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T he U.S. Food and Drug Administration (FDA) has a statutory mission to ensure the safety of all food except for meat, poultry, and certain egg products over which the U.S. Department of Agriculture (USDA) has regulatory oversight. Under the Federal Food, Drug, and Cosmetic Act (FFDCA), the FDA has the authority to regulate the manufacturing, processing, and labeling of food, with the primary goal of promoting food safety. Congress has vested the FDA with the authority to take both administrative and judicial enforcement actions. The agency initiates and carries out administrative enforcement actions while judicial enforcement actions, including seizures and injunctions, require some type of involvement by the federal courts. While the FDA gathers information to recommend a judicial enforcement action, the Department of Justice represents the FDA before a federal court. This report focuses on the statutory authority for both the FDA and federal courts to initiate the following judicial enforcement actions: injunctions, seizures, and criminal prosecution. For more information about FDA administrative enforcement actions, see CRS Report R43794, Food Recalls and Other FDA Administrative Enforcement Actions , by [author name scrubbed]. Section 301 of the FFDCA prohibits the violation of any of the substantive provisions of the act and serves as the basis for the FDA's enforcement actions. Under Section 301, "causing" any of the prohibited acts as well as the act itself is prohibited. The specific enforcement mechanisms available to the agency to enforce the FFDCA are found throughout the act. Section 310(a) states that "all proceedings for the enforcement, or to restrain violations, of this [act] shall be by and in the name of the United States." Thus, private citizens do not have the right to sue to enforce the FFDCA. While the FDA may initiate these enforcement actions, the Department of Justice represents the FDA and the federal government in judicial enforcement proceedings. An injunction is a civil judicial order initiated against an industry participant to stop or prevent a violation of the FFDCA and to halt the flow of violative products in interstate commerce. An injunction also provides an opportunity for the involved parties to correct the conditions that triggered the violation before the FDA takes additional enforcement action. The FFDCA grants federal district courts with the jurisdiction to issue such an order. This section of the report first discusses types of injunctions available to the FDA and then describes the process for filing an injunction by the FDA. The section concludes by examining the legal standard considered by courts for initiating an injunction. The FDA can initiate three types of injunctions: a temporary restraining order, a preliminary injunction, and a permanent injunction. The FDA uses a temporary restraining order (TRO) to respond to an emergency situation where immediate, temporary relief is needed, such as responding to the presence of a public health threat, which the FDA must immediately control. A TRO generally lasts for 10 days, with a possible additional 10-day extension before the FDA must seek additional enforcement action if necessary. A request for a TRO filed in court by the FDA may be subject to an ex parte hearing (where the defendant is not present). Upon gathering evidence in support of a TRO, the FDA should file the request for a TRO within 60 days. As a general rule of practice, a court considers evidence older than 60 days to be "untimely" and insufficient to support a TRO request. A preliminary injunction is a court order that temporarily requires the industry participant to stop the allegedly violative behavior prior to the final determination of the merits of a legal claim. A preliminary injunction filed by the FDA may be subject to a full hearing where the parties present evidence by affidavit or by the testimony of witnesses. A permanent injunction is a final order of the court requiring the industry participant to stop the violative behavior. A federal district court generally issues a permanent injunction following a hearing where the court found that the industry participant violated provisions of the FFDCA and there is a likelihood that the violations would continue without judicial intervention. Defendants in an injunction proceeding and the government may also agree to a "Consent Decree of Permanent Injunction" as the result of a negotiated settlement. Under the consent decree, the industry participant and the government agree to terms relating to the resolution of the past violative conduct by the industry participant. The FDA, in partnership with the Department of Justice, first files a complaint for an injunction after the FDA has presented "timely evidence" of an FFDCA violation. Timely evidence includes the agency's identification of a health hazard or a gross consumer deception that requires immediate action to stop the violative practice. The agency may also seek an injunction if significant amounts of violative products owned by the same industry participant have entered interstate commerce or if an industry participant has refused a voluntary recall or has issued an inadequate recall. The agency may also choose to file for an injunction if a seizure is impractical or uneconomical. However, filing for an injunction does not preclude further enforcement action by the FDA such as a recall or criminal prosecution. The FDA can strengthen its request for an injunction action in the complaint by demonstrating that the agency provided the defendants with adequate notice of the alleged violation(s) and an opportunity to correct the alleged violation(s). While prior notice is not legally required, such information can demonstrate the defendant's resistance to FFDCA compliance to a court, and thus support the agency's request for judicial involvement with an injunction. Types of notice may include letters, meetings, and telephone calls. Notice is adequate if it is given to individuals with authority to prevent or correct violations and includes sufficient information to show that the proper action to correct these violations has not yet been taken. Courts have found that corporate officers as well as the corporate entity itself may be subject to FDA enforcement actions, including an injunction. The Supreme Court has stated that "the public interest in the purity of its food is so great as to warrant the imposition of the highest standard of care on distributors." Because corporate agents and corporate entities both have the ability to inform themselves of the conditions of their facilities, the FDA has the authority to seek relief against executives as well as legal corporate entities. Thus, in order to successfully state a claim against individual defendants for the purposes of an injunction, the government must allege that the individuals had responsible relationships related to the furtherance of the transactions that ultimately violated the FFDCA. Pursuing enforcement action against an agent or corporation does not preclude additional enforcement action against the other. The court in U.S. v. Blue Ribbon Smoked Fish, Inc. found that the injunction against the corporate entity did not preclude an injunction against the agents of that entity due to the agents' supervisory and managerial roles over the food processing and the corresponding responsibility for the sanitation of the plant. The FFDCA expressly authorizes federal district courts to grant injunctive relief to enforce its provisions. After the FDA and the DOJ have filed a complaint requesting an injunction, the court will determine whether the government's complaint meets the legal standard for an injunction. The standard for a statutory injunction initiated by the government, however, differs from the injunction standard for private litigants. A private litigant must establish that he or she is likely to succeed on the merits; that he or she is likely to suffer irreparable harm in the absence of preliminary relief; that the balance of equities weighs in favor of the party seeking the injunction; and that the injunction is in the public interest. The government, however, does not need to prove irreparable harm, as courts presume harm is present when a statutory violation has occurred. In order for the court to make such a presumption, the purpose of the statute at issue must focus on protecting public interest, such as food safety. The elevated standard of care that food processors must meet that is inherent in the FFDCA justifies this difference in legal standards. In order for the court to issue an injunction, the government must show that the defendant has violated the FFDCA and "some cognizable danger of recurrent violation" of the statute is present. When evaluating the risk of recurrent violations, courts may infer a likelihood of future violations from past unlawful conduct. More specifically, courts may consider "the bona fides of the expressed intent to comply, the effectiveness of the discontinuance and, in some cases, the character of past violations" to determine whether the defendant would continue to violate the FFDCA. For example, the court in U.S. v. Chung's Products found a danger of recurrent violations when the defendant refused to provide information about the conditions and records of a facility, impeded entry of FDA investigators, and repeatedly failed to put in place the FFDCA required controls for C. botulinum. This record of noncompliance, according to the court, showed a "cognizable danger of future violations necessitating a permanent injunction." The scope of the injunction depends on the specific legal violations. A court may adjust the scope of the injunction depending on the likelihood that future violations may occur and whether the injunction can prevent these recurring violations. The court in U.S. v. N.Y. Fish, Inc. found multiple FFDCA violations by the defendants and the absence of any credible actions by the defendants to remedy even the most serious of the violations. While the court acknowledged that an injunction where the defendant has already taken remedial measures is overbroad and unnecessary, the court found that a broad injunction was appropriate in this case because of the inaction by the defendants and the likelihood that alleged violations would continue. Courts generally find the possibility that an injunction may put a party out of business as irrelevant with regards to determining the necessity and scope of an injunction. In U.S. v. Blue Ribbon Smoked Fish, the defendant-corporate agents opposed the substance of the government's proposed permanent injunction, arguing that the injunction would force the company out of business. The court, however, disagreed, stating that the injunction would not require the defendant company, Blue Ribbon, to stop processing food altogether, but to stop processing food "that is or has become adulterated." After the court has issued the order for an injunction, the FDA monitors the injunction throughout the entire term of such injunction. The agency may seek civil or criminal contempt of court or other regulatory action if the industry participant violates the injunction. Under Section 304(a)(1) of the FFDCA, the government may seize an article of food in interstate commerce that is adulterated or misbranded. A seizure is a civil action used by the federal government when the removal of adulterated or misbranded goods from interstate commerce is necessary to reduce consumer accessibility to those goods in order to protect public health. The seizure must occur when the goods are in interstate commerce or held for sale after shipment in interstate commerce. The FFDCA broadly defines interstate commerce as "commerce between any State or Territory and any place outside thereof." Goods destined for sale in a state other than the place from which they are shipped qualify as goods in "interstate commerce," even though they may not have yet physically crossed a boundary. In this context, courts have also interpreted "interstate commerce" to mean imported foods held at a port of entry into the United States. Generally, a seizure includes two steps: the U.S. government's physical seizure of the adulterated or misbranded articles of food followed by the judicial condemnation proceeding. The U.S. district court where the article is found has jurisdiction over the seizure proceeding. After a hearing on a seizure action, a district court may decree the "condemnation" of seized articles of food and order the destruction, sale, reconditioning, or export of such food. The FFDCA prohibits multiple proceedings, including seizure actions, against an article of food based upon the same alleged misbranding, except when the FDA has probable cause to believe that the misbranded article is dangerous to health, exhibits fraudulent labeling, or is materially misleading causing injury to the consumer or purchaser. Section 304 does not prohibit multiple seizures of adulterated articles of food. This section of the report first describes the types of seizures conducted by the federal government and the condemnation proceedings the federal government must follow when conducting a seizure. The section then examines the legal standard for condemning seized goods. The section concludes by analyzing the due process issues related to seizure proceedings. The FDA classifies seizures according to various types to facilitate its administration of this enforcement action by tracking seizures by size. These classifications do not carry a specific legal status. A "lot seizure" affects one lot of an adulterated or misbranded product that can be found in a single location. "Multiple seizures" involve more than one action to seize goods located in different jurisdictions. Multiple seizures seek to prevent industry participants from shipping adulterated or misbranded products from different facilities. "Mass seizures" affect a warehouse full of adulterated or misbranded products found at one location. A seizure extends to the article of food and the product labeling as well. However, a seizure does not include the promotional materials for an illegal product unless they "accompany" the product in interstate commerce. In this context, these accompanying materials qualify as labeling and may be seized. An administrative detention may precede a seizure action. The FDA may order the detention of any article of food found during an inspection, examination, or investigation, that the agency has reason to believe is adulterated or misbranded. Such an order may be necessary before a court can issue a seizure action. The FDA initiates the seizure by filing a Complaint for Forfeiture in federal district court. The complaint names the United States as the plaintiff and the goods as the defendant. The federal district court then issues a warrant for the arrest (seizure) of the article of food through in rem jurisdiction. Pursuant to the arrest warrant, a U.S. Marshal then seizes the violative goods and takes them into custody. The U.S. Marshall may physically remove the goods from the industry participant's warehouse or may sequester the goods from inventory in such a way to ensure that the goods subject to the seizure are separated from the rest of the inventory. Neither the industry participant nor the courts are involved in the seizure process until the FDA files a complaint for forfeiture. The industry participant/owner may then intervene as a party in the case. Following a seizure by the government, the owner/potential claimant has three options: (1) do not claim the seized articles; (2) file a claim to the articles and enter into a Consent Decree with the government, admitting the violation and agreeing to pay costs and to destroy or rehabilitate the articles of food; or (3) file a claim to the articles and contest the action by filing an answer to the complaint. At the hearing, the court decides whether the government has proven the allegations in the complaint. If the court finds that the government has successfully met the legal standard, the court orders the condemnation of the food. If the court finds that the government has not met the legal standard, the court will release the goods from seizure. The government must prove by the preponderance of the evidence that the articles seized were food that travelled in interstate commerce and that this food was adulterated or misbranded when introduced into, while in, or while held for sale after shipment in interstate commerce. The government may use warning letters sent to the owner, expert testimony, and samples collected during inspections as evidence. If the owner chooses to argue against the seizure, the owner of the seized articles must show that the articles were improperly subject to seizure because the product is not adulterated or misbranded as defined by the FFDCA. If an owner has not claimed the goods, the court will issue condemnation by default. If there are two or more seizure proceedings involving the same claimant on the same issues of adulteration or misbranding outstanding at the same time, the claimant may apply to the court to consolidate the proceedings in a district court selected by the claimant where one such proceeding is pending or in a district court agreed upon between the parties. A claimant may also follow the procedures outlined in FFDCA's Section 304(b) to consolidate the proceedings in "a district of reasonable proximity to the claimant's principal place of business." After the appropriate proceedings, the court will enter a decree that determines the disposition of the goods. If the owner/claimant did not appear before the court, the government then moves for condemnation under a default decree. Such an order directs the U.S. Marshall to dispose of the article of food in the following manner: constructive destruction, sale, conversion, or destruction. Constructive destruction involves using the article for another purpose, such as donating misbranded food to a charity. The U.S. Marshall may sell the goods, if legally permissible, to recover the costs of the seizure, or may convert the goods to another use, such as for animal food. The government may also destroy the article of food by burning, burial, or dumping, in accordance with other relevant laws, such as the National Environmental Policy Act. If the owner filed a claim to the article of food, the owner may then agree to the entry of a Consent Decree, which would provide for the sale, destruction, or reconditioning of the article, as dictated by the court and agreed to by the federal government. A consent decree generally includes a statement of the condemnation of the article, provision for payment of storage and handling costs accrued by the U.S. Marshal, and a provision that the claimant will bring the article into compliance with the FFDCA under the supervision and to the satisfaction of the FDA. Under the decree, the owner who claims the goods is required to post a penal bond to the court at twice the retail value of the goods seized. The penal bond ensures that the owner complies with the conditions of the decree, as the owner must forfeit the penal bond if the terms and conditions of the decree are not kept. The owner must then destroy, recondition, or sell the article as dictated by the terms of the decree. Available methods of destruction include those followed by the U.S. Marshall as described in the previous paragraph. Reconditioning (such as through reprocessing or relabeling) must bring the article of food into compliance with FFDCA provisions, under FDA supervision. Courts generally defer to the FDA's discretion regarding the supervision of reconditioning plans. The owner bears the cost of bringing such article in compliance. When the court orders the sale of the goods, the owner must pay all money collected during a sale (less legal fees, costs, and charges) into the U.S. Treasury. If the article was imported into the United States, the owner may export the article in lieu of destruction. To obtain a consent decree permitting export, the owner must show that the adulteration, misbranding, or FFDCA violation did not occur after the article was imported into the United States, and that he or she had no cause to believe that it was adulterated, misbranded, or in violation before it was released from customs custody. The owner must also meet the export provisions of the FFDCA and show that the product is within the specifications of the foreign country purchaser and must label the shipping package of the goods "FOR EXPORT ONLY." The owner cannot sell these products domestically. Exportation is not available for articles of food condemned for being poisonous or a deleterious substance injurious to health. The FDA may initiate expedited seizure procedures for perishable food. The FDA regulations define "perishable food" to include food that is not heat-treated, not frozen, and not otherwise preserved in a manner so as to prevent the quality of the food from being adversely affected if held longer than seven calendar days under normal shipping and storage conditions. Under such expedited procedures, the FDA must send the seizure recommendation to the Department of Justice within four calendar days after the agency has issued the detention order. The government generally then follows similar procedures to those described in the previous sections. Throughout the condemnation proceedings, the FDA must act within Due Process restrictions. Under this constitutional provision, the federal government must provide an industry participant with "fair procedures" before depriving the participant of "life, liberty, or property." Courts generally view due process restrictions narrowly in this context due to the public health and safety goal of FDA enforcement. A hearing immediately following the seizure generally has been found to preserve the claimant's due process rights, as long as the owner has an opportunity to present his views before the final order has been issued. At least one court has held that courts do not need to provide the owner with notice and a hearing prior to the seizure of his or her property. The FDA's Office of Criminal Investigations conducts and coordinates criminal investigations and prosecutions against individuals and corporations for violations of the FFDCA. Potential defendants of a criminal prosecution are strictly liable for these violations. Ignorance of the violation, a lack of intent to commit the violative act, or the absence of personal involvement are not defenses against FFDCA violations under the strict liability standard. This section of the report highlights two aspects of the criminal investigation process of particular relevance to FDA enforcement and food safety. The section first examines the FFDCA's Section 305 hearings, a prerequisite to any criminal proceeding. The section then analyzes the Supreme Court's Park doctrine, which grants the government the ability to prosecute both corporations and corporate officials. The section concludes with a brief discussion on statutory penalties. Before the government institutes a criminal proceeding against a person, Section 305 of the FFDCA requires the government to provide that person with notice and an opportunity for a hearing. At the hearing, he or she may present his or her reasons why the FDA should not recommend criminal prosecution to the Department of Justice. The FDA does not need to provide notice and a hearing if the agency believes that such notice would result in the alteration or destruction of evidence or the flight of the prospective defendant to avoid prosecution. A person who has received such notice of a hearing is not legally obligated to appear or answer in any manner. The FDA may criminally prosecute corporations as well as corporate officials for FFDCA violations. When prosecuting an FFDCA violation, the government does not need to prove awareness of the wrongdoing--the conventional requirement for criminal conduct. In the 1975 case U.S. v. Park, the Supreme Court found that a district court's jury instructions appropriately focused on the issue of the defendant's authority over the unsanitary conditions that led to the alleged violations. The defendant, Park, was the chief executive officer (CEO) of Acme Markets Inc. The government charged both the corporation and the defendant with violating the FFDCA. While the corporation pled guilty to the allegations of violating FFDCA's adulteration provisions, the defendant, Park, pleaded not guilty. The district court instructed the jury that in order to find the defendant guilty, he must have had "a responsible relationship to the issue." The Court of Appeals reversed the district court's conviction, finding that the court's instructions may have left the jury with the erroneous impression that the defendant could be found guilty in the absence of "wrongful action" on his part. The Supreme Court reversed the Court of Appeals' decision, finding that the FFDCA imposes upon persons with supervisory authority the responsibility to seek out and remedy violations and to prevent such violations. According to the Court, the government does not need to show that the official had awareness of the criminal conduct due to the public safety context of the FFDCA. The Court justified this interpretation by emphasizing that the corporate official has the ability and opportunity to correct and prevent such violations while the public may not. Thus, under the Park doctrine, a responsible corporate official can be held liable for a first-time misdemeanor under the FFDCA without proof that the corporate official acted with intent or even negligence. Such corporate official does not need to have any actual knowledge of, or participation in, the specific offense to be held liable under this doctrine. The FDA claims that this doctrine has a strong deterrent effect for defendants and other regulated entities. When considering whether to pursue a Park doctrine prosecution against a corporate official, the FDA examines the individual's position in the company and his or her relationship to the violation. The FDA also considers whether the corporate official had the authority to prevent the violation. The Court in Park found that the failure to fulfill this duty imposed by the FFDCA and the position of authority provides a "sufficient causal link" for criminal prosecution and culpability. Section 303 of the FFDCA outlines various penalties to which a person may be subject for FFDCA violations. If a person commits a prohibited act listed under Section 301, then the person will be subject to a penalty of imprisonment for one year or less or fined $1,000 or less or both. If a person commits a violation of Section 301 with the intent to defraud or mislead, then the penalty is raised to imprisonment for three years or less or fine of $10,000 or less or both. However, these statutory penalties do not preclude other fines or payments imposed as a result of a settlement or consent decree. According to the FFDCA, a person shall not be subject to these penalties in certain cases of good faith. The FFDCA also states that a person shall not be subject to these penalties if the violation involved the misbranding of food due to its advertising. Food safety and oversight, including enforcement actions such as those described above, are of a continual interest to Congress. Two bills ( H.R. 609 and S. 287 ) introduced in the 114 th Congress proposing the restructuring of federal oversight of food would impact the federal government's enforcement of various food safety issues. H.R. 609 / S. 287 , known as the Safe Food Act of 2015, would create a single agency that administers and enforces food safety laws and oversees the implementation of federal food safety inspections, labeling requirements, enforcement, and research efforts. Under the proposed bills, related food safety agencies, currently within the jurisdiction of the Department of Agriculture, Department of Commerce, and the FDA, would transfer certain responsibilities to this proposed agency. The bills would also grant the new food safety agency several enforcement authorities, including mandatory recall authority. Under the proposed food safety framework, the administrator of the food safety agency would have the authority to impose both civil and criminal penalties of not more than $10,000 for both civil and criminal provisions and not more than a year of prison for criminal violations. However, the administrator would have the discretion to increase the penalty for severe criminal violations. The bills would permit a person, who has been assessed a civil penalty, to petition for judicial review of the order.

The U.S. Food and Drug Administration (FDA) has a statutory mission to ensure the safety of all food except for meat, poultry, and certain egg products over which the U.S. Department of Agriculture (USDA) has regulatory oversight. Under the Federal Food, Drug, and Cosmetic Act (FFDCA), the FDA has the authority to regulate the manufacturing, processing, and labeling of food, with the primary goal of promoting food safety. Congress has vested the FDA with the authority to take both administrative and judicial enforcement actions. The agency initiates and carries out administrative enforcement actions while judicial enforcement actions, including seizures and injunctions, require some type of involvement by the federal courts. While the FDA gathers information to recommend a judicial enforcement action, the Department of Justice represents the FDA before a federal court. This report focuses on the statutory authority for both the FDA and federal courts to initiate the following judicial enforcement actions: injunctions, seizures, and criminal prosecution. For more information about FDA's administrative enforcement actions, see CRS Report R43794, Food Recalls and Other FDA Administrative Enforcement Actions, by [author name scrubbed]. Injunctions: An injunction is a civil judicial order initiated against an industry participant to stop or prevent a violation of the FFDCA and to halt the flow of violative products in interstate commerce. An injunction also provides an opportunity for the industry participant to correct the conditions that triggered the violation before the FDA takes additional enforcement action. The FFDCA grants federal district courts with the jurisdiction to issue such an order. Unlike the legal standard for injunctions for private litigants, the government does not need to prove irreparable harm for a court to grant an injunction. Seizure: The government may seize an article of food that is adulterated or misbranded in interstate commerce. A seizure is a civil action used by the federal government when the removal of adulterated or misbranded goods from interstate commerce is necessary to reduce consumer accessibility to those goods. The government proceeds by filing a Complaint for Forfeiture and obtaining a warrant for the arrest directing the U.S. Marshal to seize the article of food. Criminal Prosecution: The FDA's Office of Criminal Investigations conducts and coordinates criminal investigations and prosecutions for violations of the FFDCA. Potential defendants of a criminal prosecution are strictly liable for violations of the act. The government grants potential defendants notice and a hearing before proceeding with any criminal investigations. The government may prosecute both corporations and corporate officials for violations of the FFDCA under the Park doctrine, which grants the government the ability to prosecute both corporations and corporate officials. The FFDCA also outlines various penalties for persons and/or companies found guilty of violations of the act. Food safety and oversight, including enforcement actions such as those described above, are of a continual interest to Congress. H.R. 609 and S. 287, introduced in the 114th Congress, propose restructuring federal oversight of food safety and would impact the federal government's enforcement of various food safety issues.

