventual transfer of LRS-B and other R&D programs from the R&D budget to the procurement budget) will increase the competition for procurement dollars. The F-35A and KC-46 programs will continue for decades, offering little prospective relief. And until its possible transfer, the significant growth of LRS-B within the smaller R&D advanced development budget may seriously challenge the newer programs' development schedules. Also, as Figure 1 and Figure 2 show, current Air Force plans result in a surge in modernization spending in FY2018 and FY2019. Recently, the DOD Comptroller stated that "there'll probably be some slowdowns in some modernization programs" in the FY2017 budget submission from their projected level to accommodate other Air Force priorities. A reduction in FY2017 could make the significant increases planned for FY2018 and FY2019 harder to achieve. When trying to fit growing numbers of growing programs under a fixed budget topline, the broad mechanical choices seem simple: raise the topline or reduce the programs. However, the details matter, especially in how one reduces programs and which programs are reduced. As noted, the BBA-mandated caps on defense spending end in FY2021. However, increasing the Air Force modernization budget after the caps expire (and assuming they are not extended or replaced with a similar mechanism) likely requires a chain of events: that defense is then able to get a larger share of the federal budget, and/or that the Air Force is able to get a larger share of the defense budget, and that competing internal Air Force priorities allow the bulk of any increase to be allocated to aviation modernization. This is not a given, as other, non-aviation Air Force activities like modernization of strategic nuclear systems are expected to require increased funding at the same time. Different means of changing programs yield different effects. Canceling programs can lead to gaps in important capabilities. Delaying or deferring programs can cause cost growth, possible mismatches of capabilities to requirements, and/or loss of industrial base capacity. One also has to guess correctly which programs to reduce as the program delayed or deferred today may be exactly the one needed sooner should requirements, scenarios, adversary capabilities, or other factors change in the future. Noting that CRS does not endorse any particular option, some possible spending reductions or deferrals that Congress may consider include (but are not limited to) the following: Aviation modernization is just one part of the overall Air Force budget. Whether the Air Force ultimately receives an increased topline or not, it is possible to move funds from other programs and activities to fund modernization, as the service has already been doing. The different sources of funds impose various costs. For example, reducing operations and maintenance funding to fund modernization can reduce the current readiness of Air Force units. Retiring or reducing older fleets (as the Air Force has proposed to do with the A-10 attack aircraft) may lead to real or perceived capability gaps. Deferring other major programs (like nuclear modernization) may also create real or perceived capability gaps. Reducing personnel to fund modernization could challenge the Air Force's ability to carry out its full range of missions. The F-35A represents 42% of the FYDP budget for these nine programs. The Air Force intends to acquire 60 F-35As per year. Some commentators have proposed reducing the annual buy to 48 per year, which would free up approximately $1 billion per year for other priorities, either within the roughly $15 billion modernization budget or elsewhere in the Air Force. Those figures do not take into account any costs that would be incurred for extending the life of aircraft the F-35A is intended to replace; capability gaps created through the delayed introduction of more modern aircraft; the increased cost of other F-35 models to other services and allies resulting from a reduced annual buy; and/or the resulting match between U.S. capabilities and adversary air and air defense systems. As noted earlier, the Air Force has already deferred some new starts to keep its modernization programs within a constrained topline. Further delaying or restricting the growth of T-X, JSTARS Recap, CRH, and/or PAR could help synchronize outyear program growth so that they are not all peaking at the same time as LRS-B or each other. However, these programs exist because older platforms are becoming increasingly expensive to maintain and operate. Further deferring them would continue those costs while extending systems—often many decades old—with declining capability. This is even more relevant in the case of LRS-B, as the B-52s it is intended to replace are already programmed to remain in service longer than any operational combat aircraft in history. Slowing or deferring LRS-B could require prolonging the B-52 fleet's life into technically—and budgetarily—unknown territory. The KC-46 program is expected to provide 179 new aerial refueling tankers over 15 years to replace roughly one-third of the KC-135 fleet. A successor program, called KC-Y, is intended to provide another 179, notionally as a continuation of KC-46. Depending on the success of KC-46, the condition of the remaining air tanker fleet, and the number of aircraft requiring refueling (which may be determined in part by which other options the Air Force may take), it may be possible to defer KC-Y for some years. However, doing so could create capability gaps, decrease industrial base capability, and increase the costs of eventual KC-Y aircraft. Also, as KC-Y procurement is not scheduled to begin until after FY2027, the KC-Y program may be starting well after the main effects of the bow wave are felt. As part of its markup of the Navy's proposed FY2015 budget, Congress created the National Sea-Based Deterrence Fund (NSBDF), a fund in the DOD budget that was to be separate from the Navy's regular shipbuilding account, to fund development of SSBN(X), the replacement of the Ohio -class ballistic missile submarine. This was based on two arguments: (1) that the strategic deterrence mission of the SSBN(X) was a national mission, not unique to the Navy, and (2) that funding the procurement of SSBN(X)s outside the Navy's shipbuilding budget would preserve Navy shipbuilding funds for other Navy shipbuilding programs. The same arguments could be applied to LRS-B. With new weapon system development in some cases taking several decades, illustrating the budget in five- or six-year slices makes visualizing future budgetary needs difficult. Congress has mandated that DOD provide 30-year plans for shipbuilding and aviation programs, but the differing levels of detail in those plans impair their utility in projecting phenomena like the Air Force outyear bow wave. A revision in the FYDP from projecting 5 years in the future to 10 years—even if that implies some reduced-fidelity detail in the outyears—could more tangibly illustrate the resource decisions required today to avoid budgetary "train wrecks" in the future. | The U.S. Air Force is in the midst of an ambitious aviation modernization program, driven primarily by the age of its current aircraft fleets. Four major programs are in procurement, with five more in research and development (R&D). The need to replace several types of aircraft simultaneously poses challenges to future budgets, as the new programs compete with existing program commitments and normal program growth under a restricted service topline. The impending expiration of caps imposed by the Balanced Budget Act coincides with when modernization programs can be expected to experience the most growth, but does not necessarily offer sufficient relief to avoid program cuts or other funding approaches. To meet its modernization requirements, the Air Force may need to revise that topline, defer or delay other programs (including possibly reducing the quantity of aircraft already in procurement), or find other sources of funding to carry all its plans to fruition. Some specific options may include (but are not limited to) raising the Air Force topline (and/or the aviation modernization share); pusharounds or reductions in Air Force programs and activities other than modernization; reducing annual quantities of the F-35A; further retarding the growth of R&D programs; deferring the KC-Y follow-on tanker; funding the long-range strike bomber through a non-Air Force budget. The report examines these options in further detail. |
A court handling an interstate child custody dispute must consider whether it has jurisdiction to decide the custody case. Three laws provide the answer as to whether a particular court has jurisdiction: the Parental Kidnapping Prevention Act [PKPA], the Uniform Child Jurisdiction and Enforcement Act [UCJEA] and the Uniform Child Custody Jurisdiction Act [UCCJA], which has been enacted in some form in all fifty states and the District of Columbia. The PKPA gives priority to the child's home state (the state where the child lived with at least one parent for six months before the custody petition was filed). If one parent moves with the child to live in a new state, the original state continues to be the home state for an additional six months after the move. The child need not be physically present in the original state for the child custody proceeding to be initiated there by the parent who remained behind. Yes. In all states, custody orders can be modified by a court to further the best interests of the child. Usually, the parent requesting the modification must convince a judge that a substantial change in circumstances affecting the child's welfare has occurred since the original custody order was entered. Under the PKPA, the court that issued the initial custody decree has "continuing jurisdiction" over custody matters, provided that the first state meets three preconditions: (1) it entered its initial custody order in accordance with the Parental Kidnapping Prevention Act; (2) the child or one parent continues to live in the state; and (3) the state's own law allows continuing jurisdiction. If these conditions are met, a parent living in another state who wants to modify the initial custody arrangement must file the modification petition in the first state. The UCCJA provides that dismissal is mandatory where the noncustodial parent violates an existing custody order by refusing to return the child to the custodial parent at the end of the child's period of visitation and then asks the out-of-state court to modify custody. Neither the PKPA, UCJEA nor the UCCJA totally precludes the second state from ever modifying the initial custody order. The PKPA permits the second state to modify the initial custody provision if: (1) the second state has jurisdiction to make a child custody determination and (2) the first state no longer has jurisdiction or has declined to exercise jurisdiction. The remedies available under the UCJEA and UCCJA are unavailing if the left-behind parent is unable to find the abducting parent and the child. For this reason, the PKPA makes the federal Parent Locator Service available to assist local police in locating the abductor. The PKPA also provides that any state that treats parental kidnapping as a felony may enlist the F.B.I.'s assistance under the federal Fugitive Felon Act in locating the abducting parent, provided he or she has left the state. In many states, parental kidnapping (also known as interference with parental custody) is a felony, depending upon the circumstances. In others, it is a felony if the child is taken from the state. However, in most states, there can be no kidnapping unless there is an existing custody order that the parent has intentionally violated. Because many parental kidnappings take place before a final custody decree is entered, a few states have extended criminal sanctions to kidnappings that occur before the final custody decree. Several states also permit the court to assess expenses incurred in returning the child against any person convicted of violating the state's criminal custodial interference law. Parents, although they are subject to the PKPA, remain exempt from criminal sanctions under the general federal kidnapping statute. International parental kidnapping is a federal crime, punishable by a fine and/or imprisonment for up to three years. Once the child has been located, a possible solution to the abduction may be provided by the Hague Convention on the Civil Aspects of International Child Abduction. The Convention is in force in approximately 40 countries, including the United States, Mexico, Canada, and most of Europe. The countries that have signed the Hague Convention have agreed that a child who is habitually a resident in one country and who is removed to or retained in another country in breach of the left-behind parent's custody rights must be promptly returned to the country of the child's habitual residence. However, the Convention is inapplicable if the child has been abducted to a country that has not signed the Convention or the child is sixteen or older. Although there need not be a custody decree to invoke the Convention, the left-behind parent must be able to prove that he or she is exercising a "right of custody" at the time of abduction and that he or she had not given permission for the child to be removed or to be retained in the foreign country beyond a specified, agreed-upon time. In the absence of a formal custody order, custodial rights are determined by state law. It is important to remember that a Hague Convention proceeding is not a custody case. At a hearing under the Hague Convention, the judge's job is to determine only where the custody hearing should take place, not who is entitled to custody of the child. The goal of the Hague Convention is the child's swift return to his or her original country where the custody dispute can then be resolved, if necessary, in that country's courts. Parents are obliged to pay child support whether or not they were ever married. Parents also have an obligation to support all of their children, not just the children who reside with them. Thus, although the noncustodial parent is married to someone else or supporting other children, he or she has a continuing obligation to support the children of a previous marriage or relationship. Yes. As of January 1, 1994, the Family Support Act of 1988 requires that all new child support orders provide for automatically withholding child support payments from the obligated parent's paycheck, regardless of whether or not support payments are late. Federal law permits an exception to immediate withholding if the court finds good cause or if the parents both agree to another arrangement. However, a parent who falls at least one month behind in support payments is subject to withholding even in these cases. Withholding may be used to collect current support payments as well as arrearages. States have the option, under federal law, to apply withholding to income other than wages and to order withholding from bonuses, commissions, retirement benefits, rental or interest income, or unemployment compensation benefits. Yes. States permit a child support order to be modified upward or downward based on proof of a substantial change in the parents' financial circumstances or the child's needs. In addition, federal law requires that child support orders be reviewed every three years unless neither parent requests a review or, in temporary assistance for needy families [TANF] cases, if the review would not be in the child's best interest. However, child support orders may only be modified prospectively. The 1986 Bradley amendment to the federal child support laws effectively bars retroactive modification that would wipe out past-due support obligations. Yes. A parent who willfully refuses to comply with a lawful order of child support, though able to do so, may be held in contempt of court and jailed or fined for a fixed period of time as punishment or for an indefinite period until the child support is paid. As of October 1992, failure to pay child support in the interstate context has become a federal crime. An out-of-state parent who has willfully failed to pay court-ordered child support for at least one year or who is at least $5,000 in arrears may be criminally prosecuted by the local United States attorney. For a first offense, the penalties include a fine and/or a prison sentence of up to six months in prison; for a second offense, the punishment is a fine and/or up to two years in jail. A custodial parent who needs to obtain or enforce a child support order but who cannot find the noncustodial parent may enlist the assistance of a child support enforcement agency run by the state or local government, known as a IV-D agency. This assistance is available to all custodial parents, regardless of whether or not they receive public assistance. | Under the U.S. Constitution, Congress has little direct authority to legislate in the field of domestic relations. Generally, state policy guides these decisions. Despite the lack of direct authority to legislate domestic relations issues, Congress continues to enact federal laws that indirectly affect family law questions concerning child custody and support. This report answers questions frequently asked regarding the interplay between federal and state laws governing these areas. |
Earmark disclosure rules in both the House and Senate were implemented with the stated intention of bringing more transparency to congressionally directed spending. The administrative responsibilities associated with these rules vary by chamber. This report outlines the major administrative responsibilities of Members and committees of the House of Representatives associated with the chamber's earmark disclosure rules. House Rule XXI, clause 9, generally requires that certain types of measures be accompanied by a list of congressional earmarks, limited tax benefits or limited tariff benefits that are included in the measure or its report, or a statement that the proposition contains no earmarks. Depending upon the type of measure, the list or statement is to be either included in the measure's accompanying report or printed in the Congressional Record . Rule XXI, clause 9, explicitly defines congressional earmark, limited tax benefit, and limited tariff benefit as follows: Congressional earmark - a provision or report language included primarily at the request of a Member, Delegate, Resident Commissioner, or Senator providing, authorizing or recommending a specific amount of discretionary budget authority, credit authority, or other spending authority for a contract, loan, loan guarantee, grant, loan authority, or other expenditure with or to an entity, or targeted to a specific State, locality or congressional district, other than through a statutory or administrative formula driven or competitive award process. Limited tax benefit - (1) any revenue-losing provision that (A) provides a federal tax deduction, credit, exclusion, or preference to 10 or fewer beneficiaries under the Internal Revenue Code of 1986, and (B) contains eligibility criteria that are not uniform in application with respect to potential beneficiaries of such provision; or (2) any federal tax provision which provides one beneficiary temporary or permanent transition relief from a change to the Internal Revenue Code of 1986. Limited tariff benefit - a provision modifying the Harmonized Tariff Schedule of the United States in a manner that benefits 10 or fewer entities. If either the list of earmarks or the letter stating that no earmark exists in the measure is absent, a point of order may lie against the measure's floor consideration. The point of order applies only in the absence of such a list or letter and does not speak to the completeness or the accuracy of either document. A point of order may lie against the consideration of any general appropriations conference report containing earmarks that are included in conference reports but not committed to conference by either House and not in a House or Senate committee report on the legislation. Such a point of order would be disposed of by a question of consideration, which is debatable for 20 minutes. House earmark disclosure rules apply to any congressional earmark included in either the text of the bill or the committee report accompanying the bill, as well as the conference report and joint explanatory statement. The disclosure requirements apply to items in authorizing legislation, appropriations legislation, and tax measures. Furthermore, they apply not only to measures reported by committees but also to unreported measures, "manager's amendments," Senate bills, and conference reports. These earmark disclosure requirements, however, do not apply to all legislation at all times. For example, when a measure is considered under the "suspension of the rules" procedure, House rules are laid aside, and therefore earmark disclosure rules do not apply. Also not subject to the rule are floor amendments (except a "manager's amendment"), amendments between the houses, or amendments considered as adopted under a self-executing special rule, including a committee amendment in the nature of a substitute made in order as original text. Under House Rule XXIII, clause 17(a), Members requesting a congressional earmark are required to provide a written statement to the chairman and ranking minority Member of the committee of jurisdiction that includes 1. the Member's name; 2. the name and address of the intended earmark recipient (if there is no specific recipient, the location of the intended activity should be included); 3. in the case of a limited tax or tariff benefit, identification of the individual or entities reasonably anticipated to benefit, to the extent known to the Member; 4. the purpose of the earmark; and 5. a certification that the Member or Member's spouse has no financial interest in such an earmark. When submitting earmark requests, it is important to note that individual committees and subcommittees often have their own additional administrative requirements beyond those required by House rules (e.g., prioritizing requests or submitting request forms online). The House Appropriations Committee, for example, has stated that it will require Members requesting earmarks to post information regarding their earmark requests on their personal websites. This information must be posted at the time of the request and must include the purpose of the earmark and why it is a valuable use of taxpayer funds. Additionally, the House Appropriations Committee has announced that it will no longer approve requests for earmarks that are directed to for-profit entities. Committees may also establish relevant policy requirements (e.g., requiring matching funds for earmark requests) or restrictions regarding earmark requests (e.g., not considering earmark requests for certain appropriations accounts or disallowing multi-year funding requests). In addition, committees and subcommittees often have deadlines, especially for earmark requests in appropriations legislation. For this reason, it is important to check with individual committees and subcommittees to learn of any supplemental earmark request requirements or restrictions. The committee of jurisdiction is responsible for identifying earmarks in both the legislative text and any accompanying reports. When it is not clear whether a Member request constitutes an earmark, the committee of jurisdiction may be able to provide guidance. When submitting an earmark request, it may be relevant whether the Member wants the earmark to be included in the text of the bill or the committee report accompanying the bill. Committees may make an administrative distinction between these two categories in terms of the submission of earmark requests, and there may be policy implications of an earmark's placement in either the bill text or the committee report. For example, under Executive Order 13457, issued in January 2008, executive agencies are directed not to commit, obligate, or expend funds that were the result of an earmark included in non-statutory language, such as a committee report. Under House rules, earmark disclosure responsibilities of House committees and conference committees fall into three major categories: (1) determining if a spending provision is an earmark; (2) compiling earmark requests for presentation to the full chamber; and (3) preserving the earmark requests. Individual committees may establish their own additional requirements. Committees of jurisdiction must use their discretion to decide what constitutes an earmark. Definitions in House rules, as well as past earmark designations during the 110 th Congress, may provide guidance in determining if a certain provision constitutes an earmark. House Rule XXIII, clause 17(b), states that in the case of any reported bill or conference report, a list of included earmarks and their sponsors (or a statement declaring the absence of earmarks) must be included in the corresponding committee report or joint explanatory statement. In the case of a measure not reported by a committee or a "manager's amendment," the committee of initial referral must cause a list of earmarks and their sponsors, or a letter stating the absence of earmarks, to be printed in the Congressional Record before floor consideration is in order. The House Appropriations Committee has stated that it will make earmark disclosure tables publicly available the same day that a subcommittee reports its bill. A conference report to accompany a regular appropriations bill must identify congressional earmarks in the conference report or joint explanatory statement that were not specified in the legislation or report as it initially passed either chamber. Each House committee and conference committee is responsible for "maintaining" all written requests for earmarks received, even those not ultimately included in the measure or the measure's report. Furthermore, those requests that were included in any measure reported by the committee must not only be "maintained" but also be "open for public inspection." Rule XXIII does not specify how the information shall be "maintained" and "open for public inspection." | Earmark disclosure rules in both the House and Senate establish certain administrative responsibilities that vary by chamber. Under House rules, a Member requesting that an earmark be included in legislation is responsible for providing specific written information, such as the purpose and recipient of the earmark, to the committee of jurisdiction. Further, House committees are responsible for compiling, presenting, and maintaining such requests in accord with House rules. In the House, disclosure rules apply to any congressional earmark, limited tax benefit, or limited tariff benefit included in either the text of a bill or any report accompanying the measure, including a conference report and joint explanatory statement. The disclosure requirements apply to earmarks in appropriations legislation, authorizing legislation, and tax measures. Furthermore, they apply not only to measures reported by committees but also to measures not reported by committees, "manager's amendments," and conference reports. This report will be updated as needed. |
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]. |
On June 15, 2012, the Department of Homeland Security (DHS) announced that certain individuals without a lawful immigration status who were brought to the United States as children and meet other criteria would be considered for relief from removal from the country for two years, subject to renewal. This initiative is known as Deferred Action for Childhood Arrivals, or DACA. DHS's U.S. Citizenship and Immigration Services (USCIS) began accepting requests for consideration of DACA on August 15, 2012, and issued its first approvals in September 2012. Prior to that, from June 15, 2012, to August 15, 2012, DHS's Immigration and Customs Enforcement (ICE) granted deferred action under the DACA process in some cases. More than 580,000 requests for consideration of DACA have been approved through June 2014. Individuals granted deferred action under the DACA process may request renewal of their deferral for another two years, in accordance with USCIS procedures. Answers to frequently asked questions about DACA and the renewal process are provided below. The DACA initiative was announced by former Secretary of Homeland Security Janet Napolitano in a June 15, 2012, DHS memorandum entitled, "Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children." The DACA initiative was not established by executive order. The eligibility criteria are under age 16 at time of entry into the United States; under age 31 on June 15, 2012; continuously resident in the United States for at least five years before June 15, 2012 (that is, since June 15, 2007); physically present in the United States on June 15, 2012, and at the time of making the request for consideration of deferred action; not in lawful immigration status on June 15, 2012; not convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and not otherwise a threat to national security or public safety; and in school, graduated from high school or obtained general education development certificate, or honorably discharged from the U.S. Armed Forces or the Coast Guard. No. USCIS's decision on a DACA request is discretionary. The agency makes determinations on a case-by-case basis. According to USCIS: "Even if you satisfy the threshold criteria for consideration of DACA, USCIS may deny your request if it determines, in its unreviewable discretion, that an exercise of prosecutorial discretion is not warranted in your case." Of all the requests for consideration of DACA made to USCIS and decided by June 30, 2014, about 96% were approved and about 4% were denied, terminated, or withdrawn. No. DACA recipients are not granted a lawful immigration status and are not put on a pathway to a lawful immigration status. During the period of deferred action, however, the DACA recipient is in a period of stay authorized by DHS and is considered to be lawfully present for admissibility purposes (and thus, does not accrue unlawful presence for admissibility purposes). Individuals granted deferred action may receive work authorization. According to USCIS: "[I]f your case is deferred, you may obtain employment authorization from USCIS provided you can demonstrate an economic necessity for employment." There is no deadline for making initial requests for consideration of DACA. To be eligible, however, an individual must meet the threshold criteria enumerated above, including continuous residence in the United States since June 15, 2007 (see " What are the eligibility requirements for consideration of DACA? "). An individual must file the following three forms with DHS/USCIS: Form I-821D, Consideration of Deferred Action for Childhood Arrivals Form I-765, Application for Employment Authorization Form I-765WS, Worksheet The forms are available on the USCIS website, http://www.uscis.gov . The individual also should submit evidence that he or she meets the DACA eligibility requirements (see " What are the eligibility requirements for consideration of DACA? "). Yes. The fees total $465 and consist of a Form I-765 filing fee of $380 and biometric services fee of $85. Both DACA and legislation known as the DREAM Act are targeted at the same general population—unauthorized individuals who entered the United States as children. The DACA eligibility requirements are similar to the eligibility requirements in some DREAM Act bills. The DACA initiative and the DREAM Act, however, are different instruments and offer eligible individuals different forms of immigration relief. The DACA initiative is an exercise of prosecutorial discretion by the executive branch. Individuals granted DACA receive temporary protection from removal. They are not given a lawful immigration status. By contrast, DREAM Act bills are pieces of legislation and would establish a process for eligible individuals to obtain lawful permanent resident (LPR) status. DREAM Act provisions have been regularly introduced in Congress, both as stand-alone bills and as parts of larger immigration reform bills. Although DREAM Act legislation has never been enacted, some DREAM Act bills have seen legislative action. For example, in the 111 th Congress, the House approved DREAM Act language as part of an unrelated bill, the Removal Clarification Act of 2010 ( H.R. 5281 ). In the 113 th Congress, the Senate-passed Border Security, Economic Opportunity, and Immigration Modernization Act ( H.R. 744 ) incorporates DREAM Act language in its legalization provisions. No legislation on DACA has been enacted. However, in August 2014, the House of Representatives passed a DACA-related bill ( H.R. 5272 ) that states, in part: No agency or instrumentality of the Federal Government may use Federal funding or resources after July 30, 2014— (1) to consider or adjudicate any new or previously denied application of any alien requesting consideration of deferred action for childhood arrivals, as authorized by Executive memorandum dated June 15, 2012 and effective on August 15, 2012 (or by any other succeeding Executive memorandum or policy authorizing a similar program) .... The DACA recipient must satisfy the following criteria: the individual did not depart from the United States on or after August 15, 2012, without first obtaining advance parole ; the individual has continuously resided in the United States since submitting his or her latest approved DACA request; and the individual has not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and is not a threat to national security or public safety. To request a renewal of deferred action under DACA, an individual must file the following three forms with DHS/USCIS (the same forms as required for an initial DACA request): Form I-821D, Consideration of Deferred Action for Childhood Arrivals Form I-765, Application for Employment Authorization Form I-765WS, Worksheet The forms are available on the USCIS website, http://www.uscis.gov . An individual requesting a DACA renewal does not have to submit any documents that he or she previously provided to USCIS in connection with an approved DACA request. The individual does have to submit any new documents related to removal proceedings or criminal history. USCIS will request additional documentation from the individual, if needed. An individual who was granted deferred action under DACA by ICE should file the same three forms to request a renewal as an individual who was initially granted deferred action under DACA by USCIS (see " What forms and other materials does an applicant for DACA renewal have to file? "). Unlike those initially granted deferred action by USCIS, however, individuals who were initially granted deferred action by ICE and are requesting a renewal should submit documentation evidencing that they satisfy the threshold criteria for DACA (see " What are the eligibility requirements for consideration of DACA? "). There is a total fee of $465, consisting of a Form I-765 filing fee of $380 and biometric services fee of $85 (the same as for initial DACA requests). USCIS advises DACA recipients to request a renewal 120 days before the expiration date of their current period of deferred action. Requests submitted more than 150 days before the expiration date may be returned by USCIS for later resubmission. No. The decision on a request to renew DACA, like on an initial DACA request, is discretionary. USCIS makes determinations about renewals on a case-by-case basis. No. An individual granted deferred action (an initial grant or a renewal) is not given a lawful immigration status and is not put on a pathway to a lawful immigration status. Unless the individual was under age 18 at the time of submitting the renewal request, he or she would be considered to be unlawfully present during the intervening period (see " Are DACA recipients granted lawful immigration status? "). However, if the individual filed the renewal request 120 days before the expiration of the period of deferred action and employment authorization, and USCIS was delayed in processing the request, USCIS may provide the individual with deferred action and employment authorization on a short-term basis while it completes processing. | On June 15, 2012, the Department of Homeland Security (DHS) announced that certain individuals who were brought to the United States as children and meet other criteria would be considered for relief from removal for two years, subject to renewal, under an initiative known as Deferred Action for Childhood Arrivals, or DACA. Among the eligibility requirements, an individual must have been under age 16 at the time of his or her entry into the United States; must have been continuously resident in the United States since June 15, 2007; and must not have been in lawful immigration status on June 15, 2012. To request consideration of DACA, an individual must file specified forms with DHS's U.S. Citizenship and Immigration Services (USCIS) and pay associated fees. USCIS's decision on a DACA request is discretionary. The agency makes determinations on a case-by-case basis. Individuals granted DACA may receive employment authorization. DACA recipients are not granted a lawful immigration status and are not put on a pathway to a lawful immigration status. USCIS began accepting DACA requests on August 15, 2012, and issued its first approvals in September 2012. Prior to that, from June 15, 2012, to August 15, 2012, DHS's Immigration and Customs Enforcement (ICE) granted deferred action under the DACA process in some cases. Cumulatively, through June 2014, more than 580,000 DACA requests have been approved. The period of deferred action under the DACA program expires after two years unless it is renewed. Individuals granted deferred action under the DACA initiative may request renewal of their deferral for another two years, in accordance with USCIS procedures. To be considered for a renewal, a DACA recipient must satisfy certain requirements concerning continuous U.S. residence, departures from the country, and criminal history. To request a renewal, an individual must file specified forms with USCIS and pay associated fees. The agency advises individuals to request a DACA renewal 120 days before the expiration date of their current period of deferred action. USCIS's decision on a DACA renewal request, like on an initial DACA request, is discretionary. For a discussion of related legislation, commonly referred to as the DREAM Act, that seeks to enable certain unauthorized aliens who entered the United States as children to obtain legal immigration status, see CRS Report RL33863, Unauthorized Alien Students: Issues and "DREAM Act" Legislation. |
American tradition has long maintained a distinct separation between military force and civil law enforcement. Nevertheless, federal troops were commonly used to enforce civil law during the years immediately after the Civil War, particularly in the states of the former Confederacy. The Posse Comitatus Act of 1878 (18 U.S.C. §1385) was written to ensure that this practice would come to an end. Though the act codified an American tradition of separating military from civilian affairs, Congress has occasionally authorized the President to deploy military force to enforce, or assist in the enforcement, of various laws. For example, Congress has vested the Coast Guard, a federal armed force, with a broad range of law enforcement responsibilities. Congress has also passed statutes enabling the employment of military force in law enforcement support under specific circumstances, such as permitting the President to call out the armed forces in times of insurrection and domestic violence, or authorizing the armed forces to share information and equipment with civilian law enforcement agencies. One important example of congressional direction in the use of the armed forces to support law enforcement was seen in the enactment of the National Defense Authorization Act, Fiscal Year 1989. Title XI of the act tasked the Department of Defense (DOD) to assume a prominent role in detecting and monitoring illegal drug production and trafficking. DOD became "the single lead agency of the Federal Government for the detection and monitoring of aerial and maritime transit of illegal drugs into the United States," and the integrator of an effective system of command, control, communications, and intelligence assets dedicated to drug interdiction. The act also placed Coast Guard law enforcement detachments aboard "every appropriate surface naval vessel at sea in a drug-interdiction area" and made "available any equipment (including associated supplies or spare parts), base facility, or research facility of the Department of Defense to any Federal, State or local law enforcement official for law enforcement purposes." Finally, it authorized additional DOD funding to the National Guard for drug interdiction and enforcement operations. The following year, in the National Defense Authorization Act for Fiscal Years 1990 and 1991, Congress created a pathway for DOD to directly transfer to federal and state agencies equipment (so-called "personal property") that was excess to the needs of the department and suitable for use in counter-drug activities. Under Section 1208, the Secretary of Defense could transfer defense equipment, including small arms and ammunition, from existing defense stocks without cost to the receiving agency. In transferring such property, the Secretary of Defense was required to consult with the Attorney General and the Director of National Drug Control Policy (the federal government's so-called "drug czar"). The act included a sunset provision that would have terminated this authority on September 30, 1992. This termination date was extended to September 30, 1997 by the enactment of Section 1044 of the National Defense Authorization Act for Fiscal Year 1993. As the revised termination date approached, the 104 th Congress considered making its authority permanent. The House version of the National Defense Authorization Act for Fiscal Year 1997 contained language ( H.R. 3230 , Section 103) that would have expanded eligibility for property transfers to all law enforcement while retaining a priority for counter-narcotics activities. The Senate's amendment of the bill contained no similar provision. In conference, the Senate receded, but with an amendment that extended priority in property transfer to both counter-narcotics and counter-terrorism activity. The amendment also ensured that DOD would incur no cost beyond management of the program in transferring this excess equipment to these law enforcement agencies. The language was enacted as Section 1033 and is codified under Title 10, Section 2576a, of the United States Code (10 U.S.C. §2576a). The program is administered by the Law Enforcement Support Office (LESO) of the Defense Logistics Agency (DLA), located at DLA Disposition Services Headquarters in Battle Creek, Michigan. Though participating agencies initiate requests for material, the Defense Logistics Agency (DLA) retains the final authority to determine the type, quantity, and location of excess military property suitable for transfer and use in law enforcement activities. General categories of equipment offered for transfer include office furniture, household goods (e.g., kitchen equipment), exercise equipment, portable electric generators, tents, and general law enforcement supplies (e.g., handcuffs, riot shields, holsters, binoculars, and digital cameras). Heavy equipment, such as cranes, and various types of land vehicles are available. Watercraft, aircraft, and weapons are also eligible for transfer. Miscellaneous other property includes tool kits, first aid kits, blankets and bedding, lawn maintenance supplies, combat boots, and office equipment (computers, printers, fax machines, etc.). Law enforcement agencies wishing to take part in the 1033 Program apply to the LESO through their state's 1033 Program coordinator (see below). Once their participation has been approved by the state coordinator and the LESO, the law enforcement agencies appoint officials to visit their local DLA Disposition Services Site, where they screen property and place requests for specific items. The forms are then forwarded to the state coordinator for review; once approved, the LESO makes the final determination of whether or not the property will be transferred. Law enforcement agencies that receive approval for property transfers must cover all transportation costs. According to the LESO, 11,000 law enforcement agencies are registered nationwide and 8,000 are currently using property provided through the program. Each state participating in the program must set up a business relationship with DLA through the execution of a Memorandum of Agreement (MOA). Each participating state's governor is required to appoint a state coordinator to ensure that the program is used correctly by the participating law enforcement agencies. The state coordinators are expected to keep property accountability records, investigate any alleged misuse of property, and, in certain cases, report violations of the MOA to DLA. The LESO may suspend the participation of a state that cannot properly account for the property entrusted to it, and state coordinators may suspend the participation of any law enforcement agency thought to abuse the program. The chief of police or equivalent senior official of the receiving law enforcement organization is held responsible for all 1033 Program controlled property. Additionally, DLA has a compliance review program. The program's objective is to have the Law Enforcement Support program staff visit each state coordinator and assist him or her in ensuring that property accountability records are properly maintained, minimizing the potential for fraud, waste and abuse. Some of the equipment offered to law enforcement through the program, such as weapons or tactical vehicles, possesses significant military capabilities. By law, these items cannot be released to the general public and ownership is never transferred to law enforcement agencies – rather, they are considered to be on loan. This equipment is closely tracked by both the LESO and the relevant state coordinator and it must be returned to a DLA Disposition Services Site when no longer needed for law enforcement purposes. Property not considered to be uniquely military, such as office equipment or first aid kits, is considered controlled property for the first year that it is held by the agency and must be accounted for in the same manner as all other 1033 Program property. At the end of the year, title is transferred to the law enforcement agency and the property is removed from the audited inventory. The statute does not require any regular reports to Congress on the 1033 Program. More information regarding the 1033 Program is available through the LESO website ( http://www.dispositionservices.dla.mil/leso/pages/default.aspx ). A number of states maintain their own law enforcement support offices that post program information tailored to their own jurisdictions (e.g., Ohio's Law Enforcement Support Office at http://ohioleso.ohio.gov/ ). Appendix A. Text of Section 1208 of the National Defense Authorization Act for 1990 ( P.L. 101-189 ) SEC. 1208. TRANSFER OF EXCESS PERSONAL PROPERTY (a) TRANSFER AUTHORIZED- (1) Notwithstanding any other provision of law and subject to subsection (b), the Secretary of Defense may transfer to Federal and State agencies personal property of the Department of Defense, including small arms and ammunition, that the Secretary determines is-- (A) suitable for use by such agencies in counter-drug activities; and (B) excess to the needs of the Department of Defense. (2) Personal property transferred under this section may be transferred without cost to the recipient agency. (3) The Secretary shall carry out this section in consultation with the Attorney General and the Director of National Drug Control Policy. (b) CONDITIONS FOR TRANSFER- The Secretary may transfer personal property under this section only if-- (1) the property is drawn from existing stocks of the Department of Defense; and (2) the transfer is made without the expenditure of any funds available to the Department of Defense for the procurement of defense equipment. (c) APPLICATION- The authority of the Secretary to transfer personal property under this section shall expire on September 30, 1992. Appendix B. Text of 10 U.S.C. §2576a, "Excess Personal Property: Sale or Donation For Law Enforcement Activities" §2576a. Excess personal property: sale or donation for law enforcement activities (a) Transfer authorized. (1) Notwithstanding any other provision of law and subject to subsection (b), the Secretary of Defense may transfer to Federal and State agencies personal property of the Department of Defense, including small arms and ammunition, that the Secretary determines is-- (A) suitable for use by the agencies in law enforcement activities, including counter-drug and counter-terrorism activities; and (B) excess to the needs of the Department of Defense. (2) The Secretary shall carry out this section in consultation with the Attorney General and the Director of National Drug Control Policy. (b) Conditions for transfer. The Secretary of Defense may transfer personal property under this section only if-- (1) the property is drawn from existing stocks of the Department of Defense; (2) the recipient accepts the property on an as-is, where-is basis; (3) the transfer is made without the expenditure of any funds available to the Department of Defense for the procurement of defense equipment; and (4) all costs incurred subsequent to the transfer of the property are borne or reimbursed by the recipient. (c) Consideration. Subject to subsection (b)(4), the Secretary may transfer personal property under this section without charge to the recipient agency. (d) Preference for certain transfers. In considering applications for the transfer of personal property under this section, the Secretary shall give a preference to those applications indicating that the transferred property will be used in the counter-drug or counter-terrorism activities of the recipient agency. | The United States has traditionally kept military action and civil law enforcement apart, codifying that separation in the Posse Comitatus Act of 1878. On the other hand, Congress has occasionally authorized the Department of Defense (DOD) to undertake actions specifically intended to enhance the effectiveness of domestic law enforcement through direct or material support. One such effort is the so-called "1033 Program," named for the section of the National Defense Authorization Act (NDAA) of 1997 that granted permanent authority to the Secretary of Defense to transfer defense material to federal and state agencies for use in law enforcement, particularly those associated with counter-drug and counter-terrorism activities. The 1997 act was preceded by 1988 legislation that expanded DOD's role in the interdiction of illicit drug trafficking. That was soon followed by temporary authority to transfer excess defense material, including small arms and ammunition, from excess DOD stocks to law enforcement agencies for use in counter-drug activities. This could be done at no cost to the receiving agency. The 1997 NDAA expanded that authority to include counter-terrorism activities and made it permanent. It is codified as 10 U.S.C. §2576a. The 1033 Program is administered by the Law Enforcement Support Office (LESO) of the Defense Logistics Agency (DLA). Under it, local and state law enforcement agencies may apply to DLA to participate. DLA requires the governor of the state to execute a Memorandum of Agreement (MOA) and appoint a state 1033 Program coordinator, who is responsible for ensuring that the program is properly administered within the state and that appropriate property records are maintained. Approved agencies may request material from DLA through their state coordinators. The LESO retains final approval authority over the types and quantities of material transferred from DOD excess stocks to the agencies. Any material requiring demilitarization before being released to the public must be returned to DLA when no longer needed by the receiving law enforcement agency. LESO states that 11,000 agencies nationwide are currently registered and that 8,000 of them use material provided through the 1033 Program. |
RS21619 -- Nuclear Weapons and U.S. National Security: A Need for New Weapons Programs? September 15, 2003 Throughout the Cold War, the United States maintained nuclear weapons to deter nuclear and conventional attacks by the Soviet Union and its allies against theUnited States and its allies. At its extreme, such a conflict could have led to a global nuclear war. But the UnitedStates also did not rule out the possible use ofnuclear weapons in smaller conflicts or to achieve goals other than deterrence. However, because U.S. forces weresized to meet the Soviet threat, other nationsand other threats to U.S. security were viewed as "lesser included cases." The Bush Administration has emphasized that, even with the demise of the Soviet Union, nuclear weapons "continue to be essential to our security, and that ofour friends and allies." (3) Furthermore, it hasidentified a role for nuclear weapons that it asserts is both more comprehensive than the Cold War concept ofdeterrence and more integrated with the rest of the U.S. military establishment. The Administration has argued thatnuclear weapons, along with missiledefenses and U.S. conventional forces, not only deter adversaries from attacking the United Statesduring a conflict or crisis by promising an unacceptableamount of damage in response to an adversary's attack, they can also assure allies and friends of the U.S.commitment to their security, dissuade potentialadversaries from challenging the United States during a crisis with nuclear weapons or other "asymmetrical threats,"and defeat enemies by holding at risk thosetargets that could not be destroyed with other types of weapons. (4) Many analysts see little difference between these goals and those the United States pursuedduring the Cold War. Nevertheless, according to the Bush Administration, to support this broader array ofobjectives, the United States may need nuclearweapons that are different, in both numbers and capabilities, from the weapons remaining in the U.S. arsenal afterthe Cold War. During the Cold War, the United States maintained the numbers and types of nuclear weapons that it believed it needed to threaten the full range of potentialtargets in the Soviet Union. The Bush Administration has referred to this as "threat-based" targeting because it islinked to the "Soviet threat." TheAdministration has stated that the United States will no longer use this model to calculate its nuclear requirements. Instead, the United States would "look moreat a broad range of capabilities and contingencies that the United States may confront" and tailor U.S. militarycapabilities to address this wide spectrum ofpossible contingencies. (5) Specifically, the UnitedStates would identify potential conflicts, review the capabilities of its possible adversaries, identify thosenuclear capabilities that the United States might need to attack or threaten the adversary, and develop a force postureand nuclear weapons employment strategythat would allow it to attack those capabilities. For most possible contingencies, such as those against North Koreaor other rogue nations, the numbers ofrequired nuclear weapons is likely to be very small. But, according to the Administration, Russia presents a"potential contingency" that could emerge if therelationship between the two nations were to change. Most analysts believe that this "potential" is the source of theAdministration's interest in retainingseveral thousand nuclear weapons in the U.S. arsenal. The Bush Administration has not described the specific capabilities it will target with this new strategy. During the Cold War, the United States sought to targetmilitary, industrial, and leadership facilities in the former Soviet Union. Similar facilities are likely to be includedon the list of "capabilities" that the UnitedStates would want to threaten in some contingencies with other nations because, by destroying these capabilities,the United States could expect to achieve itswar objectives. The Bush Administration has specifically highlighted hardened and deeply buried targets andfacilities housing nuclear, chemical, or biologicalweapons as potential capabilities that it might want to threaten. These types of targets are not new to U.S. war plansbecause the Soviet Union had manyhardened and deeply buried targets, such as missile silos and command posts, and it had storage depots that housedchemical weapons. The United Statespresumably planned to attack and destroy these facilities in a conflict with the Soviet Union. According to the Administration, however, the United States cannot be certain where these threats will appear in the future. Therefore, it must plan for known,potential, and unexpected contingencies. (6) Further,to deter potential and unexpected contingencies, the United States would need the capability to crediblythreaten targets in nations that it may not be able to identify ahead of time. It also must have the intelligence toidentify these targets and the rapid targeting andresponse capabilities to address these contingencies as they come up. Hence, the difficulties with this approach stemfrom more than just a requirement toattack hardened and deeply buried targets. The Bush Administration is attempting to integrate the nuclear weapons infrastructure into its new concept of deterrence. According to the Administration, an infrastructure that allows the United States to sustain its forces and adapt them to meet emerging needs would"provide the United States with the means torespond to new, unexpected, or emerging threats in a timely manner." Furthermore, the "ability to innovate andproduce small builds of special purposeweapons would convince an adversary that it could not expect to negate U.S. nuclear weapons capabilities." (7) The Administration has also linked themodernization of the nuclear weapons complex to its plans to reduce the size of the U.S. nuclear arsenal. Theplanned reductions will occur in parallel withimprovements in the weapons complex to ensure that the reductions did not get ahead of the U.S. ability to maintainand modernize its remaining weapons. The Administration has identified several specific tasks that the infrastructure must accomplish over the next decade. Many are associated with the efforts tomaintain and refurbish existing nuclear weapons. But the Administration has also outlined plans to establish small"advanced warhead concepts teams" toevaluate evolving military requirements and assess options for new or modified warheads. (8) The Administration notes that this effort will not only prepare theUnited States to respond to emerging threats, but will also help train the next generation of weapons scientists. TheAdministration has also requested fundingfor a study on the conversion of an existing nuclear weapon into a "robust nuclear earth-penetrator" and for a studythat will explore options for the design of anew low-yield nuclear weapon. The Administration argues that this research will not inevitably lead to the design,development, and production of newweapons. Nevertheless, many analysts fear that the United States will eventually produce new weapons to supportan enhanced warfighting role for nuclearweapons. Battlefield Nuclear Weapons. During the Cold War, the U.S. nuclear arsenal contained many types ofdelivery vehicles for nuclear weapons, including short-range missiles and artillery for use on the battlefield,medium-range land-based and sea-based missilesand aircraft, long-range missiles based on U.S. territory and submarines, and heavy bombers that could threatenSoviet targets from their bases in the UnitedStates. In the early 1990s, the United States withdrew from deployment and eliminated almost all of its shorter- andmedium-range nuclear weapons, leaving aforce consisting of mostly longer-range strategic weapons. The United States concluded that the shorter rangesystems had little utility after the demise of theSoviet Union and the virtual elimination of the threat of a ground war in Europe or Asia. Under thesecircumstances, the United States no longer needed tothreaten targets, such as troop concentrations or support and logistics facilities, on the battlefield. If it deploys the new types of nuclear weapons under consideration by the Bush Administration, the United States could return to a nuclear posture that includesbattlefield nuclear weapons. Unlike during the Cold War, when battlefield weapons were deployed near theirtargets, the United States might use long-range orintercontinental missiles or aircraft to deliver these weapons. But they would, like the shorter-range weapons of theCold War era, seek to achieve preciseobjectives on the battlefield, assuming, of course, that the United States had the intelligence and targetingcapabilities to identify these targets. Many analystsconsider these weapons more useful for war-fighting than deterrence, and many have questioned whether the BushAdministration, in pursuing these weapons,might be moving the United States towards a posture where it would be more likely to use nuclear weapons in aconflict. Credible Deterrence vs. Likelihood of Use. The debate over whether the new nuclear weapons concepts arebetter suited to warfighting or deterrence follows from a more fundamental debate over how to make deterrencecredible. This debate surfaced frequentlyduring the Cold War, when the United States sought to deter not only a Soviet nuclear attack on the United Statesbut also a conventional attack by the SovietUnion or its allies against U.S. allies. Many analysts consider this issue to be even more relevant now, when theUnited States might seek to use its nucleardeterrent in contingencies with more specific and limited goals against an adversary who possesses few or nonuclear weapons. The Bush Administration plansto develop a more focused nuclear war-fighting capability for the United States, one that includes an improvedability to destroy hardened and deeply buriedtargets and other capabilities in a number of nations that might threaten the United States. It has stated that theseplans and capabilities would make nuclear use less likely because it would make the U.S. deterrent more credible and robust. (9) Critics of the Administration's policy question this contention. Many analysts doubt that leaders of smaller, non-nuclear countries will view any U.S. threat touse nuclear weapons as credible, regardless of the yield or capability of U.S. nuclear weapons. If they do not believethe United States will strike with nuclearweapons, then they would not be deterred by the threat. Others argue that the United States can credibly threatenany nation, and therefore deter or defeat thatnation, with its conventional forces. They believe this eliminates any requirement for new and improved nuclearweapons. And some analysts questionwhether nuclear threats against specific, and possibly remote facilities, will deter leaders in smaller, rogue nations. These leaders may believe they can absorb asmall nuclear strike from the United States and still achieve their war aims. Critics of the Administration's policy, therefore, fear that by developing nuclear weapons for battlefield uses, the United States may be more likely to use thesesystems in a conflict. They worry that this would be particularly true if the adversary could not strike back againstthe United States with nuclear weapons, asthe Soviet Union could. These analysts fear that, as time passes, as the memories of the horrors of nuclear use fadeand as concerns about the horrors ofchemical and biological weapons increase, U.S. officials may begin to believe that the unilateral use of nuclearweapons by the United States represents the lesshorrible outcome for the United States than the alternative where an adversary uses chemical or biological weaponsagainst U.S. interests. The Bush Administration has stated that nuclear weapons will play a role in U.S. security policy for the foreseeable future. But, under the1968 NuclearNon-proliferation Treaty, the United States has pledged to reduce the role of nuclear weapons in U.S. securitypolicy. The Administration claims that these twogoals do not conflict; nuclear weapons will play a smaller, albeit important role in U.S. policy than they did duringthe Cold War era. Critics, however, arguethat the U.S. approach may undermine U.S. efforts to discourage nuclear proliferation. Some believe that it wouldbe difficult for the United States to urgerestraint on nations that may be close to acquiring nuclear weapons if it demonstrates, with its own nuclear posture,that nuclear weapons are critical to nationalsecurity. Some analysts have also noted that, if potential adversaries were to acquire nuclear weapons, the threatthey pose to U.S. security could growdramatically. Consequently, these critics argue, the United States should seek to "marginalize as much as possiblethe role that nuclear weapons play in U.S.defense and foreign policy." (10) Others, however, argue that U.S. nuclear policy is not likely to affect U.S. nonproliferation policy because countries seeking nuclear weapons do so becausethey have concerns about their relationships with regional adversaries, not because the United States has nuclearweapons. In addition, the Bush Administrationhas argued that the U.S. development of nuclear weapons that can defeat hardened and deeply buried targets or candestroy stocks of chemical and biologicalweapons are a part of the U.S. effort to discourage other nations from acquiring and threatening to use WMD. Regardless of the implications, the United States has clearly begun to pursue research, and possibly the development, of new nuclear weapons. Although it isunlikely to resolve the theoretical controversies, Congress may review and debate the merits and particulars of theseprograms -- and their broader implications-- in the coming months. | In the 2001 Nuclear Posture Review, the Bush Administration outlined a new role forU.S. nuclear weapons thatgoes beyond the concept of deterrence from the Cold War. It also identified a new targeting strategy that would seekto threaten specific capabilities inadversary nations. Furthermore, the Administration has pledged to restore and enhance the U.S. nuclear weaponsinfrastructure, as part of the U.S. effort todeter the emergence of new threats in the future. In implementing the NPR, the Administration has requestedfunding for studies on new types of nuclearweapons. The Administration claims these projects, if they eventually produce new weapons, would enhancedeterrence; critics claim they will make nuclearuse more likely and undermine U.S. nonproliferation goals. This report will be updated as needed. |
RS20717 -- Vietnam Trade Agreement: Approval and Implementing Procedure Updated December 17, 2001 After protracted negotiations and a one-year delay after its adoption in principle, the United States and Vietnam signed, on July 13, 2000, a comprehensivebilateral trade agreement. The key statutory purpose of the agreement is the restoration of nondiscriminatory tarifftreatment (2) ("normal-trade-relations" (NTR),formerly "most-favored-nation" treatment) to U.S. imports from Vietnam, suspended since 1951. Hence, theagreement contains a provision reciprocallyextending the NTR treatment and certain other provisions required by law for trade agreements with nonmarketeconomy (NME) countries. In addition, it containscomprehensive specific commitments by Vietnam in matters of market access (e.g., reduced tariff rates on importsfrom the United States), intellectual propertyrights, trade in services, and investment, such as the United States already has in force as a matter of general tradepolicy. To enter into force, the agreement mustbe approved by the enactment of a joint resolution of Congress. Restoration of NTR treatment to Vietnam as an NME country is also contingent on Vietnam's compliance with the freedom-of-emigration requirement of theJackson-Vanik amendment (Section 402) of the Trade Act of 1974. (3) In the case of Vietnam, such compliance is achieved by an annual Presidential waiver of fullcompliance under specified statutory conditions; such waiver may be disapproved by the enactment of a jointresolution of Congress. The President has issuedsuch waivers for Vietnam since mid-1998, but in no instance has a disapproval resolution, if introduced, been passedby Congress, allowing the waiver to continuein force. The statutory requirements and legislative procedure leading to the enactment and entry into force of a trade agreement with a nonmarket economy (NME)country, including Vietnam, are set out in detail in Sections 151, 404, 405, and 407 of the Trade Act of 1974 ( P.L.93-618 ), as amended. Section 151 has beenenacted as an exercise of the rulemaking power of either house and supersedes its other rules to the extent that theyare inconsistent with it. Its provisions can bechanged by either house with respect to its own procedure at any time, in the same manner and to the same extentas any other rule of that house (Section 151(a);19 U.S.C. 2191(a)). All alphanumerical statutory references cited in this report are to sections of the Trade Act of 1974. While care has been taken to reflect accurately the meaning ofthe statutes, consulting the actual language of any statute is recommended in case of any ambiguity. Functionally, the consideration and enactment of the approval resolution and the implementation of the agreement follow a specific expedited ("fast-track")procedure explained below. Additional information, based on past practice of implementing trade agreements withNME countries in general, but applicable alsoto Vietnam, is provided in footnotes (1) Enactment necessary. The agreement can take effect only if approved by enactment of a joint resolution (Section 405(c)); 19U.S.C.2435(c)). (2) Transmittal of the agreement by the President to Congress. The text of the bilateral trade agreement with Vietnam must be transmitted by the President to both houses ofCongress, together with a proclamation (4) extendingnondiscriminatory treatment to Vietnam and stating his reasons for it (Section 407(a); 19 U.S.C. 2437). While thereis no statutory deadline for the transmittal ofthe proclamation and the agreement to Congress after its signing, the law requires that the transmittal take place"promptly" after the proclamation is issued. (5) (3) Mandatory introduction of approval resolution. On the day the trade agreement is transmitted to the Congress (or, if the respective house is not in session onthat day, the first subsequent day on which it is insession), a joint resolution of approval (Sec. 151(b)(3); 19 U.S.C. 2191(b)(3)) must be introduced (by request) ineach house by its majority leader for himself andthe minority leader, or by their designees (Sec. 151(c)(2); 19 U.S.C. 2191(c)(2)). (6) (4) Language of approval resolution . The language of the resolution is prescribed by law (Sec. 151(b)(3); 19 U.S.C. 2191(b)(3)) to read, in thisparticular instance, after the resolving clause: "That the Congress approves the extension of nondiscriminatory treatment with respect to the products ofVietnam transmitted by the President to the Congress onJune 8, 2001". (7) (5) Committee referral . The resolution is referred in the House to the Committee on Ways and Means and in the Senate to theCommittee on Finance (Sec. 151(c)(2); 19 U.S.C.2191(c)(2)). (6) Amendments prohibited . No amendment to the resolution, and no motion, or unanimous-consent request, to suspend the no-amendmentrule, is in order in either house (Sec. 151(d); 19U.S.C. 2191(d)). (7) Committee consideration in the House . (8) If the Ways and Means Committee has not reported the resolution within 45 days (9) after its introduction, the Committee is automatically discharged from furtherconsideration of the resolution, and the resolution is placed on the appropriate calendar (Sec. 151(e)(1); 19 U.S.C.2191(e)(1)). (8) Floor consideration in the House. (a) A motion to proceed to the consideration of the approval resolution is highly privileged and nondebatable;an amendment to the motion, or a motion toreconsider the vote whereby the motion is agreed or disagreed to, is not in order (Sec. 151(f)(1); 19 U.S.C.2191(f)(1)). (b) Debate on the resolution is limited to 20 hours (10) , divided equally between the supporters and opponents of the resolution; a motion further to limitdebate isnot debatable; a motion to recommit the resolution, or to reconsider the vote whereby the resolution is agreed ordisagreed to, is not in order (Sec. 151(f)(2); 19U.S.C. 2191(f)(2)). (c) Motions to postpone the consideration of the resolution and motions to proceed to the consideration of otherbusiness are decided without debate (Sec.151(f)(3); 19 U.S.C. 2191(f)(3)). (d) All appeals from the decisions of the Chair relating to the application of the rules of the House ofRepresentatives to the approval resolution are decidedwithout debate (Sec. 151(f)(4); 19 U.S.C. 2191(f)(4)). (e) In all other respects, consideration of the approval resolution is governed by the rules of the House ofRepresentatives applicable to other measures in similarcircumstances (Sec. 151(f)(5); 19 U.S.C. 2191(f)(5)). (f) The vote (by simple majority) on the final passage of the approval resolution must be taken on or before the15th day (11) after the Ways and MeansCommitteehas reported the resolution, or has been discharged from its further consideration (Sec. 151(e)(1); 19 U.S.C.2191(e)(1)). (9) Committee consideration in the Senate (12) An approval resolution adopted by the House of Representatives and received in the Senate is referred to theFinance Committee (Sec. 151(c)(2) and (e)(2); 19U.S.C. 2191(c)(2) and (e)(2)). (13) If the FinanceCommittee has not reported the resolution within 15 days after its receipt from the House or 45 days (14) after theintroduction of its own corresponding resolution (whichever is later), the Committee is automatically dischargedfrom further consideration of the resolution, andthe resolution is placed on the appropriate calendar (Sec. 151(e)(1); 19 U.S.C. 2191(e)(1)). (10) Floor consideration in the Senate. (a) A motion to proceed to the consideration of the approval resolution is privileged and nondebatable; anamendment to the motion, or a motion to reconsider thevote whereby the motion is agreed or disagreed to, is not in order (Sec. 151(g)(1); 19 U.S.C. 2191(g)(1)). (b) Debate on the approval resolution and on all debatable motions and appeals connected with it is limited to20 hours, equally divided between, and controlledby, the majority leader and the minority leader, or their designees (Sec. 151(g)(2); 19 U.S.C. 2191(g)(2)). (c) Debate on any debatable motion or appeal is limited to one hour, equally divided between, and controlledby, the mover and the manager of the resolution,except that if the manager of the resolution is in favor of any such motion or appeal, the time in opposition iscontrolled by the minority leader or his designee;such leaders may, from time under their control on the passage of the resolution, allot additional time to any Senatorduring the consideration of any debatablemotion or appeal (Sec. 151(g)(3); 19 U.S.C. 2191(g)(3)). (d) A motion further to limit debate on the approval resolution is not debatable; a motion to recommit it is notin order (Sec. 151(g)(4); 19 U.S.C. 2191(g)(4)). (e) The vote (by simple majority) on the final passage of the approval resolution must be taken on or before the15th day (15) after the FinanceCommittee hasreported the resolution, or has been discharged from its further consideration (Sec. 151(e)(2); 19 U.S.C. 2191(e)(2)). (f) Although, unlike in the case of the House procedure (16) , this is not specifically mentioned in Section 151, the Rules of the Senate govern the considerationofthe approval resolution in the Senate in all aspects not specifically addressed in Section 151. (g) If prior to the passage of its own approval resolution, the Senate receives the approval resolution alreadypassed by the House, it continues the legislativeprocedure on its own resolution, but the vote on the final passage is on the House resolution. (11) President's implementing authority. (a) After the joint resolution approving the trade agreement with Vietnam is passed by both houses and signed by the President, it becomes public law, in effect, authorizing the President to putinto effect the already issued proclamation (17) implementing the agreement extending nondiscriminatory treatment to Vietnam (Secs. 404(a) and 405(c); 19 U.S.C.2434(a) and 2435(c)). (b) Application of nondiscriminatory treatment is limited to the term during which the agreement remainsin force (Sec. 404(b); 19 U.S.C. 2434(b)) (see alsofootnote 19 and text which it accompanies). (c) The President may at any time suspend or withdraw nondiscriminatory treatment of Vietnam (Sec. 404(c);19 U.S.C. 2434(c)) and thereby subject all importsfrom that country to column 2 tariff rates (i.e., full rather than NTR rates). (12) Approval by Vietnam. The agreement also must be approved by Vietnam. (18) (13) Entry into force. After the joint resolution of approval is enacted and the agreement is approved by Vietnam, the proclamation(see item (2) becomes effective, the agreemententers into force, and nondiscriminatory treatment is extended to Vietnam on the date of exchange of written noticesof acceptance of the agreement by the UnitedStates and Vietnam. A notice of the effective date of the agreement is published by the U.S. Trade Representativein the Federal Register . (19) (14) Maintenance in force . According to its own terms (Article 8 of Chapter VII - General Articles), the agreement with Vietnam remainsin force for a period of three years and isautomatically renewable for successive three-year terms unless either party to it, at least 30 days before theexpiration of the then current term, gives notice of itsintent to terminate the agreement. If either party ceases to have domestic legal authority to carry out its obligationsunder the agreement, it may suspend theapplication of the agreement, or, with the agreement of the other party, any part of the agreement. (20) In addition, Section 405(b)(1) (19 U.S.C. 2435(b)(1)) limits the life of trade agreements restoring nondiscriminatory treatment to NME countries to an initial termof three years. Agreements may be renewable for additional three-year terms if a satisfactory balance of tradeconcessions has been maintained during the life ofthe agreement and the President determines that actual or foreseeable U.S. reductions of trade barriers resulting frommultilateral negotiations are satisfactorilyreciprocated by the other country. (21) | The procedure leading to the entry into force of the U.S. trade agreement with Vietnam, including a reciprocalextension of nondiscriminatory treatment. calls for its approval by the enactment of a joint resolution of Congress,considered under a specific fast-track procedurewith deadlines for its various stages, with mandatory language and no amendments. After favorable reports on thelegislation in both houses, H.J.Res. 51,approving the nondiscriminatory treatment, was enacted on October 16, 2001; the agreement also was ratified byVietnam on December 4, 2001, and entered intoforce by exchange of notices of acceptance between the two parties on December 10, 2001. The functional sequenceof the legislative and executive steps involvedin the implementation of the agreement is described in this report. |