In both the 110 th and the 111 th Congresses, the U.S. House of Representatives received a referral from the Judicial Conference of the United States reflecting its determination, after completion of the statutory federal judicial discipline process, that consideration of impeachment might be warranted with respect to a federal judge. On June 19, 2008, the Speaker of the House of Representatives received a referral regarding U.S. District Court Judge G. Thomas Porteous Jr. of the Eastern District of Louisiana. The House began its impeachment investigation of Judge Porteous in the 110 th Congress, but did not complete it before the end of that Congress. The matter was taken up again in the 111 th Congress. On March 11, 2010, the House impeached Judge Porteous for, among other things, accepting kickbacks, soliciting favors, falsifying bankruptcy documents, and knowingly making false statements about his past in order to obtain a federal judgeship. The Senate convicted him on all four articles of impeachment later that year. On June 10, 2009, the Speaker of the House received a referral regarding U.S. District Court Judge Samuel B. Kent of the Southern District of Texas. Judge Kent was impeached by the House of Representatives. His Senate impeachment trial was dismissed after he resigned from office and the House indicated that it did not wish to pursue the matter further. This report will discuss the present statutory structure governing complaints against federal judges, and judicial discipline where appropriate. The statutory framework stems from the Judicial Improvements Act of 2002, P.L. 107-273 , Div. C, Title I, Subtitle C, 116 Stat 1856 (Nov. 2, 2002), 28 U.S.C. SSSS351-364. It replaced judicial discipline procedures in the Judicial Conduct and Disability Act of 1980, as amended, codified at the former 28 U.S.C. SS 372(c). The current statutory procedures are applicable to complaints against federal circuit judges, district judges, bankruptcy judges, and magistrate judges. They are not applicable to Justices of the U.S. Supreme Court. In addition, the U.S. Court of Federal Claims, the Court of International Trade, and the Court of Appeals for the Federal Circuit are each required to prescribe rules, consistent with the provisions in 28 U.S.C. SSSS 351-364, establishing procedures for the filing of complaints with respect to the conduct of judges of those courts, for investigation of such complaints, and for taking appropriate action with respect to them. In investigating and taking action regarding complaints brought against their respective judges, each of these three courts has the powers granted to a judicial council in dealing with federal circuit judges, district judges, bankruptcy judges, or magistrate judges. The judicial discipline process under 28 U.S.C. SSSS 351-364 is initiated by the filing of a complaint by any person, alleging that a judge has engaged in conduct "prejudicial to the effective and expeditious administration of the business of the courts, or alleging that such judge is unable to discharge all the duties of the office by reason of mental or physical disability." A written complaint containing a brief statement of the pertinent facts is filed with the clerk of the court for the circuit within which the judge sits. Alternatively, the chief judge of the circuit, in the interests of effective and expeditious administration of the business of the courts and based on information available to him or her, may identify a complaint by written order stating the reasons for the complaint. The clerk of the court receiving a written complaint promptly transmits that complaint to the chief judge of the circuit unless the complaint concerns the chief judge. In the latter circumstance, the clerk shall transmit the complaint to the circuit judge in regular service on the court who is next most senior in date of commission. That circuit judge would then carry out the responsibilities of the chief judge with respect to that complaint in all matters under this judicial discipline process. Once a complaint is filed or identified, the chief judge must review it expeditiously to determine whether appropriate corrective action has been or can be taken without the need for a formal investigation, and whether the facts stated in the complaint are either plainly untrue or incapable of establishment through investigation. The chief judge may ask the judge who is the focus of the complaint to file a written response, which is not shared with the complainant unless the judge responding authorizes its disclosure. The chief judge or his or her designee may also communicate orally or in writing with the complainant, the judge who is the focus of the complaint, or anyone else who may have pertinent information; he or she may also review any transcripts or documentary evidence. The chief judge may not make any findings of fact regarding matters reasonably in dispute. After this review, the chief judge, by written order, may dismiss the complaint if it is not in conformity with the requirements of 28 U.S.C. SS 351(a), or if he or she finds that the complaint directly relates to the merits of a decision or procedural ruling or that it is frivolous--that is, lacking sufficient evidence to raise an inference that misconduct has occurred--or that it contains allegations that are incapable of being established through investigation. The chief judge may also conclude the proceeding if he or she finds that appropriate corrective action has been taken or that action on the complaint is no longer needed because of intervening events. Copies of the written order are to be transmitted by the chief judge to the complainant and to the judge involved. The complainant or the judge involved in the complaint may petition the judicial council of the circuit seeking review of the order of the chief judge. If the petition for review is denied, that decision is final and not subject to review. The judicial council may refer a petition for review to a panel of at least five members of the judicial council, two of whom must be U.S. district judges. If the chief judge does not dismiss the complaint or conclude the proceedings under 28 U.S.C. SS 352(b), then he or she must promptly appoint himself or herself, along with equal numbers of circuit judges and district judges, to a special committee to investigate the facts and allegations in the complaint. The chief judge must also promptly certify the complaint and any other pertinent documents to each member of the special committee, and provide written notice of this action to the complainant and the judge involved. The committee must conduct such investigation as it finds necessary and then expeditiously file a comprehensive written report of its investigation with the judicial council of the circuit involved. In conducting its investigation, the special committee has full subpoena powers. The report of the committee must present both findings of the investigation and recommendations for necessary and appropriate action by the judicial council. Upon receipt of such a report, the judicial council of the circuit involved has several options available to it. It may conduct any additional investigation it deems necessary, and it may dismiss the complaint. If the complaint is not dismissed, the council shall take appropriate action to assure effective and expeditious administration of the business of the courts in the circuit, including ordering that, on a temporary basis for a time certain, no further cases be assigned to the judge whose conduct is the subject of a complaint; censuring or reprimanding the judge by means of private communication; and censuring and reprimanding the judge by means of public announcement. Like the special committee, the judicial council may exercise full subpoena powers in conducting its investigation. If the judge who is the subject of the complaint holds his or her office during good behavior, action taken by the judicial council may include certifying disability of the judge pursuant to procedures and standards under 28 U.S.C. SS 372(b); and requesting that the judge voluntarily retire, with the provision that the length of service requirements under 28 U.S.C. SS 371 shall not apply. The judicial council may not order removal from office of any judge appointed to hold office during good behavior. If the focus of the complaint is a magistrate judge, the action taken by the judicial council may include directing the chief judge of the district of the magistrate judge to take such action as the judicial council considers appropriate. Any removal of a magistrate judge by the judicial council must be in accordance with 28 U.S.C. SS 631, while any removal by the judicial council of a bankruptcy judge must be in accordance with 28 U.S.C. SS 152. The judicial council must provide immediate written notice of the action taken to the complainant and to the judge whose conduct is the subject of the complaint. The judicial council may also, in its discretion, refer any complaint under 28 U.S.C. SS 351, along with the record of any associated proceedings and its recommendations for appropriate action, to the Judicial Conference of the United States. If the judicial council determines, based on a complaint and related investigation or on other information available to the judicial council, that a judge holding office during good behavior may have engaged in conduct which might constitute one or more grounds for impeachment under Article II, Sec. 4 of the U.S. Constitution, the judicial council must promptly certify its determination, together with any complaint and a record of any associated proceedings, to the Judicial Conference of the United States. The judicial council must also promptly certify its determination, along with any complaint and a record of any associated proceedings, to the Judicial Conference if the council determines that a judge holding office during good behavior may have engaged in conduct which, in the interest of justice, is not amenable to resolution by the judicial council. If the judicial council makes a referral to the Judicial Conference of the United States, the judicial council must, unless contrary to the interests of justice, immediately provide written notice of its action to the complainant and to the judge involved. If dissatisfied with an action of the judicial council, the complainant or the judge may petition the Judicial Conference for review of that action. The Judicial Conference, or, should the conference so choose, a standing committee appointed by the Chief Justice under 28 U.S.C. SS 331 to exercise its authority under the judicial discipline process, may grant a petition filed by a complainant or a judge aggrieved by an action of the judicial council. If a petition for review is denied, that decision is final and conclusive and not subject to judicial review. Upon receipt of a referral or certification, the Judicial Conference considers any prior proceedings and engages in such further investigation as it deems appropriate. The Judicial Conference may exercise its authority under the judicial discipline provisions as a conference, or through a standing committee appointed by the Chief Justice under 28 U.S.C. SS 331. In conducting any investigation under the judicial discipline process, the Judicial Conference, or a standing committee appointed by the Chief Justice for the purpose, may exercise full subpoena power under 28 U.S.C. SS 356(b). After having reviewed the information before it, the Judicial Conference, by majority vote, may, if the complaint is not dismissed, take such action as is appropriate to assure the effective and expeditious administration of the business of the courts. This may include ordering that, on a temporary basis for a time certain, no further cases be assigned to the judge involved; censuring or reprimanding the judge by means of private communication; and reprimanding the judge by means of public communication. If the judge involved holds his or her office during good behavior, the options available to the Judicial Conference may include certifying disability of the judge under 28 U.S.C. SS 372(b); and requesting the judge voluntarily retire, with the provision that the length of service requirements under 28 U.S.C. SS 371 not apply. If the judge is a magistrate judge, the Judicial Conference may direct the chief judge of the district of the magistrate judge to take such action as the Judicial Conference deems appropriate. If the Judicial Conference concurs in the judicial council's determination that impeachable offenses may be involved, or if the Judicial Conference makes its own determination that consideration of impeachment may be warranted, the conference must certify and transmit the determination and the record of proceedings to the House of Representatives for whatever action the House considers necessary. When the Judicial Conference's determination and record of proceedings are received by the House of Representatives, the Clerk of the House must make that determination and any reasons for the determination available to the public. If a judge has been convicted of a felony under federal or state law and has exhausted all avenues of direct review of that conviction, or if the time for direct review has passed and no review has been sought, the Judicial Conference, by majority vote and without any referral or certification from the relevant judicial council under 28 U.S.C. SS 354, may transmit a determination that impeachment may be warranted, together with relevant court records, to the House of Representatives for whatever action the House deems necessary. If a judge has been convicted of a federal or state felony and has exhausted direct appeals of the conviction or if the time to seek further direct review has passed and no such review has been sought, then that judge shall not hear or decide cases unless the judicial council of the circuit in the case of federal circuit judges, district judges, bankruptcy judges, or magistrate judges; or the U.S. Court of Federal Claims, the Court of International Trade, or the Court of Appeals of the Federal Circuit, respectively, in the case of a judge of one of those courts, determines otherwise. No service of such a convicted judge, once the conviction is final and the time for appeals has expired, may be included for purposes of determining years of service under 28 U.S.C. SSSS 371(c), 377, or 178, or creditable service under 5 U.S.C., chapter 83, subchapter III, or chapter 84. No judge whose conduct is the subject of an investigation under 28 U.S.C. SSSS 351-364 may serve on a special committee under 18 U.S.C. SS 353, upon a judicial council, upon the Judicial Conference, or upon a standing committee established under 28 U.S.C. SS 331, until all proceedings relating to that investigation have been completed. Nor may anyone intervene or appear as amicus curiae in any judicial discipline proceeding before a judicial council or the Judicial Conference. Except for the public disclosure, under 28 U.S.C. SS 355, by the Clerk of the House of Representatives of a determination by the Judicial Conference in a given case that impeachment may be warranted and any reasons for that determination, all papers, documents, and records of proceedings related to judicial discipline proceedings under 28 U.S.C. SSSS 351-364 are to be kept confidential and not disclosed to any person in any proceeding unless certain criteria are met. Disclosure is permitted to the extent that (1) the judicial council of the circuit in its discretion releases a copy of a report of a special committee under 28 U.S.C. SS 353(c) to the complainant and to the judge who is the subject of the complaint; (2) the judicial council of the circuit, the Judicial Conference of the United States, or the Senate or the House by resolution, releases any such material believed necessary to an impeachment investigation or trial of a judge under article I of the Constitution; or (3) such disclosure is authorized in writing by the judge who is the subject of the complaint and by the chief judge of the circuit, the Chief Justice, or the chairman of the standing committee established under 28 U.S.C. SS 331. Each written order to implement any action on a complaint under 28 U.S.C. SS 354(a)(1)(C), which is issued by a judicial council, the Judicial Conference, or the standing committee established under 28 U.S.C. SS 331, is to be made available to the public through the clerk's office of the court of appeals for the circuit involved. Unless contrary to the interests of justice, each order must be accompanied by written reasons supporting it. The annual reports of the Director of the Administrative Office of the United States Courts provide statistical information related to the federal courts. This information, which is available online, includes the number of complaints filed against federal judges under 28 U.S.C. SSSS 351-364 and the type of disciplinary action taken. According to the 2010 Annual Report of the Director of the Administrative Office of the United States Courts , 1,448 complaints were filed in the 2010 fiscal year, down 7% from the previous year. In addition, 1,159 complaints were concluded between October 1, 2009, and September 30, 2010. However, 1,143 complaints were still pending resolution at the close of the 2010 fiscal year. As Figure 1 illustrates, the number of complaints left unresolved at the close of the fiscal year has increased every year since 2006. A single complaint can state several accusations. In the 2010 fiscal year, the allegation most commonly made against federal judges was that the federal judge in question had abused the judicial power by issuing an erroneous, delayed, or unsupported decision. As illustrated by Figure 2 , the second most common type of allegation concerned favoritism or animus toward a litigant or attorney. As shown by Figure 3 , most complaints are dismissed in full by the circuit chief judge. Complaints rarely result in the appointment of a special investigating committee and are even less likely to be referred to the Judicial Conference. No complaint was referred to the Judicial Conference in the 2010 fiscal year. The federal judicial discipline framework under 28 U.S.C. SSSS 351-364 provides a mechanism for consideration of complaints against federal circuit judges, district judges, bankruptcy judges, and magistrate judges. It does not apply to U.S. Supreme Court Justices. Nor does it apply to the U.S. Court of Federal Claims, the Court of International Trade, or the Court of Appeals for the Federal Circuit, each of which is required to prescribe rules, consistent with the provisions in 28 U.S.C. SSSS 351-364, establishing procedures for the filing of complaints with respect to the conduct of judges of that court, for investigation of such complaints, and for taking appropriate action with respect to them. The statutory structure under 28 U.S.C. SSSS 351-364 provides a means for each complaint to be explored and for disciplinary action to be taken where warranted by the facts involved. As in the recent cases of Judge G. Thomas Porteous Jr. and Judge Samuel B. Kent, where an investigation under this judicial discipline process uncovers conduct which may rise to the level of an impeachable offense, the matter may be referred by the Judicial Conference of the United States to the Speaker of the U.S. House of Representatives for the House to consider whether to pursue impeachment of the judge involved.

The current statutory structure with respect to complaints against federal judges and judicial discipline was enacted on November 2, 2002, as the Judicial Improvements Act of 2002, P.L. 107-273, 28 U.S.C. SSSS 351-364. These provisions are applicable to federal circuit judges, district judges, bankruptcy judges, and magistrate judges. They do not apply to the Justices of the U.S. Supreme Court. The U.S. Court of Federal Claims, the Court of International Trade, and the Court of Appeals for the Federal Circuit are each directed to prescribe rules consistent with these provisions to address complaints pertaining to their own judges. The procedures under 28 U.S.C. SSSS 351-364 include a complaint process, review of complaints initially by the chief judge of the circuit within which the judge in question sits, and, if appropriate, referral of the complaint to a special investigating committee, to a panel of the judicial council of the circuit involved, and, if needed, to the Judicial Conference of the United States. At any point in the process, as deemed appropriate, action may be taken on the complaint. Where a complaint alleges conduct that may rise to the level of impeachable offenses, the Judicial Conference may certify that the matter may warrant consideration of impeachment and transmit the determination and the record of proceedings to the House of Representatives for whatever action the House of Representatives considers necessary. Two such referrals were received by the House in the 111th Congress regarding Judge Samuel B. Kent of the U.S. District Court for the Southern District of Texas and Judge G. Thomas Porteous Jr. of the U.S. District Court for the Eastern District of Louisiana. Judge Kent was impeached by the House of Representatives. His Senate impeachment trial was dismissed after he resigned from office and the House indicated that it did not wish to pursue the matter further. Judge Porteous was also impeached by the House of Representatives. On December 8, 2010, the Senate, sitting as a Court of Impeachment, voted to convict Judge Porteous on all four of the articles of impeachment brought against him. A judgment of removal from office flowed automatically from his conviction. In a rare additional judgment, the Senate disqualified him from holding federal office in the future.

In July 2005, President Bush announced his intention to conclude a peaceful nuclear cooperation agreement with India. India, which is not a party to the Nuclear Nonproliferation Treaty (NPT), is considered under U.S. law to be a non-nuclear weapon state, yet has tested nuclear weapons and has an ongoing nuclear weapons program. For these reasons, the President would need to make certain waivers and determinations pursuant to the Atomic Energy Act (AEA) before nuclear cooperation with a state such as India could proceed. The Administration proposed legislation (introduced as H.R. 4974 / S. 2429 ) in March 2006 that, in addition to providing waivers of relevant provisions of the AEA (Sections 123 a. (2), 128, and 129), would have allowed a nuclear cooperation agreement with India to enter into force without a vote from Congress, as though it conformed to AEA requirements. On July 26, 2006, the House passed H.R. 5682 by a vote of 359 to 68. On November 16, 2006, the Senate passed H.R. 5682 by a vote of 85 to12, substituting the text of S. 3709 as an engrossed amendment; the Senate insisted on its amendment, necessitating a conference to resolve differences between the bills. On December 7, conferees filed a conference report, and on December 8, the House approved the conference report by a vote of 330 to 59; the Senate approved the conference report by unanimous consent in the early hours of December 9. On December 18, President Bush signed the bill into law, P.L. 109-401 . His signing statement is discussed in more detail below. The House International Relations Committee met on June 27, 2006 to consider H.R. 5682 , "United States and India Nuclear Cooperation Promotion Act of 2006," introduced on June 26 by Representative Hyde. The Committee voted to adopt 6 of 12 amendments (one was withdrawn): Representative Royce offered an amendment to ensure that nothing in the act shall be interpreted as permitting any civil nuclear cooperation with India that would in any way assist, encourage, or induce India to manufacture or otherwise acquire nuclear weapons (Section 4 (d) (1)); Representative Sherman offered an amendment to strengthen one of the determinations the President must make to implement the waivers pertaining to the Nuclear Suppliers Group (NSG), stipulating that the required NSG decision would not permit nuclear commerce with any other non-nuclear weapon state that does not have full-scope International Atomic Energy Act (IAEA) safeguards (Section 4 (b) (7)). Representative Schiff offered an amendment with three components: to add a provision to U.S. policy with respect to South Asia (Section 3 (b)(7)) encouraging India not to increase its production of fissile material at military facilities pending a multilateral moratorium on production of such material for nuclear weapons; to add a reporting requirement for the Presidential submission to implement the waivers (Section 4 (c) (2) (I)) on steps taken to ensure the U.S. transfers will not be replicated by India or used in its military facilities and that U.S. nuclear fuel supply does not facilitate military production of high-enriched uranium or plutonium; and to add a reporting requirement for an annual report on the same (Section 4 (o) (2) (C)). Representative Crowley offered an amendment to add a requirement (Section 4 (o)(3)) for an annual report on new Indian nuclear facilities. Representative Berkley offered two amendments related to India's spent fuel disposal: an annual report describing the disposal of spent nuclear fuel from India's civil nuclear program (Section 4 (o) (4), and a statement of policy that any spent civilian nuclear fuel in India that might be stored in the United States is considered by Congress under existing procedures of the Atomic Energy Act (Section 3 (b) (7)). An amendment by Ms. Berkley to prohibit any Indian spent fuel from being stored in the United States was rejected by a vote of 15-19. The Committee also voted down four other amendments, including two by Representative Berman designed to place limits on U.S. cooperation until India halts production of fissile material for nuclear weapons. The first Berman amendment, rejected by a vote of 13-32, sought to condition the President's use of waiver authority (by adding a new determination by the President in Section 4 (b) of the bill) on India's adherence to a unilateral or multilateral moratorium or a multilateral treaty prohibiting the production of fissile material for nuclear weapons. The second amendment, rejected by a vote of 12-31, sought to restrict transfers of U.S. nuclear material under a cooperation agreement until such time that India halted fissile material production for weapons, either by adhering to a unilateral or multilateral moratorium, or a multilateral treaty. The Committee also rejected by a vote of 10-32 an amendment by Representative Sherman to condition the President's use of waiver authority on an additional determination, under Section 4 (b) of H.R. 5682 , that India's nuclear weapons program was not using more domestic uranium than it had before July 2005. The amendment would have attached an annual certification that required termination of nuclear cooperation if the certification could not be made. Finally, the Committee rejected, by a vote of 4-37, an amendment by Representative Lee that would have required India to join the Nuclear Nonproliferation Treaty (NPT) before the President could exercise his waiver authority. The Committee on Rules held a hearing on July 25 th to consider amendments to H.R. 5682 and procedures for handling the bill on the floor. H. Res 947 waived all points of order against the bill, specified the allowed amendments and limited floor debate to one hour. The following six amendments were allowed to be offered on the floor: Representatives Hyde (IL)/Lantos (CA): Manager's amendment, containing technical and conforming changes to the text, as well as one substantive change: removing an amendment proposed by Representative Sherman and adopted during the full committee markup relating to subsection 4(b)(7). Representative Stearns (FL): Reinforces the intent of Congress that the nuclear cooperation into which the governments of the United States and India would enter is for peaceful, productive purposes, not military. Representatives Jackson-Lee (TX)/Burton (IN): Sense of Congress declaring the importance of the South Asia region and urging the continuation of the United States' policy of engagement, collaboration, and exchanges with and between India and Pakistan. Representative Sherman (CA): Requires that, before any nuclear cooperation with India can go forward, and every year thereafter, the President must certify that during the preceding year India has not increased the level of domestic uranium it sends through its weapons program. Baseline for the determination under the amendment is the 365 day period preceding the July 18, 2005, Bush-Singh declaration on nuclear cooperation. Representative Berman (CA): Restricts exports of uranium and other types of nuclear reactor fuel (defined as "source material" and 'special nuclear material' in the Atomic Energy Act of 1954) to India until the President determines that India has halted the production of fissile material (i.e., plutonium and highly enriched uranium) for use in nuclear weapons. Representative Fortenberry (NE): Provides Congress with the ability to assess, to the extent possible, whether annual levels of India's nuclear fissile production may imply a possible violation of Article I of the Nuclear Nonproliferation Treaty. Three amendments were not allowed for consideration on the floor. These were an amendment by Representative Woolsey that would have prohibited the export of any nuclear-related item to India until the President has implemented and observed all NPT obligations and commitments of the United States and has revised United States' policies relating to nuclear weapons accordingly; an amendment by Representative Barbara Lee that would have required India to place all electricity-producing reactors under safeguards, undertake a binding obligation not to transfer any nuclear-weapon-related information or technology (per Article I of the NPT) and take concrete steps toward disarmament; and an amendment by Representatives Markey and Upton that would have prohibited nuclear cooperation with India from commencing until the President has determined that the United States has secured India's full and active support in preventing Iran from acquiring weapons of mass destruction. The House first considered H. Res 947, which, after several objections to limits on time and the exclusion of certain amendments by Representative Markey and others, passed by a vote of 311 to 112. Of the six amendments considered, three passed by voice vote (the Managers' amendment, Representatives Jackson-Lee/Burton's amendment, and Representative Fortenberry's amendment); Representative Stearn's amendment was recorded as 414-0, and the amendments offered by Representatives Sherman and Berman were defeated (the votes, respectively, were 155 to 268, and 184 to 241). Representative Markey made a motion to recommit the legislation back to the House International Relations Committee with instructions to include language that would require that nuclear cooperation with India could only commence after the president has determined that the United States has secured India's full support in preventing Iran from acquiring weapons of mass destruction. That motion to recommit was defeated in a vote of 192 to 235. The House passed H.R. 5682 , "Henry J. Hyde United States and India Nuclear Cooperation Promotion Act of 2006," as amended, by 359 to 68 on July 26, 2006. On June 29, 2006, the Senate Foreign Relations Committee considered original legislation, S. 3709 , to create an exception for India from relevant provisions of the Atomic Energy Act (See S.Rept. 109-288 ). The Committee voted to adopt 2 of 3 amendments: Senator Chafee offered an amendment making it U.S. policy to ensure that exports of nuclear fuel to India did not encourage India to increase its production of fissile material (Section 103 (9)); Senator Obama offered an amendment to ensure that the United States did not encourage other states to continue nuclear exports to India, if the United States exports to India terminated under U.S. law (Section 102 (6)). The Committee rejected an amendment by Senator Feingold requiring an additional presidential determination in Section 105 of the bill by a vote of 5-13. The Feingold amendment would have conditioned the President's use of waiver authority on a determination that U.S. civil nuclear assistance to India would in no way assist, encourage, or induce India to manufacture nuclear weapons or nuclear devices. The amendment was identical in text to the Schiff amendment to H.R. 5682 , but sought instead to require a determination rather than a report. An initial attempt to bring S. 3709 to the Senate floor in September failed to gain unanimous consent agreement. Among several issues, two apparently delayed the bill--language in Title II pertaining to implementing legislation for the U.S. Additional Protocol, and potential concern about whether the United States would accept U.S.-origin spent fuel back from Indian reactors. In the first case, concerns appeared to be mostly resolved by incorporating language into a manager's amendment, with the exception of two issues raised by Senator Ensign in two amendments he introduced on the floor on November 16 th that did not pass. These are described in more detail below. In the second case, the concern about disposition of Indian spent fuel was dropped prior to the bill's reaching the floor. On November 15, 2006, the Senate agreed by unanimous consent to consider S. 3709 , at a time to be determined by the Majority Leader, in consultation with the Democratic Leader. The unanimous consent agreement specified that a managers' amendment would serve as the original text for the purpose of further amendment; and that the only other amendments to be considered would include the following: Senators Ensign (considered in closed session), Reed, Levin, Obama, Dorgan (two amendments), Feingold, Boxer, Feinstein, Harkin, Bingaman (up to seven amendments), Kennedy, and Dodd. Of these, Senators Reed, Levin, Kennedy, and Dodd did not introduce amendments, and Senator Bingaman introduced three, rather than seven. All but Senator Feingold's amendment were considered to be relevant second-degree amendments and related to the subject matter of the bill. Further, the unanimous consent agreement provided that once the bill was read a third time, the Senate would begin consideration of H.R. 5682 , the House-passed companion, striking all text after the enacting clause and inserting the amended text of S. 3709 in its place. Senator Lugar introduced the bill and offered a section-by-section analysis. The following amendments, in brief, were passed either by unanimous consent or voice vote without debate: Senator Lugar introduced a manager's amendment, which contained new language in Title II related to the Additional Protocol ( S.Amdt. 5168 ; unanimous consent); Senator Obama introduced an amendment containing a statement of U.S. policy (which became Section 114) that any nuclear power reactor fuel reserve provided to the Government of India for use in safeguarded civilian nuclear facilities should be commensurate with reasonable reactor operating requirements ( S.Amdt. 5169 ; voice vote); Senator Harkin introduced an amendment requiring the President to determine, before executing his waiver authority, that India was supporting U.S. and international efforts to dissuade, sanction, and contain Iran's nuclear program ( S.Amdt. 5173 ; unanimous consent); Senator Bingaman introduced an amendment to add a reporting requirement to Section 108 (b) on the amount of uranium mined in India during the previous year; the amount of such uranium that has likely been used or allocated for the production of nuclear explosive devices; and the rate of production in India of fissile material for nuclear explosive devices and of nuclear explosive devices as well as an analysis as to whether imported uranium has affected the rate of production in India of nuclear explosive devices ( S.Amdt. 5179 ; unanimous consent); Senator Bingaman introduced an amendment to add a new Section in Title I (which became Section 115) requiring the Secretary of Energy to create a Cooperative Threat Reduction Program with India ( S.Amdt. 5180 ; unanimous consent). Senator Lugar's amendment, S.Amdt. 5168 contained minor changes in Title I of S. 3709 as reported out of Committee. One potentially significant change was the deletion of a Sense of Congress on licensing policy in Section 106. In Title II, however, which contains the implementing legislation for the U.S. Additional Protocol, significant provisions were added. These included Section 202 on findings, Section 251 (3), and Sections 254, 261, 262 and 271-275. In his opening statement, Senator Lugar reported that "a compromise was reached between the Administration, the Senate Foreign Relations Committee, and those Senators who expressed concern about the IAEA Additional Protocol implementing legislation." These additional provisions appear to make explicit existing U.S. rights to exclude inspectors and certain kinds of inspection activities under the Additional Protocol. Several of the modifications address the use of environmental sampling, both for specific locations and for detecting anomalies in a wide-area mode. Other amendments were introduced, debated, and defeated. These included the following: Senator Bingaman introduced an amendment requiring a Presidential determination that the United States and India are taking specific steps to conclude a multilateral treaty on the cessation of fissile material for weapons before U.S. nuclear equipment or technology could be exported under the future agreement for cooperation and that no nuclear materials may be exported to India unless the President has determined that India has stopped producing fissile materials for weapons ( S.Amdt. 5174 ; Vote 26-74); Senator Dorgan introduced an amendment to add a declaration of U.S. policy to continue to support implementation of United Nations Security Council Resolution 1172 ( S.Amdt. 5178 ; Vote 27-71); Senator Ensign introduced an amendment to Title II of the bill related to the Additional Protocol that would have required any inspection equipment, materials and resources to have been purchased, owned, inspected, and controlled by the United States ( S.Amdt. 5181 ; Vote 27-71); Senator Dorgan introduced an amendment that would have required the President to determine, before executing his waiver authority, that India has committed to putting all electricity-producing nuclear reactors under safeguards, has undertaken an obligation not to proliferate nuclear weapons technology, has joined a legally-binding nuclear test moratorium; is verifiably reducing its nuclear weapons stockpile, and has undertaken an obligation to agree to ultimate disarmament ( S.Amdt. 5182 ; voice vote); Senator Feingold introduced an amendment that would have required the President to determine, before executing his waiver authority, that the scope and content of the cooperation agreement would not allow India to use U.S. technology, equipment or material in unsafe guarded facilities, would not result in India replicating U.S. technology nuclear fuel and would not facilitate the increased production by India of fissile material in unsafeguarded nuclear facilities ( S.Amdt. 5183 ; Vote 25-71); Senator Boxer introduced an amendment that would have required the President to determine, before he could execute his waiver authority, that India had halted military-to-military contacts with Iran ( S.Amdt. 5187 ; Vote 38-59). Most of these amendments were characterized by Senators Lugar and Biden as "killer amendments." Senator Bingaman described his amendment as implementing a proposal by former Senator Nunn. Senator Dorgan's amendment supporting U.S. implementation of U.N. Security Council 1172 sought to reaffirm U.S. support for the steps endorsed by the U.N. Security Council following the 1998 Indian and Pakistani nuclear tests, including limits on those nuclear programs such as a ban on deployments, and fissile material production for weapons, as well as a commitment on all states' parts not to sell nuclear technology to India and Pakistan. Senator Dorgan's other amendment, S.Amdt. 5182 , was similar to Representative Barbara Lee's amendment to the House bill that was rejected by the House Rules Committee. That amendment attempted to commit India to undertake the same obligations as other nuclear weapon states under the NPT. Senator Feingold's amendment was similar to the one he introduced in Committee that was rejected. Although modified to address objections voiced in the mark-up, the amendment was described by Senator Lugar on the floor as requiring a certification that would have been "impossible to make." Senator Ensign's amendment was debated in closed session, apparently because of the potential need to discuss classified information relating to the protection of national security information during IAEA inspections under an Additional Protocol in the United States. On December 7, 2006, conferees on H.R. 5682 filed Conference Report H.Rept. 109-721 . The bill essentially combines many of the provisions of both the House and Senate versions. Specific differences are highlighted in Table 1 , below. Of note, the Senate provisions to ban enrichment, reprocessing, and heavy water production cooperation with India (now Section 104. (d) (4)) and create an end-use monitoring program (now Section 104.(d) (5)) prevailed in the conference bill, as did Title II, which includes the implementing legislation of the U.S. Additional Protocol. The so-called Harkin amendment, which added a determination that India was fully and actively supporting U.S. and international efforts to contain, dissuade, and sanction Iran for its nuclear weapons program, did not remain as a determination, but became two reporting requirements: first, as a one-time report when the Section 123 agreement is submitted to Congress (now Section 104.(c)(2)(H)) and as an annual reporting requirement (now Section 104.(g)(2)(E)). On December 18, 2006, President Bush signed the "Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006" into law ( P.L. 109-401 ). President Bush noted that the act "will strengthen the strategic relationship between the United States and India." In particular, President Bush stated that the executive branch would construe two sections of the bill as "advisory" only: policy statements in Section 103 and the restriction contained in Section 104 (d) (2) on transferring items to India that would not meet NSG guidelines. On the first, the President cited the Constitution's "commitment to the presidency of the authority to conduct the Nation's foreign affairs;" on the second, the President raised the question of whether the provision "unconstitutionally delegated legislative power to an international body." In other words, the President was questioning whether Congress were ceding authority to approve U.S. exports to the Nuclear Suppliers Group. However, U.S. officials, including Secretary of State Rice, have formally told Congress multiple times that the United States government would abide by NSG guidelines. The President's signing statement also noted that the executive branch would construe "provisions of the Act that mandate, regulate, or prohibit submission of information to the Congress, an international organization, or the public, such as sections 104, 109, 261, 271, 272, 273, 274, and 275, in a manner consistent with the President's constitutional authority to protect and control information that could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties." This could suggest that the executive branch might limit the scope of reporting required by Congress in those sections. CRS Report RL33016, U.S. Nuclear Cooperation with India: Issues for Congress , by [author name scrubbed]. CRS Report RL33292, India ' s Nuclear Separation Plan: Issues and Views , by [author name scrubbed]. CRS Report RL33072, U.S.-India Bilateral Agreements and " Global Partnership " , by [author name scrubbed]. CRS Report RS22474, Banning Fissile Material Production for Nuclear Weapons: Prospects for a Treaty (FMCT) , by [author name scrubbed].

In March 2006, the Bush Administration proposed legislation to create an exception for India from certain provisions of the Atomic Energy Act to facilitate a future nuclear cooperation agreement. After hearings in April and May, the House International Relations Committee and the Senate Foreign Relations Committee considered bills in late June 2006 to provide an exception for India to certain provisions of the Atomic Energy Act related to a peaceful nuclear cooperation agreement. On July 26, 2006, the House passed its version of the legislation, H.R. 5682, by a vote of 359 to 68. On November 16, 2006, the Senate incorporated the text of S. 3709, as amended, into H.R. 5682 and passed that bill by a vote of 85 to 12. The Senate insisted on its amendment, and a conference committee produced a conference report on December 7, 2006. The House agreed to the conference report (H.Rept. 109-721) on December 8 in a 330-59 vote; the Senate agreed by unanimous consent to the conference report on December 9. The President signed the bill into law (P.L. 109-401) on December 18, 2006. The Senate and House versions of the India bill contained similar provisions, with four differences. The Senate version contained an additional requirement for the President to execute his waiver authority, an amendment introduced by Senator Harkin and adopted by unanimous consent that the President determine that India is "fully and actively participating in U.S. and international efforts to dissuade, sanction and contain Iran for its nuclear program." This provision was watered down into a reporting requirement in the conference report. The Senate version also had two unique sections related to the cooperation agreement, Sections 106 and 107, both of which appear in the conference report. Section 106 (now Section 104 (d) (4)) prohibits exports of equipment, material or technology related for uranium enrichment, spent fuel reprocessing or heavy water production unless conducted in a multinational facility participating in a project approved by the International Atomic Energy Agency (IAEA) or in a facility participating in a bilateral or multilateral project to develop a proliferation-resistant fuel cycle. Section 107 (now Section 104 (d) (5)) would establish a program to monitor that U.S. technology is being used appropriately by Indian recipients. Finally, the Senate version also contained the implementing legislation for the U.S. Additional Protocol in Title II, which was retained in the conference bill. Minor differences in reporting requirements and statements of policy are compared in Table I of this report. This report provides a thematic side-by-side comparison of the provisions of the conference report with H.R. 5682 as passed by the House and by the Senate, and compares them with the Administration's initially proposed legislation, H.R. 4974/S. 2429, and the conference report. The report concludes with a list of CRS resources that provide further discussion and more detailed analysis of the issues addressed by the legislation summarized in the table. This report will not be updated.

International child custody disputes figure to increase in frequency as the global society becomes more integrated and mobile. What is more, a child custody dispute between two parents can become a diplomatic imbroglio between two countries. In Abbott v. Abbott the U.S. Supreme Court will address an issue that has divided the Circuit Courts of Appeals: Whether a ne exeat right is a "right of custody" for purposes of the Hague Convention? If so, parents with a ne exeat right can demand the return of their child "wrongfully" taken from the family's home country. In September 2008, the Fifth Circuit ruled that a ne exeat right is not a "right of custody" and therefore the removal of a child in violation of ne exeat order is not "wrongful." The Supreme Court is now confronted with a four-to-one circuit split: the Second, Ninth, Fourth, and now Fifth Circuits have ruled that a ne exeat right is not a "right of custody," while the Eleventh Circuit has reached the opposite conclusion. The Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention") protects children from wrongful removal across international borders and provides procedures to aid in their safe return. While the Convention has been the principal mechanism for enforcing the return of abducted children to the United States, it is not without limitations. First, its procedures are inapplicable and/or unenforceable in nonsignatory nations. Second, it does not act as an extradition treaty, nor does it purport to adjudicate the merits of a custody dispute. It is merely a civil remedy designed to preserve the status quo by facilitating the return of an abducted child to the country of his or her "habitual residence" and allowing the judicial authorities in that country to adjudicate the merits of a custody dispute. As such, the proceeding is brought in the country to which the child was abducted or in which the child is retained. Although domestic relations involve issues typically governed by state law, the federal statute implementing the Hague Convention explicitly confers jurisdiction on the federal courts. Procedures and remedies available under the Convention differ depending on the parental rights infringed. Under Article 3 of the Hague Convention, the removal of a child is "wrongful" when "it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention;" and "at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention." Thus, there are two elements to a claim that the child's removal was "wrongful" under Article 3: (1) the removal was in breach of "rights of custody"; and (2) those rights were "actually exercised" at the time of the removal, or would have been but for the removal. Article 5 in turn defines "rights of custody," and distinguishes those rights from "rights of access": (a) "rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence; (b) "rights of access" shall include the right to take a child for a limited period of time to a place other than the child's habitual residence. Critically, the treaty provides for the return of the child only if a parent's custody rights have been violated. Parents deprived of their rights of access have the less robust remedy provided for in Article 21 of "mak[ing] arrangements" with the Department of State to secure effective exercise of their rights. Thus, at the heart of Abbott is the father's claim that a ne exeat right is a right of custody under the Hague Convention, and that this right was violated by the child's removal from Chile without his consent. The Abbott family--Timothy Abbott, Jacquelyn Abbot, and their son--had resided in La Serena, Chile, since 2002. The parents separated in March 2003, and during the successive several months the Chilean courts issued several orders regarding the parents' custody rights. The first order granted Mr. Abbott visitation rights. The second order, at the center of the Abbott case, was a ne exeat or "no exit" order, entered by the court at the request of the mother, providing that neither parent could remove the child from Chile without the consent of the other parent. Finally, a third order denied the father's request for custody rights, and granted all custodial rights to the mother. In August 2005, without notice, in the midst of disputes over visitation and other issues, the mother removed the child to Texas without the father's consent in contravention of the Chilean court's ne exeat order, as well as Chilean statutory law that by default confers ne exeat rights on non-custodial parents. As the District Court for the Western District of Texas recognized, Mr. Abbott's visitation rights conferred by Chilean court order amount to rights of access: he is permitted to take the child from the child's habitual home for a limited period. But, relying on the language and structure of Article 5, the court concluded that Mr. Abbott does not have rights of custody. Therefore, the removal of his child from Chile was not "wrongful" under the Hague Convention. The court began by stating that ne exeat rights are not encompassed by Article 5's definition of "rights of custody." That is, ne exeat rights do not accord Mr. Abbott any rights "relating to the care of [the child's] person." The court further concluded that the right to "determine" the child's place of residence refers to a right to decide the child's specific place of residence, rather than merely a right to veto prospective places of residence. Finally, the court cited the Ninth Circuit's argument that a ne exeat right is not embraced by the plain meaning of "custody," and added that a ne exeat right does not give Mr. Abbott a say on any "child-rearing issue" besides the child's geographic location. The court also emphasized the structure of Article 5. The court found a "clear intent" to both distinguish between custody rights and access rights, and to provide greater protection for parents with custody rights. Therefore, the court concluded that ordering the return of Mr. and Mrs. Abbott's child to Chile would be "inappropriate." The Fifth Circuit affirmed the district court's decision on September 16, 2008. Its opinion was essentially a description of the circuit split and a summary of the district court's reasoning. Not until the penultimate paragraph did the court conclude that it found persuasive the Second Circuit's reasoning that the Hague Convention distinguished between rights of custody and rights of access. In Croll, a father sued their child's mother seeking an order pursuant to the Hague Convention that the child was removed from Hong Kong in violation of a court order and be returned to Hong Kong. The District Court for the Southern District of New York ordered return of the child. Mrs. Croll appealed. The Second Circuit held in Croll v. Croll that ne exeat rights are not "rights of custody" for purposes of the Hague Convention. In conducting what is the most extensive analysis of the five circuit courts to address the issue, the Croll majority relied on the text of the Hague Convention, its drafting history, and practical considerations to reach its conclusion. The bulk of the Croll court's analysis was textual. Citing multiple dictionaries, the court concluded that custody of a child "entails the primary duty and ability to choose and give sustenance, shelter, clothing, moral and spiritual guidance, medical attention, education, etc., or the (revocable) selection of other people or institutions to give these things." The court left to implication the obvious conclusion that flows from this definition of "custody": the father's ne exeat rights do not permit him to take a "primary" role in any facet of his son's upbringing, and so he does not have rights of "custody" as that word is ordinarily understood. The majority further noted that Articles 3 and 5 refer to the plural "rights." Under the Hague Convention, the removal of a child is wrongful when "it is in breach of rights of custody," and moreover, "'rights of custody' shall include rights relating to the care of the person of the child." This language, the majority argued, refers to a "bundle" of rights exercised by someone holding custody, which means that a person who holds only a single right--such as a veto right over removal of the child from his home country--cannot hold custody. Turning to the second clause of Article 5(a) ("'rights of custody' shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence "), the court observed that the function of that language is to offer a prominent example of a "right of custody." Because "custody" entails the primary care and control of a child, the argument continued, the "determine" clause must refer to a right to choose a specific place of residence within a country if it is to be a useful example of a right of custody. Decisional rights relating to the child's care and upbringing entail more specific choices than the determination of which country a child resides in, such as whether the child lives in a city, a suburb, or countryside, or whether the child attends boarding school or military school. Therefore, if "the right to determine the place of the child's residence" is an apt example of a right of custody, "place of residence" must refer to a specific place within a country. The final point the court made about the "determine" clause of Article 5(a) was that the word "determine" denotes a power to choose a certain outcome, not merely a right to veto a certain outcome. Again, the court established this meaning by referencing two dictionaries. Concluding its textual analysis, the court found support in paragraph (b) of Article 3, which provides that a removal in breach of custody rights is wrongful only if "at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention." Of course, the complainant-parent in Croll was not exercising his ne exeat rights at the time of his child's removal, and the court maintained that it was "circular" to say he would have exercised those rights but for the removal. The majority buttressed the meaning it gave to ne exeat rights by arguing that an alternative meaning would render the Hague Convention "unworkable." The court offered a hypothetical to illustrate. If the court ordered the return of the child to the home country, Mrs. Croll would be under no legal obligation to return with the child. Further, Mr. Croll has only ne exeat rights, and is not charged with the duties of the child's primary care and custody. Thus, if the court ordered the return of the child based solely on a breach of ne exeat rights, the child would not necessarily be returned to a person or institution with a legal obligation to care for the child's person. This result was unfathomable, the court asserted. Finally, the majority examined extratextual material. The most convincing of these was a piece of scholarship, authored by the chair of the international organization that drafted the Hague Convention, asserting that a ne exeat right was not a right of custody. As the dissent recognized, the other materials cited by the majority stood "for the unremarkable proposition" that the Convention meant to distinguish between custody rights and access rights. This distinction is not helpful in answering the question of which right Mr. Abbott has. But establishing an intention to make such a distinction supported the majority's jurisprudential argument that ordering the return of a child even though the complainant had no custody rights would be an unwarranted judicial "substitution" of access rights for custody rights. Then-Court of Appeals Judge Sonia Sotomayor dissented in Croll . Unwilling to be constrained by the majority's "parochial" definition of "custody," Judge Sotomayor determined that the phrase "rights of custody" embraced a ne exeat right by drawing heavily on the object and purpose of the Hague Convention. That purpose, gleaned from the treaty drafting materials, was to thwart a forum-shopping parent's aim to flout the custody law of the child's home country. In other words, the Hague Convention is meant to ensure that custody disputes are resolved in the home country rather than a foreign country with potentially laxer custody law and enforcement. Her dissent thus concluded that this purpose would be served by returning a child in cases where a physical custody right is violated as well as cases where a ne exeat right is violated, because both rights are expressions of the home country's "custody law." Continuing with its purposive analysis, the dissent faulted the majority's treatment of Article 5(a)'s "determine" clause for ignoring the international character of the Hague Convention. That clause must refer to the broader decision as to whether the child will live in England or the United States, for example, because that is precisely the type of decision the Hague Convention is meant to protect. Judge Sotomayor responded to the majority's argument that interpreting a ne exeat right as a custody right would render the Hague Convention "unworkable." She noted that the majority's argument mistakenly assumed that a custody order is the sole source of a parent's duties to care for the child. Instead, parental duties may arise from "many sources," such as the internal law of the home country. Moreover, Judge Sotomayor was skeptical of the majority's fear that a father would travel across the world to get his child back, and then "simply permit his child to stand abandoned in the airport upon her return." Judge Sotomayor also addressed the decisions of sister-signatories that have taken up the issue. While acknowledging that there is not a perfect consensus in favor of her interpretation, most foreign courts have interpreted a ne exeat right as a right of custody (including "some biggies," as Justice Scalia put it during Abbott 's oral argument, such as the House of Lords ). The Furnes court dealt with the same interpretative issue taken up by Croll , but came to the contrary conclusion that a ne exeat right is a right of custody. Akin to Judge Sotomayor's reasoning in Croll , the Furnes majority interpreted "place of residence" in light of the Hague Convention's purpose. Because the object of the treaty is to deter and remedy international abduction, "the right to determine the child's place of residence" must include a right to decide the country the child lives in. But the Furnes court argued that in any event a ne exeat right confers a right to determine the child's place of residence in the narrower sense as well. The court argued that a veto right encompasses an effective right to determine a specific place of residence because a parent could grant consent to the child's international relocation on the condition that the child reside in a particular city, or even a particular house. The court cemented its analysis by seizing on Article 5(a)'s use of "relating." Even assuming a ne exeat right is not a right to "determine" the child's place of residence, the majority observed, it is at least a right relating to the care of the child's person, as well as a right relating to the determination of the child's place of residence. The briefs filed in the Supreme Court largely mirrored the thrusts and parries of the majority and dissenting opinions in Croll and Furnes . Mrs. Abbott argued that the "ordinary meaning" of "custody" entails the primary ability to give physical care to the child, and therefore did not encompass a ne exeat right. She further argued that a ne exeat right was not a right to "determine the place of residence," because that phrase refers to a child's "specific living quarters." Mr. Abbott recited the purposive argument employed in the Croll dissent and the Furnes majority. The Hague Convention was concerned with the removal of children from their home country, that argument goes, and so "place of residence" must have an international meaning rather than an in tra national one. Mr. Abbott also argued that in any case the holder of a ne exeat right has the right to determine the "place of residence" in the narrower sense. Borrowing the logic of the Furnes court, Mr. Abbott noted that the parent could grant consent to the child's international relocation on the condition that the child reside in a particular place within the new country. Finally, Mr. Abbott argued that by withholding consent and requiring the child to stay in one country the parent exercises control over important decisions about upbringing such as which language the child will speak and the political climate in which the child is raised. This, Mr. Abbott asserted, shows that a ne exeat right was a right of "custody" even under the meaning that Mrs. Abbott gives that word. In addition to rearticulating the arguments of lower courts, Mrs. Abbott made a novel argument regarding the historical and theoretical underpinnings of ne exeat rights. Mrs. Abbott urged the court to conceptualize a ne exeat right as a power of the state--not a parent--that is meant to preserve the state's ability to enforce the law. This, she maintained, was consistent with the history of the ne exeat writ. Further, the United States has codified this conception of ne exeat in statute ("The district courts of the United States ... shall have such jurisdiction to make and issue in civil actions, writs ... of ne exeat republica ... as may be necessary or appropriate for the enforcement of the internal revenue laws"). Thus, Mrs. Abbott concluded, a violation of a ne exeat order or statute frustrates the state's jurisdiction rather than a right of a private person. The parties also disputed the weight of authority from signatory courts. Assessing the position of the international community on this treaty issue depends largely on which foreign decisions one counts as relevant. Thus, Mrs. Abbott emphasized that only seven courts of last resort have spoken to the issue, and those courts came to conflicting conclusions. In contrast, Mr. Abbott cited at least nine foreign courts that have rendered opinions in accord with his interpretation. He also explained away much of the asserted dissonance among foreign courts by noting that the conclusions favoring Mrs. Abbott in two opinions by the Supreme Court of Canada were merely dicta. He further noted that although a French trial court held that ne exeat does not amount to a custody right, a French appellate court in a separate case held to the contrary. The Supreme Court's decision will address the question of whether the Hague Convention requires the return of a child to the home country if the child was removed to the United States in violation of a ne exeat order or statute. However, various other issues regarding the treaty will remain unresolved. For example, the Hague Convention will still be susceptible to conflicting applications around the world to the extent interpretations by foreign courts depart from the one handed down in Abbott . Further, if the Supreme Court holds that ne exeat rights are not rights of custody, a Chilean court may respond by amending the Abbotts' custody order to clarify that ne exeat rights are in fact rights of custody under Chilean law. Other signatory countries may likewise amend their law to provide that they are custody rights. Also, while the ne exeat -physical custody arrangement at issue in Abbott is a common one, it is not the only one implemented by courts in child custody disputes. Abbott will not address which side of the access-custody line these other arrangements fall on. Finally, a practical issue remains: the political problem of noncompliance by some signatories.