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. |
T he Senate takes up business under procedures set in Senate rules and by long-standing custom, thereby giving it flexibility in setting its floor agenda. This report first discusses those processes or customs most often used by the Senate and then discusses some procedures less often used to call up business. Under chamber rules, technically any Senator may offer the necessary agenda-setting motions "to proceed to the consideration" of a bill, resolution, or item of executive business. However, by long-established custom, in practice only the majority leader or his or her designee offer agenda-setting motions. (See CRS Report RS21255, Motions to Proceed to Consider Measures in the Senate: Who Offers Them? , by [author name scrubbed] and [author name scrubbed].) Items called up are often those on the Senate's legislative or executive calendars, either reported by committee or, in the case of bills and joint resolutions, placed on the legislative calendar directly under Rule XIV (see CRS Report RS22309, Senate Rule XIV Procedure for Placing Measures Directly on the Senate Calendar , by [author name scrubbed]). Holds, long recognized by custom, are notices from Senators to their party floor leaders that they intend to object to a unanimous consent request to bring a matter up for consideration on the Senate floor. Holds also serve to identify controversial bills or controversial items within a bill (s ee CRS Report R43563, "Holds" in the Senate , by [author name scrubbed]). Leaders also invite Senators to file "requests to be consulted" with the staff of the respective party secretaries. Through these requests, Senators join in talks about compromise versions of bills and potential amendments, the Senate's floor schedule, and conditions of floor action. When consulted Senators no longer report any concerns, a bill is said to have "cleared both sides of the aisle." Such bills are generally called up by unanimous consent, considered, and agreed to by voice vote with little or no actual floor debate. Through negotiations inherent in the hold and consultation process, floor leaders can often get Senators to agree to take up a bill despite the reservations some have about key provisions in it. Thus, usually, the majority leader or his or her designee will ask unanimous consent to proceed to the consideration of a measure pending on the Senate calendar. Alternatively, the majority leader may move to proceed to the consideration of the measure or matter. Normally, this motion is debatable. Debate on the motion can be ended only by unanimous consent or by invoking cloture. If the motion to proceed is agreed to, consideration of the bill begins without debate limits (unless also imposed by unanimous consent or cloture). There are few circumstances in which a motion to proceed is not debatable. Motions to take up certain privileged items of business (discussed in the next section) are not debatable. Although infrequently used, debate is also prohibited on motions to proceed offered on the beginning of a new legislative day during the "morning hour" after the completion of "morning business." Under Senate Rule VIII, a two-hour period known as the morning hour occurs automatically at the beginning of a new legislative day, and within this two-hour period, a period is reserved for the transaction of morning business, such as the filing of committee reports and the receipt of executive communications. Under this Rule VIII procedure, the motion to proceed is not debatable if offered during the morning hour. If the motion is agreed to, the measure becomes the pending business before the Senate. At the end of the morning hour, any unfinished legislative business pending on the previous day when the Senate adjourned will displace the measure just taken up. The non-debatable motion to proceed under Rule VIII poses many parliamentary difficulties and is, therefore, rarely used by the majority leader. In actual practice, the Senate almost always begins a new legislative day under procedures established by unanimous consent, rather than relying on the automatic procedures for a morning hour contained in Rule VIII. Such unanimous consent agreements commonly include a stipulation that the morning hour be "deemed to have expired." Motions to take up privileged items of business are not debatable and, hence, are usually taken up by unanimous consent. Among the items of privileged business are budget resolutions, reconciliation bills, conference reports, measures to resolve election contests, and measures to impose disciplinary sanctions against Senators. Motions to go into executive session to consider a nomination, treaty, or resolution on the Senate Executive Calendar are also privileged and non-debatable. On the motion of any Senator, a measure or matter can be made a special order of business at some future specified date. Such motions are very rarely used, because they are fully debatable and need a two-thirds vote for approval. If there is objection to considering a resolution when it is submitted, the resolution is said to "go over, under the rule," and is placed on a special section of the Calendar of Business reserved for this purpose. Such resolutions are to be laid before the Senate on the next legislative day during the morning business period (described above), which would occur automatically under Rule VIII. Items pending at the end of morning business return to the Calendar of Business and can be called up later by a debatable motion or unanimous consent. In current practice, however, few resolutions go "over, under the rule," and because (as noted above) the Senate almost never engages in morning business created by the beginning of a new legislative day as called for under Rule VIII, those resolutions that do are essentially placed in a kind of parliamentary limbo. They remain pending on the Calendar of Business, unreachable except by unanimous consent or by a rare morning hour created by operation of the rule. Executive resolutions that are placed on the Executive Calendar "over, under the rule" can be subsequently reached by unanimous consent or, as noted above, by non-debatable motion. Motions to discharge committees from the further consideration of any measure or matter (for example, a nomination or treaty) must lie over for one day, and debate on such a motion is not limited. As such, three-fifths of all Senators may need to vote for cloture in order for the chamber to reach a final vote on the motion. (For more information on nomination procedures, see CRS Report RL31980, Senate Consideration of Presidential Nominations: Committee and Floor Procedure , by [author name scrubbed].) If agreed to, a motion to discharge would place a measure or matter on the relevant chamber calendar. | The Senate takes up measures and matters under procedures set in Senate rules and by long-standing customs, thereby giving it flexibility in setting its floor agenda. This report first treats those processes or customs most often used by the Senate and then discusses some procedures less often used to call up business. This report will be revised as events warrant. |
Both the House and Senate have adopted rules requiring their committees to produce regular reports of their activities. Pursuant to House Rule XI, clause 1(d)(1), each House standing committee is to submit a report to the House no later than January 2 of each odd-numbered year detailing its activities during the closing Congress. Pursuant to Senate Rule XXVI, paragraph 8(b), each Senate standing committee—with the exception of the Senate Appropriations Committee and Senate Budget Committee—is to submit its report to the Senate no later than March 31 of each odd-numbered year, covering activities for the previous Congress. As a record of a committee's legislative and oversight actions, the reports may provide valuable information for Members of Congress and their staff interested in learning more about a Member's new committee assignments or committee activities in certain subject areas. The reports may also be a useful tool for new committee staff to learn about recent actions. More broadly, the activity reports provide a public record of the actions of congressional committees as well as insight into the role of committees in congressional legislative oversight. In many cases, they also provide information that is otherwise either not aggregated in one place or not available elsewhere. The variations in the reports also illuminate some of the differences in committees, including their internal structure, norms, and operations. This CRS report will address the purpose and history of these reports, including their predecessors; required contents of the reports; House and Senate Rules regarding the filing of reports; a discussion of the types of information that may be included; variations in the organization of the reports among committees; provisions related to the inclusion of supplemental, minority, additional, or dissenting views; additional historical changes to House and Senate Rules regarding the reports, including recent changes to frequency of the reports in the House and the 1974 revisions to the list of committees required to prepare activity reports; and the differences between the committee activity reports and other congressional publications, including committee calendars, House and Senate calendars, the Résumé of Congressional Activity , and the House Document Repository at docs.house.gov. Table 1 provides examples of the types of information found in each publication as well as their timeframe for coverage and publication. Finally, the Appendix lists activity reports issued by House and Senate committees covering activities of the 110 th , 111 th , 112 th , 113 th , and 114 th Congresses. The development of committee activity reports is closely tied to congressional reform and reorganization efforts more generally. The Legislative Reorganization Act of 1946 reorganized the House and Senate committee system, including the number and jurisdiction of congressional committees and their authorities, roles, and responsibilities. Section 136 of the act provided for a predecessor to the current committee activity report requirement, stating that each standing committee of the Senate and the House of Representatives shall exercise continuous watchfulness of the execution by the administrative agencies concerned of any laws, the subject matter of which is within the jurisdiction of such committee; and, for that purpose, shall study all pertinent reports and data submitted to the Congress by the agencies in the executive branch of the Government. Following the enactment of this law, many committees regularly published reports outlining their activities, either as committee prints or committee reports. In the late 1960s, Congress considered further revisions to the committee system. This internal congressional examination culminated in the Legislative Reorganization Act of 1970. Pursuant to this act, the "continuous watchfulness" function of committees was transformed to one providing for "legislative review." The act called for each standing committee of the Senate and the House of Representatives to review and study, on a continuing basis, the application, administration, and execution of those laws, or parts of laws, the subject matter of which is within the jurisdiction of that committee. The 1970 act also formalized the requirement for periodic activity reports. A report accompanying the legislation summarized the linkage between the new role for committees and the reporting requirement, stating that the intent of this requirement of a report every two years is to provide the House with an additional means of appraising the results of the legislation which it has approved and to emphasize the importance of the legislative review function of the House standing committees. The requirement for these reports, which appears at 2 U.S.C. §190d, was subsequently incorporated into the House and Senate Rules. House Rules for the 115 th Congress state that the committee activity reports are to include separate sections summarizing the committee's legislative and oversight activities conducted pursuant to House Rule X and House Rule XI; a summary of the committee's oversight and authorization plans, which are required by House Rule X, clause 2(d); a summary of the actions taken and recommendations made with respect to these authorization and oversight plans; a summary of any additional oversight activities undertaken by a committee and any recommendations made or related actions; and a delineation of any hearings held on the topics of waste, fraud, abuse, or mismanagement. Pursuant to clause 2 of House Rule XI, committees are required "to hold at least one hearing during each 120-day period" on these topics. The hearings are to focus in particular on reports from inspectors general or the Comptroller General of the United States and programs or operations that are considered "high-risk." Senate Rules do not specifically address required contents, other than to say that the reports are to cover activities carried out under Senate Rule XXVI(8)(a). This paragraph states that, (a) In order to assist the Senate in— (1) its analysis, appraisal, and evaluation of the application, administration, and execution of the laws enacted by the Congress, and (2) its formulation, consideration, and enactment of such modifications of or changes in those laws, and of such additional legislation, as may be necessary or appropriate, each standing committee (except the Committees on Appropriations and the Budget), shall review and study, on a continuing basis the application, administration, and execution of those laws, or parts of laws, the subject matter of which is within the legislative jurisdiction of that committee.... Both the House and Senate reports cover an entire Congress and are to be filed each odd-numbered year. Pursuant to House Rule XI, clause 1(d)(1), reports are to be filed by January 2. A House chair may file the report after the sine die adjournment or after December 15 of an even-numbered year, whichever occurs first. The report is filed with the Clerk of the House. House Rules do not require committee approval of the report, although a copy of the report must be available to each committee member for at least seven calendar days. House committee activity reports generally include a letter of transmittal from the chair of the committee to the Clerk. One committee—the House Ethics Committee, which is comprised of an equal number of Members from the majority and minority party pursuant to House Rule X—generally has included a transmittal letter signed by both the chair and ranking minority member. A few committees have included in their transmittal letters a disclaimer indicating the "document is intended as a general reference tool, and not as a substitute for the hearing records, reports, and other committee files." Pursuant to Senate Rule XXVI, paragraph 8(b), reports are to be filed by March 31. As stated above, the Senate Appropriations Committee and Senate Budget Committee are exempt from this requirement. In addition to the other standing committees, the Senate Select Committee on Intelligence also regularly files these reports. Committees sometimes have filed a report late or not at all, and it is not clear how the Senate Rule requiring activity reports could be enforced by the full Senate. Additionally, House and Senate committees are required to adopt their own rules. While these rules cannot conflict with the chamber rules, the committee rules may further address the filing process for activity reports. The activity reports are as varied as the committees that produce them. Across committees, they may differ in organization, level of detail, and information covered. These variations also appear across time, as individual chairs may influence the priorities of their committees. Consequently, comparisons across committees or across time using information only found in these reports may be challenging. Some reports are organized by topic, while others are organized by full committee and subcommittee activities. Additional organizational or administrative variations in activity reports include whether or not they contain an overview or history of the committee, a foreword from the committee chair, a table of contents, information on subcommittee jurisdictions and memberships, and listings of names and titles of senior or other staff. Pursuant to House Rules, House committee activity reports are to include "any supplemental, minority, additional, or dissenting views submitted by a member of the committee." The frequency with which these additional views appear varies greatly across committees. For example, activity reports from the Committees on Homeland Security, on Rules, on Education and the Workforce, and on House Administration contained additional views in at least 9 of the possible 15 reports issued since the 104 th Congress. Conversely, a number of committees—for example, the Committees on Appropriations, Intelligence, Ethics, Armed Services, Natural Resources, and Small Business—rarely, if ever, contained these views during the same period. The length of additional views has also varied, from a few sentences to more than 50 pages. Senate Rules do not address the inclusion of additional views in activity reports. Their inclusion appears to be infrequent. Aside from the required contents addressed in the House and Senate Rules, broad discretion is given to each committee in preparing its own report. The committee activity reports vary in their level of detail in describing oversight activities and hearings. Some committees provide lists of these actions, while others provide lengthy descriptions, analysis, and appendices. Relatedly, while many provide lists of documents, correspondence, or publications, some contain full-text reproductions. These variations are evident in the varying lengths of these reports—for example, House activity reports for the 114 th Congress ranged in length from 22 pages to 485 pages; Senate activity reports that have been submitted as of the date of this report range from 20 pages to 130 pages. The activity reports provide an overview of a variety of issues within the committee's jurisdiction. They may also address actions taken and work produced by the individual committees, including, for example, committee publications , including information on published and unpublished hearings; public statements and press releases ; " Dear Colleague " letters issued by the committee chair; committee resolutions . The use of committee resolutions may vary by committee, but they may include internal committee agreements concerning the adoption of committee rules, authorization and oversight plans, or the committee organization. Committees may also consider resolutions that are specific to their jurisdictional responsibilities; correspondence to or from executive branch or other officials, including related presidential messages and proclamations; a copy or summary of the committee's " views and estimates ," which addresses budgetary matters within its jurisdiction. Some committees also include minority comments on the "views and estimates"; memoranda clarifying jurisdictional agreements between committees; information on Member or staff travel , including locations visited, issues investigated, or conferences or other events attended; conference committee appointments; approval by the committee of consultant contracts ; information on committee witnesses , arranged by hearing or by category (e.g., congressional, executive branch, nongovernmental, and foreign); activities specific to the Senate, for Senate committees (i.e., consideration of tr eat ies and nominations ); activities specific to roles and responsibilities of certain committees or pursuant to various laws (for example, advice and guidance from the House or Senate Committee on Ethics; information on waivers of House Rules, the Budget Act, or the Unfunded Mandate Reform Act by the House Committee on Rules; and participation in international conferences and "Committee-Hosted Dignitary Meetings" by the House Committee on Foreign Affairs); petitions and m emorials submitted to the committee; investigations conducted by the committee; support provided by the Government Accountability Office (GAO), including reports requested or issued and related high-risk areas identified; special studies or task forces ; information on examinations into " waste, fraud, abuse, and m ismanagement "; information on regulatory review efforts ; and publications prepared separately by the majority or minority members or staff of the committee. Some reports also include tabular information and statistical summaries of committee meetings, including the number of days or pages of hearings, and the number of field hearings, joint hearings, closed hearings, business meetings, markup sessions, or witnesses. Others include tables providing information on legislation considered by the committee, including the total number of bills and resolutions referred to the committee, reported, and passed by the chamber, or enacted into law. Generally, since 1970, one committee activity report has been required each Congress. The House recently experimented with increasing the frequency of these reports, before reverting to the prior practice of one report, issued at the end of each Congress. More specifically, the House Rules have provided for one report per Congress (92 nd –111 th Congresses); biannual reports, totaling four reports each Congress (112 th Congress); annual reports, totaling two reports each Congress (113 th Congress); and one report per Congress (114 th and 115 th Congresses). Pursuant to House Rule XI, the requirement for activity reports has applied to all House committees since the 94 th Congress (1975-1976). From the enactment of the Legislative Reorganization Act of 1970 until the 94 th Congress, the House Committees on Appropriations, House Administration, Rules, Ethics (formerly Standards of Official Conduct), and Budget (upon its establishment in 1974) were exempt from the requirement that committees file activity reports. These committees had originally been exempted from the 1970 act, according to the accompanying House report, "because ... their respective areas of jurisdiction do not embrace legislative areas of the type contemplated by the legislative review provisions of the revised clause ... The inclusion of these committees within the purview of that clause would, therefore, be meaningless." The exception was removed with the adoption of H.Res. 988 (93 rd Congress), the Committee Reform Amendments of 1974, on October 8, 1974. An exemption from the reporting requirement for the Senate Budget Committee was added to Senate Rule XXVI, paragraph 8(b), upon the creation of the committee in 1974. In addition to the committee activity reports, the House and Senate each produce a number of other publications that document their activities. These publications vary in their frequency, content, scope (e.g., coverage of the entire chamber or only certain committees), and how they are issued (e.g., as committee reports, committee documents, House or Senate documents, printing in the Congressional Record , or online-only availability). Table 1 provides a brief comparison of selected publications. The committee activity reports, compared to the other publications, may be more likely to provide discussion, analysis, or statistics. They also aggregate selected types of information about a committee in one place. They also differ from some of the other publications since they provide a retrospective accounting of the actions taken by a particular committee, rather than information on prospective, planned, or ongoing actions. | All House committees and most Senate committees are required to prepare reports each Congress detailing their activities. These committee activity reports provide a historical record of a committee's legislative and oversight actions. They may serve as an introduction to the work of the individual committees, and, in many cases, they also provide information that is otherwise either not aggregated in one place or not available elsewhere. The committee activity reports are required by the rules of the House (House Rule XI, clause 1(d)) and Senate (Senate Rule XXVI, clause 8(b)). The reporting requirement dates to the Legislative Reorganization Act of 1970 (2 U.S.C. §190d). Each report covers the activities for one Congress. In odd-numbered years, House reports are to be filed by January 2, while Senate reports are to be filed by March 31. This report includes a discussion of the types of information that may be included in the activity reports, variations across reports and time, and the filing process. A table provides a comparison of the committee activity reports and other congressional publications, including the types of information found in each as well as their timeframe for coverage and publication. For example, the activity reports may be more likely to provide discussion, analysis, or statistics than committee calendars (if published). They also provide a retrospective accounting of the actions taken by a particular committee, while House authorization and oversight plans, for example, provide information on prospective or planned actions. The appendix lists activity reports issued by the House and Senate committees covering the 110th, 111th, 112th, 113th, and 114th Congresses. |
This report provides an overview of the potential effects of marriage on Supplemental Security Income (SSI) eligibility and benefits. It includes an overview of the SSI program, information on the SSI resource limits, and a discussion of how the marriage of an SSI beneficiary to either another beneficiary or an ineligible person can affect his or her eligibility for benefits or monthly benefit level. In some cases, marriage may result in a person being denied SSI benefits or having his or her monthly SSI benefit level reduced. This situation has been called a "marriage penalty" by the National Council on Disability. Under the provisions of Title XVI of the Social Security Act, disabled individuals and persons who are 65 or older are entitled to benefits from the SSI program if they have income and assets that fall below program guidelines. SSI benefits are paid out of the general revenue of the United States and all participants receive the same basic monthly federal benefit. In most states, adults who collect SSI are automatically entitled to coverage under the Medicaid health insurance program. The basic monthly federal benefit amount for 2009 is $674 for a single person and $1,011 for a couple. This amount is supplemented by 44 states and the District of Columbia. Arkansas, Kansas, Mississippi, North Dakota, Tennessee, West Virginia, and the Commonwealth of the Northern Mariana Islands do not offer a state supplement. A participant in the SSI program receives the federal benefit amount, plus any state supplement, minus any countable income. At the end of December 2008, over 7.5 million people received SSI benefits. In that month, these SSI beneficiaries each received an average cash benefit of $477.80 and the program paid out a total of just under $3.9 billion in SSI benefits. The average monthly benefit is lower than the federal benefit amount because a person's total monthly benefit may be lowered based on earnings and other income. Individuals and couples must have limited assets or resources in order 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." When a couple marries and pools their assets, they may find themselves with resources that render them ineligible for continued SSI benefits. 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. Not all resources are counted for SSI purposes. Excluded resources include an individual's home, a single car used for essential transportation and other assets specified by law and regulation. Federal regulations establish the definition of marriage for the purposes of determining SSI eligibility and calculating SSI benefits. Two people are considered married for the purposes of the SSI program if one of the following conditions is present: The couple is legally married under the laws of the state in which they make their permanent home; The SSA has determined that either person is entitled to Social Security benefits as the spouse of the other person; or The couple is living together in the same household and is leading people to believe that they are married. Under the terms of the Defense of Marriage Act, P.L. 104-199 , a married couple must consist of one man and one woman for the purposes of the SSI program. When two SSI beneficiaries marry, they are considered a beneficiary couple. As a result, they are entitled to a federal benefit of up to $1,011 per month and may have countable resources valued at up to $3,000. Their combined countable income is used to reduce their monthly benefit. The marriage of two SSI beneficiaries can have a negative effect on their eligibility for benefits and their total amount of benefits. As a married couple, both beneficiaries are presumed to have access to the couple's shared income and resources. Compared with two single beneficiaries as single persons, a married couple has a lower resource limit, a lower maximum federal benefit, and a lower amount of excluded income as shown in Table 1 . Single SSI beneficiaries can have countable resources valued at up to $2,000. Combined, two such single beneficiaries can have a total of up to $4,000 in countable resources and can exclude from their countable resources two cars and two houses. However, as a married couple, their maximum amount of resources is $3,000 and they may exclude from their countable resources one car and one house. The maximum federal SSI benefit for 2008 is $674 per month for a single beneficiary and $1,011 per month for a married couple. Two unmarried beneficiaries could each receive up to $674 per month in benefits or a combined monthly benefit of up to $1,348. However, as a married couple, these beneficiaries can receive a maximum benefit of $1,011 per month. A single SSI beneficiary is allowed to exclude $85 of income (the first $20 in monthly earnings and $65 in earned income on top of the first $20) as well as one-half of all earned income above $65 from the income used to reduce the monthly SSI benefit. Two single beneficiaries can each exclude the basic $85 for a combined exclusion of $170. However, a married couple is entitled to exclude only the basic $85 and one-half of their combined earnings over $65. The marriage of an SSI beneficiary to a person who does not receive SSI benefits can have a negative effect on the SSI beneficiary's eligibility and amount of benefits if the ineligible spouse brings significant income or assets to the family. Generally, the income and assets of both persons in a marriage are considered shared and equally available to either person, which can result in an increase in the beneficiary's countable income or resources after marriage. When an SSI beneficiary marries a person who does not receive SSI benefits, a portion of the ineligible spouse's income is assigned, or deemed, to the SSI beneficiary and is counted as income for the purposes of determining benefit eligibility and the amount of monthly benefits. The procedure used to deem income from an ineligible person to his or her spouse who receives SSI benefits consists of several steps set by regulation and takes into account the overall size of the family. The four steps in the income deeming process are included below and two examples of income deeming are provided in Table 2 at the end of this report. The first step in the deeming process is to determine the countable monthly income of the ineligible spouse by taking his or her total earned and unearned income and reducing it by a special limited set of income exclusions. Generally, most income other than federal social service benefits is counted. Once the countable income of the ineligible spouse has been established, this amount is further reduced to account for any ineligible children living in the household or any aliens that the ineligible spouse may be sponsoring. For each child or sponsored alien, the countable income of the ineligible spouse is reduced by an amount equal to the difference between the monthly federal SSI benefit rate for a couple and the monthly federal SSI benefit rate for an individual. For 2009, this amount is $337, the difference between the federal SSI benefit rate for a couple of $1,011 and the rate for an individual of $674. The final countable monthly income of the ineligible spouse is used to determine the continued SSI eligibility of the beneficiary. If the final countable income of the ineligible spouse is less than or equal to the difference between the monthly federal SSI benefit rate for a couple and the monthly federal SSI benefit rate for an individual ($337 for 2009), then no income is deemed to the beneficiary and the beneficiary is eligible to continue receiving SSI benefits as an individual. If, however, the final countable income of the ineligible spouse is greater than the difference between the monthly federal SSI benefit rate for a couple and the monthly federal SSI benefit rate for an individual, then the beneficiary and his or her spouse are considered a couple and eligible to receive SSI benefits at the level for a couple. If a married beneficiary is considered an individual after Step 3, then his or her monthly SSI benefit is equal to the federal benefit rate for an individual minus any of his or her countable income. The income of the ineligible spouse is not considered when determining the benefit amount in this case. If, however, the married beneficiary and his or her spouse are considered a couple after Step 3, then their benefit is reduced by their combined countable income. The final countable income of the ineligible spouse is added to the total income of the beneficiary. This amount is then reduced by the standard income exclusions and the couple's monthly benefit is reduced by this final income amount. Unlike the rules governing the deeming of income from an ineligible spouse to an SSI beneficiary, the resource deeming rules are straightforward. Any resources owned by the ineligible spouse are deemed to the beneficiary. All of the resources of a married couple are considered to be available to the SSI beneficiary and are subject to the regular SSI resource limitations. If the beneficiary is considered a single beneficiary, then he or she may have countable resources valued at up to $2,000. If, after the deeming of income, he or she is considered part of a beneficiary couple, then the countable resource limit is $3,000. The only exception to this rule is that the pension plan of an ineligible spouse is not deemed to a beneficiary. | Supplemental Security Income (SSI) is a major benefit program for low-income persons with disabilities and senior citizens. As a means tested program, SSI places income and resource limits on individuals and married couples for the purposes of determining their eligibility and level of benefits. To become and remain eligible to receive SSI benefits, single individuals may not have countable resources valued at more than $2,000 and married couples may not have countable resources valued at more than $3,000. Although a person's home and car are excluded from these calculations, most other assets owned by a person or married couple are counted and in most cases, the assets of both partners in a marriage are considered shared and equally available to both the husband and the wife. A person's countable income must be below SSI program guidelines to qualify for benefits and a person's monthly benefit level is reduced by a portion of his or her earned and unearned income. The income of a person ineligible for SSI can be considered when calculating the benefit amount of that person's spouse. A complicated process of deeming is used to determine how much of the ineligible person's income is to be considered when calculating his or her spouse's monthly SSI benefits. In some cases marriage may result in a person being denied SSI benefits or seeing his or her SSI benefit level reduced because of the increase in family income or assets that results from the marriage. This can occur if an SSI beneficiary marries another SSI beneficiary or a person not in the SSI program. This potential effect of marriage on the SSI eligibility and benefits of SSI beneficiaries has been called a "marriage penalty" by the National Council on Disability. This report provides an overview of the potential effect of a marriage to another SSI recipient or an ineligible person on an individual's eligibility for and level of SSI benefits. Examples of cases in which a marriage can reduce a person's SSI benefits are provided. This report will be updated to reflect any legislative changes. |