International child custody disputes figure to increase in frequency as the global society becomes more integrated and mobile. A child custody dispute between two parents can become a diplomatic imbroglio between two countries. Thus in 2000, Members of Congress and Vice President Al Gore backed legislation to grant Cuban refugee Elian Gonzalez permanent residency status, even after President Fidel Castro demanded the boy's return. More recently, in the 111th Congress, both houses passed resolutions (S.Res. 37 and H.R. 125) calling on the Brazilian government to return Sean Goldman, the son of New Jersey resident David Goldman, to the United States. In the case of the Goldman family, the father's legal argument for return was based on the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention"). This treaty was entered into force in the United States in 1988, and has since been the principal mechanism for enforcing parental rights in international custody disputes. However, judicial interpretation of certain Hague Convention provisions has been inconsistent among federal Circuit Courts of Appeals. The lives of one British-American family--the Abbotts--and the lives of families similarly situated may be affected by how the United States Supreme Court resolves this circuit split in Abbott v. Abbott. In this case, the Court will determine whether a ne exeat, or "no exit" order granting one parent the right to veto another parent's decision to remove their child from his or her home country is a "right of custody" under the Hague Convention. Such a determination is necessary to determine the Convention's applicability, as it only provides for a child's return to the country which issued the ne exeat order if the removal was "wrongful" and in breach of "rights of custody." This report discusses the circuit split on the treaty interpretation issue, the arguments made before the Supreme Court in Abbott, and the significance of the case.

On May 14, 2011, Dominique Strauss-Kahn, the Managing Director of the International Monetary Fund (IMF), was arrested at John F. Kennedy Airport and charged with the attempted rape, criminal sexual assault, and unlawful imprisonment of a maid at the New York City Sofitel hotel. Indicted by a grand jury on several counts, he was granted bail, but will be confined to a New York apartment under 24-hour armed guard until his trial. Mr. Strauss-Kahn was in New York on personal business, en route to Brussels to participate in a meeting of the Eurozone finance ministers when he was apprehended by police. On May 18, 2011, he resigned as IMF Managing Director. The number two official at the IMF, First Deputy Managing Director John Lipsky, is serving as Acting Managing Director until a new Managing Director is elected. IMF and State Department reviews suggest that Mr. Strauss-Kahn is not entitled to either status-based or conduct-based immunity. Under the IMF Charter, IMF employees are granted a limited form of diplomatic immunity for actions related to activities performed in the course of their IMF work. However, "[t]he [managing director's] immunities are limited and are not applicable to this case," according to IMF officials, since, according to such officials, he was in New York on personal business. While Mr. Strauss-Kahn is arguably entitled to immunity by virtue of his status as the executive head of an international organization under the United Nations Convention on the Privileges and Immunities of the Specialized Agencies, the United States is not party to that Treaty. Accordingly, in the view of the State Department, Mr. Strauss-Kahn is unlikely to qualify for immunity under U.S. law. The relevant U.S. law entitles international organizations to claim immunity for their officers and employees only for "acts performed by them in their official capacity and falling within their functions as such representatives, officers, or employees." "Our understanding is that immunity in this particular case, and, with IMF officials ... would only involve their official capacity and carrying out their duties in an official role," said State Department spokesman Marc Toner. Mr. Strauss-Kahn's arrest comes at an challenging time for the IMF, which he had led since 2007. Under his leadership, the IMF reasserted its role as the premier international organization for international economic corporation. In the wake of the financial crisis, Mr. Strauss-Kahn persuaded countries to substantially increase their funding to the IMF enabling the Fund to sharply increase its financial support to troubled economies and its capacity to monitor global economic risks. He also brokered agreement between developing and advanced economies on wide range of issues including reform of IMF quotas that will increase the voting share of emerging economies; revamping the IMF's lending tool-kit to introduce greater flexibility and create new facilities for low-income countries; and placed the IMF at the center of G-20 efforts to increase multilateral surveillance by looking at the external implications of the domestic economic policies of several systemically important countries. The IMF is heavily involved in the current economic crisis in Europe. At the meeting that Mr. Strauss-Kahn was on his way to attending, European finance ministers approved a $111 billion IMF/EU assistance package for Portugal and considered additional economic support for Greece, which continues to struggle a year after receiving its own $145 billion support package. The IMF was represented at the meetings by Ms. Nemat Shafik, the IMF Deputy Managing Director overseeing the Fund's work in various European countries. The arrest and resignation will likely have little impact on the Fund's current lending and monitoring activities, but the arrest has put the selection of Fund leadership back into the spotlight. Controversy focuses on whether a transatlantic "gentlemen's agreement" reserving the IMF leadership for a European and the World Bank leadership for a U.S. citizen is justified in the current global economy. Proposals for a more open, transparent, and merit-based leadership selection process have been made consistently in the past, and at times have been incorporated in communiques of various leaders summits, but have yet to change the outcome at either of the institutions. This report provides information on the IMF management selection process and discusses some of the related debate. The United States is the largest shareholder of the IMF and congressional interest in the Fund's activities has increased in recent years. Most recently, congressional attention focused on increased IMF lending since the onset of the global economic crisis in 2008 and amidst growing concern about the sustainability of fiscal deficits in several Eurozone economies. Following Mr. Strauss-Kahn's arrest, Senator John Kerry, chairman of the Senate Foreign Relations Committee, which has legislative oversight of the IMF, said that the circumstances surrounding the alleged assault of a hotel maid were "very troubling if not damning." A few Members called for his resignation and expressed interest in holding hearings on the IMF and its recent activities. There is no formal congressional involvement in the selection of Fund management. U.S. participation in the IMF is authorized by the Bretton Woods Agreement Act of 1945. The Act delegates to the President ultimate authority under U.S. law to direct U.S. policy and instruct the U.S. representatives at the IMF. The President, in turn, has generally delegated authority to the Secretary of the Treasury. With the advice and consent of the Senate, the President names individuals to represent the United States on the Executive Board of the IMF. The Executive Board has authority over operations and policy and must approve any loan or policy decision. The U.S. Executive Director is supported primarily by Treasury Department staff. Unique among the founding members, the Bretton Woods Agreement Act requires specific congressional authorization for certain decisions, such as changing the U.S. quota in the Fund or to amend the Articles of Agreement. However, neither the approval of individual loans nor the selection of the Managing Director requires congressional approval. Selecting the leadership at the two major international financial institutions (IFIs) - the IMF and the World Bank - is guided by a 60-year old tradition that the World Bank president is an American and that the IMF Managing Director is a European. The informal agreement, not written into the IMF Articles of Agreement (the official charter of the organization), reflects the political and economic balance of power at the end of World War II. At the time, the United States believed that the World Bank should be headed by an American since the United States was the only capital surplus nation, and World Bank lending would be dependent on American financial markets. The U.S. Secretary of the Treasury at the time, Fred Vinson, believed that if an American representative headed the World Bank, the IMF must be headed by a non-American. A Deputy Managing Director position in the IMF was established in 1949, and an American citizen, nominated by the U.S. Department of the Treasury, has always filled the position. In 1994, the IMF Board of Executive Directors increased the number of deputy directors from one to three in order to increase the regional diversity of the top management team. The additional positions are currently filled by Naoyuki Shinohara , a former senior official in the Japanese Finance Ministry and Nemat Shafik, a national of Egypt, the United Kingdom, and the United States, who has held various positions at the World Bank and the U.K. Department for International Development. The IMF Articles provide for a three-tiered governance structure with a Board of Governors, an Executive Board, and a Managing Director ( Figure 1 ). The Board of Governors is the highest policy making authority of the IMF. All countries are represented on the Board of Governors, usually at the Finance Minister or Central Bank governor level. IMF governors usually meet annually at the fall annual IMF meetings. Day-to-day authority over operational policy, lending, and other matters is vested in the Board of Executive Directors, a 24 member body that meets three or more times a week to oversee and supervise the activities of the IMF. The five largest shareholders are entitled to appoint their own Executive Director. The remaining members are elected (for two-year terms) by groups of countries, generally on the basis of geographical or historical affinity. A few countries, Saudi Arabia, China and Russia, have enough votes to elect their own Executive Directors. In reforms approved by the Governors in December 2010, the IMF Articles of Agreement will eventually be amended so that the Executive Board will consist solely of elected Executive Directors, doing away with the practice of some member countries appointing their representatives. The IMF Executive Board selects the Managing Director of the IMF, who serves as its chairman and chief executive officer. The Managing Director manages the ongoing operations of the Fund (under the policy direction of the Executive Board), supervises about 2,500 staff members, and oversees the preparation of policy papers, loan proposals, and other documents which go before the Executive Board for its approval. Most of the material before the Executive Board is prepared by IMF management or staff. However, some documents and recommendations are prepared by executive directors themselves or by the governments they represent. An Independent Evaluation Office (IEO), which reports directly to the Board of Directors, conducts objective and independent evaluations of Fund operations and policies. Recent reports include studies of the Fund's performance prior to the onset of financial crisis in 2008, IMF involvement in trade issues, and an analysis of the IMF's advice on exchange rate policy. The Managing Director is elected for a five-year renewable term of office. The Executive Board also approves the selection of the Managing Director's principal assistants, the First Deputy Managing Director and the two other Deputy Managing Directors. The formal guidelines for choosing the IMF Managing Director are laid out in the IMF's Articles of Agreements and By-laws. Article XII, Section 4, states that "[t]he Executive Board shall select a Managing Director who shall not be a Governor or an Executive Director. " This decision may be reached by a 50% majority of the IMF's Executive Board. Section 14(c) of the Fund's By-laws provides that "[t]he contract of the Managing Director shall be for a term of five years and may be renewed for the same term or a shorter term at the discretion of the Executive Board, provided that no person shall be appointed to the post of Managing Director after he has reached his sixty-fifth birthday and that no Managing Director shall hold such post beyond his seventieth birthday." The selection process is also constrained by informal guidelines among the Executive Board. Rather than formal voting, the decision on selecting an Managing Director has been made historically by consensus. If there is more than one candidate under consideration, potential candidates are weeded out by the Executive Board through informal straw polls. Within the Executive Board there is a very strong institutional aversion to voting. Executive Board Rule C-10 states that "the Chairman [Managing Director] shall ordinarily ascertain the sense of the meeting in lieu of a formal vote." Table 1 summarizes the selection process employed for the past seven Managing Directors, including Dominique Strauss-Kahn. The selection of a European has never been in doubt, but the United States and the broader membership had greater input into the selection process in the past. According to a 2008 study on the Managing Director selection process: The United States played a major role in the earlier appointments--including the appointments of the first three MDs, Camille Gutt (Belgium), Ivar Rooth (Sweden) and Per Jacobsson (Sweden). In the last four appointments, efforts were made amongst Europeans to agree to a single European candidate, but only with the last three appointments were such efforts successful. Up until 2000, the membership had been presented with some choice of European candidates, giving the United States and other non-European industrial countries and/or the developing countries a say in the final choice. In 2000, the United States exercised a de facto veto over the first European choice, Caio Koch-Weser, forcing European countries to nominate a second candidate. The European-U.S. arrangement to split the leadership at the IMF and World Bank has created a lasting and lingering resentment throughout much of the world. Critics of the current selection process make two general arguments. First, the gentlemen's agreement on IMF and World Bank leadership is a relic of a global economy that no longer exists. Whereas the United States and Europe dominated the post-war economy, the current international economy is more diverse. Developing and emerging market countries contribute half of global output, up from 25% thirty years ago. At the same time, the share accounted for by the G-7 countries has declined from 65% in 2002 to 51% in 2010. The global economy is now characterized by, what some analysts call, "multiple poles" of economic growth. According to the Peterson Institute's Jacob Funk Kirkegaard, "the changes in the world economy mean that the IMF needs to be truly global, and that has implications for who takes over next." Any agreement that grants the leadership position based on nationality, critics argue, unnecessarily limits the pool of potential candidates, excluding non-Europeans that may be exceptionally competent in addressing the issues before the IMF. Second, critics also argue that the current system, where the Executive Board decides among candidates in secret closed door sessions potentially undermines the legitimacy of the eventual Managing Director. There is also concern that the IMF "practice what it preaches" since the IMF (along with the World Bank) aims to be at the forefront of promoting best practices in global governance. In July 2000, the IMF created a working group to advise the Executive Board and IMF staff on options for reforming the selection process. A draft report was endorsed by the Executive Directors on April 26, 2001, as guidance for the future selection of Managing Directors, but it was never formally adopted. Instead of implementing the report's five recommendations (see box), the Executive Board adopted in 2007 a procedure that specified qualification criteria, established a nomination period, and provided for an interview process. No explicit criteria or qualifications were defined. More recently, the selection process was discussed during various G-20 summits. Language was included in the 2009 Pittsburgh Summit communique, stating that "[a]s part of a comprehensive reform package, we agree that the heads and senior leadership of all international institutions should be appointed through an open, transparent and merit-based process." The issue was not addressed, however, in either of the two most recent G-20 meeting communiques (Toronto and Seoul). Outside of the official sector, various non-governmental organizations have also expressed concerns about the process. An April 2011 statement by European civil society organizations is indicative of their concerns and recommendations: An open process is necessary to bolster public confidence. The following steps are uncontroversial and should be the minimum that apply: * The job description, timetable and application procedure should be publicly available, and open to any individual to apply. * The vacancy should be widely advertised. * Search committees or other professional assistance in finding suitable candidates can help the process, but should not be a substitute for a public application procedure. A fair process would mean ending the current overt discrimination on the basis of nationality, and tackling any underlying discrimination on the basis of gender or other factors. Furthermore, A 2010 report requested by Mr. Strauss-Kahn, representing a wide-range of NGOs, recommended that: The selection of the managing director and of his deputies should be based on a merit-based and transparent selection, without any restriction to the nationality of the candidates. As with the executive directors, the selection should rely on a thorough job description and a list of high professional requirements. Mr. Strauss-Kahn resigned his post on May 18, 2011. Earlier that day, U.S. Treasury Secretary Timothy Geithner commented that Mr. Strauss-Kahn "is obviously not in a position to run" the organization and it is important that the board of the IMF formally ratify Mr. Lipsky as Acting Managing Director. According Mohamed El-Erian, Pimco Chief Executive, "the IMF is like an army, and the general is very important in that institution," He added, "the IMF is involved right now in the debt crisis in Europe. Newly democratic countries like Egypt are looking to it for help. And you need the IMF to coordinate this global healing. It is the worst possible time to lose your general." Some analysts had expressed concerns that the IMF Executive Board did not act quickly enough, and should have terminated his employment with the IMF immediately following his arrest. The Managing Director serves at the pleasure of the country membership and can be removed by the Executive Board at any time and for any reason. Mr. Strauss-Kahn served via a contract with various benefits due him upon separation. Reportedly, some IMF members were reluctant to force Mr. Strauss-Kahn out prior to more details emerging, or the conviction of Mr. Strauss-Kahn for any crime. On May 23, the IMF Executive Board formally began the process of selecting the next Managing Director. Any IMF Governor or Managing Director may nominate a candidate prior to June 10, 2011, and the Board anticipates selecting among the candidates by June 30, 2011. China, Brazil, Russia, and other emerging market countries are increasing their efforts to appoint a non-European official to head the IMF. Some, including Bessma Momani at the University of Waterloo argue that giving emerging economic powers greater say in the Fund's leadership would make them "less prone to accumulate foreign currency reserves as insurance against a crisis and turn to the IMF for help instead." At the same time, European leaders are fiercely defending Europe's hold on the position. German Chancellor Angela Merkel has strongly advocated for a European successor to Mr. Strauss-Khan. "Of course, the emerging countries have a claim in the medium term to fill one of the positions, either IMF chief or World Bank chief." However, she added that "in the current situation, in which we have significant problems with the euro and the IMF is strongly involved in this, there is something to be said for it being possible to put up a European candidate and to canvass for that in the international community." According to European officials and some analysts, the current heavy IMF focus in Europe requires a European at the IMF's helm. However, of the 26 countries that are currently in IMF programs, only a handful are from Europe: Greece, Ireland, Latvia, Poland, Romania, and soon Portugal, and account for less than half of total IMF outstanding commitments. "Maybe the next Managing Director of the IMF will come from Europe," comments Edwin Truman, a former U.S. official currently at the Peterson Institute for International Economics, "but there is no reason that the person should come from Europe." Some analysts argue that calls for a non-European director from the emerging economies mask divides that make it difficult for emerging economies to unite behind one credible candidate. These calls, the argument goes, are part of the larger issue of the influence of emerging economies play in the international financial institutions, and could ultimately lead toward additional shifts toward emerging economies, even if the next IMF Managing Director is European. Potential candidates that have been mentioned in the press and by commentators include: Gordan Brown, former Prime Minister of the United Kingdom, Tharman Shanmugaratnam, Singaporean Finance Minister; Kemal Dervis, former Turkish finance minister; Christine Lagarde, French Finance Minister; Trevor Manuel, former South African finance minister; Agustin Carstens, Mexican central bank governor; Montek Singh Ahluwlia, an economic advisor to the Indian government and former head of the IMF's Independent Evaluation Office; and Min Zhu, Senior Advisor to the IMF Managing Director and former Deputy Governor of the People's Bank of China.

On May 14, 2011, Dominique Strauss-Kahn, the Managing Director of the International Monetary Fund (IMF), was arrested at John F. Kennedy Airport and charged with the attempted rape, criminal sexual assault, and unlawful imprisonment of a maid at the New York City Sofitel hotel. He resigned on May 18, 2011. Mr. Strauss-Kahn's arrest and resignation come at a challenging time for the IMF, which he had led since 2007. Under his leadership, the IMF reasserted its role as the premier international organization for international economic corporation. In the wake of the financial crisis, Mr. Strauss-Kahn persuaded countries to substantially increase their funding to the IMF, enabling the Fund to sharply increase its financial support to troubled economies and its capacity to monitor global economic risks. He also brokered agreement between developing and advanced economies on a wide range of issues, including reform of IMF quotas that will increase the voting share of emerging economies; revamping the IMF's lending tool-kit to introduce greater flexibility and create new facilities for low-income countries; and placed the IMF at the center of G-20 efforts to increase multilateral surveillance by looking at the external implications of the domestic economic policies of several systemically important countries. The resignation has put the selection of Fund leadership back into the spotlight. Controversy focuses on whether a transatlantic "gentlemen's agreement" reserving the IMF leadership for a European and the World Bank leadership for a U.S. citizen is adequate for the current global economy. Proposals for a more open, transparent, and merit-based leadership selection process have been made consistently in the past, and at times have been incorporated in communiques of various leaders summits, but have yet to change the outcome at either of the institutions. Although Congress can pass legislation directing the U.S. representatives at the IMF or hold oversight hearings, there is no congressional involvement in the selection of Fund management. U.S. participation in the IMF is authorized by the Bretton Woods Agreement Act of 1945. The Act delegates to the President ultimate authority under U.S. law to direct U.S. policy and instruct the U.S. representatives at the IMF. The President, in turn, has generally delegated authority to the Secretary of the Treasury. The largest shareholder of the IMF, United States has a 16.8% voting share. The formal requirements for the selection of the IMF Managing Director is that the Executive Directors appoint, by at least a 50% majority, an individual who is neither a member of the Board of Governors or Board of Executive Directors. There are no requirements on how individuals are selected, on what criteria, or by what process they are vetted. Moreover, although the IMF Executive Directors may select its Managing Director by a simple majority vote, they historically aim to reach agreement by consensus. With these factors combined, the convention guaranteeing European leadership at the IMF and American leadership at the World Bank has remained in place. The European-U.S. arrangement on the leadership positions at the IMF and World Bank has created resentment in many developing and emerging economies. Critics of the current selection process make two general arguments. First, the gentlemen's agreement on IMF and World Bank leadership is a relic of a post-war transatlantic global economy that no longer exists. Second, the IMF and the World Bank aim to be leaders in promoting transparency and good governance practices, which hardly justify the political horse-trading that have dominated past selections. At the same time, European officials and some commentators argue that given the intense IMF involvement in managing the crisis in the peripheral European economies and securing the future of the European Monetary Union, a European leader is needed to maintain the Fund's prominence and legitimacy.