After Members of the House or Senate leave office, they are afforded certain courtesies and privileges. Some are derived from law and chamber rules, but others are courtesies that have been extended as a matter of custom. Some of these privileges and courtesies include the following: access to the floor of the chamber in which a former Member served. short-term franking privileges. Former Members of Congress are authorized to use the frank for 90 days immediately after they leave office, only for official matters relating to the closing of their offices. access to parking facilities and athletic or wellness facilities, subject to some restrictions. access to House or Senate administrative services and dining facilities. access to materials through the Congressional Research Service (CRS) and the Library of Congress. Former Members of the House are entitled to admission to the floor of the House while it is in session. A former Member of the House is not entitled to the privilege of the House floor if he or she (1) becomes a registered lobbyist or the agent of a foreign principal as defined by the House; (2) has any direct personal or pecuniary interest in any legislative measure pending before the House or reported by any committee of the House; (3) or is employed for the purpose of influencing, directly or indirectly, the passage, defeat, or amendment of any legislative proposal. The Speaker may promulgate regulations that exempt ceremonial or educational functions from these restrictions. Former Members of the House may have access, for a fee, to Member exercise facilities, including the Members' wellness facility. Any former Member who is a registered lobbyist or agent of a foreign principal, or who is employed or retained for the purpose of influencing legislation, is not entitled to this courtesy. Other privileges and courtesies extended to former Members of the House include the following: parking in House parking facilities, as space is available; assistance with retirement and other benefits from the Office of Members' Services; membership in the Wright Patman Congressional Federal Credit Union; permanent House of Representatives ID card from the Clerk of the House; use of the collections in the House Legislative Resource Center and Senate Library without borrowing privileges; use of the House Document Room; seating in the House restaurant facilities and Members' dining room; and membership in the U.S. Association of Former Members of Congress. Former Senators are entitled to admission to the floor of the Senate while it is in session. A former Senator who becomes a registered lobbyist, agent of a foreign principal, or is employed to influence legislation, is denied floor privileges except for ceremonial functions and events designated by the majority leader and minority leader, pursuant to regulations promulgated by the Committee on Rules and Administration. Former Senators may obtain a permit allowing them to park in outdoor lots controlled by the Senate. For a fee, former Senators are allowed to use the Senate athletic facilities. Any former Senator who is a registered lobbyist or agent of a foreign principal, or who is employed or retained for the purpose of influencing legislation, is not entitled to these courtesies. Other privileges and courtesies extended to former Senators include the following: services from the Senate Disbursing Office, including check cashing privileges and assistance with retirement and other benefits; use of the Senate Credit Union; permanent ID from the Senate Sergeant at Arms; limited use of the Senate Dining Room; use of the Senate Library, including borrowing privileges; documents from the Senate document room upon personal request of the former Senator; purchasing privileges in the Senate Stationery Room; and membership in the U.S. Association of Former Members of Congress. | After Members of the House or Senate leave office, they are afforded certain courtesies and privileges. Some are derived from law and chamber rules, but others are courtesies that have been extended as a matter of custom. Some of these privileges and courtesies include the following: access to the floor of the chamber in which a former Member served; short-term franking privileges; access to parking facilities and athletic or wellness facilities; access to House or Senate administrative services and dining facilities; and access to materials through the Congressional Research Service (CRS) and the Library of Congress. |
The Coast Guard, which is a part of the Department of Homeland Security (DHS), is the lead federal agency for maritime homeland security. Section 888(a)(2) of The Homeland Security Act of 2002 ( P.L. 107-296 of November 25, 2002), which established DHS, specifies five homeland security missions for the Coast Guard: (1) ports, waterways, and coastal security, (2) drug interdiction, (3) migrant interdiction, (4) defense readiness, and (5) other law enforcement. The Coast Guard, in its own budget materials, excludes drug interdiction and other law enforcement from its definition of its homeland security missions. Under the Ports and Waterways Safety Act of 1972 (P.L. 92-340) and the Maritime Transportation Security Act (MTSA) of 2002 ( P.L. 107-295 of November 25, 2002), the Coast Guard has responsibility to protect vessels and harbors from subversive acts. With regard to port security, the Coast Guard is responsible for evaluating, boarding, and inspecting commercial ships approaching U.S. waters, countering terrorist threats in U.S. ports, and helping protect U.S. Navy ships in U.S. ports. A Coast Guard officer in each port area is the Captain of the Port (COTP), who is the lead federal official for security and safety of vessels and waterways in that area. Table 1 below shows FY2005-FY2008 funding for the Coast Guard's five statutorily defined homeland security missions. As shown in the table, the Coast Guard for FY2008 is requesting a total of about $4.5 billion, or a bit more than half its total proposed budget, for these five missions. The Coast Guard states that in FY2006, it met it performance targets for two of its five statutorily defined homeland security missions (ports, waterways, and coastal security, and other law enforcement) and did not meet them for two others (defense readiness and migrant interdiction). Performance regarding the fifth mission (drug interdiction) was to be determined as of February 2007. Potential issues for Congress concerning the Coast Guard's homeland security operations include, among others, the following: the sufficiency of Coast Guard funding, assets, and personnel levels for performing both homeland and non-homeland security missions; the division of the Coast Guard's budget between homeland security and non-homeland security missions; whether the Coast Guard is achieving sufficient interoperability and coordination with other DHS, federal, state, and local authorities involved in the maritime aspects of homeland security, including coordination of operations and coordination and sharing of intelligence; monitoring compliance with the facility and vessel security plans that the Coast Guard has reviewed and approved; how the Coast guard assesses security risks to various ports and prioritizes these risks for allocating port-security funding; completing foreign port security assessments; implementing a long-range vessel-tracking system required by MTSA; implementing Automatic Identification System (AIS); inland waterway security; and response plans for maritime security incidents. A December 2006 report from the DHS Inspector General on major DHS management challenges stated: To implement the Maritime Transportation Security Act of 2002 in a timely and effective manner, USCG must balance the resources devoted to the performance of homeland and non-homeland security missions; improve the performance of its homeland security missions; maintain and re-capitalize USCG's Deepwater fleet of aircraft, cutters, and small boats; restore the readiness of small boat stations to perform their search and rescue missions; and increase the number and quality of resource hours devoted to non-homeland security missions. For example, while overall resource hours devoted to USCG's homeland security missions grew steadily from FY 2001 through FY 2005, USCG continues to experience difficulty meeting its performance goals for homeland security missions. A July 2006 report from the DHS Inspector General on Coast Guard mission performance in FY2005 stated: Since FY 2001, more [Coast Guard] resource hours have been dedicated to homeland security missions than for non-homeland security missions. However, after an initial drop in FY 2002, non-homeland security resource hours have increased every period, and have now returned to within 3% of baseline levels.... The Coast Guard has been more successful in meeting goals for its traditional non-homeland security missions, meeting 22 of 28 goals (79%) where measurable goals and results existed, but still leaving room for improved performance. Not including the Ports, Waterways, and Coastal Security mission, by far the largest user of resource hours of any Coast Guard mission, the Coast Guard achieved only 26% of its homeland security goals (5 of 19).... Growth in total resource hours has leveled off. Since resource hours are based on the limited and finite number of available assets, the Coast Guard will be unable to increase total resource hours without the acquisition of additional aircraft, cutters, and boats. Consequently, the Coast Guard has a limited ability to respond to an extended crisis, and therefore must divert resources normally dedicated to other missions. To improve performance within their overall constraints, the Coast Guard must ensure that a comprehensive and fully defined performance management system is implemented, and that experienced and trained personnel are available to satisfy increased workload demands. In March 2005, the Government Accountability Office (GAO) testified that: The Maritime Transportation Security Act of 2002 charged the Coast Guard with many maritime homeland security responsibilities, such as assessing port vulnerabilities and ensuring that vessels and port facilities have adequate security plans, and the Coast Guard has worked hard to meet these requirements. GAO's reviews of these efforts have disclosed some areas for attention as well, such as developing ways to ensure that security plans are carried out with vigilance. The Coast Guard has taken steps to deal with some of these areas, but opportunities for improvement remain. A December 30, 2007, press article on a prototype port security system in Miami called Project Hawkeye and the AIS states in part: A Coast Guard plan to combat terrorism by creating the maritime equivalent of an air traffic control system in the coastal waters here, a test for a nationwide effort, has fallen far short of expectations. The Coast Guard installed long-range surveillance cameras, coastal radar and devices that automatically identify approaching vessels to help search out possible threats. But the radar, it turns out, confuses waves with boats. The cameras cover just a sliver of the harbor and coasts. And only a small fraction of vessels can be identified automatically. Officials acknowledge the limited progress that the Department of Homeland Security and the Coast Guard have made toward creating a viable defense here in Miami or at harbors nationwide against a maritime attack, despite the billions of dollars invested since 2001.... Miami was selected to serve as a laboratory for the Maritime Domain Awareness project.... The surveillance effort in Miami, known as Project Hawkeye, was intended to search out vessels that might present a threat, allowing the Coast Guard to try to foil an impending attack. Using radar, the Coast Guard would track boats larger than 25 feet within 12 miles of shore. Smaller vesselsâas little as a Jet Skiâwould be tracked with infrared cameras up to five miles offshore. The surveillance would cover an area from Fort Lauderdale to the Florida Keys. To identify which vessels among the thousands might pose a danger, the Coast Guard would rely on sophisticated software that would assemble and analyze all this data. Under the plan, Coast Guard officials would be alerted when boats entered restricted waters, loitered in a vulnerable spot or displayed an unusual course or speed. The cameras have at times proved helpful, allowing the Coast Guard to investigate how a ship went aground or to monitor security contractors at the cruise ship terminal, to make sure they are doing their job, said Capt. Liam Slein, deputy commander of the Miami sector. But the cameras, it turns out, are not powerful enough or installed widely enough to track small boats approaching the many inlets in the Miami area. The radar system is so unreliableâmistaking waves for boats, splitting large ships in two or becoming confused by rainâCoast Guard staff personnel have been told not to waste much time looking at it. And technology the Coast Guard has required for large ships and wants installed on commercial fishing vessels, devices that automatically identify an approaching ship's name, location and course, has also provoked concerns. The Automated Identification System, as it is known, was first developed as a collision avoidance measure, not a security system, and was not made tamperproof. A captain or crew wanting to hide or disguise their location could simply turn the system off, or enter data that transmitted false information about the vessel's whereabouts and identity.... Most critically, the software system intended to make sense of all the collected data has not yet been installed in Miami. That means that very little of what the cameras are filming or the radar is tracking is ever used or even watched. The data is of such limited value that at least for now, the Coast Guard has assigned only volunteers to deal with it.... A surveillance system similar to the one in Miami is supposed to be installed at as many as 35 ports. But given the challenges here, and the unwillingness of Congress to finance the still-unproven effort, the Coast Guard has delayed expanding the effort to other ports until at least 2014. A March 31, 2007, press article about a private-sector vessel tracking system called the Automated Vessel Tracking System states in part: The Automated Secure Vessel Tracking System has proven itself to businesses around the world. It gave real-time information to oil companies as Hurricane Katrina raged in 2005, helping them follow oil platforms that had been torn from their moorings. It has tracked ships in distress far out to sea. But the system is getting more attention these days because of who isn't using it: the Coast Guard. Juneau is one of the few Coast Guard district headquarters that subscribes to the system. Congress ordered the Coast Guard to begin testing by Sunday a system that would track all ships approaching U.S. ports. The Coast Guard says a system will be in place, but critics are concerned that it will prove to be insufficient. The Coast Guard and Maritime Transportation Act of 2006 says the Coast Guard, part of the Department of Homeland Security, must begin a three-year pilot program of a system capable of tracking 2,000 ships at once "to aid maritime security and response to maritime emergencies."... Some lawmakers are trying to convince the Coast Guard that the answer already exists in the maritime industry's vessel tracking system.... The Coast Guard has been relying primarily on a radio-based tracking system. Its new system is expected to use satellite technology, but not immediately and then only on a limited basis, Schumer said. The system being pushed by [Senator] Schumer, [Representative] Sanchez and other members of Congress, however, has been used to monitor ship movement for the last five years by a coalition of nonprofit maritime organizations. The system relies on emergency beacons that already are fixtures on most commercial vessels. A software program "pings" the ship via satellite and retrieves data such as the name of the vessel, its owner, its latitude and longitude, its speed and its course. It can also track a ship's route across the ocean, allowing observers to know whether the ship stopped and met another vessel at sea or diverted to a port that wasn't on its usual route.... The tracking system was created in 1999 by a small family-run company called Yukon Fuel Co. in Anchorage to keep tabs on its tugs and barges as they supplied fuel and freight to isolated Alaskan villages, fishing camps and mining sites. The software proved so popular that the family sold Yukon and formed Secure Asset Reporting Services Inc. to market the system, said Clayton Shelver, the company's chief executive.... The Coast Guard isn't the only player that still needs convincing. Most major shipping companies haven't signed on either. So far, only Taiwan-based Evergreen Marine Corp. has agreed to test it. | The Coast Guard is the lead federal agency for maritime homeland security. For FY2008, the Coast Guard is requesting a total of about $4.5 billion, or a bit more than half its total proposed budget, for the five missions defined in The Homeland Security Act of 2002 ( P.L. 107-296 ) as the Coast Guard's homeland security missions. The Coast Guard's homeland security operations pose several potential issues for Congress. This report will be updated as events warrant. |
During the legislative process, many documents are prepared by Congress and its committees. Governmental and nongovernmental entities track and record congressional activities, and many more entities chronicle and analyze the development of public policy. The wide availability of such information can be daunting to those involved in policy and legislative research. The purpose of this report is to assist congressional staff in identifying and accessing key resources used during such research. The resources' titles and access information are presented in eight tables. The tables provide information on how to find congressional documents ( Table 1 ); information on tracking legislative activity ( Table 2 ); executive branch documents and information ( Table 3 ); information about legislative support agencies ( Table 4 ); congressional news sources ( Table 5 ); policy and scholarly research sources ( Table 6 and Table 7 ); and research-related training and services for congressional staff ( Table 8 ). This report does not define or describe the purpose of the various information resources and documents; that information can be found in companion CRS Report RL33895, Researching Current Federal Legislation and Regulations: A Guide to Resources for Congressional Staff . Additional reports on congressional operations are available in the " Congressional Process, Administration, & Elections " page on CRS.gov, at http://www.crs.gov/iap/congressional-process-administration-and-elections . This report is not a comprehensive catalog of resources for conducting policy and legislative research; instead, it provides a selection of widely used electronic resources. Some of the resources mentioned are available only with a paid subscription, whereas others are free; this availability is noted in the report along with the access points for congressional staff. Print resources for time periods not covered by the resources listed in the tables may be available from the Congressional Research Service (CRS), the Law Library of Congress, or the House and Senate Libraries. The inclusion of resources in this report does not imply endorsement by CRS of the content or the products listed. In addition, CRS does not acquire or manage congressional offices' access to subscription resources. CRS is available for consultation on policy and legislative research or to perform such research upon request. CRS can also advise congressional staff on the use of the resources listed in this report, including advice on how to select the best resource to use, how to search for information within a resource, or how to develop the most effective research methodology. Table 1 serves as a reference guide for locating congressional documents using both freely available and subscription-based resources. The first column of the tables lists documents commonly used in policy and legislative research and typical citations for such documents. The second column lists resources where these documents can be accessed. The third column contains explanatory notes. Table 2 provides information about how to access House and Senate committee schedules, floor schedules, calendars, and floor proceedings, all of which can be helpful in tracking congressional activities. Access to subscription resources can vary among CRS, Senate, and House offices. See the notes within the tables for more information. CRS subscriptions can be accessed through the CRS La Follette Congressional Reading Room (locations and hours of operation are available in Table 8 ). Unless otherwise indicated, all other resources are freely available. Table A-1 provides additional information on the resources in Table 1 , including more detailed descriptions and URLs linking directly to the resources (when available). Table 3 serves as a reference guide for locating executive branch documents and information using freely available resources. The first column of the table lists documents or information commonly used in policy and legislative research and typical citations for such documents, where applicable. The second column lists resources where these materials can be accessed. The third column contains explanatory notes. Table A-1 provides additional information on the resources in Table 3 , including more detailed descriptions and URLs linking directly to the resources (when available). The legislative support agencies are designed to be nonpartisan, objective, and impartial. The agencies each serve the Congress in different ways. Contact information for each agency and a description of each agency and its services is outlined in Table 4 , below. Table 5 , Table 6 , and Table 7 serve as finding aids for selected resources covering news, scholarly, and policy research that may be related to Congress and the legislative process. Resources in these tables may contain editorial content and analysis. Inclusion of these resources does not imply endorsement of the views held by the publications listed. Please note that these tables are meant to serve as suggested starting points rather than comprehensive lists of news, scholarly, and policy resources. Congressional users may also access databases subscribed to by the Library of Congress such as ProQuest, LexisNexis, Factiva, EBSCOhost, and many others, onsite in the CRS La Follette Congressional Reading Room and the public reading rooms at the Library of Congress. Additionally, requests for literature searches and full text of specific articles can be submitted to CRS. Congressional users also have access to various databases through the House Library and the Senate Library. Table 8 contains a list of locations where congressional staff can obtain training and other services on Capitol Hill. Table A-1 provides an alphabetical listing of, and additional details about, the resources listed in Table 1 , Table 3 , and Table 4 . | This report is intended to serve as a finding aid for congressional documents, executive branch documents and information, news articles, policy analysis, contacts, and training, for use in policy and legislative research. It does not define or describe the purpose of various government documents; that information can be found in companion CRS Report RL33895, Researching Current Federal Legislation and Regulations: A Guide to Resources for Congressional Staff. This report is not intended to be a definitive list of all resources, but rather a guide to pertinent subscriptions available in the House and Senate in addition to select resources freely available to the public. This report is intended for use by congressional staff and will be updated as needed. |
RS21017 -- Terrorist Attacks and National Emergencies Act Declarations Updated January 7, 2005 As early as July 1974, the special committee had unanimously recommended legislation establishing a procedure for presidentialdeclaration and congressional regulation of a national emergency. Introduced in the Senate the following month,the measure, afternegotiation with the executive branch and further refinement, was cleared for President Gerald Ford's signature onSeptember 14,1976. (5) As enacted, the National Emergencies Act consisted of five titles. The first of these generally returned all standby statutorydelegations of emergency power, activated by an outstanding declaration of national emergency, to a dormant statetwo years after thestatute's approval. However, the act did not cancel outstanding 1933, 1950, 1970, and 1971 national emergencyproclamations,because these were issued by the President pursuant to his Article II constitutional authority. Nevertheless, it didrender themineffective by returning to dormancy the statutory authorities they had activated, thereby necessitating a newdeclaration to activatestandby statutory emergency authorities. Title II provided a procedure for future declarations of national emergency by the President and prescribed arrangements for theircongressional regulation. The statute established an exclusive means for declaring a national emergency. Furthermore, emergencydeclarations were to terminate automatically after one year unless formally continued for another year by thePresident, but could beterminated earlier by either the President or Congress. Originally, the prescribed method for congressionaltermination of a declarednational emergency was a concurrent resolution adopted by both houses of Congress. This type of so-called"legislative veto" waseffectively invalidated by the Supreme Court in 1983. (6) The National Emergencies Act was amended in 1985 to substitute a jointresolution as the vehicle for rescinding a national emergency declaration. (7) When declaring a national emergency, the President must indicate, according to Title III, the powers and authorities being activated torespond to the exigency at hand. A recent CRS compilation identifies almost 160 provisions of law that may beactivated by anemergency proclamation. (8) They include authorityto prosecute and punish anyone who willfully makes or conspires to makedefective war material (18 U.S.C. 2154), to waive the written application requirement for radio station licenses andrenewals (47U.S.C. 308), to release national defense stockpile materials (50 U.S.C. 98f(a)(2)), to control vessels in territorialwaters (50 U.S.C.191), and to regulate or prohibit any transactions in foreign exchange, bank transfers of credit or payments involvingany interest ofany foreign country or a national thereof, or transactions involving any property in which any foreign country or anational thereof hasany interest (50 U.S.C. 1702). Certain presidential accountability and reporting requirements regarding national emergency declarations were specified in Title IV,and the repeal and continuation of various statutory provisions delegating emergency powers was accomplished inTitle V. Initial use of the act occurred in November 1979 in response to the U.S. embassy being seized and its personnel being taken hostagein Tehran, Iran. The proclaimed national emergency activated authority for the seizure of Iranian governmentproperty, includingassets, and prohibition of economic transactions with Iran. Such national emergency actions were also subsequentlytaken againstNicaragua, South Africa, Libya, Panama, Iraq, Haiti, Serbia, Montenegro, Bosnia, Herzegovina, Burma, and Sudan. On severaloccasions since 1983, when the Export Administration Act of 1979 automatically expired and awaitedreauthorization, nationalemergencies were declared to activate authority by which to continue the operative status of the statute's exportcontrol regulations. To date, over 30 national emergencies have been declared pursuant to the National Emergencies Act, and about adozen of these havebeen subsequently terminated. (9) Prior to the September 14, 2001, national emergency declaration of President George W. Bush in response to terrorist attacks in NewYork City and Washington, D.C., President William Clinton had declared a January 1995 national emergencyrelative to prohibitingtransactions with terrorists who threaten to disrupt the Middle East peace process. Such transactions includedassisting in,sponsoring, or providing financial, material, or technological support for, or services in support of, acts of violenceby terrorists. In his national emergency declaration, President Bush did not activate, as one newspaper erroneously reported, "some 500 dormantlegal provisions, including those allowing him to impose censorship and martial law." (10) Instead, his declaration, in accordance withthe requirements of the National Emergencies Act, selectively activated the following statutory authorities, whichwere specified inthe President's national emergency proclamation. 10 U.S.C. 123. Authorizes the President, in time or war or national emergencydeclared by Congress or the President, to suspend the operation of any provision of law relating to the promotion,involuntaryretirement, or separation of commissioned officers of the Army, Navy, Air Force, Marine Corps, or Coast GuardReserve. 10 U.S.C. 123a. Authorizes the President, at the end of any fiscal year when thereis in effect a war or national emergency, to defer the effectiveness of any end-strength limitation with respect to thatfiscal yearprescribed by law for any military or civilian component of the armed forces or of the Department of Defense. 10 U.S.C. 527. Authorizes the President, in time or war or national emergencydeclared by Congress or the President, to suspend the operation of three specified sections of Title 10, United StatesCode, concerningthe authorized strength of commissioned officers on active duty in senior grades, the distribution of commissionedofficers on activeduty in general officer or flag officer grades, and the authorized strength of commissioned officers on active dutyin general officer orflag officer grades. 10 U.S.C. 2201(c). Authorizes the President to make a determination that it isnecessary to increase the number of members of the armed services on active duty beyond the number for whichfunds have beenappropriated for the Department of Defense. 10 U.S.C. 12006. Authorizes the President, in time of war or national emergencydeclared by Congress or the President, to suspend the operation of three specified sections of Title 10, United StatesCode, concerningthe authorized strengths of armed forces reserve commissioned officers in an active status, reserve general and flagofficers in anactive status, and filling senior Army and Air Force Reserve commissioned officer vacancies. 10 U.S.C. 12302. Authorizes the President, in time of national emergency declaredby the President, to call members of the Ready Reserve to active duty. 14 U.S.C. 331. Authorizes the Secretary of Transportation, in time of war ornational emergency, to order any regular officer of the Coast Guard on the retired list to active duty. 14 U.S.C. 359. Authorizes the Commandant of the Coast Guard, in time of war ornational emergency, to order any enlisted member of the Coast Guard on the retired list to active duty. 14 U.S.C. 367. Authorizes the Secretary of Transportation to detain enlistedmembers of the Coast Guard beyond their terms of enlistment. President Bush directed and delegated the exercise of this authority with E.O. 13223 of September 14, 2001. (11) On September 23, 2001, President Bush again declared a national emergency, invoked the International Emergency Economic PowersAct (IEEPA), (12) and ordered its implementationto block property and prohibit transactions with persons who commit, threaten tocommit, or support terrorism. (13) The IEEPAauthorizes the President to regulate or prohibit any transactions in foreign exchange,bank transfers of credit or payments involving any interest of any foreign country or a national thereof, ortransactions involving anyproperty in which any foreign country or a national thereof has any interest. Earlier, President Clinton had declareda nationalemergency and invoked the IEEPA to prohibit transactions with terrorists who threatened to disrupt the Middle Eastpeace process. (14) On November 16, 2001, President Bush, pursuant to his September 14 declaration of a national emergency, issued E.O. 13235invoking the emergency construction authority and making it available for implementation by the Secretary ofDefense and, at theSecretary's discretion, to the secretaries of the military departments. (15) This authority, found at 10 U.S.C. 2808, authorizes theSecretary of Defense, in time of declared war or national emergency declared by the President, and without regardto any otherprovision of law, to undertake military construction projects and to authorize the secretaries of the militarydepartments to undertakesuch construction projects, not otherwise authorized by law, as are necessary to support use of the armed forces. Such constructionprojects may be undertaken only within the total amount of funds that have been appropriated for militaryconstruction, includingfunds appropriated for family housing, that have not been obligated. With E.O. 13253 of January 16, 2002, President Bush amended E.O. 13223, which ordered the Ready Reserve to active duty. Theamendments extended certain authorities to the Secretary of Transportation relative to Coast Guard personnel. (16) Growing out of U.S. intervention in Iraq, which has been justified, in part, by the Bush Administration as an action against al Qaedalocated there and a regime tied to and harboring such terrorists, President Bush issued E.O. 13303 of May 22, 2003,declaring anational emergency for purposes of protecting the development fund for Iraq and certain other property in whichIraq has aninterest. (17) A primary authority activated in thisregard is the International Emergency Economic Powers Act. This emergencydeclaration was designed to protect property and interests in property apart from protections emanating from anearlier emergencydeclaration made with E.O. 12722 of August 2, 1990. On December 17, 2003, President Bush, pursuant to his national emergency declaration of September 14, 2001, issued E.O. 13321invoking 10 U.S.C. 603, which authorizes the President to appoint qualified persons to any officer grade in thearmed forces. (18) Thisauthority was made available to the Secretary of Defense in accordance with the terms of the statutory provision andE.O. 12396concerning defense officer personnel management. (19) Further actions by the President pursuant to his September 14 and 23, 2001, national emergency declarations, and the issuance ofadditional such declarations concerning terrorism, will be chronicled in this report as they occur. | As part of his response to the September 11, 2001, terrorist attacks on the World TradeCenter and the Pentagon, President George W. Bush formally declared national emergencies on September 14 and23 pursuant to theNational Emergencies Act. The President's actions follow a long-standing tradition of alerting the nation to a crisisthreatening publicorder and constitutional government. Currently, such declarations also allow the President to make use of activatedauthority on aselective basis, as appropriate for responding to an emergency. Updated as events recommend, this report chroniclesthe actions takenby President Bush pursuant to his national emergency declarations, as well the issuance of additional suchdeclarations concerningterrorism. |
The Xinjiang-Uighur Autonomous Region is China's northwesternmost territory, making up one-sixth of the country's area. In addition to sharing its 3,350-mile border with Afghanistan, it also borders Mongolia, Russia, Kazakhstan, Kyrgyzstan, Tajikistan, Pakistan, and India, including the disputed territory of Kashmir. Uighurs (pronounced WEE-gurs ), who are Turkic Muslims, comprise the dominant ethnic group in the region at 47% of the total population of 16.6 million. Since the 1950s, the PRC has moved into the XUAR sizeable numbers of ethnic (Han) Chinese, who make up nearly 92% of the PRC's total population, settling many of them into communities known as "Production and Construction Corps." The percentage of ethnic Chinese in Xinjiang subsequently has increased from around 6% in 1949 to 38% in 1999. The XUAR is also home to smaller populations of Kazakhs, Kyrgyz, Tajiks, Tatars, Uzbeks, Hui, Mongols, and other Turkic national minority groups. Historical interpretations of Xinjiang's distant past are controversial. Events of recent centuries are more widely documented but no less contentious. China established a military presence in the region in the eighteenth century and later named the area Xinjiang, "new territory." In the nineteenth century, as China became a battleground for competing European interests, Britain supported Chinese sovereignty over Xinjiang to forestall Russian efforts to dominate the region. Revolts in Xinjiang against Chinese rule took place in the 1860s and 1870s, leading to the declaration of an independent state. Parts of Xinjiang were briefly held by Russia until their return to Chinese control in the early 1880s. Chinese control of Xinjiang fluctuated in the first half of the twentieth century. Chinese warlords acknowledged the national Chinese government's sovereignty but maintained control over much of Xinjiang, while local non-Chinese residents established brief independent republics in the 1930s and 1940s. In 1949 the People's Liberation Army (PLA) entered Xinjiang and annexed it to the People's Republic of China (PRC). Xinjiang was designated as an autonomous region for ethnic minorities and became formally known as the Xinjiang Uighur Autonomous Region in 1955. The past decade has seen an increase in ethnic activities in the XUAR ranging from the more vigorous exercise of local cultural and religious practices, to expressions of discontent with the government, and to limited and at times violent efforts to establish an independent state or rebel against PRC rule. The PRC has been the target of bombings, sabotage, and other terrorist attacks, primarily thought to be committed by small groups of XUAR extremists. For years, there have been periodic unconfirmed reports that some Uighur activists may, in fact, be based in Afghanistan, receiving training from the Taliban. Beijing calls many of these activists "separatists," and charges them with trying to wrest the XUAR and other heavily Muslim areas from Chinese rule. Beijing has responded to these perceived threats by enhancing security measures in the XUAR. Many international organizations reporting a significant upsurge of human rights violations in the region allege that PRC policies in the XUAR unjustly target the majority of XUAR residents whose expressions of ethnicity and culture do not carry separatist connotations or threaten national security. Monitoring ethnic activities in the XUAR is complicated by conflicting descriptions of the region. Accounts from Uighur sources and international organizations identify human rights violations and unequal treatment as underlying causes of protest and turmoil in the region. The group Human Rights Watch notes that Communist Party officials, who tend to be ethnic Chinese, dominate local politics even though many top posts in the XUAR's local government are held by members of minority groups. Central Asian specialist Dru Gladney suggests that Chinese immigration to the XUAR is a main cause of discontent. According to the human rights group Amnesty International, a number of protests, including a 1995 demonstration in Hetian (Khotan) and a 1997 demonstration in Yining (Ghulja), have been in response to China's restrictions on religious activities and perceived discrimination against minority groups. Some ethnic movements in the XUAR are based strongly on nationalist ideas. Nationalist movements opposing PRC rule date back to 1949, when Uighur independence groups defeated by the PLA fled China and established an independence movement in Turkey. Activities with nationalist overtones have become more visible within the XUAR since the PRC began permitting greater freedom of expression in the 1980s, and in particular since the early 1990s, when Central Asian republics with ethnic ties to the XUAR's indigenous population declared independence from the Soviet Union. A number of organizations outside China support these nationalist aims. The Turkey-based East Turkistan Information Center states that it serves as an international association of Uighur groups located in Kazakhstan, Kyrgyzstan, Uzbekistan, Germany, Sweden, Australia, and the United States. According to XUAR dissidents in Turkey, a Uighur group in Kazakhstan was responsible for a bomb explosion on a Beijing bus in 1997 that followed massive arrests by PRC security officials in the aftermath of demonstrations in Yining (Ghulja). Ties may also exist between Uighur separatist groups and Islamic fundamentalist organizations in both Pakistan and Afghanistan. Although the PRC government has identified internal separatist threats, the extent to which separatist movements are led by organizations within the XUAR and the immediate threat of these movements are unclear. According to one report in 1999 by the U.S. Central Intelligence Agency, CIA analysts at that point did not foresee ethnic separatism resulting in the breakup of the PRC. Beijing stresses that the PRC's minority groups enjoy equal protection under the law. The PRC Constitution states: All ethnic groups in the People's Republic of China are equal. The state protects the lawful rights and interests of the ethnic minorities and upholds and develops a relationship of equality, unity, and mutual assistance among all of China's ethnic groups. Discrimination against and oppression of any ethnic group are prohibited. Beijing has often stated that current and past separatist incidents in the XUAR are isolated events initiated by foreign groups and abhorred by XUAR residents. The PRC government nonetheless has responded to events in the XUAR with heavy policing of the region, arrests and executions of alleged separatists, and, according to reports by human rights groups and exiled dissidents, torture of Uighur and other minority prisoners. A classified transcript of a March 19, 1996 meeting of the Standing Committee of the Chinese Communist Party Politburo, cited by Human Rights Watch, underscores PRC concerns with the XUAR. According to the transcript, the meeting identified "national separatism and illegal religious activity" as the "main threats to the stability of Xinjiang," and noted that counterrevolutionary organizations "led by the United States of America" are supporting separatist movements. The meeting also outlined a strategy for restricting illegal religious activity, encouraging immigration to the XUAR, regulating cultural exchanges with foreign countries, and tightening control of the media. In addition to taking strong measures domestically, PRC leaders appear particularly sensitive to the fact that Xinjiang's ethnic Muslim population have more in common with the populations of bordering states than with the rest of China. On April 26, 1996, coinciding with the beginning of China's anti-crime campaign and massive arrests in the XUAR, China signed a military confidence-building treaty with Russia and the Muslim states bordering Xinjiang – Kazakhstan, Tajikistan, and Kyrgyzstan – setting up a buffer zone between the signatory nations. On August 25, 1999, the five countries cosigned a declaration designed to decrease cross-border crime, separatism, and extremism. This group now includes Uzbekistan and is known as the Shanghai Cooperation Organization (SCO). On November 10, 1999, China and Uzbekistan agreed to a joint effort to fight terrorism and Islamic activity, and on November 23, 1999, China and Kazakhstan again pledged mutual cooperation in fighting separatism, terrorism, and religious extremism. Although social and economic reforms in the late 1970s and 1980s allowed new freedoms in the PRC, human rights organizations maintain that these freedoms have been curtailed in the past decade. China has signed or ratified several international human rights declarations, but Amnesty International and Human Rights Watch both report that severe human rights violations occur in the XUAR. Restrictions on religion and dissatisfaction with the government have helped fuel protest among XUAR residents. In 1996, the PRC initiated a "strike hard" campaign against crime which, in the XUAR, often focused on curbing ethnic and religious activities that are illegal under Chinese law. In an April 1999 report on human rights violations in the XUAR, Amnesty International described a pattern of arbitrary arrests, unfair trials, and summary executions, as well as reports of forced sterilization and abortions. The organization recorded 210 death sentences and 190 executions between 1997 and 1999, primarily of Uighurs charged with subversive activities. Several human rights organizations have tracked the August 1999 arrest of a prominent and wealthy Uighur businesswoman, Rebiya Kadeer. Detained by police while on her way to meet with a friend from a visiting U.S. congressional staff delegation, Kadeer was held on charges of "providing information to foreigners" and was charged on September 2, 1999, for "illegally offering state secrets across the border." According to the Information Center of Human Rights and Democratic Movements in China, in November 1999, Kadeer's son was sentenced without trial to two years in a labor camp on charges of aiding separatists. On March 9, 2000, the XUAR's Urumqi Intermediate Court sentenced Kadeer herself to 8 years for providing state secrets to foreigners. The XUAR has abundant resources, including cotton and oil, but lags behind many other regions in China in economic output. Xinjiang's half-year GDP growth rate for 1999 (6.8%) made it the fourth lowest region for GDP growth in China, 0.8 percentage point behind the national average and 5.1 percentage points behind Beijing. Chinese sources note, however, that the XUAR ranks second in China for border trade and is home to 699 enterprises funded by foreign sources. In recent years, Beijing has launched a "Go West" campaign to concentrate economic development efforts in central and western China. The government has announced a five-year development plan for Xinjiang that will focus on improving infrastructure in the region. A cornerstone of this effort is a plan to build a 4,212-kilometer pipeline from the XUAR to Shanghai. Beijing also announced plans to open a branch of the China Development Bank in Xinjiang's capital, Urumqi. According to the state-sponsored Xinjiang People's Broadcasting Station, Communist Party officials have encouraged local media to help create "a public opinion fav[o]rable to the implementation of the strategy on grand [economic] development of the western region." Some, however, fear that these and other western development projects may exacerbate ethnic tensions by bringing more ethnic Chinese into the region. According to some human rights groups, Chinese migration and economic disparities between Chinese and ethnic minorities in the XUAR have been a primary factor fueling discontent among minority groups. Critics of PRC development plans assert that Chinese, and not ethnic minorities, tend to reap the benefits of economic improvements in minority regions. Development projects funded by foreign groups, including the World Bank, have been controversial because of perceived advantages the projects give to Chinese. (See CRS Report RL30786, World Bank Lending: Issues Raised by China ' s Qinghai Resettlement Project. ) Events in the XUAR have far-reaching implications for U.S. policymakers, who in the past have had to juggle efforts to persuade the PRC to improve its human rights record – efforts the PRC government has strongly criticized – with attempts to uphold and enhance economic cooperation with China. In its September 2000 "Annual Report on International Religious Freedom for 2000: China," the U.S. Department of State referred to PRC police crackdowns on Muslim religious activity after an ongoing series of violent incidents in the XUAR beginning in 1997, including reported bombings in Xinjiang and other parts of the PRC attributed to Uighur activists. According to the report, the PRC continues to maintain restrictions on Muslim religious activity, particularly among the Uighur nationality. In the wake of the September 11, 2001 terrorist attacks against the United States, the potential for Sino-U.S. cooperation against global terrorism may bring changes in the policy calculations of U.S. officials, who may seek to downplay traditional U.S. concerns in the interest of assuring PRC cooperation. Despite shared Sino-U.S. interests against terrorism, it is not yet clear how much actual support the PRC will be willing or able to give the U.S.-led effort. A key problem for U.S. policymakers is that the PRC commonly makes no distinction between terrorists who perform violent acts and "separatists," even those advocates that are entirely peaceful. Also, the PRC strongly prefers that global efforts such as the anti-terrorism campaign be conducted through the auspices of the U.N. Security Council, where it has a voice, and not purely through a U.S. unilateral effort or a coalition of U.S. allies. Beijing officials also may be cautious about appearing too "pro-American," a political problem that working through U.N. auspices could mitigate. Also, PRC officials in the past have attempted to exact policy concessions from the United States – such as on Taiwan or Tibet – in exchange for their support for U.S. initiatives. The PRC may attempt to condition its future support for the global anti-terrorism campaign through these and other mechanisms – a linkage that would complicate U.S. policies toward Taiwan and the Dalai Lama's Tibetan community-in-exile. | Since 1996, officials of the People's Republic of China (PRC) have seen an increasing security threat in the activities of minority nationalities in its heavily Muslim Xinjiang Uighur Autonomous Region (XUAR), in China's far northwest. The PRC has been the target of bombings, sabotage, and other terrorist attacks, primarily thought to be committed by small groups of XUAR extremists (largely Uighurs). As a result, Beijing has increased police actions in the region, which many human rights organizations and Members of Congress allege have resulted in gross and increasing human rights violations. In the aftermath of the September 11, 2001 terrorist attacks in the United States, U.S. policymakers are faced with balancing these human rights concerns with what now appear to be common Sino-U.S. interests in combating fundamentalist global terrorism. |
T he National Trails System Act (16 U.S.C. §§1241-1251) of 1968 established the Appalachian and Pacific Crest National Scenic Trails, and authorized a national system of trails to provide outdoor recreational opportunities and to promote access to the nation's outdoor areas and historic resources. Since the act's passage, the system has grown to encompass trails in every U.S. state, Washington, DC, and Puerto Rico. The system has expanded over time and now includes four types of trails: National Scenic Trails (NSTs) display significant characteristics of the nation's "physiographic regions," representing desert, marsh, grassland, mountain, canyon, river, forest, or other areas. NSTs provide for outdoor recreation and for the conservation and enjoyment of significant scenic, historic, natural, or cultural qualities. National Historic Trails (NHTs) identify and protect travel routes of national historic significance, along with associated remnants and artifacts, for public use and enjoyment. NHTs can include land or water segments, marked highways paralleling the route, and sites that together form a chain or network along the historic route. National Recreation Trails (NRTs) are on federal, state, or private lands that are in, or reasonably accessible to, urban areas. They provide for a variety of outdoor recreation uses. Connecting or Side Trails provide public access to the other types of nationally designated trails or connections between such trails. Congress plays an ongoing role in shaping the National Trails System through legislation and oversight. Congress establishes new trails within the system; directs the Administration to study potential new trails; determines the level of agency funding for trail management; and considers whether new trail categories (such as "national discovery trails") should be included in the system, among other roles. For individual trails, Congress has made specific provisions concerning land acquisition, trail use, and other matters. Ongoing issues for Congress include whether to designate additional trails, how to balance trail designation with other potential land uses, whether trail designation should be accompanied by federal land acquisition, what activities should be permitted on trails, and how to appropriately balance federal and nonfederal funding for trails, among other issues. During the early history of the United States, trails served as routes for commerce and migration. Since at least the early 20 th century, trails also have been constructed to provide access to scenic areas. The first interstate recreational trail, now known as the Appalachian National Scenic Trail, was developed in the 1920s and 1930s. In 1945, legislation to establish a "national system of foot trails" was introduced but not reported. In the years following the Second World War, the nation sought better opportunities to enjoy the outdoors. In 1965, in a message to Congress on "Natural Beauty," President Lyndon Johnson called for the nation "to copy the great Appalachian Trail in all parts of our country, and make full use of rights-of-way and other public paths." Three years later, the National Trails System Act was enacted. The system began in 1968 with two scenic trails: the Appalachian National Scenic Trail, which stretches roughly 2,180 miles from Mount Katahdin, ME, to Springer Mountain, GA; and the Pacific Crest National Scenic Trail, which covers roughly 2,650 miles along the mountains of Washington, Oregon, and California. The system was expanded a decade later when Congress designated four historic trails, with more than 9,000 miles, and another scenic trail, along the Continental Divide, with 3,100 miles. Currently, there are a combined 30 NHTs and NSTs covering almost 55,000 miles. (See Table 1 and Figure 1 .) Additionally, the system contains more than 1,200 NRTs and 6 connecting or side trails, including trails in every state, Washington, DC, and Puerto Rico. The National Trails System Act also authorizes the preservation of abandoned railroad rights-of-way for rails-to-trails conversions (16 U.S.C. §1247). NSTs and NHTs are designated by acts of Congress. Prior to establishing a trail, Congress typically directs the Secretary of the Interior or the Secretary of Agriculture to study the route for potential inclusion in the system. The studies address both the suitability (i.e., characteristics that make the proposed trail "worthy of designation as a national scenic or national historic trail") and the feasibility (i.e., physical and financial viability) of adding the trail to the system. The act contains additional criteria for NHTs, which must (1) be established by historic use and be significant because of that use; (2) be significant with respect to a broad facet of American history, such as trade and commerce, exploration, migration and settlement, or military campaigns; and (3) have significant potential for public recreational use or historical interest. In contrast to national scenic and historic trails, national recreation trails may be designated by the Secretaries of the Interior and Agriculture with the consent of the federal agency, state, or political subdivision with jurisdiction over the lands involved. Recreation trails must be reasonably accessible to urban areas and must meet other criteria as prescribed by the act or by the Secretaries. The Secretaries also have authority to designate connecting and side trails. For all four trail types, routes may intersect both federal and nonfederal lands. The law provides limited authorities for federal land acquisition in connection with the trails. Along the designated rights-of-way for NSTs and NHTs, the Secretaries may acquire land in areas that are already under their administrative jurisdiction (e.g., on trail segments that lie within the boundaries of an existing national park or national forest but are not federally owned). Outside their administrative boundaries, the Secretaries are to encourage state and local governments either to acquire trail lands or to enter into agreements with private landowners for the necessary rights-of-way. Only if state and local governments fail to do so may the federal government acquire the land or form cooperative agreements with landowners. For NRTs, the provisions are more limited, in that federal land acquisition may take place only within existing administrative boundaries. Connecting and side trails may only include nonfederal lands if no federal acquisition is involved. When adding individual trails to the system, Congress has often included specific land acquisition provisions—for example, authorizing federal acquisition only from willing sellers or establishing a geographical boundary for land acquisition, such as within a quarter-mile on either side of the trail. P.L. 111-11 gave federal land management agencies the authority to purchase land from willing sellers for a number of trails that had previously prohibited any federal land acquisition. The 30 national scenic and historic trails are administered by either the Secretary of the Interior or the Secretary of Agriculture, acting through the land management agencies. The NPS administers 21 of the 30 trails; the FS administers 6 trails; the Bureau of Land Management (BLM) administers 1 trail; and the NPS and BLM jointly administer 2 trails. The administering agency typically develops the trail management plan, oversees development of trail segments, coordinates trail marking and mapping, develops maintenance standards, coordinates trail interpretation, administers cooperative and interagency agreements, and provides financial assistance to others for trail purposes, among other functions. The agencies point to a distinction between trail administration and trail management : while there is usually only one administering agency, multiple federal agencies, state and local governments, private groups, and individuals may own and manage lands along a national scenic or historic trail. The National Trails System Act authorizes the administering Secretary to enter into cooperative agreements with state, local, and private landowners or organizations for trail development, operation, and maintenance. In addition, several federal agencies involved with the trails signed a memorandum of understanding (MOU) in 2006 to coordinate federal trail management. In contrast to the NSTs and NHTs, NRTs are typically administered by states, localities, and private organizations, with federal agencies participating when the trails cross federal lands. The National Park Service is responsible for the overall coordination of the national recreation trails, including nonfederal trails. Nonfederal trail managers have access to federal training and technical assistance, and are eligible for some types of federal funding. Connecting or side trails are administered by the Secretary under whose jurisdiction the trail lands fall. The six existing trails are all administered by the Secretary of the Interior. The FY2013 annual report of the Federal Interagency Council on Trails discussed a number of management issues facing the agencies that administer the National Trails System. These issues included tight federal agency budgets, financial constraints among partner groups, inconsistent mapping, aging volunteers, and expansion of energy projects and the transmission grid in ways that affect the trails. Another challenge cited was the lack of awareness among many Americans of the system and its health, community, economic, and educational benefits. The administering Secretary may regulate the use of federally owned portions of the national trails, in consultation with relevant agencies. The Secretary may permit uses "which will not substantially interfere with the nature and purposes of the trail." Such uses may include but are not limited to bicycling, cross-country skiing, day hiking, equestrian activities, jogging or similar fitness activities, overnight and long-distance backpacking, snowmobiling, and surface water and underwater activities. The use of motorized vehicles by the general public is typically prohibited on national scenic trails. However, motorized vehicles may be allowed on national historic trails if they do not substantially interfere with the nature and purposes of the trail and were allowed by administrative regulations at the time of designation. Trail uses on nonfederal lands—whether segments of scenic, historic, recreation, or connecting trails—are typically controlled at the state and local levels. State, local, and private-sector trail managers may work together to develop cooperative principles for use and management. Each agency with management authority over national trails has its own funding for carrying out activities related to trail administration and management. Since 2006, federal land management agencies have agreed, within the limits of agency authorities, to eliminate duplicate efforts and increase effectiveness by coordinating requests for and obligation of funds for the National Trails System. Since 1992, the Department of Transportation, through federal transportation programs authorized by Congress, has provided more than $11 billion for bicycle and pedestrian transportation projects, including many transportation trails. Additional sources of funding for trails have included challenge cost-share projects, cooperative agreements with trail partner organizations, charitable foundations, corporations, permits and fees, local excise taxes, and dedicated funds. In the 114 th Congress, H.R. 1865 and S. 1423 would designate a new Condor National Recreation Trail in California. H.R. 984 and S. 479 would direct a study of a proposed Chief Standing Bear National Historic Trail running through the states of Oklahoma, Kansas, and Nebraska. Another proposal ( H.R. 2661 ) would add a new type of trail—"national discovery trails"—to the system. National discovery trails would be extended, continuous interstate trails that provide for outdoor recreation and travel and that connect representative examples of America's trails and communities. These and other 114 th Congress bills affecting the National Trails System are shown in Table 2 . Many comparable bills had also been introduced in previous Congresses. | The National Trails System was created in 1968 by the National Trails System Act (16 U.S.C. §§1241-1251). The system includes four types of trails: (1) national scenic trails (NSTs), which display significant physical characteristics of U.S. regions; (2) national historic trails (NHTs), which follow travel routes of national historical significance; (3) national recreation trails (NRTs), which provide outdoor recreation accessible to urban areas; and (4) connecting or side trails, which provide access to the other types of trails. As defined in the act, NSTs and NHTs are long-distance trails designated by acts of Congress. NRTs and connecting and side trails may be designated by the Secretaries of the Interior and Agriculture with the consent of the federal agency, state, or political subdivision with jurisdiction over the lands involved. Congress plays an ongoing role in shaping the National Trails System through legislation and oversight. Broad issues for Congress include, among others: whether and where to establish new trails in the system, whether to establish new categories of trails (such as "national discovery trails"), and how much funding to provide to agencies for trail management. When designating individual trails, Congress has considered issues such as: how to balance trail designation with other potential land uses, how to address federal land acquisition, and whether to make specific provisions for trail use that may differ from those in the overall act. Congress has established 11 NSTs and 19 NHTs, as well as several NRTs (although recreation trails are more typically designated administratively). In addition, the Secretaries of the Interior and Agriculture have designated more than 1,200 NRTs and 6 connecting or side trails. The scenic, historic, and connecting trails are federally administered by either the National Park Service (NPS) and/or the Bureau of Land Management (BLM) in the Department of the Interior, or the U.S. Forest Service (FS) in the Department of Agriculture, with cooperation from states and other entities to operate nonfederal trail segments. The roughly 1,200 national recreation trails are typically managed by states, localities, and private organizations, except where they cross federal lands. The act limits federal land acquisition for the trails system, with specific provisions for different trail types. Each federal agency with management authority over national trails has its own budget for trail administration and management. Trails have also received funding from federal transportation programs, private donations, permits and fees, and local excise taxes, among other sources. Uses of the national trails may include, but are not limited to, bicycling, cross-country skiing, day hiking, equestrian activities, jogging or similar fitness activities, overnight and long-distance backpacking, snowmobiling, and surface water and underwater activities. Provisions for motorized vehicle use vary among the different types of trails. Legislation in the 114th Congress would designate a new national recreation trail (H.R. 1865 and S. 1423), direct a study of one trail route for potential addition to the system as a national historic trail (H.R. 984 and S. 479), and make other changes. As in earlier Congresses, a bill (H.R. 2661) has also been introduced to add a new type of trail—national discovery trails—to the system. |
The level of pay for congressional staff is a source of recurring questions among Members of Congress, congressional staff, and the public. In Senate committees, the chair and ranking Member set the terms and conditions of employment for majority and minority staff, respectively. This includes job titles and descriptions; rates of pay, subject to minimum and maximum levels; and resources available to staff 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 committee 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. Data in this report are based on official Senate reports, which afford the opportunity to use consistently collected data. 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 collected and organized by LegiStorm, a private entity that provides some congressional data by subscription. Additionally, this report provides annual data by fiscal year, which allows for observations about the nature of Senate committee staff compensation over time. This report provides pay data for 13 staff position titles that are used in Senate committees, and for which sufficient data could be identified. Position titles and the years for which data are available since FY2001 are provided in Table 1 . Titles were identified through a two-step process. The first step identified 302 job titles used in Senate committees in FY2014. Of those titles, 277, or 91.7%, were filled by only one staff member and excluded. In the second step, the remaining 25 titles were assessed to determine how many of the 20 Senate committees for which data were available employed staff with each title. Twelve position titles that were used by six or fewer panels (five for minority positions) were excluded. Pay data were then collected for the remaining 13 positions. In order to be included, annual pay data for each position needed to be available from at least five committees (four for minority positions). When committees had more than one staff member with the same job title, data for no more than two staff per committee were collected. Senate committee staff had to hold a position with the same job title in the same committee for the entire fiscal year examined, and not receive pay from any other congressional employing authority for their data to be included. Every recorded payment ascribed in the LegiStorm data to those staff for the fiscal year is tabulated. 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. Pay data for staff working in House committee offices are available in CRS Report R44322, Staff Pay Levels for Selected Positions in House Committees, 2001-2014 . Data describing the pay of congressional staff working in the personal offices of Senators and Members of the House are available in CRS Report R44324, Staff Pay Levels for Selected Positions in Senators' Offices, FY2001-FY2014 , and CRS Report R44323, Staff Pay Levels for Selected Positions in House Member Offices, 2001-2014 , respectively. Data presented here are subject to some challenges that could affect findings presented or their interpretation. Some of the concerns include the following: Given the large number of positions with titles held by one Senate employee, data provided here almost certainly do not represent all of the jobs carried out by Senate committee staff. The manner in which staff titles are assigned might have implications about the representativeness of the data provided. Of positions for which data were collected, two broad categories emerge. The first category identifies position titles that usually apply to one staff member per committee. Since almost all available data were collected for those positions, pay information provided is likely to be highly representative of what Senate committees pay staff in those positions. The second category includes positions for which committees might hire two or more staff members, Since pay data were collected for no more than two staff per committee for each position, it is more likely that data for those positions is a sample of staff in those positions rather than nearly complete data, which may be less closely representative of what all staff in those positions are paid. 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. 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 2 provides the maximum payable rates for Senate committee staff 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 3 provides the available cumulative percentage changes in median pay for each of the 13 positions, Members of Congress, and salaries paid under the General Schedule in Washington, DC, and surrounding areas. Table 4 - Table 16 provide tabular pay data for each Senate committee staff position. 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 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, when available, in 2016 dollars, in $10,000 increments. Between FY2011 and FY2015, the change in median pay, in constant 2016 dollars, ranged from a 16.93% increase for professional staff members to a -16.48% decrease for staff assistants. Of the seven staff positions for which data were available in FY2011 and FY2015, two positions saw pay increases while seven saw declines. 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). Between FY2006 and FY2015, the change in median pay, in constant 2016 dollars, ranged from a 22.01% increase for senior counsels to a -26.72% decrease for staff assistants. Of the eight staff positions for which data were available in FY2006 and FY2015, four positions saw pay increases and four saw declines. This may be compared to changes to 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 30.88% increase for systems administrators to a -26.67% decrease for staff assistants. Of seven staff positions for which data were available in FY2001 and FY2015, five positions saw pay increases while two saw declines. This may be compared to changes to the pay of Members of Congress, -10.40%, 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 committee offices; or comparison of congressional staff pay levels with those of other federal government pay systems. This report provides pay data for 13 staff position titles used in Senate committees. The positions include the following: Chief Clerk, Chief Counsel, Communications Director, Counsel, Legislative Assistant, Minority Chief Counsel, Minority Staff Director, Press Secretary, Professional Staff Member, Senior Counsel, Staff Assistant, Staff Director, and Systems Administrator. Tables provide tabular pay data for each Senate committee staff position. 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; a comparison at 5-, 10-, and 15-year intervals from FY2015, depending on data availability, of the cumulative percentage change of pay for that position, to the change 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, when available, in $10,000 increments. In the past five years (FY2011 and FY2015), the change in median pay, in constant 2016 dollars, ranged from a 16.93% increase for professional staff members to a -16.48% decrease for staff assistants. Of the seven staff positions for which data were available in FY2011 and FY2015, two saw pay increases while five saw declines (data are not available in FY2011 or FY2015 for chief counsels, communications directors, legislative assistants, minority chief counsels, minority staff directors, and press secretaries). 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 committee offices are available in CRS Report R44322, Staff Pay Levels for Selected Positions in House Committees, 2001-2014. Data describing the pay of congressional staff working in the personal offices of Senators and Members of the House are available in CRS Report R44324, Staff Pay Levels for Selected Positions in Senators' Offices, FY2001-FY2014, and CRS Report R44323, Staff Pay Levels for Selected Positions in House Member Offices, 2001-2014, 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. |
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 lead systems integrator is a contractor, or team of contractors, hired by the federal government to execute a large, complex, defense-related acquisition program, particularly a so-called system-of-systems (SOS) acquisition program. LSIs can have broad responsibility for executing their programs, and may perform some or all of the following functions: requirements generation; technology development; source selection; construction or modification work; procurement of systems or components from, and management of, supplier firms; testing; validation; and administration. Section 805 of the FY2006 National Defense Authorization Act defines two types of LSIs: (1) "Lead system integrators with system responsibility"—prime contractors who develop major systems that are not expected at the time of the contract award, as determined by the Secretary of Defense, to perform a substantial portion of the work on the system and major subsystems; and (2) "Lead system integrators without system responsibility"—contractors who perform acquisition functions that are closely associated with inherently governmental functions in the development of a major system. LSIs, regardless of type, are subject to the same rules as other federal contractors. Examples of programs being executed with LSIs include the Army's Future Combat System (FCS) and the Coast Guard's Deepwater acquisition program, both of which are multibillion-dollar SOS acquisition programs. The LSI for the FCS program is a partnership between Boeing and Science Applications International Corporation (SAIC); the LSI for the Deepwater program is Integrated Coast Guard Systems (ICGS), a joint venture between Northrop Grumman and Lockheed Martin. Both of these programs have experienced problems, among them costs and schedule overruns, and have been the subject of multiple congressional oversight hearings. On June 23, 2009, DOD announced the cancellation of the FCS contract and directed the Army to take the FCS contract and divide it into separate programs. In recent years, federal agencies like the Department of Defense (DOD) have turned to the LSI concept in large part because they have determined that they lack the in-house, technical, and project-management expertise needed to execute large, complex acquisition programs. It is not altogether clear what all of the reasons are for this insufficient expertise determination. Some possible reasons for the lack of in-house expertise may include the downsizing of the DOD acquisition workforce and the increase in the size and scope of DOD procurement activities. DOD states that its acquisition workforce was reduced by more than 50 percent between 1994 and 2005. The lack of sufficient in-house expertise could also result from the growing complexity of the systems being acquired. Supporters of LSIs argue that LSI arrangements can promote better technical innovation and overall system optimization. This is largely because private-sector firms often have better knowledge and expertise, when compared to federal government agencies, of rapidly developing commercial technologies that can be used to achieve the government's program mission and objectives. On April 8, 2008, the House Armed Service Committee's Subcommittee on Air and Land Forces heard testimony from a GAO official on the Army's decision to broaden the FCS LSI role from development to production. He stated that: By committing to the LSI for early production, the Army effectively ceded a key point of leverage it had held—source selection—and is perhaps the final departure from the Army's initial efforts to keep the LSI's focus solely on development. On April 17, 2007 the Coast Guard announced that it would gradually assume the LSI role for the Deepwater program. Media reports stated that the Department of Justice is investigating parts of the Deepwater program. In addition, Secretary of Defense Robert Gates has announced that the FCS program will be restructured into smaller weapons programs, and the role of the LSI will be eventually assumed by the U.S. Army. Problems with the FCS and Deepwater programs raised concerns regarding the use of private-sector LSIs for executing large, complex defense acquisition programs. Given the size, scope, and costs associated with the FCS program, Congress mandated that DOD hold an FCS milestone review, following the preliminary design review. Since the inception of the FCS program, GAO has performed audits of the program's cost, schedule, and performance. One of GAO's concerns was that the actual performance of the completely integrated FCS will be demonstrated very late in the program, and could result in a significant cost increase to the government.. Congressional hearings on the Deepwater program raised a number of oversight issues. The DOD Inspector General (IG) reported on the increased Deepwater costs due to design deficiencies and mismanagement, and raised questions about a lack of accountability and responsibility on the part of the LSI and Coast Guard management. Also, the Defense Acquisition University had questioned the overall Deepwater LSI approach and recommended fundamental changes to the program, including a revised acquisition strategy that "does not rely on a single industry entity or contract to produce or support all or the majority of U.S. Coast Guard capabilities." Some observers have expressed concern that LSI arrangements can result in the government having insufficient visibility into many program aspects such as program costs, optimization studies conducted by LSIs for determining the mix of systems to be acquired, LSI source-selection procedures, and overall system performance. In an LSI arrangement, the federal government has a contractual relationship with the LSI prime contractor, not with any subcontractors that report to the prime contractor. A lack of transparency in these areas can make it more difficult for the federal agency or Congress to adequately manage and conduct effective oversight of an acquisition program. Also, this lack of transparency could potentially increase the risk of cost overruns, schedule slippage, poor product quality, and inadequate system performance. Given the three-year rotation cycle of most senior military officers, combined with DOD's decreased amount of in-house technical expertise, observers are concerned that the government's ability to make