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

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

A stable, democratic, prosperous Pakistan is considered vital to U.S. interests. U.S. concerns regarding Pakistan include regional and global terrorism; stability in neighboring Afghanistan; democratization and human rights protection; the ongoing Kashmir problem and Pakistan-India tensions; and economic development in the region. Progress on these issues was severely threatened in 2008 by a sharp decline in Pakistan's economic stability, culminating in an immediate need for capital assistance. U.S. officials and independent analysts are increasingly concerned that a failing Pakistani economy could undermine multilateral efforts to stabilize South Asia and curtail the incidence of Islamist radicalism. Since his ascension to the presidency in September 2008, President Asif Ali Zardari has attempted to address Pakistan's economic problems, with the support of his chief economic advisor, Shaukat Tarin. On September 19, 2008, acting finance minister Naveed Qamar released new economic policies designed to bring about macroeconomic stability and avoid seeking IMF assistance that included the elimination of fuel, electricity and food subsidies, and a reduction in the government deficit. On November 3, 2008, Tarin announced reforms of Pakistan's tax system, including the politically sensitive taxation of large landowners, to reduce the incidence of tax evasion. President Zardari has emphasized the importance of his nation's economic problems, stating, "The greatest challenge this government faces is an economic one." Despite the September announcement of new economic policies, Pakistan's foreign exchange reserves declined markedly throughout 2008. The State Bank of Pakistan's holdings of foreign exchange reserves fell from $14.2 billion at the end of October 2007 to $3.4 billion at the end of October 2008--barely enough to cover one month of imports. Pakistan needed $4 billion to $5 billion in assistance by the end of November in order to avoid defaulting on maturing sovereign debt obligations. During the autumn of 2008, Pakistan sought the needed capital from a variety of sources, including the International Monetary Fund (IMF), China, Saudi Arabia, the United States, and an informal group of nations known as the "Friends of Pakistan." Although some assistance was provided by international organizations such as the Asian Development Bank (ADB) and Islamic Development Bank (IDB), as well as $500 million from China, most of the capital Pakistan required to avoid the impending capital crisis came in the form of a $7.6 billion "stand-by arrangement" with the IMF, finalized on November 24, 2008. The IMF stand-by arrangement provided for $3.1 billion in immediate assistance, with the remainder to be distributed over the next two years, following quarterly reviews of Pakistan's economic progress. Access to the IMF assistance was subject to a number of "conditionalities," including a significant reduction in Pakistan's fiscal and current account deficits; a tightening of Pakistan's monetary policy (via higher interest rates); and "a strengthening and better targeting of social assistance." Even though the autumnal capital crisis was averted, Pakistan claimed it needed $10 billion to $15 billion over the next two to three years to continue to service its capital account deficits and its outstanding debt. As a result, it continues to seek assistance from various sources. Pakistan reportedly requested an additional $4.5 billion in assistance from the IMF during bilateral talks in Dubai in mid-February 2009. A few days later, President Zardari traveled to China, where he reportedly requested aid. In addition, there are signs that Pakistan's economic problems are growing worse. The global economic recession has apparently contributed to a slowdown in Pakistan's merchandise trade. Despite the decline in global food and energy prices, inflation remains high in Pakistan, causing economic hardship for Pakistan's urban and rural poor. Pakistan reportedly requested an easing of the IMF conditionalities during the meetings in Dubai. There is rising concern that the economic conditions are contributing to a growth in support for Pakistan's Islamist extremists, including al Qaeda and the Taliban. In his testimony before the Senate Select Committee on Intelligence, Director of National Intelligence Dennis Blair stated: The [Pakistan] government is losing authority in parts of the North-West Frontier Province and has less control of its semi-autonomous tribal areas: even in the more developed parts of the country, mounting economic hardships and frustration over poor governance have given rise to greater radicalization. In a February 2009 report, the Atlantic Council stated, "Pakistan faces dire economic and security threats that threaten both the existence of Pakistan as a democratic and stable state and the region as a whole." The Atlantic Council called for an additional $4 billion - 5 billion of immediate financial aid for Pakistan to avert "an economic meltdown." The report's honorary co-chair Senator John Kerry has indicated that he and Senator Richard Lugar "will soon introduce our Enhanced Partnership with Pakistan legislation." The legislation is expected to be very similar to the "Enhanced Partnership with Pakistan Act of 2008" ( S. 3263 ), introduced in the 110 th Congress by then-Senator and currently Vice President Joseph Biden. Other legislation has been introduced during the 111 th Congress designed to help improve the economic situation in Pakistan. After seven years of generally strong economic growth, Pakistan's economy ran into problems in 2008. Real GDP growth, which had been averaging above 7% per year since fiscal year 2000/2001, declined to 5.8% in fiscal year 2007/2008 and is expected to decline to 2.5% in fiscal year 2008/2009. Pakistan's consumer price index (CPI), which had fluctuated around 7%-9% for several years, jumped to over 25% during the summer of 2008, primarily due to a sharp increase in global food and energy prices. More alarming, however, was the dramatic decline in Pakistan's foreign exchange reserves, which plummeted from over $14 billion in June 2007 to $3.4 billion in October 2008, driven by a rapidly deteriorating current account balance. In the autumn of 2008, Pakistan was in danger of defaulting on its sovereign debt. During September and October 2008, Pakistan sought assistance with its capital crisis from a number of sources, including the ADB, China, the IMF, Saudi Arabia, the United States, and the World Bank. At first, Pakistan was unable to secure a firm commitment for support from most of these sources. There was speculation that the individual nations were waiting to see if the IMF would provide assistance, and what conditions the IMF would place on this aid. Pakistan, however, was initially reluctant to accept IMF support, for fear that its "conditionalities" would generate unacceptable hardship for Pakistan's poor and possibly threaten the stability of the Pakistan government. For a time, Pakistan sought other sources of support than the IMF. Pakistan's initial approach, termed "Plan A," was to obtain loans from selected sources, such as the ADB, the World Bank, the United Kingdom's Department for International Development (DFID), and the Islamic Development Bank (IDB). The ADB did agree to provide Pakistan with a $500 million loan "to address harm done to poor families and the country's economy by unprecedented international food and fuel price hikes." In addition, the World Bank originally offered $1.4 billion in assistance. However, the combined ADB and World Bank loans were insufficient to address Pakistan's current capital shortfall. When Plan A proved unworkable, Pakistan shifted to Plan B, which was to secure commitments for support from an informal group of nations known as the "Friends of Pakistan." On September 26, 2008, a group of nations met President Zardari in New York City to discuss ways to support Pakistan with its political, economic, and security problems. Zardari reportedly sought $100 billion in aid from the group. Calling themselves the "Friends of Pakistan," the informal coalition includes representatives from 11 nations (including China, Saudi Arabia, and the United States), as well as the European Union, the United Nations, and the IMF. The group did not, however, offer Pakistan any financial support following their September meeting. At the second meeting of the Friends of Pakistan held on November 17, 2008, in Abu Dhabi, Pakistan again requested assistance, but no commitment to aid was forthcoming. As part of the Plan B initiative, President Zardari traveled to Beijing in mid-October 2008 to strengthen ties between the two nations, as well to ask for financial assistance. Following a meeting between President Zardari and China's Premier Wen Jiabao, a spokesperson for China's foreign ministry stated, "As a long-time friend of Pakistan, China understands it is facing some financial difficulties. We are ready to support and help Pakistan within our capability." Although China provided no further details on the form and extent of its intended support to Pakistan, they did agree to foster closer economic relations between China and Pakistan, setting the goal of increasing bilateral trade from $7 billion in 2007 to $15 billion in 2011. On November 14, 2008--after Pakistan had formally requested the IMF loan, but before the terms of the loan were settled--China pledged to provide Pakistan with $500 million in financial assistance. President Zardari and Tarin left for Riyadh on November 4, 2008, to reportedly ask for Saudi support for Plan B and up to $6 billion in deferred payments for petroleum imports. The deferred oil payments would free up capital that Pakistan could then use to pay its other international obligations. In an interview prior to his departure, Tarin stated, "We will not require IMF support in case we succeed in getting money from Saudi Arabia." Saudi relations with Pakistan, however, have been cool lately for several reasons, including Pakistan's quest for an oil facility from Iran. There was no public announcement of support at the end of President Zardari's Saudi Arabia trip. With the apparent failure of both Plans A and B, Pakistan moved on to Plan C--formally requesting IMF assistance. On October 22, 2008, the IMF released a statement announcing that "The Pakistani authorities have requested discussions with the IMF on an economic program supported by financial assistance from the Fund to meet the balance of payments difficulties the country is experiencing.... " The Pakistani government, however, denied at that time making a formal request to the IMF. According to various reports, informal talks between Pakistan and the IMF had been going on for some time in Dubai. The Pakistani government was reluctant to accept formal IMF assistance for several reasons. First, there is a history of poor relations between Pakistan and the IMF. Second, relations between the Pakistani government and the IMF may have been further strained by recent reports that the IMF applied pressure on the World Bank to cancel $300 million in aid to Pakistan. Third, Pakistan was concerned that the changes in Pakistan's economic policy the IMF would require as conditions for providing assistance would have undesirable political and/or economic consequences. In the words of one Pakistani economist, "Given our current political scenario, the standard IMF program would be disastrous." On November 15, 2008, Tarin announced that Pakistan had reached a tentative agreement with the IMF to borrow $7.6 billion over the next 23 months. The first installment of the loan--$4 billion--was expected by the end of November; Pakistan is to repay the loan by 2016. According to Tarin, the only condition set by the IMF was that Pakistan had to raise its interest rates to counteract its inflation problem. President Zardari reportedly commented on the IMF loan, "I think it's a difficult pill, but one has to take medicine to get better." News of the tentative IMF loan agreement was quickly met with strongly worded opposition inside Pakistan. Several members of Pakistan's parliament stated that the loan would lead Pakistan into a debt trap, worsen the national economy, and harm the living standards of the Pakistani people. Pakistan formally requested financial assistance from the IMF--technically known as a "stand-by arrangement"--on November 20, 2008. The IMF's Executive Board approved a $7.6 billion stand-by arrangement for Pakistan on November 24, 2008, and provided $3.1 billion in immediate aid, thereby temporarily averting Pakistan's capital crisis. The IMF assistance, however, was subject to several "conditionalities." Although the conditionalities were not as severe and widespread as those previously reported, they were still strict enough to raise concerns about the potential effect on that nation's economic growth, as well as the living conditions for Pakistan's urban and rural poor. Under the agreement with the IMF, Pakistan is to be provided up to $7.6 billion over 23 months. The first tranche for $3.1 billion was made immediately available to Pakistan. Subsequent tranches will be made available quarterly (see Table 1 ), subject to the achievement of selected economic performance criteria and the successful completion of the agreed upon conditionalities. Repayment of the IMF loan is to begin in 2011 and continue until 2015. The performance criteria to be used to evaluate Pakistan's progress include the State Bank of Pakistan's (SBP) net holdings of foreign and domestic assets, the government's fiscal deficit, SBP's holdings of government debt, as well as an IMF assessment of Pakistan's achievement of structural economic changes (such as tax reform, monetary and exchange rate policies, and reform of the nation's social safety net). Failure to meet the performance criteria may result in the withholding of IMF assistance. In assessing Pakistan's request for a stand-by arrangement, the IMF projected Pakistan's economic performance through fiscal year 2009/2010. Table 2 provides selected figures from the IMF's projection for fiscal years 2006/2007 to 2009/2010 as reported in the stand-by agreement. The IMF is requiring Pakistan implement a variety of changes in economic policy in order to receive assistance. The IMF conditions include changes in fiscal policy, monetary policy, and exchange rate policy. It also requires an expansion of Pakistan's social safety net to mitigate some of the anticipated adverse effects of the other conditions. As part of the agreement, Pakistan will have to lower its fiscal deficit as a percentage of GDP (as forecasted by the IMF) through a combination of tax increases and the elimination of various subsidies. According to an Atlantic Council report, Pakistan has the lowest tax-to-GDP ratio in South Asia, with less than 1% of its population paying income tax. Pakistan's Federal Board of Revenue (FBR) is to integrate the nation's income and general sales tax (GST) to broaden the tax base and reduce tax evasion. Pakistan already increased the GST rate to 16% for fiscal year 2008/2009. The FBR is also to develop a plan for the adoption of a comprehensive value-added tax (VAT). These combined measures are supposed to raise revenues by 0.5% of GDP. Pakistan is to reduce its federal expenditures by 2.75% of GDP primarily by eliminating a number of subsidies. Prior to the finalization of the stand-by agreement, Pakistan raised petroleum prices three times to eliminate its petroleum subsidies. It has also begun the process of eliminating electricity subsidies by the end of June 2009. In addition, a research and development subsidy for the textile industry has been eliminated. The IMF is requiring two key changes in Pakistan's monetary policy. First, the SBP had to raise its discount rate by 2% to 15% in an effort to stave off inflation. Second, the SBP was to refrain from financing the federal deficit by the purchase of Pakistani treasury bills and other government securities. Pakistan has operated a de-facto managed float of its exchange rate for a number of years. Under the terms of the stand-by agreement, Pakistan is to reduce its intervention in foreign exchange markets, including the provision of foreign exchange for petroleum imports. However, the SBP is allowed to intervene in order to meet the agreed foreign reserve targets. Finally, to offset the adverse effects of inflation and the economic slowdown, Pakistan is to increase its expenditures on social safety net programs from 0.6% to 0.9% of GDP. It recently established the Benazir Income Support Program (BISP), which provides cash to low-income households, and plans on expanding the Bait-ul-Mal program. Less than three months after finalizing its stand-by agreement, Pakistan returned to the IMF, requesting an additional $4.5 billion in assistance. In addition, Pakistan asked the IMF to revise some of the performance goals. Around the same time Pakistan was approaching the IMF, Prime Minister Zardari traveled to China to foster better ties between the two nations and to seek financial support. It was apparent that the November 2008 stand-by agreement and the $3.1 billion in support from other sources were not sufficient to prevent the return of Pakistan's capital crisis. By March 2009, economic data from Pakistan were indicating that the combined effects of the global economic recession and the IMF conditionalities were slowing Pakistan's economy more quickly than had been projected by the IMF, making it less likely that Pakistan would be able to meet the required performance criteria. After consultation, Pakistan and the IMF lowered the target GDP growth rate for fiscal year 2008/2009 from 3.4% to 2.5%. Despite the economic slowdown, Pakistan's current account deficit for July 2008 to January 2009 was up 1.6% over the previous fiscal year. An anonymous analyst predicted that Pakistan's current account deficit for fiscal year 2008/2009 would be around $12.1 billion--about $1.5 billion above the IMF performance goal. Another analyst, however, predicted that Pakistan's current account deficit for the current fiscal year would be between $9.2 and $9.5 billion. Similarly, merchandise trade figures for January 2009 showed a 7.1% decline in exports and a 28.4% decline in imports, raising doubts about Pakistan's ability to reach the merchandise trade projections for fiscal year 2008/2009. President Zardari and his chief economic advisor Tarin also attributed Pakistan's economic problems to higher than expected costs of military operations against the Taliban and al-Qaeda fighters. According to Tarin, "All the revenue shortfall and other problems are because of the war on terror." Tarin also pointed to a decline in U.S. support as a contributing factor, saying the United States "stopped paying our bills" in May 2008, which has allegedly cost Pakistan about $1.25 billion. Zardari said that Pakistan was in need of a modern day "Marshall Plan." Estimating the size of Pakistan's capital shortfall for the rest of the fiscal year is complicated. Based on its additional request from the IMF, Pakistan thinks it needs $4.5 billion. This figure is consistent with the difference between Pakistan's initial estimate of its capital shortfall and the level of aid already provided, and with the Atlantic Council's estimate. However, given Pakistan's recent economic performance--including current account deficit of about $1 billion over the last two months--there is reason to believe Pakistan needs in excess of $5 billion over the next four months to avoid another default risk. Assuming Pakistan is able to secure the additional capital assistance it needs, it will not end the nation's economic problems. Pakistan's recent period of economic growth was based on a combination of export expansion and inward foreign direct investment (FDI). Pakistan was able to finance its modest trade and capital account deficits in part due to the inward FDI and in part due to remittances from overseas Pakistanis. In 2007 and 2008, a rise in fuel and food prices, combined with political instability, led to a rapid rise in inflation, a spike in the trade and current account deficits, and a devaluation of the Pakistani rupee. Although global fuel and food prices are on the decline, the U.S. financial crisis has precipitated a possibly extended global recession. For Pakistan, a global recession will likely reduce demand for its exports, inward FDI flows and overseas remittances. Official Pakistan estimates for inward foreign direct investment in 2009 reportedly show a decline of over 32% when compared to last year. When he announced the previously mentioned economic policies in September 2008, acting Finance Minister Qamar said that the economic stabilization package would create jobs, promote agriculture and manufacturing, and reduce poverty. There is concern in Pakistan, however, that the higher interest rates required by the IMF will force smaller businesses into bankruptcy and the repayment of the IMF loan will stunt future economic growth. For now, the focus of the government appears to be on the current economic problems. The combination of high inflation and high unemployment apparently has contributed to a rise in poverty and hunger in Pakistan. According to one estimate, Pakistan's unemployment rate in urban areas is nearly 40% and in rural areas over 60%. A recent United Nations study reportedly determined 10 million Pakistanis are undernourished and over half of Pakistan's population can be considered "food insecure." According to a recent news report, the price of wheat--a staple food in Pakistan--has more than doubled since April 2007, while the price of palm oil--which is used in cooking--has more than tripled. The cost of food has reportedly also affected the ability of people to obtain medical care, "In this era of high inflation, poor people can't afford to seek medical treatment, even for kids." There is also evidence that the recent growth in poverty and hunger is exacerbating Pakistan's political problems. Anecdotal accounts of popular dissatisfaction are collaborated by a recent popular opinion poll conducted by the International Republican Institute (IRI) in October 2008. When asked if Pakistan was heading in the right or wrong direction, 88% of the people surveyed said it was heading in the wrong direction, compared to 44% in February 2007. In response to a question about the change in their personal economic situation over the past year, 73% said their situation had worsened, compared to 30% in February 2007. In addition, 59% of the respondents said they expected the economic situation to get worse over the next year; in February 2007, only 14% expected things to get worse. More than three-quarters of the people surveyed agreed that "the shortages of wheat, petrol, natural gas and electricity are a serious problem." Perhaps most telling were the responses to a question about "the most important issue" facing Pakistan. The most common answer--selected by 58% of the respondents--was inflation. The second most common answer (12%) was unemployment. Suicide bombings was third (10%), even though the bombing of the Islamabad Marriott Hotel--which resulted in the death of 53 people--had occurred less than a month before the survey was conducted. The next three answers, in order, were: poverty (7%), electricity and water (7%), and law and order (3%). As previously mentioned, the U.S. government considers a stable Pakistan important for several reasons. During her February 2009 trip to Asia, Secretary of State Hillary Clinton asserted that the current economic crisis, if left unresolved, could "breed instability." In reference to the situation in Pakistan, Secretary Clinton said, "If Pakistan becomes more financially unstable, that increases the danger that we will face from the threat by the extremists to the Pakistan Government." Several recent events and trends may have harmed U.S. relations with Pakistan. Although the United States provides both military and humanitarian assistance ($968 million in FY2008), Pakistan is increasingly turning to other friendly nations--such as China and Saudi Arabia--for support. Pakistan's trade relations have shifted so that China is its largest trading partner, followed by Saudi Arabia and the United States. However, the United States remains Pakistan's largest export market. In addition, U.S. military incursions into Pakistani territory and the signing of nuclear cooperation agreement with India have created tension in U.S.-Pakistan relations. Also, some Pakistani analysts think the United States orchestrated the negotiations with the IMF and the Friends of Pakistan to force Pakistan to accept the tougher IMF conditions. Even before Pakistan's capital crisis began, some analysts maintained that there was a need for the United States to demonstrate its commitment to a stable and democratic Pakistan with an increase in non-military assistance. In their view, with the IMF loan settled, there is an opportunity for the United States to demonstrate its support for Pakistan by providing a portion of the $2 billion - $7 billion Pakistan will likely still need to cover its capital shortfall. Others think that the United States should condition additional aid on Pakistan increasing its commitment to combat Islamist militancy along its border with Afghanistan. With regard to Pakistan's current capital crisis and its ongoing economic problems, there are several approaches available to Congress--if it opts to take action. These approaches range from the provision of short-term assistance to a longer term commitment to economic support to alterations in current trade policies designed to bolster trade with Pakistan. To assist Pakistan with its current capital crisis, Congress could pass legislation providing some or all of its estimated $2 billion - $7 billion shortfall. There have been press reports that Senator Kerry will introduce legislation providing Pakistan with $4 billion - $5 billion in emergency assistance. However, these reports may have conflated the recommendations of the Atlantic Council report--which Senator Kerry co-chaired with ex-Senator Chuck Hagel--with expectations that Senator Kerry and Senator Richard Lugar will reintroduce the ''Enhanced Partnership with Pakistan Act of 2008" ( S. 3263 in the 110 th Congress). In the longer run, Congress could continue to provide economic assistance to Pakistan. Since 2001, the United States has provided Pakistan with over $12 billion in assistance of which more than two-thirds was military aid. The ''Enhanced Partnership with Pakistan Act of 2008" was introduced by then-Senator and now Vice President Joe Biden and Senator Lugar on July 15, 2008. If enacted, the act would have tripled non-military assistance to Pakistan to up to $1.5 billion each year for fiscal years 2009 to 2013. The funds were to be principally used to promote just and democratic governance, economic freedom, and investments in people. The act would also have required the Secretary of State--in consultation with the Secretary of Defense, the Director of National Intelligence, and such other government officials as may be appropriate--develop a comprehensive strategy for the Afghanistan-Pakistan border region, and report the findings to Congress. It has been reported that Senator Kerry and Senator Lugar will reintroduce S. 3263 --or a very similar bill--in the near future. Besides direct assistance, Congress could help Pakistan's economic recovery by altering current U.S. trade policies in ways that would increase bilateral trade and investment. For example, legislation has been introduced to create "reconstruction opportunity zones" (ROZs) in Afghanistan and Pakistan. The "Afghanistan and Pakistan Reconstruction Opportunity Zones Act of 2009" ( S. 496 ) and the ''Afghanistan-Pakistan Security and Prosperity Enhancement Act' ( H.R. 1318 ) were introduced by Senator Maria Cantwell and Representative Chris Van Hollen, respectively. Both bills seek to promote economic growth and development along the border regions of Afghanistan and Pakistan by creating ROZs. Under the terms of the legislation, the President would have the authority to proclaim duty-free treatment for articles manufactured within the ROZs and imported into the United States, subject to certain conditions in existing U.S. trade law. Beyond the past and pending legislation proposals, other suggestions have been made on how Congress could stimulate Pakistan's economic recovery. For example, the Atlantic Council has recommended the United States should conduct a geological survey of Pakistan to identify potential mineral resources to develop. If adopted, these suggestions might require Congress to appropriate additional funds. Finally, Congress could encourage the Obama Administration to take actions that do not require appropriations or changes in federal law. For example, Congress could recommend that the Obama Administration press other nations to provide greater assistance to Pakistan, via such mechanisms as the next meeting of the Friends of Pakistan--scheduled to be held in Tokyo on March 27, 2009. In addition, Congress could support the negotiation of a bilateral investment treaty (BIT) with Pakistan, in the expectation that it would increase U.S. foreign direct investments in Pakistan.

Pakistan, a key U.S. ally in global efforts to combat Islamist militancy, is facing a serious capital crisis. In the autumn of 2008, Pakistan was in urgent need of an estimated $4 billion in capital to avoid defaulting on its sovereign debt. The elected government of President Asif Ali Zardari and Prime Minister Yousaf Raza Gillani sought short-term financial assistance from a number of sources, including the International Monetary Fund (IMF), China, and an informal group of nations (including the United States) known as the "Friends of Pakistan." The Pakistani government reached an agreement with the IMF for $7.6 billion in loans, but their capital crisis continues. In February 2009, Pakistan requested an additional $4.5 billion in assistance from the IMF and Prime Minister Gillani traveled to Beijing seeking financial support. According to a recent study by the Atlantic Council, Pakistan needs $4 billion - $5 billion in the next 6 to 12 months to avoid another possible default. Pakistan's continuing capital crisis is affecting the nation's overall economic performance and raising concerns about its political stability. During her Asia trip in February 2009, Secretary of State Hillary Clinton made several references to the importance of solving Pakistan's economic problems in the continued campaign to combat Islamic militants in the region. The Atlantic Council has called for an increase in U.S. assistance "to avert an economic meltdown." The severity of Pakistan's economic situation has also been raised by several members of Congress. Several different research groups have recently issued reports on the situation in Pakistan that contain recommendations on what the United States could do to help alleviate Pakistan's economic problems. There are indications that Congress may consider some of these recommended actions, including an increase in U.S. non-military assistance and the creation of "reconstruction opportunity zones" in Pakistan. This report will be updated as circumstances warrant.