independent assessments of programs being executed by LSIs has been reduced. Any difficulty in independently assessing an LSI's performance in executing a program could also complicate the government's ability to use a contractor's past performance record in weighing a future bid from a firm that acted as an LSI. Some observers have expressed concern that LSI arrangements can create conflicts of interest for an LSI in areas such as determining system requirements and soliciting, evaluating, and hiring contractors. They are concerned that an LSI might tailor system requirements to fit the LSI's own products, or that in selecting a source for a system or component the LSI might favor one of its own subsidiaries (or a favored supplier firm) over other potential suppliers. Favoring some contractors over others could increase the government's costs or reduce technical innovation, particularly if a more innovative solution offered by another firm would compete with a core business line of the LSI. Some observers have expressed concern that LSI arrangements can result in LSIs certifying that their own work has met contractual requirements for the program. Such self-certification, these observers argue, can equate to no real certification. In particular, the self-certification issue has been raised in connection with the Deepwater program. Earlier this year, Philip Teel, President of Northrop Grumman Ship Systems testified that self-certification did not take place, except in some foreign contracts. Acquisition programs being executed with LSIs can span over many years. Although the role of the LSI in such a program can be recompeted every few years, some observers are concerned that, in practice, it would be very difficult for an outside firm to successfully challenge an incumbent LSI that has managed a program for several years. The incumbent's greater knowledge of the program and the potential disruptions to the program that might be caused by switching to a new LSI would likely pose a barrier to another contractor's ability to take over the program. This could make it difficult for the government to terminate a program. As a result, these observers argue, the government may have little real ability or leverage to use periodic re-competition to improve the performance of the LSI in a long-term acquisition program. A related concern focuses on the potential for competing successor programs. Observers are concerned that if an LSI-managed SOS program is central to the future capabilities of the military service in question (as is the case for the FCS and Deepwater programs), the LSI might design the SOS architecture so as to create a built-in advantage for products made by the LSI. Potential options, in addition to maintenance of the status quo, regarding how and when LSIs might be used in acquisition programs are listed below. Some of these options could be combined. reduce the possible need for LSIs by pursuing separate procurement programs rather than SOS programs; require that certain conditions be met before a private-sector LSI can be used on an acquisition program (analogous to conditions set for use of the multi-year procurement program); require that LSI arrangements include features to ensure transparency, prevent conflicts of interest, prohibit self-certification, require independent assessments, and facilitate meaningful periodic competitions of the LSI role; institute additional or stricter reporting requirements for programs being executed by LSIs; require DOD and other federal agencies to share lessons learned regarding programs executed with private-sector LSIs; prohibit the use of private-sector LSI's in future acquisition programs; reduce the possible need for private-sector LSIs by building back up the defense civilian and military acquisition workforces, and have DOD assume the role of the LSI, and require that DOD manage all SOS programs; and implement the recommendations of the recent Gansler Commission on improving the acquisition workforce. On September 30, 2010, the House and Senate conferees for the Fiscal Year 2010 and 2011 Coast Guard Authorization Act ( H.R. 3619 ) resolved their differences and the bill was sent to the President on October 4, 2010. One provision in the bill, Section 564, would prohibit the use of lead system integrators within the Coast Guard for all acquisition contracts awarded, task or deliver orders issued after the enactment of this bill, and require the use of full and open competition for any future acquisition contract. This provision was first introduced on March 23, 2009 in the House as the Coast Guard Acquisition Reform Act of 2009. P.L. 111-23 , the Weapons System Acquisition Reform Act of 2009, required the Secretary of Defense to revise the DFARS to reflect any organizational conflicts of interest that may arise from the use of private-sector LSIs. On January 20, 2010, DOD published a final rule that both prohibits the use of future LSIs and sets the conditions for a limited use of LSI's for certain award of new contracts for LSIs. This final rule implements Section 802 of the FY2008 National Defense Authorization Act. P.L. 110-417 , the Duncan Hunter National Defense Authorization Act for 2009, included a provision amending existing public law by clarifying the status of the Lead System Integrator function for the U.S. Army's FCS Program. Section 112 of the bill provided a provision that clarified the length of time that the contractor can remain the LSI. The provision required the Secretary of the Army to certify to congressional defense committees when the prime contractor is no longer serving as the lead systems integrator, and notes that any modification to the existing FCS contract, when expressly for the purpose of commencing full-rate production of any major systems or subsystems, shall be considered a new contract. | Some in Congress have expressed concern about the government's use of private-sector lead system integrators (LSIs) for executing large, complex, defense-related acquisition programs. LSIs are large, prime contractors hired to manage such programs. Supporters of the LSI concept argue that it is needed to execute such complex acquisition efforts, and can promote better technical oversight and innovation. Two LSI-managed programs—the U.S. Army's Future Combat System (FCS) and the U.S. Coast Guard's Deepwater program—have been strongly criticized by some observers because of cost and schedule overruns, and the potential for possible conflicts of interest. The Army cancelled the FCS program in 2009 and the replacement programs do not use an LSI. Public Law (P.L.) 111-23, the Weapons System Acquisition Reform Act of 2009, required the Secretary of Defense to revise the Defense Federal Acquisition Regulation Supplement (DFARS) to reflect any organizational conflicts of interest that may arise from the use of private-sector LSIs. On September 30, 2010, the House and Senate conferees for the proposed Fiscal Year 2010 and 2011 Coast Guard Authorization Act resolved their differences and the bill was sent to the President on October 4, 2010. One provision in the bill, Section 564, would prohibit the use of lead system integrators within the Coast Guard, with some exceptions, and would require the use of full and open competition for any future acquisition contract. |
According to the U.S. Geological Survey (USGS), the length of the International Boundary line of the U.S.-Canadian border, excluding Alaska, is approximately 3,987 miles, while the length of the U.S.-Mexican border is estimated at 1,933 miles. The length of the Alaska-Canada border alone is 1,538 miles. The tables below list the 13 U.S. states that share international boundaries with Canada and the four states that share an international border with Mexico, with information from the International Boundary Commission and the U.S. Geological Survey. The National Oceanic and Atmospheric Administration (NOAA) has surveyed the coastline of the continental United States, Alaska, and Hawaii several times. The current figures for the coastline are the results of the measurements done originally in 1915 and updated several times thereafter. These figures reflect the general outline of the seacoast. The figures for Alaska reflect a 1961 remeasurement. It is important to note that boundary and coastline distances can differ significantly based on the scale used on the maps or charts. The Canadian and Mexican international borders are less problematic than the coastline measures because there are long stretches that are straight, such as the nearly 900-mile section of the U.S.-Canadian border along the 49 th parallel. Coastline measurements are more difficult because of the effects of tides and the necessarily arbitrary decisions that must be made about measuring bays, coves, islands, and inlets leading to streams and rivers. The "general coastline" data in this report are based on large scale nautical charts, resulting in a coastline measure for the 50 states totaling12,383 miles. Another measure using smaller scale nautical charts more than doubles this measurement to 29,093 miles, while the figures used by the NOAA in administering the Coastal Zone Management program (16 U.S.C. §1451) come to 88,612 miles (not including the Great Lakes). Table 3 provides figures for the areas of the U.S. coastline bordering international waters. It measures the coastline of the contiguous states from northeast to northwest. Similar to problems mentioned above regarding measuring coastlines, variations in shoreline figures appear due to natural occurrences, including bays and inlets, and in differing methods of measurement. These shoreline lengths were measured in 1970 by the International Coordinating Committee on the Great Lakes Basic Hydraulic and Hydrologic Data. CRS Report RS22026, Border Security: The San Diego Fence , by [author name scrubbed] and [author name scrubbed]. CRS Report RL33659, Border Security: Barriers Along the U.S. International Border , by [author name scrubbed] and Yule Kim.CRS Report RL33353, Civilian Patrols Along the Border: Legal and Policy Issues , by [author name scrubbed] and [author name scrubbed]. CRS Report RS22443, Border Security and Military Support: Legal Authorizations and Restrictions , by [author name scrubbed]. CRS Report RL33106, Border Security and the Southwest Border: Background, Legislation, and Issues , by Lisa M. Seghetti et al.. CRS Report RL31826, Protecting the U.S. Perimeter: " Border Searches " Under the Fourth Amendment , by Yule Kim. CRS Report RL32399, Border Security: Inspections Practices, Policies, and Issues , by [author name scrubbed] et al., Border Security: Inspections Practices, Policies, and Issues, coordinated by [author name scrubbed]. Shalowitz, Aaron L. Shore and Sea Boundaries , vol. 2. Washington: U.S. Dept. of Commerce, Coast and Geodetic Survey, 1964. Coast and Geodetic Survey Publication 10-1. U.S. Census Bureau. Statistical Abstract of the United States 2007. Washington: GPO, 2006. U.S. Department of Commerce, National Oceanic and Atmospheric Administration. The Coastline of the United States , 1975. Van Zandt, Franklin K. Boundaries of the United States and the Several States . Washington: GPO, 1976. Geological Survey Professional Paper 909. The World Almanac and Book of Facts 2007. International Boundary and Water Commission (IBWC) United States and Mexico http://www.ibwc.state.gov This website has historical information on the two treaties—the Guadalupe Hidalgo Treaty of February 2,1848, and the Treaty of December 30, 1853—between the United States and Mexico that set the international boundary between the two countries. Also included is information on additional conventions and treaties between the two nations on maintaining the Rio Grande and Colorado Rivers, as well as current IBWC reports and solutions for boundary and water problems. International Boundary Commission between Canada and the United States http://www.internationalboundarycommission.org This website contains information on the Treaty of 1908 between the United States and Canada that completed the mapping of the international boundary from the Atlantic Ocean to the Pacific Ocean. Information on U.S.-Canadian border history and boundary markings along open vistas is also included. | This report, originally authored by CRS Information Specialist Barbara Torreon, provides information on the international boundaries that the United States shares with Canada and Mexico. Included are data on land and water boundaries for the northern Canadian border and the southern Mexican border, as well as the international boundaries for the U.S. states that border these countries. Coastline figures for the continental United States, Alaska, Hawaii, the Great Lakes, and extraterritorial areas are also included. This report does not cover border security issues; however, a listing of relevant CRS reports is at the end of this report. This report will be updated as needed. |
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. |
Once in the constitutional wings, the Takings Clause of the Fifth Amendment today stands center stage. More than 50 takings cases have been decided by the Supreme Court since it launched the modern era of takings jurisprudence in 1978. No debate on the proper balance between private property rights and conflicting societal needs is complete without noting the Takings Clause. The Takings Clause states: "[N]or shall private property be taken for public use, without just compensation." Until the late 19 th century, this clause was applied by the Supreme Court only to condemnation : the formal exercise by government of its eminent domain power to take property coercively, upon payment of just compensation to the property owner. In such condemnation suits, there is no issue as to whether the property is "taken" in the Fifth Amendment sense; the government concedes as much by filing the action. The only question, typically, is what constitutes "just compensation." Beginning in the 1870s, the Supreme Court gave its imprimatur to a different use of the Takings Clause. When the sovereign appropriated or caused a physical invasion of property, as when a government dam flooded private land, the Court found that the property had been taken just as surely as if the sovereign had formally condemned. Therefore, it said, the property owner should be allowed to vindicate his constitutional right to compensation in a suit against the government. In contrast with condemnation actions, then, such takings actions have the property owner sue government rather than vice-versa; hence the synonym " inverse condemnation actions ." The key issue in takings actions is usually whether, given all the circumstances, the impact of the government action on a particular property amounts to a taking in the constitutional sense. Only if a taking is found does the question of just compensation arise. In 1922, in the most historically important taking decision, the Supreme Court extended the availability of takings actions from government appropriations and physical invasions of property, as described above, to the mere regulation of property use. This critical expansion of takings jurisprudence to "regulatory takings" acknowledged that purely regulatory interferences with property rights can have economic and other consequences for property owners as significant as appropriations and physical invasions. The regulatory taking concept opened up vast new legal possibilities for property owners, and underlies many of the Supreme Court's takings decisions from the 1970s on. The ascendancy of the regulatory taking concept since the 1970s is hardly surprising. Starting with the advent of comprehensive zoning in the early 20 th century, federal, state, and local regulation of private land use has become pervasive. Beyond comprehensive zoning, the past 60 years have seen explosive growth in the use of historic preservation restrictions, open-space zoning, dedication and exaction conditions on building permits, nature preserves, wildlife habitat preservation, wetlands and coastal zone controls, mining restrictions, and so on. Regulation of non-real-estate property has also proliferated. In the Supreme Court, the appointment of several conservative Justices since the 1970s has prompted a new scrutiny of government conduct vis-à-vis the private property owner. As a result of these factors, the Court since the late 1970s has turned its attention toward the takings issue with vigor. Through the 1980s and 1990s, property owner plaintiffs scored several major victories; by and large, the substantive doctrine of takings shifted to the right. In 2000-2005, however, the Court's decisions moved the analytical framework in a more government-friendly direction. The pendulum may yet be swinging again: the four takings cases decided by the Court during its 2012-2013 and 2014-2015 terms were all decided in favor of the property owner, though mostly as to narrow issues. * * * * * This report compiles only Supreme Court decisions addressing issues with special relevance to takings (inverse condemnation) actions, not those on formal condemnation or property valuation. Thus the headline-grabbing Supreme Court opinion in Kelo v. City of New London (2005), principally a formal condemnation case, is not included here. On the other hand, a scattering of substantive due process decisions is interspersed where they have been cited by the Court as authority in its takings decisions. In the interest of brevity, we mention no dissenting opinions, and almost no concurrences. Thus, the report does not reveal the closely divided nature of some Supreme Court takings opinions. The reader desiring a more analytical discussion of inverse condemnation law should consult CRS Report RS20741, The Constitutional Law of Property Rights "Takings": An Introduction , also prepared by [author name scrubbed]. In 1978, the Supreme Court ushered in the modern era of regulatory takings law by attempting to inject some coherence into the ad hoc analyses that had characterized its decisions before then. In Penn Central Transportation Co. v. New York City , infra page 10, the Court declared that whether a regulatory taking has occurred in a given case is influenced by three principal factors: the economic impact of the regulation, the extent to which it interferes with distinct (in most later decisions, "reasonable") investment-backed expectations, and the "character" of the government action. After Penn Central , ad hocery in judicial taking determinations emphatically still remains, but arguably is confined within tighter bounds. The Supreme Court's many takings decisions since Penn Central have developed the jurisprudence in each of its main areas: ripeness, takings criteria, and remedy. As for takings criteria, the Court announced several "per se taking" rules in the two decades after Penn Central — see, for example, Loretto , infra page 9, and Lucas , infra page 7. Decisions since 2000, however, have extolled the multifactor, case-by-case approach of that decision— see Palazzolo , infra page 5; Tahoe-Sierra , infra page 5; and Lingle , infra page 5. In Lingle , the Court summed up the four types of takings claims it now recognizes, in addition to those based on outright government appropriations: a plaintiff seeking to challenge a government regulation as an uncompensated taking of private property may ... alleg[e] a "physical" taking, a Lucas -type "total regulatory taking," a Penn Central taking, or a land-use exaction violating the standards set forth in Nollan and Dolan . The principle that government may "take" property in the Fifth Amendment sense merely through regulatory restriction of property use—that is, without physical invasion or formal appropriation of the property—was announced in 1922. In Pennsylvania Coal Co. v. Mahon , the redoubtable Justice Oliver Wendell Holmes wrote for the Supreme Court that a state law prohibiting coal mining that might cause surface subsidence in certain areas was a taking of the mining company's mineral estate. The first steps taken by this infant "regulatory taking" doctrine, however, were unsteady ones. Aside from making clear that regulatory takings occur only with the most severe of property impacts, the Court's opinions during this period display little in the way of principled decision-making. Moreover, the Court refused at times to part with its long-standing substantive due-process approach to testing property-use restrictions, vacillating between the two theories. The 1870s marked the Supreme Court's first clear acknowledgment that the Takings Clause is not only a constraint on the government's formal exercise of eminent domain, but the basis as well for suits by property owners challenging government conduct not attended by such formal exercise. However, until 1922 the Court believed such "inverse condemnation" suits to be confined to government appropriations or physical invasions of property. Cases involving the impacts of government water projects (flooding, reduced access, etc.) were typical. When cases involving mere restrictions on the use of property reached the Court, they were tested under due process, scope of the police power, or ultra vires theories. | This report is a reverse chronological listing of U.S. Supreme Court decisions addressing claims that a government entity has "taken" private property, as that term is used in the Takings Clause of the Fifth Amendment. The Takings Clause states: "[N]or shall private property be taken for public use, without just compensation." A scattering of related, substantive due process decisions is also included. Under the Takings Clause, courts allow two distinct types of suit. Condemnation (also "formal condemnation") occurs when a government or private entity formally invokes its power of eminent domain by filing suit to take a specified property, upon payment to the owner of just compensation. By contrast, a taking action is a suit by a property holder against the government, claiming that government conduct has effectively taken the property notwithstanding that the government has not filed a formal condemnation suit. Because it is the procedural reverse of a condemnation action, a taking action is often called an "inverse condemnation" action. A typical taking action complains of severe regulation of land use, though the Takings Clause reaches all species of property, real and personal, tangible and intangible. The taking action generally demands that the government compensate the property owner, just as when government formally exercises eminent domain. Finding the line between government interferences with property that are takings and those that are not has occupied the Supreme Court in most of the 100-plus decisions compiled here. The Supreme Court's decisions in these takings actions reach back to 1870, and are divided in this report into three periods. The modern period, 1978 to the present, has seen the Court settle into a taxonomy of four fundamental types of takings—total regulatory takings, partial regulatory takings, physical takings, and exaction takings. The Court in this period also has sought to develop criteria for these four types, and to set out ripeness standards and clarify the required remedy. In the preceding period, 1922 to 1978, the Court first announced the regulatory taking concept—the notion that government regulation alone, without appropriation or physical invasion of property, may be a taking if sufficiently severe. During this time, however, it proffered little by way of regulatory takings criteria, continuing rather its earlier focus on appropriations and physical occupations. In the earliest period of takings law, 1870 to 1922, the Court saw the Takings Clause as protecting property owners only from appropriations and physical invasions, two forms of government interference with property seen by the Court as most functionally similar to an outright condemnation of property. During this infancy of takings law, regulatory restrictions were tested under other, non-takings theories, such as whether they were within a state's police power, and were generally upheld. The four takings cases decided by the Supreme Court during its 2012-2013 and 2014-2015 terms attest to the Court's continuing interest in the takings issue. |
On September 14, 2004, U.S. Trade Representative Robert B. Zoellick signed a free trade agreement (FTA) between Bahrain and the United States. Formal negotiations were launched in Manama, Bahrain on January 26, 2004, and were completed on May 27, 2004. The House Ways and Means Committee approved draft legislation implementing the agreement on November 3, 2005, with no amendments. Following approval of the draft legislation by the Senate Finance Committee on November 9, the Administration submitted implementing legislation ( S. 2027 / H.R. 4340 ) on November 16. Formal approval of the implementing legislation was given in separate votes by the House Ways and Means Committee and the Senate Finance Committee on November 18. The implementing legislation was passed by the House on December 7 and passed by the Senate and cleared for the White House on December 13. The agreement was signed into law by the President on January 11, 2006, as the United States-Bahrain Free Trade Agreement Implementation Act ( P.L. 109-169 ). The agreement entered into force on August 1, 2006, following the passage of legislation in Bahrain providing increased intellectual property rights (IPR) protection. According to the Bahrain-based Gulf Daily News , six new IPR laws were passed by both houses of Bahrain's parliament. The agreement entered into force following approval of the new laws by King Hamad bin Isa Al Khalifa. In the United States, the AFL/CIO provided the only significant opposition to the Agreement. Some House Democrats expressed labor concerns during the November 3 rd vote but eventually supported the agreement after receiving assurances from the Bahraini government that they would make progress on new legislation offering additional labor protections. The FTA is supported by the National Association of Manufacturers, the Bankers' Association for Finance and Trade, the Motion Picture Association of America, and PhRMA, the association of pharmaceutical manufacturers, among other groups. There has been some dissent in the Middle East region over the U.S.-Bahrain FTA. Saudi Arabia, a member of the Gulf Co-operation Council (GCC), has alleged that GCC countries that sign bilateral trade agreements with the United States violate a GCC economic agreement that members cannot grant greater trade preferences to non-GCC countries. According to press reports, Saudi Arabia has threatened imposing a 5% duty on any U.S. goods that are imported into the GCC and then exported to Saudi Arabia. According to one source, Saudi Arabia may be concerned that U.S. agricultural products, especially wheat, may be exported to Saudi Arabia via other GCC countries such as Bahrain. Bahrain officials have argued that Saudi Arabia has not contested other bilateral FTAs that Bahrain has signed, and alleges that Saudi Arabia's complaints are political, not economic, in nature. Domestically, some analysts have raised concern that the U.S. government strategy of completing FTAs with countries such as Bahrain, whose U.S. trade is relatively small, is not necessarily the best use of USTR's resources. Others argue that the USTR should be investing more resources into potentially more economically significant agreements such as the proposed Free Trade Area of the Americas (FTAA). The Administration contends that its FTA agreements are effective as building blocks to future agreements and increased political and economic reform. Many attribute Bahrain's selection as the first U.S. free trade agreement in the Persian Gulf to (1) the strong U.S.-Bahrain political military relationship, and (2) political and economic reform in Bahrain. This FTA is intended to be a building block for President Bush and Congress's Middle East free trade initiatives. Bahrain is a close U.S. partner in the Persian Gulf. It consists of 35 islands along the Persian Gulf between the east coast of Saudi Arabia and Qatar along the Persian Gulf. Virtually its entire domestic population of 667,000 is Muslim (70 % Shi'a/30% Sunni). It is a constitutional monarchy, ruled by the al-Khalifa family since 1783. Bahrain has hosted a U.S. military presence since World War II. It currently hosts the Fifth Fleet, which is the headquarters for the U.S. Persian Gulf naval forces. The Fifth Fleet headquarters is a command and administrative facility only; no U.S. warships are actually based in Bahrain's ports. In October 2001, Bahrain was designated a Major Non-NATO Ally (MNNA). Bahrain endorsed the U.S. campaign in Afghanistan and deployed a frigate to support allied operations during Operation Enduring Freedom. While Bahrain did not endorse the Iraq campaign, King al-Khalifa did not criticize it. King al-Khalifa, installed in 1999, has pushed for political and economic liberalization. In February 2001, Bahraini voters approved a referendum on the National Action Charter—the centerpiece of the King's political liberalization program. Since then, parliamentary elections have been held (October 2002), and in December 2002, the first legislative session since 1975 took place. Oil was discovered in Bahrain in 1932 by Standard Oil Company of California. Current production is around 40,000 barrels per day (b/d). The Bahrain National Gas Company operates a gas liquification plant that utilizes gas piped directly from Bahrain's oilfields. Gas reserves should last about 50 years at present rates of consumption. Revenues from oil and natural gas currently account for 16.5% of GDP and provide about 60% of government income. Among the Cooperation Council of the Arab States of the Gulf (GCC)—Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, and the United Arab Emirates—Bahrain has the smallest proven oil reserves. The International Monetary Fund (IMF) estimates that Bahrain will run out of petroleum in 2018 if pumping continues at current levels. Bahrain and Saudi Arabia share ownership of the Abu Saafa oilfield, and since 1997, Saudi Arabia has given Bahrain the entire proceeds of the 140,000 b/d field. Financial institutions operate in Bahrain, both offshore and onshore, without impediments, and the financial sector is currently the second largest contributor to GDP. There are no restrictions on capital flows. More than 100 offshore banking units and representative offices are located in Bahrain, as well as 65 American firms. In the past two years, Bahrain has passed laws liberalizing foreign property ownership and tightening its anti-money laundering laws. Bahrain is the United States' 88 th largest goods export market. In 2005, U.S. exports to Bahrain were $351 million, up 16.2% from 2004. Aircraft, miscellaneous manufactures and agricultural products account for the majority of U.S. exports. U.S. imports from Bahrain in 2005 were $432 million, a 6.5% increase from 2004. Since tariffs between the United States and Bahrain are already low, the USTR estimates that the FTA will have little effect on U.S. imports from Bahrain. As a member of the Arab League, trade between Bahrain and Israel is technically subject to the Arab League boycott of Israel. However, in the case of Bahrain, the boycott is not strictly enforced and of little commercial significance. The Arab League boycott of Israel was raised at a June 2003 joint press conference by USTR Robert Zoellick and Bahraini Minister of Finance Abdullah Saif. Both Ambassador Zoellick and Minister Saif stressed that Bahrain was a member in good standing of the WTO, which does not permit boycotts of any kind. Nonetheless, neither specifically addressed if Bahrain would officially remove itself from the boycott. In September 2005, Bahrain announced that it will make efforts to remove the boycott. According to Bahrain's Treasurer, Ahmed bin Mohammed Al-Khalifa, "Bahrain recognizes the need to withdraw the primary boycott against Israel and is developing the means to achieve this." In May 2003, President Bush announced his goal of creating a free trade area of the Middle East by 2013, by accumulating bilateral agreements with individual countries in the region. A Middle East Free Trade Area (MEFTA) is an Administration strategy to create a free trade area among 20 Middle Eastern and North African countries and the United States by 2013. Currently, the United States has FTAs in force with Bahrain, Jordan, Morocco, and Israel. The proposed MEFTA plan was announced by President Bush on May 9, 2003. The United States also plans to expand its network of trade and investment framework agreements (TIFAs) and bilateral investment treaties (BITs) throughout the region. The FTA negotiations included thirteen working groups: Services, Financial Services, Telecommunications and E-Commerce, Sanitary and Phytosanitary Measures (SPS), Environment, Government Procurement, Legal, Technical Barriers to Trade (TBT), Customs, Market Access (both industrial and agricultural products), Intellectual Property Rights (IPR), Textiles, and Labor. The FTA eliminates tariffs on all consumer and industrial products. For agricultural products, 98% of U.S. exports to Bahrain are now duty free, with 10-year phase-outs for the remaining items. Textiles and apparel trade will be duty free immediately if the product contains either U.S. or Bahraini yarn. A temporary transitional allowance would allow duty free trade in products that do not yet meet these standards. According to the USTR, the agreement provides U.S. firms among the highest degree of access to service markets of any U.S. FTA to date. Key services sectors covered by the agreement include audiovisual, express delivery, telecommunications, computer and related services, distribution, healthcare, services incidental to mining, construction, architecture and engineering. U.S. financial service suppliers will have the right to establish subsidiaries, branches, and joint ventures in Bahrain and enjoy the benefits of strong regulatory transparency, including prior notice and comment and license approval within 120 days. For life and medical insurance, Bahrain agreed to allow access upon entry into force of the Agreement, and for non-life insurance will allow access within six months after entry into force of the Agreement. Bahrain has agreed that in revising its insurance laws and regulations, it will not discriminate against U.S. insurance suppliers and will allow existing insurance suppliers to continue current business activities. The agreement underscores Bahrain's open and developed financial sector, which includes both conventional and Islamic financial services. Bahrain will allow U.S.-based firms to offer services cross-border to Bahrainis in areas such as financial information and data processing, and financial advisory services. Bahrain will also allow U.S.-based asset managers (including insurance companies) to manage the portfolios of collective investment schemes established in Bahrain. Under the FTA, each government agreed that users of the telecom network will have reasonable and nondiscriminatory access to the network, preventing local firms from having preferential or "first right" of access to telecom networks. U.S. phone companies will have the right to interconnect with former monopoly networks in Bahrain at nondiscriminatory, cost-based rates, and will be able to build a physical network in Bahrain with nondiscriminatory access to key facilities, such as telephone switches and submarine cable landing stations. The Agreement requires each government to criminalize end-user piracy, providing strong deterrence against piracy and counterfeiting. Each government commits to having and maintaining authority to seize, forfeit, and destroy counterfeit and pirated goods and the equipment used to produce them. IPR laws will be enforced against goods-in-transit, to deter violators from using U.S. or Bahraini ports or free-trade zones to traffic in pirated products. Ex officio action may be taken in border and criminal IPR cases, thus providing more effective enforcement. The Agreement mandates both statutory and actual damages under Bahraini law for IPR violations, which will deter piracy. Under these provisions, monetary damages can be awarded even if actual economic harm (retail value, profits made by violators) cannot be determined. According to both countries, the intellectual property chapter does not "affect the ability of either Party to take necessary measures to protect public health by promoting access to medicines for all, in particular concerning cases such as HIV/AIDS, tuberculosis, malaria, and other epidemics as well as circumstances of extreme urgency or national emergency." The FTA also expressly states that it will not prevent effective utilization of the 2003 WTO consensus allowing developing countries that lack pharmaceutical manufacturing capacity to import drugs under compulsory licenses. According to the Bush Administration, the agreement fully meets the labor objectives set out by the Congress. Labor obligations are part of the core text of the Agreement. Each government commits to strive to ensure that its laws provide for labor standards consistent with internationally recognized labor rights. The Agreement includes a cooperative mechanism to promote respect for the principles embodied in the ILO Declaration on Fundamental Principles and Rights at Work, and compliance with ILO Convention 182 on the Worst Forms of Child Labor. The labor ministries, together with other appropriate agencies, agree to establish priorities and develop specific cooperative activities. Labor rights have been arguably the only major area of contention. Several Members of Congress and the AFL-CIO have criticized Bahrain for not making enough advances in reforming its labor laws. Issues of concern include a ban on workers in the same company forming more than one union, laws regarding penalties for anti-union discrimination, the ability of companies to withhold foreign workers' salaries for up to three months, and restrictions on unions calling strikes. However, Bahrain has introduced reforms and recently agreed to apply International Labor Organization (ILO) and to introduce labor law changes to make its laws fully ILO-consistent. | U.S. Trade Representative Robert B. Zoellick signed the U.S.-Bahrain Free Trade Agreement (FTA) on September 14, 2004. The implementing legislation was passed by the House on December 7, 2005, and passed by the Senate and cleared for the White House on December 13, 2005. The agreement was signed into law by the President on January 11, 2006, as the United States-Bahrain Free Trade Agreement Implementation Act (P.L. 109-169). Under the agreement, all bilateral trade in consumer and industrial goods will be duty free and 98% of U.S. agricultural exports will be duty free. The FTA is to support economic reform, both within Bahrain, and throughout the Middle East. This report will be updated as events warrant. For more information on Bahrain's politics, security, and US policy, see CRS Report 95-1013, Bahrain: Reform, Security, and U.S. Policy, by [author name scrubbed]. |
The Committee of the Whole has been an accepted practice in the United States Congress since the First Congress convened in 1789. It was used earlier in many of the colonial legislatures, as well as in the Continental Congress. The custom has its antecedents in English parliamentary practice. De Alva Stanwood Alexander, an historian of the House of Representatives and a former Representative himself, wrote: This Committee has a long history. It originated in the time of the Stuarts, when taxation arrayed the Crown against the [House of] Commons, and suspicion made the Speaker a tale-bearer to the King. To avoid the Chair's espionage the Commons met in secret, elected a chairman in whom it had confidence, and without fear of the King freely exchanged its views respecting supplies. The informality of its procedure survived the occasion for secrecy, but to this day the House of Commons keeps up the fiction of concealment, the Speaker withdrawing from the hall when the Committee convenes, and the chairman occupying the clerk's desk. Use of the Committee of the Whole in the current practice of the House of Representatives has changed considerably from the form first used in 1789. Until the early 1800s, the House used committees of the whole to work out the broad outlines of major legislation. A select committee would then be appointed to draft a bill. When the select committee reported the bill to the House, the House would then refer the measure to a Committee of the Whole for debate and amendment before itself considering the question of passage. Historian Ralph Volney Harlow commended on the committee of the whole as a forum in which the broad outline of legislation could be discussed: The committee of the whole is really a compromise between a regular session, and an adjournment for purposes of discussion. The latter method could not be used to advantage in any large assembly, because some restraining influence would be necessary. But the primitive form of the committee of the whole was probably a short adjournment, during which members could move about from one to another, and freely discuss the merits of the matter under consideration. Gradually, the standing committee system grew up in the House of Representatives, replacing the temporary select committees of the earlier era. Standing committees assumed the overview and drafting functions previously divided between a committee of the whole and a select committee. As a result, the purpose for convening in Committee of the Whole began to change. The concept found in current practice is that of the principal forum for discussion and amendment of legislation. Contemporary Committee of the Whole procedures are not without some restriction, but they are more flexible than those employed in the formal sessions of the House of Representatives. For a comparison of characteristics of the House and the Committee of the Whole in contemporary practice, please see Table 1 at the end of this report. When the House of Representatives resolves itself into the Committee of the Whole, two simple rituals mark the transformation. First, the mace—a column of ebony rods which sits on a green marble pedestal to the right of the Speaker on the podium—is moved to a white marble pedestal positioned lower on the podium. The mace represents the authority of the sergeant of arms to maintain order in the House. When it is removed from the higher position on the podium, it signals the House is no longer meeting as the House of Representatives in regular session, but in the Committee of the Whole. Second, the Speaker descends the podium, and designates a majority party colleague to take his place and assume the duties of the presiding officer during the deliberations of the Committee of the Whole. The Member designated by the Speaker thus becomes the chairman of the Committee of the Whole and is responsible for recognizing Members, maintaining order, and ruling on points of order. During meetings of the Committee of the Whole, Members address the chair not as "Mr. Speaker" but as "Mr. Chairman" or "Madam Chairman." Under the Standing Rules of the House, a measure that raises revenue, directly or indirectly appropriates money, or authorizes the expenditure of money must be considered in the Committee of the Whole. Other types of measures may be considered in the Committee of the Whole, if the House so decides, or if a rule-making statute so requires. In either case, the House of Representatives must first agree to resolve itself into the Committee of the Whole. It does so in three ways: by unanimous consent, by adopting a motion to resolve into the Committee of the Whole, or by adopting a "special rule" that authorizes the Speaker to declare the House resolved into the Committee of the Whole for the purpose of considering a specified measure. In addition to making the consideration of a specific measure in order in the Committee of the Whole, each of these three approaches will most likely limit general debate time and assign its control. They may also specify the number and types of amendments which may be offered, may designate debate time on amendments, and may waive points of order against House rules, if a provision in the measure could otherwise be held in violation of them. Once the House resolves itself into the Committee, the measure before the Committee is debated and amended. In general, the Committee of the Whole observes the rules of procedure of the House of Representatives insofar as they are applicable. There are several important differences between proceedings in the House of Representatives and proceedings in the Committee of the Whole that make legislative deliberation in the Committee an attractive alternative. In the House, a majority of the membership is required to constitute a quorum to conduct business. If all 435 seats are filled, a majority is 218 members. In the Committee of the Whole, however, only 100 members are required to constitute a quorum. The chairman may vacate further proceedings under a quorum call as soon as 100 members have answered the call, and the minimum 15-minute period allowed for a quorum call need not be used in its entirety, as is the case in the House. In addition, the chairman of the Committee is generally allowed the discretion of whether or not to permit a quorum call during general debate. Furthermore, if the presence of a quorum has been established once during any day's deliberations in the Committee, the chairman need not entertain a quorum call unless a pending question has been put to a vote during the amendment process. The basic rule governing debate in the House is the "one-hour" rule. In theory, this means any Member receives one hour to debate when recognized on any question. By custom, this hour is divided between the majority and minority, with each side receiving 30 minutes. Members often yield time to one another, but normally only for the purpose of debate, and not for the offering of amendments or procedural motions. It is unusual for the House to proceed to a second hour of debate under the "one-hour" rule. In the Committee of the Whole, however, the basic rule governing debate of amendments is the "five-minute" rule. Supporters of amendments offered in Committee receive five minutes of debate time and opponents of the proposition receive five minutes. Thus, more Members are likely to participate in debate under the "five-minute" rule in Committee than is possible under the "one-hour" rule in the House. To gain five minutes of debate time on a pending amendment, a Member may offer a nonsubstantive amendment, also called a "pro forma amendment," to "strike the last word" or "strike the requisite number of words." Thus, a Member overcomes the rule applicable in the Committee of allowing only five minutes for a Member to speak in support of an amendment and five minutes for a Member to speak in opposition to an amendment. A Member may also seek unanimous consent to continue for a short, specified period of time. In the House, debate can be ended by moving the previous question. However, the previous question not only ends debate, it also brings the matter before the House to an immediate vote. This precludes the possibility of any further amendments or discussion. Neither debate nor amendments to the motion for the previous question are in order. The previous question is not in order in the Committee of the Whole. However, additional and more flexible choices exist. A motion either to close debate or to limit the time for further debate (e.g., to 20 minutes, to 4:00 p.m.) may be offered in the Committee of the Whole. Either motion is debatable and can be further refined through amendment. In practice, the floor manager of a bill will more often ask unanimous consent that debate be either closed or limited and offer a motion only if unanimous consent cannot be obtained. In addition, even if a motion to close debate is agreed to in the Committee of the Whole, Members may still offer amendments they have filed at the desk. These will be considered, but without debate. However, if Members had their amendments printed in the Congressional Record in advance of floor proceedings, they are guaranteed 10 minutes of debate on those amendments. In practice, this protection can be overturned by a "special rule" adopted by the House prior to the commencement of proceedings in the Committee if the special rule provides other amendment procedures. A smaller number of Members are required to support a call for a recorded vote in the Committee than are required in the House. In the House, one-fifth of those present and supporting a recorded vote constitutes a sufficient number to trigger a recorded vote. If the minimum 218 Members necessary to constitute a quorum in the House are present, the number needed to call for a recorded vote would be 44. In Committee, 25 Members are needed under any circumstances to support the call for a recorded vote. The Committee of the Whole dissolves itself by "rising." If the Committee has not completed consideration of the measure before it, the floor manager may offer a simple motion to rise. At a later time, the House may choose to resolve itself again into the Committee of the Whole to resume consideration of the same measure. If the Committee has completed its deliberations, Members may agree to a motion to rise and report to the House of Representatives the actions and recommendations of the Committee. Once the decision to rise has been made, the chairman of the Committee descends the podium and the Speaker ascends to take his place as presiding officer of the House of Representatives. The mace is returned to its original location. The chairman then reports to the House those amendments that were adopted in the Committee and the Committee's recommendation on the question of final passage of the measure. (Neither second-degree amendments nor substitutes that were adopted nor any first or second-degree amendments that were defeated in the Committee are reported to the House.) The House must then formally agree to any amendments reported by the Committee. Therefore, it is possible that amendments that were adopted by the Committee of the Whole could be defeated by the House of Representatives. The House may agree to all the amendments reported to it by the Committee of the Whole through one vote ("en gros"), or separate votes may be demanded on any amendments agreed to in the Committee. The votes on amendments could also be structured pursuant to the provisions of a "special rule" adopted earlier. Votes are put on such amendments in the order in which they appear in the bill, not in the order by which the request was made. The House then considers, with the possibility of several intervening motions such as a motion to recommit, the question of final passage of the measure. | The Committee of the Whole House on the State of the Union, more often referred to as the "Committee of the Whole," is the House of Representatives operating as a committee on which every Member of the House serves. The House of Representatives uses this parliamentary device to take procedural advantage of a somewhat different set of rules governing proceedings in the Committee than those governing proceedings in the House. The purpose is to expedite legislative consideration. This report briefly reviews the history of the Committee of the Whole, describes the current procedure associated with it, and identifies its procedural advantages. It will be updated if the rules and procedures change. |
This fact sheet highlights selected provisions found in the military construction portions of proposed appropriations bills for FY2017. These include H.R. 4974 , introduced to the House on April 15, 2016; S. 2806 , introduced to the Senate on April 18; and H.R. 2577 , originally introduced to the House on May 27, 2015, as the Transportation and Housing and Urban Development and Related Agencies (T-HUD) Appropriations Act for FY2016. As reported by the conference committee ( H.Rept. 114-640 ), Division A of H.R. 2577 would be referred to as the Military Construction, Veterans Affairs, and Related Agencies Appropriations Act (MILCON/VA), 2017. This fact sheet addresses only those portions of the various bills that concern military construction. CRS products devoted to Department of Defense (DOD) and Veterans Affairs appropriations, the Zika virus, and T-HUD are listed in the " Additional Resources " section at the end of this report. Table 1 condenses the more detailed budget authority presented in the Appendix tables. Table 2 follows the status of MILCON/VA, 2017. Table A-1 compiles the amounts of budget authority that would be provided by the various bills to the individual military construction appropriations accounts, adjustments made through the rescission of unobligated prior-year appropriations, and additions made to accommodate a portion of the Unfunded Priority Lists (UPL) for FY2016 and FY2017 submitted by the military departments' secretaries at the request of Congress. These appropriations are incorporated into Title I of Division A of H.R. 2577 . Table A-2 outlines Overseas Contingency Operations military construction funding, grouped into Title IV of Division A of the bill. This fact sheet is designed to offer Members and congressional staff the best available information pending publication of a more lengthy and permanent report on FY2017 military construction appropriations. H.R. 2577 in its original form, the T-HUD appropriations bill for FY2016, was passed by the House on June 9, 2015. Its provisions were eventually incorporated into the Consolidated Appropriations Act for FY2016 ( P.L. 114-113 ). The bill was reintroduced to the Senate in May 2016 with amendments that eventually encompassed what had been three separate appropriations bills. Division A of the amended bill would have provided FY2017 T-HUD appropriations. Division B would have provided FY2017 MILCON/VA appropriations. An additional Title V of the Senate-proposed act would fund the Department of Health and Human Services for Zika virus response and preparedness. The amended bill was passed by the Senate on May 19, 2016, and sent to the House. Upon receipt of the amended bill, the House proposed an additional amendment. H.R. 2577 , as engrossed by the House, would establish Division A as the Military Construction, Veterans Affairs, and Related Agencies Appropriations Act, 2017; Division B as the Zika Response Appropriations Act, 2016; and Division C as the Zika Vector Control Act. The House passed the amended bill on May 26, 2016, and requested a conference. The conference was held on June 15, 2016, and the conferees filed their report, H.Rept. 114-640 , on June 22, 2016. The House agreed to the report on June 23, 2016, by the Yeas and Nays. The bill awaits Senate action. The President has requested new budget authority in the amounts of $7.44 billion (base budget) and $172.4 million (Overseas Contingency Operations, OCO) for a total of $7.62 billion for military construction and military family housing for FY2017. This compares with $7.72 billion made available for FY2015 and $8.54 billion enacted for FY2016. This continues a downward trend in military construction appropriations begun in FY2010, when construction activity associated with the 2005 Base Closure (BRAC) round began to subside. The President has requested significantly less military construction funding for FY2017 than was the norm during the early years of the 2000s. Figure 1 illustrates the amounts of new budget authority enacted FY2000-FY2016 and projected by DOD through FY2021. The OCO portion of the request continues a shift in emphasis that has become apparent in recent years. OCO construction has shifted from the CENTCOM (Middle East and Southwest Asia) and AFRICOM (Africa, less Egypt) Areas of Responsibility (AOR) to EUCOM (Europe). OCO military construction through FY2011 was directed to the CENTCOM AOR in Southwest Asia. For example, in FY2011, $1.22 billion in OCO construction was devoted to Afghanistan, Qatar, and Bahrain. This began to be redirected in FY2012, when $269.7 million in OCO construction went to projects in Afghanistan, Bahrain, and Djibouti. The FY2013 OCO appropriation included $355.6 million for construction in Djibouti, Bahrain, and Diego Garcia (a British Protectorate in the Indian Ocean), plus funds to construct the ballistic missile defense AEGIS Ashore complex in Romania. No construction funding was identified as OCO for FY2014, but the FY2015 appropriation included $151.9 million that encompassed some OCO construction in Djibouti and Bahrain but devoted most of its emphasis to improving airfields in Romania, Bulgaria, Poland, and the Baltic states of Lithuania, Estonia, and Latvia. The FY2016 appropriation of $428.9 million was devoted largely to an AEGIS Ashore Missile Defense Complex in Poland, with the remainder going to ship-related construction in Bahrain and airfield improvements in Oman, Niger, and Djibouti. Nearly two-thirds of the FY2017 request of $172.4 million is designated as part of the European Reassurance Initiative and is dedicated to airfield improvements in Estonia, Lithuania, Romania, Bulgaria, and Poland, plus additional facilities in Iceland and Germany to accommodate the Navy's P-8A Poseidon and the Air Force's F/A-22 Raptor aircraft. The remainder of the FY2017 request is intended for projects in Djibouti. CRS Report R44582, Overview of Funding Mechanisms in the Federal Budget Process, and Selected Examples , by [author name scrubbed] CRS Report R44531, FY2017 Defense Appropriations Fact Sheet: Selected Highlights of H.R. 5293 and S. 3000 , by [author name scrubbed] and [author name scrubbed]. CRS Report R44497, Fact Sheet: Selected Highlights of the FY2017 National Defense Authorization Act (H.R. 4909, S. 2943) , by [author name scrubbed] and [author name scrubbed]. CRS Report R44454, Defense: FY2017 Budget Request, Authorization, and Appropriations , by [author name scrubbed] and [author name scrubbed]. CRS Report R44519, Overseas Contingency Operations Funding: Background and Status , coordinated by [author name scrubbed] and [author name scrubbed]. CRS Report R44039, Defense Spending and the Budget Control Act Limits , by [author name scrubbed]. CRS Report R42747, Health Care for Veterans: Answers to Frequently Asked Questions , by [author name scrubbed]. CRS Report R43704, Veterans Access, Choice, and Accountability Act of 2014 (H.R. 3230; P.L. 113-146) , by [author name scrubbed] et al. CRS In Focus IF10396, Caregiver Support to Veterans , by [author name scrubbed]. CRS Report R43547, Veterans' Medical Care: FY2015 Appropriations , by [author name scrubbed]. CRS Report RL34024, Veterans and Homelessness , by [author name scrubbed]. CRS In Focus IF10401, Genetically Engineered Mosquitoes: A Vector Control Technology for Reducing Zika Virus Transmission , by [author name scrubbed]. CRS Report R44545, Zika Virus in Latin America and the Caribbean: U.S. Policy Considerations , coordinated by [author name scrubbed]. CRS Report R44460, Zika Response Funding: Request and Congressional Action , coordinated by [author name scrubbed]. CRS Report R44549, Supplemental Appropriations for Zika Response: The FY2016 Conference Agreement in Brief , by [author name scrubbed] and [author name scrubbed]. CRS Report R44385, Zika Virus: CRS Experts , by [author name scrubbed]. CRS Report R44368, Zika Virus: Basics About the Disease , by [author name scrubbed]. CRS In Focus IF10353, Mosquitoes, Zika Virus, and Transmission Ecology , by [author name scrubbed], [author name scrubbed], and [author name scrubbed]. CRS Insight IN10544, Zika Poses New Challenges for Blood Centers , by [author name scrubbed] and [author name scrubbed]. CRS Report R44500, Transportation, Housing and Urban Development, and Related Agencies (THUD): FY2017 Appropriations , by [author name scrubbed] and [author name scrubbed]. CRS Report R44499, Department of Transportation (DOT): FY2017 Appropriations , by [author name scrubbed]. CRS Report R44495, Department of Housing and Urban Development (HUD): FY2017 Appropriations , coordinated by [author name scrubbed]. CRS Report R44380, Department of Housing and Urban Development (HUD): FY2017 Budget Request Overview and Resources , by [author name scrubbed]. Table A-1 shows the amounts of budget authority granted to the various military construction and family housing appropriations accounts as enacted for FY2016 and as requested by the President, passed by the two chambers and reported by the conference committee. The table is grouped into seven separate clusters similar to those present in the bills. Nevertheless, the bill's Administrative Provisions section, which includes both rescissions of funds and new funding for the military departments' Unfunded Priorities List, has been broken into two clusters for clarity: Active Components (Army, Navy and Marine Corps, Air Force, and Defense-Wide, which includes defense agencies and Special Operations Command [SOCOM]); Reserve Components (National Guard and Reserves); NATO Security Investment Program (NSIP); Family Housing (including the Family Housing Improvement Fund, the principal DOD support for the military housing privatization initiative); BRAC (military base realignment and closure); Administrative Provisions (the normal location for rescission of prior-year appropriated budget authority); and Unfunded Priority Lists (budget authority not requested by the President in his annual budget request but planned for future years). Table A-2 presents the military construction funding requested and recommended for Overseas Contingency Operations construction. | This fact sheet summarizes selected highlights of the military construction and military family housing portions of the FY2017 Military Construction, Veterans Affairs, and Related Agencies Appropriations Act. The act is associated with three separate bill numbers: H.R. 4974, S. 2806, and H.R. 2577. Congressional action on FY2017 military construction appropriations legislation has been heavily influenced by the statutorily mandated discretionary spending caps established by P.L. 114-74, the Bipartisan Budget Act of 2015 (BBA). A significant issue before Congress is the extent to which Congress and the President will agree on budgetary authority that (1) exceeds the established BBA limit, and (2) is exempt under 2 U.S.C. §901 from being counted toward that limit by virtue of categorization as Overseas Contingency Operations (OCO) funds. The 2015 BBA temporarily increased statutory funding limits on defense and non-defense appropriations for FY2016 and FY2017 above those established by the Budget Control Act (BCA) of 2011 (P.L. 112-25). New budget authority (funding not previously appropriated) for military construction and military family housing totaled $8,171.0 million for FY2016. For FY2017, the House authorized $7,616.5 million, and the Senate authorized $7,866.0 million. The conference committee recommended $7,898.0 million. The FY2017 Military Construction, Veterans Affairs, and Related Agencies Appropriations Act originated in the House as H.R. 4974, introduced on April 15, 2016. A similar bill, S. 2806, was introduced in the Senate on April 18, 2016. On May 19, 2016, the Senate combined the versions of the Transportation, Housing and Urban Development (T-HUD), Military Construction and Veterans Affairs (MILCON/VA), and Zika Response and Preparedness appropriations bills into H.R. 2577 (a T-HUD appropriations bill for FY2016 that the House had passed in June, 2015), passed the amended bill, and sent it to the House. The House substituted its own amendment in three divisions (Division A: MILCON/VA, Division B: Zika Response Appropriations, and Division C: Zika Vector Control), removing the T-HUD portion for H.R. 2577, passed the bill, and requested a conference. The conference met on June 15, 2016, and filed its report (H.Rept. 114-640) the next day. The conference bill contained four divisions: (1) Division A: MILCON/VA, (2) Division B: Zika Response and Preparedness Appropriations, (3) Division C: Zika Vector Control, and (4) Division D: Rescission of Funds ($750.0 million from three sources). The House agreed to the report on June 23, 2016. Further action in the Senate is pending. |
The broad-gauged trade agreements entered into by the United States in the 1990s—the North American Free Trade Agreement (NAFTA), the World Trade Organization (WTO) Agreement, and the multilateral trade agreements that a country must accept as a condition of WTO membership—were negotiated by the President and submitted to Congress under the terms of the Omnibus Trade and Competitiveness Act of 1988 (OTCA) and the Trade Act of 1974. The OTCA provided the President with authority to negotiate and enter into tariff and nontariff trade barrier (NTB) agreements until June 1, 1993, authority that was later extended to April 15, 1994, in order to complete the General Agreement on Tariffs and Trade (GATT) Uruguay Round. The OTCA also provided that NTB agreements negotiated under the statute could not enter into force for the United States unless, among other things, the agreements were submitted to Congress along with an implementing bill and the bill was enacted into law. Such legislation was entitled to so-called fast track or expedited consideration. The law, Section 151(a), defines "implementing bill" as a bill that contains, inter alia, a provision approving the trade agreement or agreements and, if changes to existing laws are needed, provisions "necessary or appropriate to implement such trade agreement or agreements ... either repealing or amending existing laws or providing new statutory authority." It is the provision approving the agreement or agreements, once enacted, that makes the Uruguay Round agreements, as well as the NAFTA, other free trade agreements and earlier GATT-related agreements, congressional-executive agreements. The trade agreement authorities and requirements embodied in the OTCA reflect a congressional approach to international trade policy that evolved over a number of years. As early as 1890, Congress delegated tariff bargaining authority to the President and authorized him to suspend existing duty-free treatment on particular items by proclamation. The Supreme Court subsequently held that the authorizing statute, Section 3 of the Tariff Act of 1890 did not unconstitutionally delegate either legislative or treaty-making authority to the President. In the Reciprocal Trade Agreements Act of 1934, as amended and extended, Congress authorized the President, for limited periods, to enter into reciprocal tariff agreements with foreign countries and, within a designated range, to proclaim tariffs needed to implement these agreements without subsequent congressional approval. This authority was used to enter into numerous reciprocal trade agreements, to proclaim new tariffs as a result, and to enter into the General Agreement on Tariffs and Trade (GATT). The President's modification of tariffs under this statute was likewise held to be valid under the Treaty Clause, federal courts having acknowledged that not all international undertakings of the United States are concluded as treaties and that congressional-executive trade agreements could find a constitutional basis in the joint exercise of Congress's tariff and commerce authorities and the President's foreign affairs power. As GATT parties began to negotiate more extensively to eliminate nontariff trade barriers in a number of areas, Congress enacted legislation that would both provide the President with negotiating credibility and ensure that Congress carried out its constitutional responsibilities regarding legislative implementation of the agreements. Since NTB agreements could address a variety of regulatory matters (e.g., subsidies, government procurement, product standards), these agreements might require more elaborate changes in federal law than tariff agreements, which for the most part could be implemented through a pre-authorized presidential proclamation reducing tariffs on particular items. In contrast, if legislation were needed to implement NTB agreements, Congress could choose not to vote on such legislation or could add amendments that might be viewed as inconsistent with agreement obligations. At the same time, overly broad delegations of authority to the President to implement NTB agreements or legislative vetoes of executive implementing actions might not comport with constitutional requirements regarding the passage of legislation. In the Trade Act of 1974, Congress provided the President with new authority to negotiate multilateral trade agreements for a limited period of time, allowing him to proclaim certain tariff reductions and modifications but requiring him to submit NTB agreements to Congress, which would vote on their approval and on legislation necessary or appropriate to implement them. Because of the complexities of multilateral negotiation, Congress sought to provide the President with a sound negotiating posture by providing that it would consider trade agreement implementing legislation submitted under the terms of the statute (including requirements that the President notify and consult with Congress) within a prescribed period of time and without amendment. To this end, Section 151 of the act sets out procedural rules according an introduced bill expedited consideration and ensuring a final floor vote. The fast-track procedure in the 1974 act was first used with respect to the GATT Tokyo Round Agreements, which were approved and implemented in 1979. Temporary statutory authority for bilateral free trade agreements (FTAs) was added in the Trade and Tariff Act of 1984 and was again provided for in the OTCA. Congress approved bilateral FTAs with Israel and Canada, the NAFTA, and the GATT Uruguay Round agreements under one or the other of these authorities. The FTA with Jordan was statutorily implemented in 2001, though not under a fast-track authorizing statute and without an express approval provision. The Bipartisan Trade Promotion Authority Act of 2002 (BTPAA), contained in Title XXI of the Trade Act of 2002, granted renewed trade negotiating authority to the President. Although the authority expired during the 110 th Congress, implementing bills for trade agreements entered into before July 1, 2007, remained eligible for expedited legislative consideration. Eligibility continued because only the agreement needed to be entered into before July 1, 2007, for its implementing legislation to qualify for consideration on an expedited basis. The 2002 act did not require that implementing legislation for any such agreement be submitted to Congress by a given date. Agreements that had been entered into before July 1, 2007, but that had not been approved by that date, included U.S. free trade agreements with Colombia, Korea, and Panama. Congress approved the three agreements in October 2011 under the expedited BTPAA procedures. Agreements with Chile, Singapore, Australia, Morocco, Bahrain, Oman, the Dominican Republic-Central America-United States FTA (DR-CAFTA), and Peru had been approved earlier under this process. Additionally, the United States Trade Representative (USTR), on behalf of the President, notified the House and Senate by letter in December 2009 that the President intended to enter into negotiations aimed at a regional, Asia-Pacific trade agreement, called the Trans-Pacific Partnership (TPP). Notwithstanding the expiration of BTPAA authorities, the USTR stated in a December 2009 Federal Register notice that "USTR is observing the relevant procedures of the Bipartisan Trade Promotion Authority Act of 2002 (19 U.S.C. 3804), which apply to agreements entered into before July 1, 2007, with respect to notifying and consulting with Congress regarding the TPP trade agreement negotiations." These include the President's written notice to Congress of the President's intent to enter into trade agreement negotiations with one or more countries at least 90 days before the President initiates any such negotiations. Notably, discussions to reinstate TPA through legislation have recently gained attention. In March 2013, the Acting U.S. Trade Representative, Demetrios Marantis, stated that the Obama Administration will work with Congress to enact new TPA legislation. Along with the United States, TPP negotiating parties include Australia, Brunei, Chile, Malaysia, New Zealand, Peru, Singapore, and Vietnam, with Mexico and Canada having recently joined the talks. Japan has expressed its intent to join the negotiations. Were Congress to enact trade negotiating authority with expedited legislative procedures in the future, it would have the option of including ongoing TPP negotiations within the scope of the statute. Congress took this approach in the BTPAA with respect to ongoing FTA negotiations with Singapore and Chile and other trade negotiations under way at the time. The question whether trade agreements could constitutionally be entered into as congressional-executive agreements rather than treaties emerged during consideration of Uruguay Round implementing legislation. The question originally was posed because of the perceived effect of the agreements on states. The issue also arose in a judicial challenge to the NAFTA, in which it was alleged that the failure to use the treaty process rendered the agreement and its implementing legislation unconstitutional. In Made in the USA Foundation v. United States , an Alabama federal district court held in July 1999 that "the President had the authority to negotiate and conclude NAFTA pursuant to his executive authority and pursuant to the authority granted to him by Congress in accordance with the terms of the Omnibus Trade and Competitiveness Act of 1988 ... and section 151 of the Trade Act of 1974 ... and as further approved by the [NAFTA] Implementation Act." In the court's view, the Foreign Commerce Clause, combined with the Necessary and Proper Clause and the President's Article II foreign relations power, provided a constitutionally sufficient basis for the agreement. The court preliminarily held that institutional, but not individual plaintiffs, had standing to sue, and that the political question doctrine did not bar it from ruling on the merits. On appeal, the U.S. Court of Appeals for the Eleventh Circuit (Eleventh Circuit), while agreeing that appellants had standing, held that the issue of whether an international commercial agreement such as the NAFTA is a treaty that must be approved by two-thirds of the Senate was a nonjusticiable political question. The court dismissed the appeal and remanded to the district court with instructions to vacate. The Supreme Court denied certiorari in the case. Under the political question doctrine, a court will decline to rule on the merits if it finds that the underlying matter is committed to the discretion and expertise of the legislative and executive branches. In the case at hand, the Eleventh Circuit applied a tripartite inquiry that it said was suggested by Justice Lewis Powell in Goldwate r v. C arter , a distillation of criteria for determining justiciability originally identified in Bak er v. C arr . The three questions posed by the court were the following: "(i) Does the issue involve resolution of questions committed by the text of the Constitution to a coordinate branch of government? (ii) Would resolution of the question demand that a court move beyond judicial expertise? (iii) Do prudential considerations counsel against judicial intervention?" Regarding the first question, the court stated that "with respect to commercial agreements, we find that the Constitution's clear assignment of authority to the political branches of the Government over our nation's foreign affairs counsels against an intrusive role for this court in overseeing the actions of the President and Congress in this matter." The court also pointed to the "vast" express constitutional grants of power conferred upon the political branches in foreign affairs and commerce, and the Supreme Court's long-standing recognition of the power of the political branches, to conclude "agreements that do not constitute treaties in the constitutional sense." Regarding the second question, the court concluded that a ruling on the merits would require it to consider areas beyond its expertise, noting, inter alia, that the Treaty Clause did not set forth circumstances under which Clause procedures must be followed when approving international commercial agreements, and that having to determine the "significance" of an international agreement as the key factor in determining whether it should be a treaty or not would "unavoidably thrust [the court] into making policy judgments of the sort unsuited for the judicial branch." Addressing the third question, the court cited, inter alia, the need for the nation to speak with uniformity in the area of foreign affairs and commerce, and the fact that a judicial order declaring the NAFTA invalid "could have a profoundly negative effect on this nation's economy and its ability to deal with other foreign powers," noting that such an order "would not only affect the validity of NAFTA, but would potentially undermine every other major international commercial agreement made over the past half-century." | U.S. trade agreements such as the North American Free Trade Agreement (NAFTA), World Trade Organization agreements, and bilateral free trade agreements (FTAs) have been approved by majority vote of each house rather than by two-thirds vote of the Senate—that is, they have been treated as congressional-executive agreements rather than as treaties. The congressional-executive agreement has been the vehicle for implementing Congress's long-standing policy of seeking trade benefits for the United States through reciprocal trade negotiations. In a succession of statutes, Congress has authorized the President to negotiate and enter into tariff and nontariff barrier (NTB) agreements for limited periods, while permitting NTB and free trade agreements negotiated under this authority to enter into force for the United States only if they are approved by both houses in a bill enacted into public law and other statutory conditions are met; implementing bills are also accorded expedited consideration under the scheme. This negotiating authority and expedited procedures are commonly known as Trade Promotion Authority (TPA). Congress most recently granted the President temporary trade negotiating authority utilizing this approach in the Bipartisan Trade Promotion Authority Act of 2002 (BTPAA), contained in Title XXI of the Trade Act of 2002, P.L. 107-210. Although the authority expired during the 110th Congress, agreements entered into before July 1, 2007, remained eligible for congressional consideration under the expedited procedure. The President had entered into free trade agreements with Colombia, Korea, and Panama before this date, each of which awaited congressional approval at the time. In October 2011, Congress approved the three pending agreements, making a total of 11 free trade agreements approved under the BTPAA process. In addition, the United States Trade Representative (USTR), on behalf of the President, notified the House and Senate in December 2009 by letter that the President intended to enter into negotiations aimed at a regional, Asia-Pacific trade agreement, called the Trans-Pacific Partnership (TPP). Notwithstanding the expiration of BTPAA authorities, the USTR stated that the Obama Administration would be observing the relevant procedures of the act with respect to notifying and consulting with Congress regarding these negotiations. Notably, discussions to reinstate TPA through legislation have recently gained attention. In March 2013, the Acting U.S. Trade Representative, Demetrios Marantis, stated that the Obama Administration will work with Congress to enact new TPA legislation. |