T he information technology (IT) industry has evolved greatly over the last half century. Continued, exponential progress in processing power and memory capacity has made IT hardware not only faster but also smaller, lighter, cheaper, and easier to use. The original IT industry has also increasingly converged with the communications industry into a combined sector commonly called information and communications technology (ICT). This technology is ubiquitous and increasingly integral to almost every facet of modern society. ICT devices and components are generally interdependent, and disruption of one may affect many others. Over the past several years, experts and policymakers have expressed increasing concerns about protecting ICT systems from cyberattacks --deliberate attempts by unauthorized persons to access ICT systems, usually with the goal of theft, disruption, damage, or other unlawful actions. Many experts expect the number and severity of cyberattacks to increase over the next several years. The act of protecting ICT systems and their contents has come to be known as cybersecurity . A broad and arguably somewhat fuzzy concept, cybersecurity can be a useful term but tends to defy precise definition. It usually refers to one or more of three things: A set of activities and other measures intended to protect--from attack, disruption, or other threats--computers, computer networks, related hardware and devices, software, and the information they contain and communicate, including software and data, as well as other elements of cyberspace. The state or quality of being protected from such threats. The broad field of endeavor aimed at implementing and improving those activities and quality. It is related to but not generally regarded as identical to the concept of information security , which is defined in federal law (44 U.S.C. SS3552(b)(3)) as protecting information and information systems from unauthorized access, use, disclosure, disruption, modification, or destruction in order to provide- (A) integrity, which means guarding against improper information modification or destruction, and includes ensuring information nonrepudiation and authenticity; (B) confidentiality, which means preserving authorized restrictions on access and disclosure, including means for protecting personal privacy and proprietary information; and (C) availability, which means ensuring timely and reliable access to and use of information. Cybersecurity is also sometimes conflated inappropriately in public discussion with other concepts such as privacy, information sharing, intelligence gathering, and surveillance. Privacy is associated with the ability of an individual person to control access by others to information about that person. Thus, good cybersecurity can help protect privacy in an electronic environment, but information that is shared to assist in cybersecurity efforts might sometimes contain personal information that at least some observers would regard as private. Cybersecurity can be a means of protecting against undesired surveillance of and gathering of intelligence from an information system. However, when aimed at potential sources of cyberattacks, such activities can also be useful to help effect cybersecurity. In addition, surveillance in the form of monitoring of information flow within a system can be an important component of cybersecurity. The risks associated with any attack depend on three factors: threats (who is attacking), vulnerabilities (the weaknesses they are attacking), and impacts (what the attack does). The management of risk to information systems is considered fundamental to effective cybersecurity. People who actually or potentially perform cyberattacks are widely cited as falling into one or more of five categories: criminals intent on monetary gain from crimes such as theft or extortion; spies intent on stealing classified or proprietary information used by government or private entities; nation-state warriors who develop capabilities and undertake cyberattacks in support of a country's strategic objectives; " hacktivists " who perform cyberattacks for nonmonetary reasons; and terrorists who engage in cyberattacks as a form of non-state or state-sponsored warfare. Cybersecurity is in many ways an arms race between attackers and defenders. ICT systems are very complex, and attackers are constantly probing for weaknesses, which can occur at many points. Defenders can often protect against weaknesses, but three are particularly challenging: inadvertent or intentional acts by insiders with access to a system; supply chain vulnerabilities, which can permit the insertion of malicious software or hardware during the acquisition process; and previously unknown, or zero-day , vulnerabilities with no established fix. Even for vulnerabilities where remedies are known, they may not be implemented in many cases because of budgetary or operational constraints. A successful attack can compromise the confidentiality, integrity, and availability of an ICT system and the information it handles. Cybertheft or cyberespionage can result in exfiltration of financial, proprietary, or personal information from which the attacker can benefit, often without the knowledge of the victim. Denial-of-service attacks can slow or prevent legitimate users from accessing a system. Botnet malware can give an attacker command of a system for use in cyberattacks on other systems. Attacks on industrial control systems can result in the destruction or disruption of the equipment they control, such as generators, pumps, and centrifuges. Most cyberattacks have limited impacts, but a successful attack on some components of critical infrastructure (CI)--most of which is held by the private sector--could have significant effects on national security, the economy, and the livelihood and safety of individual citizens. Thus, a rare successful attack with high impact can pose a larger risk than a common successful attack with low impact. While it is widely recognized that cyberattacks can be costly to individuals and organizations, economic impacts can be difficult to measure, and estimates of those impacts vary widely. An often cited figure for annual cost to the global economy from cybercrime is $400 billion, with some observers arguing that costs are increasing substantially, especially with the continued expansion of ICT infrastructure through the Internet of Things and other new and emerging platforms. The costs of cyberespionage can be even more difficult to quantify but are considered to be substantial. Managing the risks from cyberattacks usually involves (1) removing the threat source (e.g., by closing down botnets or reducing incentives for cybercriminals); (2) addressing vulnerabilities by hardening ICT assets (e.g., by patching software and training employees); and (3) lessening impacts by mitigating damage and restoring functions (e.g., by having back-up resources available for continuity of operations in response to an attack). The optimal level of risk reduction will vary among sectors and organizations. For example, the level of cybersecurity that customers expect may be lower for a company in the entertainment sector than for a bank, a hospital, or a government agency. The federal role in cybersecurity involves both securing federal systems and assisting in protecting nonfederal systems. Under current law, all federal agencies have cybersecurity responsibilities relating to their own systems, and many have sector-specific responsibilities for CI. More than 50 statutes address various aspects of cybersecurity. Figure 1 is a simplified schematic diagram of major agency responsibilities in cybersecurity. In general, the National Institute of Standards and Technology (NIST) develops standards that apply to federal civilian ICT under the Federal Information Security Modernization Act (FISMA), and the Office of Management and Budget (OMB) is responsible for overseeing their implementation. The Department of Defense (DOD) is responsible for military ICT, defense of the nation in cyberspace, and, through the National Security Agency (NSA), security of national security systems (NSS), which handle classified information. NSA is also part of the Intelligence Community (IC). The Department of Homeland Security (DHS) has operational responsibility for protection of federal civilian systems and is the lead agency coordinating federal efforts assisting the private sector in protecting CI assets. It is also the main federal focus of information sharing for civilian systems through its National Cybersecurity and Communications Integration Center (NCCIC). The Department of Justice (DOJ) is the lead agency for enforcement of relevant laws. In February 2015, the Obama Administration also established, via presidential memorandum, the Cyber Threat Intelligence Integration Center (CTIIC) under the Director of National Intelligence (DNI). Its purposes are to provide integrated analysis on cybersecurity threats and incidents affecting national interests across the federal government and to support relevant government entities, including the NCCIC and others at DOD and DOJ. Federal agencies spend a significant part of their annual IT funding on cybersecurity, which currently constitutes 16-17% (about one in every seven dollars) of agency IT budgets overall ( Table 1 ). However, DOD spending accounts for a large proportion of that expenditure, ranging from 22% to 30% of the DOD IT budget from FY2010 to FY2015. The median proportion for other agencies has been 6%-7% during that period. That is roughly equivalent to spending patterns for businesses of 4%-9% reported in a recent survey. The FY2017 budget request includes over $19 billion altogether for cybersecurity. With a total requested IT investment of $81.6 billion, that would amount to a proportion of 23.3%, or about one in every four dollars, to be spent on cybersecurity. For more information on federal cybersecurity spending, see CRS Report R44404, Perspectives on Federal Cybersecurity Spending , by [author name scrubbed] and [author name scrubbed]. Since at least the 111 th Congress, many bills have been introduced that would address a range of cybersecurity issues: Cybercrime Laws --updating criminal statutes and law-enforcement authorities relating to cybersecurity. Data-Breach Notification --requiring notification to victims and other responses after data breaches involving personal or financial information of individuals. FISMA Reform --updating the law to reflect changes in ICT and the threat landscape. Information Sharing --easing access of the private sector to classified and unclassified threat information and removing barriers to sharing within the private sector and with the federal government. Internet of Things --addressing a range of cybersecurity issues arising from the proliferation of devices and objects (such as home appliances, automobiles, medical devices, factories, and infrastructure) connected to the Internet. Privately Held CI --improving protection of private sector CI from attacks with major impacts. R&D --updating agency authorizations and strategic planning requirements. Workforce --improving the size, skills, and preparation of the federal and private sector cybersecurity workforce. Laws enacted in the 113 th and 114 th Congresses ( Table 2 ) have focused on all of those issues to varying degrees: Critical Infrastructure P.L. 113-274 established a process led by the National Institute of Standards and Technology (NIST) similar to one created in Executive Order 13636 to develop a cybersecurity framework, a common set of practices for protection of CI. P.L. 113-282 requires DHS to develop and exercise incident-response plans for cybersecurity risks to CI. P.L. 114-113 , Title IV, requires DHS and NIST to assist states in improving cybersecurity for emergency response networks. It also requires the Department of Health and Human Services to establish a task force and collaboration mechanisms to assist the healthcare sector in reducing cybersecurity risks. Data-Breach Notification P.L. 113-283 requires OMB to establish procedures for notification and other responses to federal agency data breaches of personal information. Federal Information System s P.L. 113-283 retains, with some amendments, most provisions of FISMA, which was originally enacted in 2002. Changes include providing statutory authority to DHS for overseeing operational cybersecurity of federal civilian information systems, and requiring agencies to implement DHS directives. P.L. 114-113 , Title II, Subtitle B establishes in statute the DHS intrusion-protection program known as EINSTEIN; requires agencies to adopt it and implement additional cybersecurity measures; gives DHS additional authority in the event of an imminent threat or emergency; and establishes additional reporting requirements. P.L. 114-113 , Title IV, also requires reports to Congress: from DHS on the security of mobile devices used by federal agencies, and from agency inspectors general on the cybersecurity of NSS and systems providing access to personally identifiable information. Information Sharing P.L. 113-282 provided statutory authority for NCCIC, which had been created by DHS in 2009 under existing statutory authority to provide and facilitate information sharing and incident response among public and private-sector CI entities. P.L. 114-113 , Title I, facilitates public- and private-sector sharing of information on cyberthreats and defensive measures and permits private-sector entities to monitor and operate defenses on their information systems. P.L. 114-113 , Title II, Subtitle A, expands the functions and modifies the responsibilities of the NCCIC and establishes additional reporting requirements. International and Cybercrime P.L. 114-113 , Title IV, requires, from the Department of State, an international cyberspace policy and international consultations on measures against cybercriminals. It also broadens cybercrime penalties to cover specified offenses occurring outside U.S. territory. R&D P.L. 113-274 requires a multiagency strategic plan for cybersecurity R&D and specifies areas of research for NSF. Workforce P.L. 113-246 requires an assessment by DHS of its cybersecurity workforce and development of a workforce strategy; P.L. 113-274 provides statutory authority for an existing NSF scholarship and recruitment program to build the federal cybersecurity workforce, as well as competitions and a study of existing education and certification programs; P.L. 113-277 provides additional DHS hiring and compensation authorities and requires a DHS assessment of workforce needs. P.L. 114-113 , Title III, requires the Office of Personnel Management (OPM) to establish and implement an employment-code structure for federal cybersecurity personnel, and it sets reporting requirements. With respect to cybercrime and data-breach notification, more comprehensive legislation has been introduced in recent Congresses but has not been enacted. Ongoing controversies relating to cybercrime include the balance between providing adequate penalties and authorities, on the one hand, and ensuring protection of privacy and civil liberties, on the other (for more information, see CRS Report R44481, Encryption and the "Going Dark" Debate , by [author name scrubbed]; CRS Report R44036, Stored Communications Act: Reform of the Electronic Communications Privacy Act (ECPA) , by [author name scrubbed] and [author name scrubbed]). With respect to data-breach notification, much of the debate involves how best to harmonize federal and state standards, and what precautions and responses should be required from organizations holding sensitive information such as financial or personal data of customers (see CRS Report R44326, Data Security and Breach Notification Legislation: Selected Legal Issues , by [author name scrubbed]). Debate about the cybersecurity of the Internet of Things involves a broad range of issues that vary among sectors and applications (see CRS Report R44227, The Internet of Things: Frequently Asked Questions , by [author name scrubbed]). Other legislation with more limited cybersecurity provisions has also been enacted in the 114 th Congress. Notably, the annual defense reauthorization act, P.L. 114-92 , contains cybersecurity provisions relating to DOD. Altogether, more than 150 bills have been introduced in the 114 th Congress that would address various cybersecurity issues, with more than a dozen receiving committee or floor action. For two of the issues discussed above--data-breach notification and revision of cybercrime laws--in addition to the bills that have been introduced, the Obama Administration has also released legislative proposals. Some notable actions have been taken by the Obama Administration during the 114 th Congress. Some of the provisions in the enacted legislation provided statutory authority for programs or activities previously established through executive action. In addition to the NCCIC ( P.L. 113-282 ), examples include the Scholarship for Service program and the NIST cybersecurity framework process ( P.L. 113-274 ), as well as the EINSTEIN intrusion-protection program for federal agencies ( P.L. 114-113 ). The Administration has also taken steps to implement enacted provisions. Additional actions include the following: Executive Order 13691 set up mechanisms to promote the widespread use of information sharing and analysis organizations and the development of standards for their establishment and operation. Subsequent to significant data breaches, such as the 2015 exfiltration of records from the Office of Personnel Management (see CRS Report R44111, Cyber Intrusion into U.S. Office of Personnel Management: In Brief , coordinated by [author name scrubbed]), and other concerns, the Administration announced a cybersecurity national action plan to implement strategies to enhance U.S. cybersecurity nationwide. Initiatives in the plan include a proposed revolving fund for modernizing federal IT (see H.R. 4897 and H.R. 5792 ) and the appointment of a federal chief information security officer, among other actions. Presidential Policy Directive 41 describes how the federal government will respond to cybersecurity incidents affecting government and private-sector entities, including principles, kinds of response, a framework of roles and responsibilities, and coordination. The legislative and executive-branch actions discussed above are largely designed to address several well-established near-term needs in cybersecurity: preventing cyber-based disasters and espionage, reducing impacts of successful attacks, improving inter- and intrasector collaboration, clarifying federal agency roles and responsibilities, and fighting cybercrime. However, those needs exist in the context of more difficult long-term challenges relating to design, incentives, consensus, and environment (DICE): Design: Experts often say that effective security needs to be an integral part of ICT design. Yet, developers have traditionally focused more on features than security, for economic reasons. Also, many future security needs cannot be predicted, posing a difficult challenge for designers. Incentives: The structure of economic incentives for cybersecurity has been called distorted or even perverse. Cybercrime is regarded as cheap, profitable, and comparatively safe for the criminals. In contrast, cybersecurity can be expensive, is by its nature imperfect, and the economic returns on investments are often unsure. Consensus: Cybersecurity means different things to different stakeholders, often with little common agreement on meaning, implementation, and risks. Substantial cultural impediments to consensus also exist, not only between sectors but within sectors and even within organizations. Traditional approaches to security may be insufficient in the hyperconnected environment of cyberspace, but consensus on alternatives has proven elusive. Environment: Cyberspace has been called the fastest evolving technology space in human history, both in scale and properties. New and emerging properties and applications--especially social media, mobile computing, big data, cloud computing, and the Internet of Things--further complicate the evolving threat environment, but they can also pose potential opportunities for improving cybersecurity, for example through the economies of scale provided by cloud computing and big data analytics. Legislation and executive actions in the 114 th and future Congresses could have significant impacts on those challenges. For example, cybersecurity R&D may affect the design of ICT, cybercrime penalties may influence the structure of incentives, the NIST framework may facilitate achievement of a consensus on cybersecurity, and federal initiatives in cloud computing and other new components of cyberspace may help shape the evolution of cybersecurity.

The information and communications technology (ICT) industry has evolved greatly over the last half century. The technology is ubiquitous and increasingly integral to almost every facet of modern society. ICT devices and components are generally interdependent, and disruption of one may affect many others. Over the past several years, experts and policymakers have expressed increasing concerns about protecting ICT systems from cyberattacks, which many experts expect to increase in frequency and severity over the next several years. The act of protecting ICT systems and their contents has come to be known as cybersecurity. A broad and arguably somewhat fuzzy concept, cybersecurity can be a useful term but tends to defy precise definition. It is also sometimes inappropriately conflated with other concepts such as privacy, information sharing, intelligence gathering, and surveillance. However, cybersecurity can be an important tool in protecting privacy and preventing unauthorized surveillance, and information sharing and intelligence gathering can be useful tools for effecting cybersecurity. The management of risk to information systems is considered fundamental to effective cybersecurity. The risks associated with any attack depend on three factors: threats (who is attacking), vulnerabilities (the weaknesses they are attacking), and impacts (what the attack does). Most cyberattacks have limited impacts, but a successful attack on some components of critical infrastructure (CI)--most of which is held by the private sector--could have significant effects on national security, the economy, and the livelihood and safety of individual citizens. Reducing such risks usually involves removing threat sources, addressing vulnerabilities, and lessening impacts. The federal role in cybersecurity involves both securing federal systems and assisting in protecting nonfederal systems. Under current law, all federal agencies have cybersecurity responsibilities relating to their own systems, and many have sector-specific responsibilities for CI. On average, federal agencies spend more than 10% of their annual ICT budgets on cybersecurity. More than 50 statutes address various aspects of cybersecurity. Five bills enacted in the 113th Congress and another in the 114th address the security of federal ICT and U.S. CI, the federal cybersecurity workforce, cybersecurity research and development, information sharing in both the public and private sectors, and international aspects of cybersecurity. Other bills considered by Congress have addressed a range of additional issues, including data breach prevention and response, cybercrime and law enforcement, and the Internet of Things, among others. Among actions taken by the Obama Administration during the 114th Congress are promotion and expansion of nonfederal information sharing and analysis organizations; announcement of an action plan to improve cybersecurity nationwide; proposed increases in cybersecurity funding for federal agencies of more than 30%, including establishment of a revolving fund for modernizing federal ICT; and a directive laying out how the federal government will respond to both government and private-sector cybersecurity incidents. Those recent legislative and executive-branch actions are largely designed to address several well-established needs in cybersecurity. However, those needs exist in the context of difficult long-term challenges relating to design, incentives, consensus, and environment. Legislation and executive actions in the 114th and future Congresses could have significant impacts on those challenges.