The disability insurance portion of the Old-Age, Survivors and Disability Insurance (OASDI) program was enacted in 1956 and provides benefits to disabled workers under the full retirement age (FRA) in amounts based on an individual's career-average earnings in covered employment. A statutory formula determines monthly payment levels for Social Security Disability Insurance (SSDI). In addition, the law also eliminates from benefit calculations one year of a SSDI beneficiary's lowest earnings for every five years of earnings (also known as the one-for-five rule), which equates to a maximum of five "disability dropout years" for an individual with 25 or more years of earnings. By statute, SSA also applies "childcare dropout years" (CDYs) for years in which a beneficiary has zero earnings due to leaving the workforce to care for an infant child. The application of CDYs is not common, affecting approximately 0.16% of SSDI beneficiaries between 2000 and 2013. This report describes how workers become insured for SSDI benefits, how SSDI benefits are calculated, and the use of dropout years in benefit calculations. SSDI benefits, like those of the Old-Age and Survivors Insurance (OASI) program, are meant to replace income from work that is lost by incurring one of the risks the social program insures against. The SSDI program is financed primarily through a payroll tax levied on workers, their employers, and self-employed individuals in jobs covered by Social Security. To be eligible for SSDI benefits, a worker must be (1) disability insured, and (2) unable to engage in substantial gainful activity (SGA) by reason of a medically determinable physical or mental impairment expected to result in death or last at least 12 months. Generally, the worker must be unable to do any kind of work that exists in the national economy, taking into account age, education, and work experience. Special rules for disability insured status apply to individuals under the age of 31. To be fully insured, a worker must have worked a minimum amount of time in employment covered by Social Security. Generally, an individual must have one quarter of coverage (also referred to as "credits") for each calendar year after the age of 21 up to the year before the individual (1) reaches the age of 62, (2) dies, or (3) becomes disabled. A minimum of six quarters is required to become fully insured. In 2014, each quarter of coverage requires $1,200 in earnings, which is indexed annually to average wage growth. Workers under the age of 31 need to have credit in one-half of the quarters during the period between when they attained age 21 and when they became disabled. In addition, a recency of work test requires the worker to have 20 quarters of coverage in the 40 quarters preceding the onset of disability (generally five years of work in the last 10). An exception applies to disabled workers under the age of 31; these individuals can meet the recency of work test by having credit in at least one-half of the calendar quarters during the period beginning with the quarter after the quarter the individual turned 21 and ending with the quarter that they became disabled. The recency of work test does not apply to individuals who are blind. To qualify for benefits, a disabled worker must also be unable to engage in "substantial gainful activity" (SGA). In 2014, SGA is the ability to earn $1,070 in a month. Since July 1999, the SGA amount has been adjusted annually to reflect the growth in average wages. The SSDI benefit payment is based on a disabled worker's average indexed monthly earnings (AIME), which is used in the computation of the individual's Primary Insurance Amount (PIA). For SSDI beneficiaries, the initial monthly benefit payment equals the PIA. The AIME is calculated as the sum of indexed earnings over the computation period, divided by the number of "computation years" (in months). The AIME is calculated based on an individual's earnings record by indexing—to national average wage growth—the worker's earnings during full calendar years after 1950 and up to the second year prior to the year (the "indexing year") of SSDI eligibility. Earnings in years after the indexing year are not indexed and are counted at their nominal value. This adjusts a beneficiary's earnings to be comparable to the earnings level in the year he or she became disabled. The number of computation years used in the AIME determination is equal to the number of "elapsed years," minus any dropout years as discussed below. By statute, the number of elapsed years equals the calendar years after an individual turns age 21 through the year before the individual first becomes eligible for SSDI benefits. The minimum number of computation years used is two. The individual's highest (indexed) earnings years are used as computation years for the AIME calculation. Computation years may include years of zero earnings when the number of computation years is greater than the number of years of earnings; it is these computation years of zero earnings for which CDYs may be applied for eligible individuals. Under current law, SSA will remove up to five of a disabled worker's elapsed years with the lowest earnings in calculating the AIME. Also known as the one-for-five (or one-fifth) rule , for every five elapsed years of earnings, the lowest year(s) of earnings will be dropped, up to a maximum of five total disability dropout years for a worker with 25 or more years of earnings. This provision reduces the effects of years of lower earnings on a disabled worker's benefit amount. For example, for a worker who becomes disabled with seven years of work history in covered employment, only the highest six years of earnings will be used for the purposes of AIME calculation (i.e., applying one disability dropout year). If the worker had 10 years in covered employment, SSA would use the highest eight years of earnings (i.e., applying two disability dropout years). In addition, in calculating the AIME, disabled workers who receive fewer than three disability dropout years under the one-for-five rule (as described above) may be credited with up to two additional dropout years based on the care of a child, for up to a total of three dropout years. Specifically, these "childcare dropout years" (CDYs; also referred to as caregiving years) may be credited under two conditions: (1) the SSDI claimant had a child (or the child of a spouse) under the age of three in his or her care for at least nine months throughout a given year, and (2) the SSDI claimant had no earnings in that year. In addition, the year selected as a CDY must also be a year that could be selected as a benefit computation year. The claimant must have a minimum of two computation years. Authorized by the Social Security Disability Amendments of 1980 ( P.L. 96-265 ), the CDY provision became effective July 1981. CDYs are offset by disability dropout years and can only be credited to eligible SSDI beneficiaries when the number of disability dropout years is less than three. As presented in Table A-1 , an eligible individual may be credited with one CDY at three elapsed years. Two CDYs may be credited at four elapsed years. At five elapsed years, a disability dropout year may be credited (in addition to the two CDYs) for three total dropout years. CDYs begin to phase out at 10 elapsed years, as one CDY is replaced with one disability dropout year. CDYs completely phase out at 15 elapsed years as both CDYs are replaced with disability dropout years. A disabled worker's PIA is determined by applying a formula to the AIME as shown in Table 1 . First, the AIME is sectioned into three brackets (or segments) of earnings, which are divided by dollar amounts known as bend points. For 2014, the bend points are $816 and $4,917. Three replacement factors—90%, 32%, and 15%—are applied to the three brackets of AIME. The three products derived from multiplying each replacement factor and bracket of AIME are added together. For a worker who becomes disabled in 2014, the PIA is determined as shown in the example in Table 1 . A disabled worker's benefit is equal to his or her PIA. In addition, a beneficiary's payment increases each year from the year of eligibility to the year of benefit receipt based on the Social Security cost-of-living adjustment (COLA). Some 861,396 disabled workers aged 25 to 36 at the time of disability-onset were awarded SSDI benefits between January 2000 and May 2013. CDYs were applied to 1,336 (0.16%) of these recipients. During this period, most of these individuals (991 or 74.2%) were credited with one CDY, whereas 339 (25.4%) were credited with two CDYs. As shown in Figure A-1 , the distribution of CDY credits is skewed toward beneficiaries with lower earnings. During this period, 84.5% of beneficiaries (1,129) who were credited with CDYs had a PIA of less than $1,000. Appendix A. CDY Computation Chart and Graph Appendix B. Acronyms Used in This CRS Report | Eligibility for Social Security Disability Insurance (SSDI) benefits are based on a worker's insured status, and payment levels are associated with the individual's career earnings under covered employment. Monthly payments are calculated using a formula that takes into account the period of employment, a worker's average earnings over that period, and the application of "dropout years." To be insured for SSDI benefits, a claimant must have worked a minimum amount of time in covered employment. First, a worker must be "fully insured," which requires one quarter of coverage for each calendar year after the age of 21, with a minimum of six quarters and a maximum of 40 quarters. In 2014, each quarter of coverage requires $1,200 in earnings. Second, a recency of work test requires 20 quarters of coverage in the 40 quarters preceding the onset of a disability; that is generally five years of work in the last 10, although fewer quarters are required for younger workers. In calculating the SSDI benefit level, up to five years of a worker's lowest years of earnings are eliminated or "dropped" to minimize the effect of lower years of earnings on monthly payments. An eligible worker who becomes disabled has one year of earnings dropped (via the disability dropout year provision) for every five years of earnings, known as the one-for-five rule. A separate childcare dropout year (CDY) provision also disregards from benefit calculations up to two years in which a beneficiary received no income during periods when he or she was caring for a young child. The number of CDYs applied to a benefit calculation may be offset by the number of disability dropout years applied and vice versa. The CDY provision largely benefits a small subset of SSDI recipients with lower career earnings. This report provides (1) an overview of the SSDI program and how workers become insured for SSDI benefits, (2) an explanation of how benefit payments are calculated, and (3) a description of how the dropout year provisions affect the calculation of disability benefit payments. The report concludes with a brief analysis of the earnings of disabled workers that have been credited with CDYs. |
The Commerce Clause provides that "Congress shall have Power ... To regulate Commerce ... among the several States...." The Supreme Court has long held that the Clause prohibits states from unduly burdening interstate commerce even in the absence of federal regulation. This restriction, known as the dormant or negative Commerce Clause, "reflect[s] a central concern of the Framers" that "the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation." Thus, the dormant Commerce Clause "prevent[s] a State from retreating into economic isolation or jeopardizing the welfare of the Nation as a whole, as it would do if it were free to place burdens on the flow of commerce across its borders that commerce wholly within those borders would not bear." A further rationale is that out-of-state entities subject to any burden are likely not in a position to use the state's political process to seek relief. The dormant Commerce Clause prohibits state laws that discriminate against interstate commerce. Thus, while a state law that "regulates even-handedly to effectuate a legitimate local public interest" and has "only incidental" effect on interstate commerce is constitutionally permissible "unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits" ("the Pike test"), a discriminatory state law is "virtually per se invalid." Traditionally, such laws have only been permissible if they meet the high standard of "advanc[ing] a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives." It would appear, therefore, that the bond taxing schemes used by almost all of the states, which exempt the interest on state-issued bonds while taxing the interest on other states' bonds, are facially discriminatory and should be subject to a high level of scrutiny. However, a wrinkle to this analysis was added in April 2007 when the Supreme Court decided a case, United Haulers Ass ' n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Authority , in which a plurality of the Court subjected a facially discriminatory state law to a lower standard of scrutiny because it benefitted a public entity, as opposed to an in-state private entity. The challenged law required trash haulers to deliver waste to a processing facility owned by a public entity. The Court had previously struck down a similar law, but distinguished the two cases because the processing facility in the prior case was privately owned while the United Haulers facility was publicly owned. In United Haulers , the Court found "[c]ompelling reasons" for distinguishing between state laws that favor governmental units and those that favor in-state private entities over their competitors. The Court, stating that "any notion of discrimination assumes a comparison of substantially similar entities," reasoned that state and local governments are not substantially similar to private entities due to their public welfare responsibilities. These responsibilities, the Court explained, meant that laws favoring governmental units have "any number of legitimate goals," while laws favoring in-state private entities generally represent "simple economic protectionism." Thus, the Court reasoned, such laws should not be viewed with "equal skepticism." The Court explained that treating them equally "would lead to unprecedented and unbounded interference by the courts with state and local government," which was particularly inappropriate when the challenged law addressed a traditional government function such as waste disposal. A majority of the Court could not agree on the standard under which to examine laws favoring public entities. A plurality of four justices stated that the proper standard was the Pike test—that is, whether "the burden imposed on interstate commerce is clearly excessive in relation to the putative local benefits." The plurality did not find the challenged law's burden to be excessive to its benefits, which included providing health and environmental benefits and an effective way to finance waste-disposal services. The dormant Commerce Clause is not implicated when a state acts as a market participant as opposed to a market regulator. This is because the "Commerce Clause responds principally to state taxes and regulatory measures impeding free private trade in the national marketplace," and "[t]here is no indication of a constitutional plan to limit the ability of the States themselves to operate freely in the free market." The market participant doctrine does not apply when the state is acting in its governmental capacity by assessing and computing taxes. It appears only two cases have addressed whether state laws taxing interest earned on bonds issued by other states while exempting interest earned on bonds issued by that state violate the Commerce Clause. In 1994, an Ohio appellate court held in Shaper v. Tracy that such treatment was constitutional. In 2006, the Kentucky court of appeals held the opposite in Kentucky Department of Revenue v. Davis . In November 2007, the U.S. Supreme Court heard oral arguments in Davis . In the Shaper case, an Ohio court of appeals rejected the claim made by an Ohio taxpayer that the state's bond taxing scheme was unconstitutional. The court began by agreeing with the taxpayer that the market participant doctrine did not apply because Ohio was acting as a market regulator, and not participant, when it determined how to tax out-of-state bonds. However, the court then ruled that the taxing scheme did not implicate the Commerce Clause because the scheme benefitted the state. The court based this conclusion on its analysis of the Supreme Court's Commerce Clause jurisprudence, which the court found to only involve challenges to state actions giving in-state private entities a competitive advantage over out-of-state entities, and not challenges to state actions benefitting the state itself. The court, while noting that no Supreme Court decision was directly on point, found two cases to be useful. The first was Bonaparte v. Tax Court, in which the Supreme Court determined that a state law exempting state-issued public debt held by residents, while taxing non-residents, did not violate the Full Faith and Credit Clause. The court placed significance on the Supreme Court's statements in Bonaparte that "the Constitution does not prohibit a State from including in the taxable property of her citizens so much of the registered public debt of another State as they respectively hold, although the debtor State may exempt it from taxation or actually tax it" and "[w]e know of no provision of the Constitution of the United States which prohibits such taxation." The second case was South Carolina v. Baker , in which the Supreme Court held that the federal government could tax state-issued bonds. While noting that the tax in Baker was not challenged under the Commerce Clause, the Shaper court quoted the Supreme Court's statement that "[t]he owners of state bonds have no constitutional entitlement not to pay taxes on income they earn from the bonds and States have no constitutional entitlement to issue bonds paying lower interest rates than other issuers." The court, after noting that Ohio had a "legitimate interest in tapping a major source of tax revenue" and bond purchasers are "major beneficiaries" of the public purposes for which the bond proceeds would be used, concluded by stating it could not hold the Ohio law unconstitutional "given the lack of any precedent to apply the Commerce Clause to this type of taxation scheme." In the Davis case, the Kentucky court of appeals held that the state's bond taxing scheme violated the Commerce Clause. The court began by noting that the "'fundamental command' of the Commerce Clause is that 'a State may not tax a transaction or incident more heavily when it crosses state lines than when it occurs entirely within the State,'" and therefore discriminatory state laws were presumptively invalid. Based on this, the court reasoned that "[c]learly, Kentucky's bond taxation system is facially unconstitutional as it obviously affords more favorable taxation treatment to in-state bonds than it does to extraterritorially issued bonds." The court rejected the state's argument that it should adopt the Shaper court's holding, stating that the Shaper analysis was incomplete because "a potentially problematic and constitutionally infirm statute does not become permissible simply because it has not been previously found to be unconstitutional." The court also dismissed the relevance of the Bonaparte decision because it dealt with the Full Faith and Credit Clause and not the Commerce Clause. Finally, the court rejected the argument that Kentucky's taxing scheme did not implicate the dormant Commerce Clause because the state was acting as a market participant, explaining that Kentucy was a market participant when issuing the bonds but a market regulator when choosing how to tax its citizens. The U.S. Supreme Court heard oral arguments in the Davis case on November 5, 2007. A transcript of the oral arguments is available on the Supreme Court's website at http://www.supremecourtus.gov/oral_arguments/argument_transcripts/06-666.pdf . As discussed, the Supreme Court decided United Haulers just prior to granting certiorari in Davis . Under the Court's jurisprudence prior to United Haulers , it seems there was a significant chance that Kentucky's bond taxing scheme would be unconstitutional because it facially discriminates against out-of-state entities, and the Court's jurisprudence suggested that such laws were impermissible unless the state could show the law served a legitimate state purpose and there were no other reasonable ways to advance that purpose. This high level of scrutiny is generally fatal to the challenged state law. The United Haulers decision suggests a different outcome by indicating that a less stringent analysis applies when the state law benefits state and local governments as opposed to in-state private entities. Questions exist about how the Court may apply United Haulers to Davis , in part because only a plurality in United Haulers agreed it was appropriate to use the Pike test in examining the permissibility of state laws benefitting public entities. Furthermore, it is possible the Court will distinguish Davis from United Haulers . One basis for doing so is that the state law in United Haulers benefitted a publicly owned entity over private entities, while the one in Davis benefits states over other states. The Court's analysis in United Haulers was based on its finding that while "any notion of discrimination assumes a comparison of substantially similar entities," governmental units and private entities are not "substantially similar" because the former have public welfare responsibilities not imposed on the latter. Thus, a key question in Davis seems to be whether Kentucky is "substantially similar" to the other states whose bonds it taxes; if so, that could be constitutionally fatal for Kentucky's bond taxing scheme. On the other hand, if the Court does apply an analysis similar to United Haulers in Davis , this suggests that Kentucky's taxing scheme would be constitutionally permissible. Policy concerns, such as a desire to not upset the state bond market and the expectations of bond purchasers, could provide additional justifications for the Court to find the taxing scheme to be constitutional. Congress's authority under the Commerce Clause has been described as plenary and limited only by other constitutional provisions. Congress may, therefore, regulate by expressly authorizing the states to take an action that would otherwise be an unconstitutional burden on interstate commerce. Thus, if the Court were to hold that Kentucky's taxing scheme violates the dormant Commerce Clause, it appears Congress could authorize such tax treatment so long as it did not violate any other constitutional provision. | Most states exempt from state income taxes the interest earned on bonds issued by that particular state and its political subdivisions, while taxing the interest earned on bonds issued by other states and their political subdivisions. Some argue that these state tax schemes violate the Commerce Clause by discriminating against out-of-state bonds. Courts in two states have examined this issue. On November 5, 2007, the U.S. Supreme Court heard oral arguments in one of these cases, Department of Revenue of Kentucky v. Davis. |
T he major federal securities laws that form the basis for the regulation of securities in the United States were enacted in the wake of the stock market crash of 1929. These acts include the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment Company Act of 1940, and the Investment Advisers Act of 1940. Other important securities acts were passed late in the 20 th century and early in the 21 st century. These acts include the Insider Trading Sanctions Act of 1984, the Insider Trading and Securities Fraud Enforcement Act of 1988, the Private Securities Litigation Reform Act of 1995, the Securities Litigation Uniform Standards Act of 1998, the Sarbanes-Oxley Act of 2002, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank), the Stop Trading on Congressional Knowledge (STOCK) Act of 2012, and the Jumpstart Our Business Startups (JOBS) Act of 2012. The Securities Act of 1933 makes it illegal to offer or sell securities to the public unless they have been registered with the Securities and Exchange Commission (SEC or Commission). A registration statement becomes effective twenty days after it is filed with the commission, unless it is delayed or suspended. Registration under the 1933 Act covers only the securities actually being offered and only for the purposes of the offering in the registration statement. The registration statement consists of two parts: the prospectus, which must be provided to every purchaser of the securities, and Part II, which contains information and exhibits which do not have to be provided to purchasers but which are available for inspection. Section 7 of the 1933 Act, referring to Schedule A, sets forth the information which must be contained in the registration statement. This schedule requires a great deal of information, such as the underwriters, the specific type of business, significant shareholders, debt and assets of the company, and opinions as to the legality of the issue. Section 10(a) of the 1933 Act specifies the information which the prospectus must contain. There are also numerous regulations issued by the commission which provide further details about the registration process under the 1933 Act. Certain transactions and securities are exempted from the registration process. The exempted transactions include private placements, intrastate offerings, and small offerings. Among the exempted securities are government securities, bank securities, and short-term commercial paper, all securities for which it is believed that other, adequate means of government regulation exist. The Securities Exchange Act of 1934 is concerned with many different areas, one of which is the ongoing process of disclosure to the investing public through the filing of periodic and updated reports with the commission. Any issuer which has a class of securities traded on a national securities exchange or, in certain circumstances, has total assets exceeding $10,000,000 and a class of equity securities held of record by 2,000 shareholders or 500 shareholders who are not accredited investors must register under the 1934 Act with the SEC. Every issuer which must register under the 1934 Act must file periodic and other reports with the SEC. Section 12 requires the filing of a detailed statement about the company when the company first registers under the 1934 Act. Section 13 requires a registered company to file annual and quarterly reports with the SEC. These reports must contain essentially all material information, financial and otherwise, about the company which the investing public would need in making a decision about whether to invest in the company. Section 14 contains information about proxy solicitation. Some exemptions from these reporting requirements are provided. The commission has issued extensive regulations to specify information which these reports must provide. Failure to disclose material information is actionable. For example, Section 18(a) of the Securities Exchange Act grants an express private right of action to investors who have been injured by reliance upon material misstatements or omissions of facts in reports which have been filed with the SEC. Section 10(b) of the 1934 Act, the general antifraud provision, and Rule 10b-5, issued by the SEC to carry out the statutory fraud prohibition, provide for a cause of action for injuries which have been caused by omissions, misrepresentations, or manipulations of material facts in statements other than those filed in documents with the SEC. The Investment Company Act of 1940 was enacted to protect investors who use others to manage and diversify their investments. An investment company that meets the statutory definition of "investment company" and that is not exempted from the act must register with the SEC and file specified information. Unless the investment company complies with the provisions of the act, it cannot participate in certain activities involving securities. Various affiliations and interests of directors, officers, and employees of investment companies are circumscribed. For example, an investment company cannot have a board of directors with more than 60% of the members considered interested persons of the company. Registered investment companies must file specified reports and financial statements. The Investment Advisers Act of 1940 defines an investment adviser as any person who for compensation advises others as to the value of securities or as to the advisability of investing in, purchasing, or selling securities or who for compensation analyzes securities. Unless registered with the SEC, it is unlawful for any investment adviser to make use of the mails or any means or instrumentality of interstate commerce in connection with his business as an investment adviser. An investment adviser may be registered by filing specified information with the SEC. The Insider Trading Sanctions Act of 1984 was enacted because of the belief that [i]nsider trading threatens ... markets by undermining the public's expectations of honest and fair securities markets where all participants play by the same rules. This legislation provides increased sanctions against insider trading in order to increase deterrence of violations. "Insider trading" is the term used to refer to trading in the securities markets while in possession of "material" information (generally, information that would be important to an investor in making a decision to buy or sell a security) that is not available to the general public. The act provides that, if the commission believes that any person has bought or sold a security while in possession of material nonpublic information, the commission may bring an action in U.S. district court to seek a civil penalty. The penalty may be up to three times the profit gained or loss avoided. After a number of hearings and considerable debate in the 100 th Congress, the President signed the Insider Trading and Securities Fraud Enforcement Act of 1988 ( P.L. 100-704 ). This act expanded the scope of civil penalties to control persons who fail to take adequate steps to prevent insider trading; increased the maximum jail terms for criminal securities law violations and maximum criminal fines for individuals and for corporate persons; initiated a bounty program giving the SEC discretion to reward informants who provide assistance to the agency; and required broker-dealers and investment advisers to establish and enforce written policies reasonably designed to prevent the misuse of inside information. The Private Securities Litigation Reform Act of 1995 was enacted to address the perceived problem of an increase in frivolous shareholder lawsuits. The stated reasons for bringing these lawsuits were varied—fraud, mismanagement, nondisclosure of material information—but practically all of the lawsuits involved the loss of money by shareholders of the corporation. Some of the lawsuits had merit because some corporate managers had, according to proponents, misled or defrauded investors. However, some of the lawsuits were deemed frivolous and were brought when, for example, the share value of the stock of a corporation went down for reasons having nothing to do with the culpability of corporate managers. The act limits shareholder lawsuits in federal courts by such actions as having the court appoint a lead plaintiff determined to be the most capable of adequately representing the interests of class members, prohibiting a person from being a lead plaintiff in any more than five class actions in a three-year period, guaranteeing that plaintiffs receive full disclosure of settlement terms, providing a safe harbor for forward-looking statements, providing for proportionate liability, and providing for auditor disclosure of corporate fraud. The Securities Litigation Uniform Standards Act of 1998 (SLUSA) was enacted in response to the perceived failure of the Private Securities Litigation Reform Act of 1995 (PSLRA) to curb alleged abuses of securities fraud litigation. PSLRA had set out a framework for bringing securities fraud cases in federal courts. In many instances, plaintiffs circumvented PSLRA by bringing cases in state courts on the basis of common law fraud or other non-federal claims. SLUSA attempted to make certain that plaintiffs could not avoid the PSLRA requirements by allowing a securities fraud case to be brought only in a federal court and only under a uniform standard if five criteria are satisfied: (1) The lawsuit is a covered class action; (2) The claim is based on state statutory or common law; (3) The claim concerns a covered security; (4) The plaintiff alleges a misrepresentation or omission of a material fact; and (5) The misrepresentation or omission is made in connection with the purchase or sale of a covered security. The Sarbanes-Oxley Act of 2002 had its genesis early in 2002 after the declared bankruptcy of the Enron Corporation, but for some time it appeared as though its impetus had slowed. However, when the WorldCom scandal became known in late June 2002, Congress showed renewed interest in enacting stiffer corporate responsibility legislation, and Sarbanes-Oxley quickly became law. The act establishes a Public Company Accounting Oversight Board, which is supervised by the SEC. The act restricts accounting firms from performing a number of other services for the companies that they audit. The act also requires additional disclosures for public companies and the officers and directors of those companies. Among the other issues affected by Sarbanes-Oxley are securities fraud, internal assessment of management controls of the covered corporation, criminal and civil penalties for violating the securities laws and other laws, blackouts for insider trades of pension fund shares, and protections for corporate whistleblowers. Dodd-Frank, passed in response to the financial downturn in the early part of the 21 st century, effected the most significant changes to financial regulation since laws enacted in response to the Great Depression of 1929. Although making changes to practically all of the financial regulatory agencies, Dodd-Frank affected the securities industry in a number of specific ways. Title VII of Dodd-Frank concerns the regulation of the over-the-counter swaps markets and sets out general jurisdictional parameters for the Commodity Futures Trading Commission (CFTC) and the SEC. The title requires the CFTC and the SEC to consult with each other in issuing regulations to fill in the details of their jurisdiction in regulating the various kinds of swaps. Title IX, "Investor Protections and Improvements in the Regulation of Securities," sets out new powers of the SEC. In an attempt to increase investor influence, Title IX creates an Office of the Investor Advocate and a whistleblower bounty program for persons who disclose securities fraud. Title IX has a number of other provisions aimed at increasing investor protection, such as expanding the regulation of credit rating agencies, requiring public corporations to submit executive compensation packages to shareholders for nonbinding votes, setting out requirements for the submission of proxy solicitation materials for nominating members to corporate boards, and establishing a Public Company Accounting Oversight Board to oversee public accounting firms. In the miscellaneous provisions of Title XV, Dodd-Frank requires the SEC to issue rules involving the disclosure by publicly traded companies of various minerals originating near the Democratic Republic of the Congo that are benefiting armed groups in the area. The STOCK Act amends various titles of the U.S. Code, such as titles 5, 7, and 15, to prohibit Members of Congress and employees of Congress from trading stocks based on inside information that they have received as a result of their congressional duties and positions. For example, Section 4 of the STOCK Act amends 15 U.S.C. § 78u-1 to prohibit insider trading by these persons and states that '[t]he purpose of the amendment made by this subsection is to affirm a duty arising from a relationship of trust and confidence owed by each Member of Congress and each employee of Congress." The JOBS Act is intended to encourage the funding of small businesses and startups by easing various securities reporting requirements. Among its seven titles, Title I, concerning emerging growth companies, and Title III, concerning crowdfunding, may be of special note. An emerging growth company, defined to apply to a company with total annual gross revenues of less than $1 billion, is allowed to phase in various SEC regulations over a period of time and may confidentially submit to the SEC a draft registration statement for nonpublic review prior to public filing. Title III exempts certain companies from the 1933 Securities Act's registration requirements if various requirements are met (e.g., the aggregate amount of securities sold to all investors during a 12-month period does not exceed $1 million; the aggregate amount of securities sold to any investor during a 12-month period cannot exceed the greater of $2,000 or 5% of the annual income or net worth of the investor if either the annual income or net worth is less than $100,000 or, if more than $100,000, the greater of 10% of the annual income or net worth of the investor, not to exceed a maximum aggregate amount of $100,000; and the transaction must be sold through a funding portal, such as a website. | This report discusses in a very general way the major federal securities laws. The major federal securities laws may be grouped into two categories according to the time of their passage: the acts passed in the wake of the stock market crash of 1929 and the acts passed later in the 20th century and early in the 21st century. The acts in the first group include the most important of the federal securities acts: the Securities Act of 1933, which concerns the initial registration of securities, and the Securities Exchange Act of 1934, which requires ongoing disclosure reports. The acts in the second group include laws which specifically prohibit insider trading, restrict the bringing of shareholder derivative suits, and require additional reporting by officers and directors. This report will be updated as warranted. |