Section 504 of the Rehabilitation Act of 1973 prohibits discrimination against an otherwise qualified individual with a disability solely by reason of disability in any program or activity receiving federal financial assistance or under any program or activity conducted by an executive agency or the U.S. Postal Service. Section 504 was the first federal civil rights law generally prohibiting discrimination against individuals with disabilities. The concepts of Section 504 and its implementing regulations were used in crafting the Americans with Disabilities Act (ADA) in 1990. The ADA and Section 504 are, therefore, very similar and have some overlapping coverage but also have several important distinctions. For example, Section 504 is limited to programs receiving federal funds or the executive agencies and the Postal Service while the ADA broadly covers the private sector regardless of whether federal funds are involved and does not cover the executive agencies or the Postal Service. The ADA Amendments Act of 2008, P.L. 110-325 , amended the definition of disability in the ADA and the definition of disability applicable to Section 504. This report examines Section 504, the recent amendments to the definition of disability, Section 504's regulations, and Supreme Court interpretations. Section 504's differences with the ADA, and its relationship to the Individuals with Disabilities Education Act (IDEA), are also discussed. Although Section 504 was the first federal statute that provided broad civil rights protections for individuals with disabilities, there was very little discussion of its meaning or importance during its enactment in 1973. The most detailed discussion was during congressional debate when Senator Humphrey observed, I am deeply gratified at the inclusion of these provisions which carry through the intent of original bills which I introduced, jointly with the Senator from Illinois (Mr. Percy), earlier this year, S. 3044 and S. 3458, to amend, respectively, Titles VI and VII of the Civil Rights Act of 1964, to guarantee the right of persons with a mental or physical handicap to participate in programs receiving Federal assistance, and to make discrimination in employment because of these handicaps, and in the absence of a bona fide occupational qualification, an unlawful employment practice. The time has come to firmly establish the right of these Americans to dignity and self-respect as equal and contributing members of society, and to end the virtual isolation of millions of children and adults from society. The implementation of Section 504 was not performed expeditiously. The then Department of Health, Education, and Welfare (HEW) published regulations in 1978 only after a federal court held that HEW was required to promulgate regulations and after demonstrations at HEW offices. The year 1978 also saw major amendments to Section 504. These amendments expanded Section 504 nondiscrimination requirements to programs or activities conducted by executive agencies, and added a new section 505 which applied the remedies, procedures and rights of Title VI of the Civil Rights Act of 1964 to Section 504 actions. Section 504 has been amended numerous times since its original enactment in 1973. The core requirement of the section is found in subsection (a). This subsection was amended by P.L. 95-602 which added the provisions regarding the regulations. Section 504(a) currently states the following: (a) No otherwise qualified individual with a disability in the United States, as defined in section 705(20), shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section made by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978. Copies of any proposed regulation shall be submitted to appropriate authorizing committees of Congress, and such regulations may take effect no earlier than the thirtieth day after the date on which such regulation is so submitted to such committees. Subsection (b) of Section 504 defines the term "program or activity." This subsection was added by P.L. 100-259 in 1988 in response to the Supreme Court's narrow interpretation of the phrase "program or activity" in Title IX of the Education Amendments of 1972. The amendment clarified that discrimination is prohibited throughout the entire institution if any part of the institution receives federal financial assistance. Subsection (c) of Section 504 was also added by P.L. 100-259 in 1988. It contains an exception for small providers so they are not required to make significant structural alterations to their existing facilities to render them accessible if alternative means of providing the services are available. This subsection was added to clarify that P.L. 100-259 does not add new requirements for architectural modification. Subsection (d) of Section 504 requires that the standards used to determine whether there has been a violation of Section 504 regarding employment discrimination complaints are the same as those in the Americans with Disabilities Act. This subsection was added by P.L. 102-569 in 1992. P.L. 102-569 also substituted the term "disability" for the term "handicap." The definition of disability applicable to Section 504 was amended by the ADA Amendments Act of 2008 to conform with the new definition of disability for the ADA. The Senate Statement of Managers noted the importance of maintaining uniform definitions in the two statutes so covered entities "will generally operate under one consistent standard, and the civil rights of individuals with disabilities will be protected in all settings." The ADA definition defines the term disability with respect to an individual as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment (as described in paragraph (3))." Although this is essentially the same statutory language as was in the original ADA, P.L. 110-325 contains new rules of construction regarding the definition of disability, which provide that the definition of disability shall be construed in favor of broad coverage to the maximum extent permitted by the terms of the act; the term "substantially limits" shall be interpreted consistently with the findings and purposes of the ADA Amendments Act; an impairment that substantially limits one major life activity need not limit other major life activities to be considered a disability; an impairment that is episodic or in remission is a disability if it would have substantially limited a major life activity when active; and the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures, except that the ameliorative effects of ordinary eyeglasses or contact lenses shall be considered. The ADA Amendments Act specifically lists examples of major life activities including caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. The act also states that a major life activity includes the operation of a major bodily function. The first Section 504 regulations were promulgated by the then department of Health, Education, and Welfare (HEW) in January of 1978. Soon after this, the 1978 amendments to Section 504 were passed which applied Section 504 nondiscrimination requirements to programs or activities conducted by executive agencies, and added language requiring the promulgation of regulations. Each executive agency and the Postal Service now has its own Section 504 regulations which are tailored to the particular recipients of that agency's programs. In addition, each executive agency and the Postal Service have regulations which delineate the coverage of Section 504 with regard to that agency's own programs. In 1980, President Carter issued Executive Order 12250 which provided that the Department of Justice shall coordinate the implementation and enforcement of certain nondiscrimination provisions, including those of Section 504. The Supreme Court has examined Section 504 in numerous contexts and, since the enactment of the ADA in 1990, has often referenced Section 504 in its analysis of ADA cases. The first Section 504 case to reach the Supreme Court was Southeastern Community College v. Davis. In Southeastern , the plaintiff was a student with a serious hearing disability and who sought to be trained as a registered nurse. The college argued that she was not "otherwise qualified" as she could not understand speech except through lip reading and that this limitation made it unsafe for her to participate in the normal clinical program. The Supreme Court agreed with the college, noting that it was unlikely that she "could benefit from any affirmative action that the regulations reasonably could be interpreted as requiring." The Court concluded that there was no violation of SS504 when Southeastern concluded that respondent did not qualify for admission to its program. Nothing in the language or history of SS504 reflects an intention to limit the freedom of an educational institution to require reasonable physical qualifications for admission to a clinical training program. Nor has there been any showing in this case that any action short of a substantial change in Southeastern's program would render unreasonable the qualifications it imposed. Similarly, in Alexander v. Choate the Supreme Court found no violation of Section 504 where Medicaid recipients with disabilities claimed that a proposed 14-day limitation on in-patient coverage had a discriminatory effect on individuals with disabilities. The Court found that the limitation was neutral on its face as it would provide Medicaid users with or without disabilities with "identical and effective hospital services." Section 504 did not require the state to alter its definition of the Medicaid benefit because individuals with disabilities have greater medical needs. Citing Southeastern , the Court observed that Section 504 requires even-handed treatment and an opportunity for individuals with disabilities to participate and benefit from programs receiving federal funds. "The Act does not, however, guarantee the handicapped equal results from the provision of state Medicaid, even assuming some measure of equality of health could be constructed." Consolidated Rail Corporation v. Darrone raised the issue of whether an employment discrimination action under Section 504 was limited to situations where the primary objective of the federal financial assistance was to provide employment. The Supreme Court held that such actions were not limited since the primary goal of the Rehabilitation Act is to increase employment of individuals with disabilities. The fact that Congress chose to ban such employment discrimination only by the federal government and recipients of federal funds did not require that Section 504 be further limited. In Bowen v. American Hospital Association the Supreme Court addressed the issue of whether Section 504 regulations requiring the provision of health care to infants with disabilities were authorized by Section 504. This case began when the parents of a child with Down Syndrome requested that life-saving surgery not be performed. In response to the death of the child, HHS promulgated a regulation under Section 504 stating that Section 504 required that nourishment and medically beneficial treatment should not be withheld from infants with disabilities. Striking down these regulations, the Court noted that the legislative history of the Rehabilitation Act did not support the argument that federal officials can intervene in treatment decisions traditionally left by state law to the parents and attending physicians. School Board of Nassau County v. Arline examined the issue of when an individual with a disability is "otherwise qualified" for a job if the individual has a contagious disease. Gene Arline taught elementary school until her employment was terminated after she suffered a third relapse of tuberculosis within two years. The Supreme Court held that an individual with a contagious disease may be a person with a disability under Section 504 but that a person who poses a significant risk of communicating an infectious disease to others that cannot be alleviated by reasonable accommodation will not be otherwise qualified for a job. This should be determined by findings of fact based on reasonable medical judgments about the nature of the risk, the duration of the risk, the severity of the risk, and the probabilities the disease will be transmitted and will cause harm. In Traynor v. Turnage the Supreme Court examined the application of Section 504 to an executive agency, more specifically to the Veterans' Administration (VA). The veterans who brought the suit had been denied an extension of the time limit for the use of educational benefits due to disability on the ground that their alleged disability was due to alcoholism unrelated to a psychiatric condition. VA regulations prohibited the granting of a time extension because alcoholism unrelated to a psychiatric condition was considered willful misconduct. 38 U.S.C. SS211(a) bars judicial review of the Veterans' Administrators' decision "on any question of law or fact under any law administered by the Veterans' Administration providing benefits for veterans." The first question the Court addressed, then, was whether 38 U.S.C. SS211(a) foreclosed the Court from considering whether the VA regulation violated Section 504. Holding that such suits were not precluded, the Supreme Court noted that Section 211(a) insulates from review decision of law and fact 'under any law administered by the Veterans' Administration,' that is, decisions made in interpreting or applying a particular provision of that statute to a particular set of facts... But the cases now before us involve the issue whether the law sought to be administered is valid in light of a subsequent statute whose enforcement is not the exclusive domain of the Veterans' Administration. The Court then examined the second issue in Traynor : whether the regulation was inconsistent with the requirements of Section 504. Finding that the regulation did not violate Section 504, the Court observed, "There is nothing in the Rehabilitation Act that requires that any benefit extended to one category of handicapped persons also be extended to all other categories of handicapped persons." The Court also noted that "Congress is entitled to establish priorities for the allocation of the limited resources available for veterans' benefits, ... and thereby to conclude that veterans who bear some responsibility for their disabilities have no stronger claim to an extended eligibility period than do able-bodied veterans." The Supreme Court in Barnes v. Gorman held in a unanimous decision that punitive damages may not be awarded under Section 202 of the ADA and Section 504 of the Rehabilitation Act. Jeffrey Gorman uses a wheelchair and lacks voluntary control over his lower torso which necessitates the use of a catheter attached to a urine bag. He was arrested in 1992 after fighting with a bouncer at a nightclub and during his transport to the police station suffered significant injuries due to the manner in which he was transported. He sued the Kansas City police and was awarded over $1 million in compensatory damages and $1.2 million in punitive damages. The eighth circuit court of appeals upheld the award of punitive damages but the Supreme Court reversed. Although the Court was unanimous in the result, there were two concurring opinions, and the concurring opinion by Justice Stevens, joined by Justices Ginsburg and Breyer, disagreed with the reasoning used in Justice Scalia's opinion for the Court. Justice Scalia observed that the remedies for violations of both Section 202 of the ADA and Section 504 of the Rehabilitation Act are "coextensive with the remedies available in a private cause of action brought under Title VI of the Civil Rights Act of 1964." Neither Section 504 nor Title II of the ADA specifically mention punitive damages, rather they reference the remedies of Title VI of the Civil Rights Act. Title VI is based on the congressional power under the Spending Clause to place conditions on grants. Justice Scalia noted that Spending Clause legislation is "much in the nature of a contract" and, in order to be a legitimate use of this power, the recipient must voluntarily and knowingly accept the terms of the "contract." "If Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously." This contract law analogy was also found to be applicable to determining the scope of the damages remedies and, since punitive damages are generally not found to be available for a breach of contract, Justice Scalia found that they were not available under Title VI, Section 504, or the ADA. The Americans with Disabilities Act was modeled on the statutory language, regulations, and case law of Section 504. The ADA and Section 504 are, therefore, very similar and have some overlapping coverage but also have several important distinctions. Most significantly, Section 504 is limited to programs receiving federal funds or the executive agencies and the Postal Service while the ADA broadly covers the private sector regardless of whether federal funds are involved and does not cover the executive agencies or the Postal Service. There are several other distinctions between the ADA and Section 504. For example, the ADA contains specific exemptions for religious entities. There are no corresponding provisions in Section 504. Therefore, if a faith-based organization receives federal funds, it is prohibited from discriminating against an individual with a disability. Title I of the ADA prohibits employment discrimination which is also prohibited with regard to the entities covered by Section 504. However, the enforcement procedures for the two statutes are somewhat different. Enforcement of Title I of the ADA parallels that of Title VII of the Civil Rights Act of 1964 and includes the requirement that persons alleging discrimination file a charge with the EEOC. However, under Section 504 an employment discrimination complaint may be filed with the Office of Civil Rights for the agency that provided the federal financial assistance or the Department of Justice. Administrative procedures do not have to be exhausted prior to filing suit in federal court. Several federal statutes, notably the Individuals with Disabilities Education Act (IDEA), Section 504, and the ADA, address the rights of individuals with disabilities to education. Although there is overlap, particularly with Section 504 and the ADA, each statute plays a significant part in the education of individuals with disabilities. Generally, although there are some differences regarding K-12 schools, the Department of Education (ED) has interpreted the Section 504 compliance standards for schools to be the same as the basic requirements of IDEA. As discussed previously, the Rehabilitation Act is amended by the ADA Amendments Act to reference the definition of disability in the ADA. Section 504's coverage of education was a subject of discussion during the passage of the ADA Amendments Act, and the Senate Statement of Managers observed: We expect that the Secretary of Education will promulgate new regulations related to the definition of disability to be consistent with those issued by the Attorney General under this Act. We believe that other current regulations issued by the Department of Education Office of Civil Rights under Section 504 of the Rehabilitation Act are currently harmonious with Congressional intent under both the ADA and the Rehabilitation Act. The implications of the changes in the definition of disability under Section 504 and the ADA for the coverage of children in K-12 schools is not entirely clear. Perry Zirkel, a Lehigh University education and law professor, argues that the ADAAA would result in more students in K-12 education being given Section 504 plans, especially students with diabetes, asthma, food allergies, dyslexia, and attention deficit disorder (ADD). Another commentator noted that the addition of "reading" in the list of major life activities may be problematic since "there is no easy way to distinguish children who are unable to read because they have a disability from those who have simply received poor instruction."

Section 504 of the Rehabilitation Act of 1973 prohibits discrimination against an otherwise qualified individual with a disability solely by reason of disability in any program or activity receiving federal financial assistance or under any program or activity conducted by an executive agency or the U.S. Postal Service. Section 504 was the first federal civil rights law generally prohibiting discrimination against individuals with disabilities. This report examines Section 504, recent amendments to the definition of disability, Section 504's regulations, and Supreme Court interpretations. Section 504's differences with the ADA, and its relationship to the Individuals with Disabilities Education Act (IDEA), are also discussed.

Following several years of congressional debate over patent reform, P.L. 112-29 , the Leahy-Smith America Invents Act was passed in September 2011. This attention to patent policy reflects a recognition of the increasing importance of intellectual property to U.S. innovation. Patent ownership is perceived as an incentive to the technological advancement that leads to economic growth. As such, the number of patent applications and grants have grown significantly as have the type and breath of inventions that can be patented. In 1980, 104,329 utility patent applications were received at the U.S. Patent and Trademark Office (USPTO); by 2010, this number had more than quadrupled to 456,106 applications. During the same time period, the number of U.S. utility patents granted grew from 61,819 to 219,614. Along with the expansion in the number and range of patents, there were growing concerns over whether the patent system was working efficiently and effectively. Several recent studies (including those by the National Academy of Sciences and the Federal Trade Commission) recommended patent reform. While some experts maintained that major alterations in existing law were unnecessary and that, while not perfect, the patent process was adapting to technological progress, Congress arguably made the most significant changes to the patent statute since the 19 th century when it enacted P.L. 112-29 . Among other provisions, the Leahy-Smith America Invents Act introduces into U.S. law a first-inventor-to-file priority rule, an infringement defense based upon prior commercial use, and assignee filing. The legislation prevents patents from claiming or encompassing human organisms, limits the availability of patents claiming tax strategies, and restricts the best mode requirement. The statute also makes notable reforms to administrative patent challenge proceedings at the U.S. Patent and Trademark Office (USPTO) and to the law of patent marking. Along with numerous other changes to patent laws and procedures, these reforms were intended to modernize the U.S. patent system and to improve its fairness and effectiveness. The discussion of patent reform led to the emergence of several, often opposing, points of view. While the patent laws provide a system under which all inventions are treated the same regardless of the technical field, the varying experiences of companies in different industries often give rise to differing views concerning the importance and role of patents. Innovators in biomedical industries tend to see patent protection as critically important as a way to prohibit competitors from appropriating the results of a company's research and development efforts. Typically only a few, often one or two, patents cover a particular drug. In contrast, the nature of software development is such that inventions tend to be cumulative and new products generally embody numerous patentable inventions. Acknowledging these differences, this report explores the relationships between patents and innovation and looks at the role of intellectual property in the biomedical and software industries, two sectors where U.S. investment in research and development (R&D) has led to market leadership, a strong export position, and contributed to the Nation's economic growth. Patent law is based upon the Patent Act of 1952, codified in Title 35 of the United States Code. According to the statute, one who "invents or discovers any new and useful process, machine, manufacture, or any composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title." Patents are issued by the United States Patent and Trademark Office (USPTO), generally for a term of 20 years from the date of filing. The patent grants its owner the right to exclude others from making, using, selling, offering to sell, or importing into the United States the patented invention. To be afforded patent rights, an invention must be judged to consist of patentable subject matter, possess utility, and be novel and nonobvious. The application must fully disclose and distinctly claim the invention for which protection is sought. The grant of a patent does not necessarily provide the owner with an affirmative right to market the patented invention. For example, pharmaceutical products are also subject to marketing approval by the Food and Drug Administration (FDA). Federal laws typically require that pharmaceutical manufacturers demonstrate that their products are safe and effective in order to bring these drugs to the marketplace. USPTO issuance of a patent and FDA marketing consent are distinct events that depend upon different criteria. Patent ownership is perceived to be an incentive to innovation, the basis for the technological advancement that contributes to economic growth. Patent title provides the recipient with a limited-time monopoly over the use of his discovery in exchange for the public dissemination of information contained in the patent application. Award of a patent is intended to stimulate the investment necessary to develop an idea and bring it to the marketplace embodied in a product or process, although it does not guarantee that the patent will generate commercial benefits. The requirement for publication of the patent is expected to stimulate additional innovation and other creative means to meet similar and expanded demands in the marketplace. Innovation produces new knowledge. However, innovation typically is costly and resource intensive. Studies demonstrate that the rate of return to society as a whole generated by investments in research and development leading to innovation is significantly larger than the benefits that can be captured by the person or organization financing the work. Some estimate that the social rate of return on R&D spending is over twice that of the rate of return to the inventor. Ideas often are easily imitated as the knowledge associated with an innovation is dispersed and adapted to other products and processes that, in turn, stimulate growth in the economy. Patents permit novel concepts or discoveries to become "property" when reduced to practice and therefore allow for control over their use. Issuance of a patent furnishes the inventor with a limited-time exclusive right, the benefits of which are mitigated by other factors, particularly the requirements for information disclosure, the length of the patent, and the scope of rights conferred. The process of obtaining a patent places the concept on which it is based in the public domain. In return for a monopoly right to the application of the knowledge generated, the inventor must publish the ideas covered in the patent. As a disclosure system, the patent can, and often does, stimulate other firms or individuals to invent "around" existing patents to provide for parallel technical developments or meet similar market needs. Patents may also provide a more socially desirable outcome than its chief legal alternative, trade secret protection. Trade secrecy guards against the improper appropriation of valuable, commercially useful information that is the subject of reasonable measures to preserve its secrecy. Taking the steps necessary to maintain secrecy, such as implementing physical security and enforcement, imposes costs that may ultimately be unproductive for society. Also, while the patent law obliges inventors to disclose their inventions to the public, trade secret protection requires firms to conceal them. The disclosure obligations of the patent system may better serve the objective of encouraging the diffusion of advanced technological knowledge. Patents may also prevent unproductive expenditures of time and money associated with R&D that duplicates other work. The patent system thus has dual policy goals--providing incentives for inventors to invent and encouraging inventors to disclose technical information. Disclosure requirements are factors in achieving a balance between current and future innovation through the patent process, as are limitations on scope, novelty mandates, and nonobviousness considerations. Patents often give rise to an environment of competitiveness with multiple sources of innovation, which is viewed by some experts as the basis for technological progress. This is important because, as Professors Robert Merges and Richard Nelson found in their studies, in a situation where only "a few organizations controlled the development of a technology, technical advance appeared sluggish." Not everyone agrees that the patent system is a particularly effective means to stimulate innovation. Some observers believe that the patent system encourages industry concentration and presents a barrier to entry in some markets. They suggest that the patent system often converts pioneering inventors into technological suppressors, who use their patents to block subsequent improvements and thereby impede technological progress. Others believe that the patent system too frequently attracts speculators who prefer to acquire and enforce patents rather than engage in socially productive activity such as bringing new products and processes to the marketplace. Some experts argue that patents do not work as well in reality as in theory because they do not confer perfect appropriability. In other words, they allow the inventor to obtain a larger portion of the returns on his investment but do not permit him to capture all the benefits. Patents can be circumvented and infringement cannot always be proven. Thus, patents are not the only way, nor necessarily the most efficient means, for the inventor to protect the benefits generated by his efforts. A study by Yale University's Richard Levin and his colleagues concluded that lead time, learning curve advantages (e.g., familiarity with the science and technology under consideration), and sales/service activities were typically more important in exploiting appropriability than were patents. That was true for both products and processes. However, patents were found to be better at protecting products than processes. The novel ideas associated with a product often can be determined through reverse engineering--taking the item apart to assess how it was made. That information then could be used by competitors if not covered by a patent. Because it is more difficult to identify the procedures related to a process, other means of appropriation are seen as preferable to patents, with the attendant disclosure requirements. An analysis of the literature in this area performed for the World Intellectual Property Organization highlights several conclusions concerning the use of patents that mirror much of the above discussion. The research surveyed indicates that "lead time and secrecy seem to be the most relevant appropriability devices for most sectors" and that while patents may not be the most effective means to protect inventions, they are still utilized by firms in all industries. There is a consensus that "disclosure and ease of inventing-around are the most important reasons for not patenting." At the same time, "patents are more relevant as an appropriability mechanism for product than for process innovations and for some sectors such as chemicals (especially pharmaceuticals), some machinery industries and biotechnology." Research demonstrates that the value of patents is differs across industries and between firms of different maturation levels within a sector. The pharmaceutical industry perceives patents as critical to protecting innovation. Several studies over the years have demonstrated the important role patents play in the pharmaceutical sector. Of the 18 major manufacturing industries analyzed by Richard Levin and his colleagues, only drug companies rated product patents the most effective means of insuring that firms can capture the profits associated with their innovations. Later research by Professor Wesley Cohen and his colleagues demonstrated that patents were considered the most effective method to protect inventions in the drug industry, particularly when biotechnology is included. A recent paper by several professors at the Berkeley School of Law, University of California, found that there were "substantial differences between the health-related sectors (biotechnology and medical devices), in which patents are more commonly used and considered important, and the software and Internet fields, in which patents are reported to be less useful." These studies reinforce earlier work by the late Professor Edwin Mansfield that indicated 65% of pharmaceutical inventions would not have been brought to market without patent protection in contrast to the 8% of innovations made in other industries. Patents may be particularly important in the pharmaceutical sector because of the relative ease of replicating the finished product. Imitation costs vary among industries. For example, while it is expensive, complicated, and time consuming to duplicate an airplane, it is relatively simple to chemically analyze a pill and reproduce it. The degree to which industry perceives patents as effective has been characterized as "positively correlated with the increase in duplication costs and time associated with patents." Early research in this area by Mansfield indicated that, in certain industries, patents significantly raise the costs incurred by nonpatent holders wishing to use the idea or invent around the patent--an estimated 40% in the pharmaceutical sector, 30% for major new chemical products, and 25% for typical chemical goods--and are thus viewed as significant. However, in other industries, patents have much smaller impact on the costs associated with imitation (e.g., in the 7%-15% range for electronics), and may be considered less successful in protecting resource investments. The costs associated with imitating pharmaceuticals "are extremely low relative to the innovator's costs for discovering and developing a new compound." Studies by Dr. Joseph DiMasi of Tufts University and others indicate that the capitalized cost of bringing a new drug (defined as a "new molecular entity" rather than a new formulation of an existing pharmaceutical product) to the point of marketing approval was $802 million (2000 dollars). Additional research done by analysts at the Federal Trade Commission found the costs to be even higher; between $839 million and $868 million (2000 dollars). Later work argues that it now takes over $1 billion to bring a new drug to market. At the same time, the total capitalized costs appear to be growing at an annual rate of 7.4% above general price inflation. A large portion of new drug costs (in terms of money and time) are associated with the size and breath of clinical trials necessary to obtain FDA marketing approval. According to a study supported by the Federal Reserve Bank of Boston, only 10% of potential drug candidates reach the human trial phase and only a small portion of these actually reach the market. In research presented at a conference sponsored by the Federal Reserve Bank of Dallas, Duke University's Henry Grabowski found that only 1% of drug compounds reach the human trial stage and 22% of those entering clinical trials receive FDA approval. Professor Iain Cockburn notes that "as drug discovery became more science-intensive, ... it became not just more expensive but also more difficult to manage." Furthermore, returns to new drug introductions vary widely and the median new drug does not bring in sufficient profits to cover the costs of bringing the product to the marketplace. According to research by Professors Grabowski, John Vernon, and DiMasi, only 34% of new drugs (new chemical entities) introduced generated profits that equaled the industry average R&D cost. The significant costs of pharmaceutical R&D, coupled with the uncertainty of the clinical trial process, lend consequence to patents in this area because "the disparity between the investments of innovators and those of imitators is particularly large in pharmaceuticals--almost as large as when software pirates simply copy the diskettes of an innovator." While the capitalized cost of developing a new drug to the point of market approval is about $1 billion, it takes only between $1 million and $2 million to obtain approval for a generic version of the pharmaceutical. This difference is a result of the costs associated with clinical trials needed to demonstrate the safety and efficacy of a new drug, data that could be utilized by generic companies if not protected by a patent. A generic company does not have to fund these studies to get FDA marketing approval; under the provisions of the Hatch-Waxman Act generic firms only have to prove that their product is "bioequivalent" to the innovator drug. While patents are designed to spur innovation, some experts maintain that certain patents, particularly those on research tools in biotechnology, hinder the innovation process. Professors Rebecca Eisenberg and Richard Nelson argue that ownership of research tools may "impose significant transaction costs" that result in delayed innovation and possible future litigation. It also can stand in the way of research by others: Broad claims on early discoveries that are fundamental to emerging fields of knowledge are particularly worrisome in light of the great value, demonstrated time and again in history of science and technology, of having many independent minds at work trying to advance a field. Public science has flourished by permitting scientists to challenge and build upon the work of rivals. Eisenberg and her colleague at the University of Michigan Law School, Michael Heller, contend that in the future scientists might need to obtain numerous patent licenses in order to undertake basic research. Similar concerns were expressed by Harold Varmus, President of Memorial Sloan-Kettering and formerly the Director of the National Institutes of Health. In July 2000 prepared testimony, he spoke to being "troubled by widespread tendencies to seek protection of intellectual property increasingly early in the process that ultimately leads to products of obvious commercial value, because such practices can have detrimental effects on science and its delivery of health benefits." However, other experts dispute this assertion. A study by Professors John Walsh, Ashish Arora, and Wesley Cohen found that although there are now more patents associated with biomedical research, and on more fundamental work, there is little evidence that work has been curtailed due to intellectual property issues associated with research tools. Scientists are able to continue their research by "licensing, inventing around patents, going offshore, the development and use of public databases and research tools, court challenges, and simply using the technology without a license (i.e., infringement)." According to the authors of the report, private sector owners of patents permitted such infringement in academia (with the exception of those associated with diagnostic tests in clinical trials) "partly because it can increase the value of the patented technology." Later research by Cohen, Walsh, and Charlene Cho found that "only 1% of academic researchers (i.e., those in universities, non-profits and government labs) report having to delay a project, and none abandoned a project due to others' patents, suggesting that neither anti-commons nor restrictions on access were seriously limiting academic research." In addition to finding that patents did not interfere with ongoing R&D, the authors found that patents had "significantly less" impact on what projects were actually pursued than lack of funding, time constraints, or scientific competition. However, "respondents doing research on drugs and therapies were ... somewhat more likely to report that unreasonable terms demanded for research inputs were an important reason for them not to pursue a project." Over the past 25 years, there has been a demonstrable and sustained increase in the number of software patents granted in the United States. Research by James Bessen and Robert Hunt for the Federal Reserve Bank of Philadelphia noted that the 1,000 software patents issued annually in the early 1980s had increased to an annual total of 5,000 by 1990. Today over 20,000 software patents are granted each year. While software patents comprised approximately 2% of all patents awarded in the early 1980s, they now account for approximately 15% of the total number of U.S. patent issued each year. Experts differ as to their assessment of the role of patents in promoting innovation in the computer software sector. This discussion centers around the issue of whether the increase in the number of patents is a result of inventive behavior generated by intellectual property protection or a result of changes in law during the 1980s and 1990s that made patents on software easier to obtain. Some experts argue that patent protection is not a significant factor in the development of computer software programs. Other analysts maintain that they play an important role in generating new technologies, particularly for small firms in the marketplace. The nature of software development is such that inventions often are cumulative and new products generally embody numerous patentable inventions. This has led to what has been described by some observers as a poor match between patents and products in the [software] industry: it is difficult to patent an entire product in the software industry because any particular product is likely to include dozens if not hundreds of separate technological ideas. This situation may be augmented by the multiplicity of patents often associated with a finished computer product that utilizes the software. It is not uncommon for thousands of different patents (relating to hardware and software) to be embodied in one single computer. In addition, ownership of these patents may well be fractured among hundreds or thousands of different individuals and firms. Studies by Bessen and Hunt explored the characteristics of software patents and determined that most are not owned by software companies but by large manufacturing companies. They found that Firms in just three manufacturing industries (machinery, electronics, and instruments) alone accounted for 66 percent of software patents [yet] ... Firms outside the manufacturing sector employed 90 percent of computer programmers, but together they accounted for only 25 percent of software patents. This data leads the authors to the conclusion that patents may not be closely tied to the development of new software technologies. Ownership of such patents is concentrated in sectors that have large patent portfolios and use them for strategic purposes. Instead, they believe that companies are utilizing patents as a means to protect or leverage their investments rather than to generate more innovation through R&D spending. In industries where innovation is sequential and complementary, as with software and computers, some experts argue that strong patents interfere with the innovation process. Inventions in these sectors typically are built upon earlier technologies and are integrated into existing systems. Commentators pose that patents inhibit or prevent enhancements to existing products because the patent owner may not have the interest or capability necessary to generate improvements at the same time that other firms cannot advance the technology without infringing on the original patent. Not everyone agrees with this assessment. Professor Robert Merges maintains that patents have not hindered innovation in the software industry and that the significant ownership of title to inventions by large companies in this sector has not resulted in the demise of small firms developing new technologies. Analysis of software companies by Professor Ronald Mann indicates the importance of software patents to small companies, particularly later-stage start-ups firms. He notes that the software industry is comprised primarily of small businesses and "the data suggests a different picture, one in which software R&D is impressively robust." Mann's research indicates that small firms spend proportionally more on software R&D than large companies. Research and development spending by software firms "tends to be relatively stable over time as a percentage of sales. Indeed, company size seems to be more important in explaining variations in R&D spending within the industry." Studies by Mann also indicate that the importance of software patents is dependent on where the firm is in its development process. Patents play a more significant role in later-stage start-up companies when firms can generate revenues through licensing. At that point, "patents are useful as "barter" in cross-licensing agreements that the firm enters if it reaches a sufficiently mature stage to be a significant player in the industry." Patents may allow a firm to differentiate its areas of expertise and innovative activity. Patents enable a company to transform ideas into a tangible form of property that can provide value. This can be useful in negotiations for the acquisition of the firm. While intellectual property is important to some investors but not to others, it is considered a significant factor when a company is involved in acquisition negotiations or in an IPO. It can prevent large companies from appropriating a small firm's technology. Bradford Smith and Susan Mann, writing in the University of Chicago Law Review, concur with the argument that patents are beneficial for small, software firms. They maintain that patents prevent larger companies from utilizing the technologies developed by small businesses while allowing these companies to attract venture capital. The multiplicity of patents involved in computer-related products has resulted in the extensive use of cross licensing in these industries such that one commentator argues: "licensing of software patents has become an industry unto itself." Instead of promoting innovation, some experts maintain that the ownership of intellectual property has become an obstacle to the development and application of new ideas. The expansion in the number of patents associated with software is a consequence of the changes in patent law that make these patents easier to obtain, rather than an indication of increased innovative activity. There are indications, according to Bessen and Hunt, that patents are being substituted for increases in R&D. The substitution occurs in industries that patent strategically but not in other sectors. The propensity to patent software appears to be related to the utilization of the software by companies rather than to the R&D resources expended in developing the product. This is of interest because a rationale behind the patent system is that it provides incentives for the additional investments necessary to bring a product to the marketplace. Concerns have been expressed in the academic community that the propensity to patent and the extensive use of cross licensing has resulted in a "patent thicket" where ownership of patent title is used to block others from innovating. According to Bessen and Hunt, "This may have increased the attractiveness of a strategy that emphasizes patent rights over a strategy based on R&D." However, other experts maintain that this might not be a true assessment of the situation. In an article for the Virginia Journal of Law and Technology, David Evans and Anne Layne-Farrar argue it is not clear that a patent thicket exists. "Other industries with long-standing histories of patenting could be categorized as having cumulative and sequential R&D, yet they do not display signs of innovation gridlock." There are additional ways to prevent the use of patents to block innovation including the use of pro-competitive patent pools and antitrust enforcement. Others agree that innovation in the software industry is not hindered by a patent thicket. In one study where actual software companies and investors were surveyed, the analyst found new companies were not concerned with existing patent portfolios as a barrier to their work as "none of the startup firms [interviewed] suggested a practice of doing prior art searches before beginning development of their products." Because the software industry is so diverse, it is "difficult for any single patent or group of patents to control a major part of the whole industry." Innovators in the biomedical and software industries tend to exhibit divergent views on the value of patents. Patent protection is critically important to the pharmaceutical and biotechnology sectors as a way to prohibit competitors from appropriating the results of a company's research and development efforts. However, patents are not among the key means used to protect innovations in either the computer or semiconductor industries. In those two industries, firms rely more heavily on secrecy, lead time and complementary capabilities to protect their inventions. A difference between the role of patents in the biomedical community and their role in the computer software sector lies with the dissimilar composition of the respective products. Typically only a few, often one or two, patents cover a particular drug. In contrast, the nature of software development is such that inventions often are cumulative and new products generally embody numerous patentable inventions. While few companies other than those that manufacture drugs need to deal with the relevant pharmaceutical patents, computers are ubiquitous--and as a result, so is software authorship ... Thus, a patent on a drug creates potential liability for those companies in the pharmaceutical business, while a software patent creates potential liability for any company with its own website or software customizations, regardless of its business. The patent laws provide a system under which all inventions are subject to the same requirements of patentability regardless of the technical field in which they arose. The reforms embodied in the Leahy-Smith America Invents Act continue this approach. As a consequence, inventors and innovative companies in different industries, with varying patent experiences, may display diverse opinions on the changes to the patent law. According to Professor Brian Kahin, these distinct views of the patent reform issue reflect the contrast between the discrete-product environment of pharmaceuticals and chemicals and the extreme complex-product environment associated with information technology.... In contract to the classic use of patents to exclude competitors in pharmaceuticals, ... the large volume of patents relative to [information technology]products imposes a cost burden and makes the IT sector prone to inadvertent infringement and vulnerable to patent trolls. Thus, it remains to be seen how these identified differences might be affected by the patent reform legislation recently enacted by the U.S. Congress.

The Leahy-Smith America Invents Act, P.L. 112-29, passed Congress following several years of legislative debate over patent reform. This attention to patent policy reflects a recognition of the increasing importance of intellectual property to U.S. innovation. Patent ownership is perceived as an incentive to the technological advancement that leads to economic growth. As such, the number of patent applications and grants has grown significantly, as have the type and breadth of inventions that can be patented. Along with the expansion in the number and range of patents, there were growing concerns over whether the current system was working efficiently and effectively. Several studies recommended patent reform and various bills were introduced in recent congresses that would make significant alterations in current patent law. Other experts maintained that major changes in existing law were unnecessary and that, while not perfect, the patent process was adapting to technological progress. The patent laws provide a system under which all inventions are subject to the same requirements of patentability regardless of the technical field in which they arose. However, inventors and innovative companies in different industries often hold divergent views concerning the importance of patents, reflecting varying experiences with the patent system. Innovators in the biomedical sector tend to see patent protection as a critically important way to prohibit competitors from appropriating the results of a company's research and development efforts. Typically only a few, often one or two, patents cover a particular drug. In contrast, the nature of software development is such that inventions often are cumulative and new products generally embody numerous patentable inventions. As a result, distinct industries may react differently to the patent reform legislation enacted by Congress.

The geographic and societal diffusion of the illicit production of methamphetamine (meth)has spread hazardous manufacturing wastes, and related concerns, into communities nationwide. The need to reduce the potential safety, health, and environmental hazards of these wastes, bycleaning and remediating the sites of illicit production, consequently also has spread nationwide. "Clean-up" is the term often used to describe removing gross, or large-scale, contaminants, such asequipment and large quantities of chemicals; clean-up is usually done for the purpose of securingevidence for criminal investigations, and for reducing imminent hazards such as explosions or fires. "Remediation" is often used to describe removing residual, or small-scale, contaminants such aschemical residues in carpeting or walls, usually for the purpose of rehabilitating a facility forreoccupancy or reuse. While there are many ways to make meth, the most common way begins withover-the-counter medications containing pseudoephedrine or ephedrine, (1) and often involves cookingwith acetone, hydrochloric acid, sodium hydroxide, ether, and anhydrous ammonia to seriallyconcentrate and purify the meth. Cooking meth, which can result in eye and respiratory irritations,chemical burns, explosions and fires, toxic waste products, and contaminated surroundings, can bedangerous to the meth "cook," to the people and community around the lab, and to those persons whofirst come upon the lab, such as fire fighters, law enforcement officials, emergency medicaltechnicians, or social welfare workers. There are reports of emergency medical technicians andpolice officers suffering burns, eye and respiratory irritations, nausea, and other injuries not just atmeth labs, but even from treating persons removed from the labs. (2) Depending on the process used and the skill of the cook, each pound of meth produces aboutsix pounds of hazardous waste. Illicit meth "cooks" usually dump this waste into sewers, streams,rivers, or the ground near the lab (which may be farmland, or land over groundwater supplies), alonghighways, in parks and forests, or on hiking trails. Water used to extinguish lab fires also carriestoxic chemicals into the environment. Cooking meth can also infuse carpeting, walls, furniture,water supplies, and the ground with toxic chemicals. (3) Residues of meth have been measured as high as 16,000micrograms per 100 square centimeters of surface, with levels as high as 300 micrograms per 100square centimeters as long as six months after the last cook, sometimes far from the actual cookingarea. (4) While health effects on a user from direct use of meth have been well-studied, long-termhealth-effects research on exposures to substances associated with illicit meth production has justrecently begun. Such health-effects research considers impacts on children, as well as on adults, whomight be in the vicinity of a meth-making site. There are no uniform federal guidelines or standards governing the clean-up or remediationof former meth sites, either for meth residues themselves, or for chemicals related to illicit methproduction, partly because there is a lack of health-effects research upon which to base suchguidelines or standards. "Guidelines," as used in this report, are discretionary recommendations,often using the word "should." "Standards" are mandatory, nondiscretionary regulations which mustbe followed, often denoted by words like "shall" or "prohibited." Guidelines may be developed byregulators into more stringent standards. There generally have been four main approaches to cleaning meth sites. The United StatesEnvironmental Protection Agency (EPA) can respond directly when a pollutant or contaminant atan STL site presents an imminent or substantial danger to public health or welfare, but most STLsdo not rise to this level. (5) For most STLs, state and local governments can pay to clean a meth site, then apply to EPA forreimbursement which is capped at $25,000 per incident. Alternatively, rather than pay directly forclean-up and later apply for reimbursement from EPA, state and local governments instead can notifythe United States Drug Enforcement Administration (DEA), in the United States Department ofJustice, and DEA will take responsibility and arrange for clean-up. In addition, there have beenfunds available from the Department of Housing and Urban Development (HUD) to redevelop ofa former meth site. The approaches to remediate meth sites are more variable, involving private, local, and statedecisions. Remediation is an additional cost, after clean-up. Neither EPA nor DEA funds areavailable for remediation. Owners of contaminated private property, e.g., an apartment building ora motel, need to decide whether remediation is sensible; remediation cost estimates may exceed thevalue of the property. Local or state governments need to decide whether to remediate or restrictaccess to a contaminated public area, e.g., a hiking trail or parking lot in a forest. Remediation isdiscussed further in the section below on "Clean-up and Remediation Procedures." Remediation costs vary, depending on the severity of contamination with meth and/ormeth-related compounds. The average cost to clean a meth lab is estimated to range from $1,500to $3,000, with some clean-ups exceeding $200,000. (6) The cost of remediating an average-size site has been estimatedat $50,000, according to the U.S. Department of Justice. (7) Several factors contribute to the geographic and societal diffusion of illicit meth productionand use. Methamphetamine (meth) is a Schedule II narcotic under the Controlled Substances Act(CSA), Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970. CSAregulates the manufacture and distribution of drugs, and places all drugs into one of five schedules. A drug in Schedule II, like meth, has current accepted medical use and has high potential forabuse. (8) Meth has limitedmedical uses for the treatment of narcolepsy, attention deficit disorders, and obesity. (9) This report focuses on illicituse and production of meth, and subsequent clean-up and remediation issues. Meth production, trafficking, and abuse, in general, are concentrated in the western,southwestern, and midwestern United States. Meth is primarily supplied by clandestine laboratoriesin Mexico and California. There are some "super-labs" (labs capable of producing in excess of tenpounds of meth in one twenty-four hour production cycle) in Mexico and the United Statesproducing meth and other drugs, with vast networks of transporters, distributors, and money brokerswho distribute not only meth, but also cocaine, heroin, marijuana, and MDMA (more commonlyknown as "ecstasy"). While meth made in super-labs is for broad distribution, meth made insmall-scale labs tends to be for personal use or limited distribution. Successful closure in the UnitedStates of some super-labs, the relative ease of producing meth, the continuing demand for the drug,and the desire for potential wealth and involvement in a criminal underground social activity,contributed to an increase, through 2003, in meth production in small clandestine labs, also knownas small, toxic labs (STLs). (10) Official data aggregate the numbers of meth labs, dump sites,chemicals, glass, and other equipment, and are reported as meth incidents. Since 2003, thenationwide numbers of meth incidents has declined, as shown in Table 1. Table 1. Number of All Meth Incidents (including labs, dump sites, chemicals, glass, andequipment) Source: United States Drug Enforcement Administration, National Clandestine LaboratoryDatabase. "Total of All Meth Clandestine Laboratory Incidents," http://www.dea.gov/concern/map_lab_seizures.html . According to state law enforcement and public health professionals, the decline in meth incidentsthat occurred between 2003 and 2004 was the result of a few factors: Some states and retailers began to institute policies to restrict access tononprescription pseudoephedrine-containing decongestants, a common methingredient. Over time, the number of states and retailers restricting access to methingredients increased, which made the tactic of traveling to a nearby state or store that did not havea policy to restrict access to meth ingredients more difficult. Some pharmaceutical companies reformulated their nonprescriptiondecongestants to exclude pseudoephedrine. Stiffer sentences for those convicted of illegally making meth furtherdiscouraged involvement with STLs. (11) In December 2005, Iowa state authorities reported a decline of approximately 80% followingthe passage, in May 2005, of a state law restricting access to pseudoephedrine. (12) Subsequent to the passageof similar laws, state officials in Oklahoma and Oregon each reported a decline of approximately50%. (13) The declineis expected to be seen nationwide, when complete 2005 data become available. Although only 20% of illicit meth used in the United States comes from STLs, (14) the sheer number of suchlabs, their residual impacts, and their geographic diffusion, have prompted concerns in Congress,state and local governments, law enforcement agencies, and real estate and other groups. There generally are greater concerns about the environmental wastes from STLs than fromsuper-labs, for several reasons. First, there is a trend for super-labs, and their wastes, to be inMexico, where the ingredients for illicit meth can be obtained more easily than in the United States. Second, production processes used in STLs tend to be less efficient than those used in super-labs,and small-scale "cooks" tend more often to be careless, resulting in proportionally morecontaminants (in the meth and in the environment) than production processes in super-labs. Third,while there are fewer super-labs, there are thousands of STLs across the United States:approximately 9,000 domestic small-scale labs with capacities under 10 pounds in 2000, (15) and 17,000 in 2004. (16) Fourth,these small-scalelabs can be geographically scattered among a wide range of sites, such as apartments, motel rooms,abandoned buildings, even packed in car trunks and moved among parks and other locations. Fifth,the range of wastes from STLs can be more varied and unpredictable than super-lab wastes, becausesmall-scale, independent "cooks" may develop a new recipe or use any of a number of meth recipesavailable on the internet. The range of recipes and resulting wastes may be driven by the localavailability of critical ingredients or equipment. The range of substitutes for pure ingredients andsophisticated production equipment may include common items such as decongestants from retailand convenience stores, mason jars, coffee filters, hot plates, pressure cookers, plastic tubing, andgasoline cans. There is a range of residual impacts of small-scale labs. Children of some STL "cooks" havebeen found in residences where their parents were making meth. Meth levels as high as 5,000micrograms per cubic meter of air have been measured during a cook, which "almost ensures thatanyone (including children) in the vicinity of the cook will test positive for meth. Some childrentaken from home meth labs may show permanent damage to their respiratory tracts and possibly totheir nervous systems." (17) The health and social welfare of these children, whether withor removed from their parents, are issues of concern, research, and cost. Further, some meth"cooks," and others in the illicit drug business, have been armed and mentally imbalanced. (18) Consequently, there is arange of residual social impacts associated with STLs. There have been four main ways to clean and redevelop a former meth lab site: two involveEPA, one involves DEA, and the last involves HUD. A local government, state or regional entity, or an individual can notify EPA about a possiblemeth lab. (19) TheAgency will study the site and its findings will help steer the next actions to be taken. For example,under the Comprehensive Environmental Response, Compensation, and Liability Act ( P.L. 96-510 ,also known as CERCLA or Superfund), EPA can respond directly when a pollutant or contaminantmay present an imminent or substantial danger to public health or welfare, taking responsibility forcleaning the site under Superfund. Most STLs do not rise to this level, however, and other actionsmay be taken. (20) A local or state government can choose to clean a meth lab site, paying for costs by itself. The local or state government then can apply to EPA for reimbursement under Section 123 ofCERCLA, via the Local Governments Reimbursement Program. Reimbursement is limited to$25,000 per incident. The numbers of reimbursements and dollar totals are shown in Table 2 . (21) Table 2. United States EPA Local Governments ReimbursementProgram Clandestine Meth Lab Reimbursements Source: Personal communication with EPA in February 2006. The number of applications for reimbursement has been declining in proportion with thenumber of reimbursements, as shown in the table. (22) One possible reason is the relative difficulty of using thisprocess: the state or local government must first incur the clean-up expenses, and then, with properevidence of expended costs, apply to EPA for reimbursement, which, if approved, may be receivedby the state or local government within six months of the Agency's receipt of the application. Asecond possible reason is that this type of reimbursement is capped at $25,000 per incident. Anotherpossible reason relates to another alternate way to clean a meth site: notify DEA. There is growing awareness that DEA has taken responsibility for cleaning meth lab sites,without the need for upfront payment by state or local governments. The numbers of DEA clean-upshave been rising while applications for reimbursement via EPA's program have been declining. DEA clean-ups have been performed by a decreasing number of contractors: e.g., ten in 2001, fourin 2004. The average cost per site generally has been decreasing, largely because of increasingclean-up efficiency resulting from increasing levels of expertise. The numbers of sites and dollartotals are shown in Table 3 . (23) Table 3. United States DEA Meth Lab Clean-Ups andCosts Source: Personal communication with DEA in February 2006. Federal funds to redevelop a former meth production site have been available through HUD'sBrownfields Economic Development Initiative. In its FY2007 budget request, HUD proposes toconsolidate its Brownfields program into its Community Development Block Grant (CDBG)program. (24) There werefunding and other limits in HUD's program; further information may be obtained from HUD'sBrownfields website. (25) How many federal dollars were used, through HUD's Brownfields program, to redevelop formerSTLs cannot be determined, because HUD did not record the nature of the problem that led to thebrownfield. Budget levels for HUD's Brownfields program for FY2005 and FY2006 were, respectively,$24 million and $10 million (with a $10 million rescission). HUD, in its FY2007 budget request,proposes to consolidate its Brownfields program into its CDBG program and has requested $0 forBrownfields. (26) Theportion of CDBG's budget that will be available for redeveloping former meth sites is not specified. Total budget levels for CDBG for FY2005 and 2006 were, respectively, $4.7 billion and $4.2 billion;$3.0 billion has been requested for FY2007. (27) Clean-up and remediation are likely to require special training and equipment. While therecurrently are no uniform clean-up or remediation procedures, the range usually includes one or moreof the following measures: removal of contaminated items which cannot be cleaned (this mayinvolve outdoor as well as indoor items, such as soil, water, carpeting, and wallboard); ventilation;chemical neutralization of residues; washing with appropriate cleaning agents; encapsulation orsealing of contaminants; providing alternate water supplies; and/or controlling access to the site withfencing and signs. Extremely contaminated structures may require demolition, especially if clean-upand remediation costs are projected to exceed the commercial value of the structures. While the decision to clean a meth site is aided by the availability of EPA and DEA fundsfor clean-ups, the decision to remediate a meth site may be more difficult. Neither EPA nor DEAfunds are available for remediation, an additional action and cost after clean-up. An owner of acontaminated private property, e.g., an apartment building or a motel, needs to decide whetherremediation is sensible; remediation cost estimates may exceed the value of the property. An ownermay seek financial assistance for remediation from local or state governments. Local or stategovernments need to decide whether to remediate or simply restrict access to a contaminated publicarea, e.g., a hiking trail or parking lot in a forest. Remediation cost is determined largely by the severity of contamination, but also by thedecision at which level of cleanliness to stop remediation efforts. (28) There are currently no federal guidelines or standards governing clean-up or remediationprocesses. While the endpoints for clean-up are relatively straightforward -- i.e., that sufficientevidence has been procured for successful prosecution and that imminent hazards, such as explosionor fire, have been eliminated -- the endpoints for remediation are less clear. As mentioned earlier,EPA and DEA funds previously described are for clean-ups only. No EPA or DEA funds areavailable for remediation. Nine states (Alaska, Arizona, Arkansas, California, Colorado, Minnesota, Montana,Tennessee, and Washington) have feasibility-based remediation standards specific to meth. Afeasibility-based standard considers costs as a key factor. Levels of meth residue below the standardsare considered acceptable. The nine states' standards range from 0.05 to 0.1 micrograms of meth onevery 100 square centimeters of surface. (29) While some state standards only address residual meth itself,others have acceptable levels for meth-related chemicals, such as volatile organic compounds andcorrosives. (30) Somestates require remediation "to be completed by a state-licensed or otherwise certifiedprofessional." (31) Statesand localities also differ in requirements to notify potential buyers, renters, neighbors, lawenforcement departments, and other governmental agencies, and/or to maintain and make availablepublic records of a facility having been contaminated with meth, and whether the facility wasremediated. (32) While some feasibility-based standards exist, standards based on health effects or risk do not. Standards based on health effects or risk address the question, "to what level do we need to minimize(remediate) a contaminant in order to prevent the average person from having adverse health effects(e.g., become sick)?" (33) Lacking standards based on health effects or risk, states and localities are using the currently limitedresearch information to develop "the appropriate feasibility-based standard that must be met by aclean-up contractor and/or industrial hygienist in order to certify that a property has beendecontaminated." (34) The task of remediating former meth labs is complicated by the lack of uniform standards,for the reasons discussed above: There are currently no uniform federal guidelines for the remediation of formermeth labs. Research on health effects associated with clandestine labs only recently began,so there is currently only limited health-effects information to guide policychoices. Feasibility-based standards, which consider costs, for remediating clan labsexist, but differ among states and localities. Existing feasibility-based standards differ in stringency of clean-up level, needfor certification of clean-up workers, and requirements for reporting and recording the history of afacility's association with meth. (35) The National Alliance for Model State Drug Laws (NAMSDL) is working toward a modelact or model guidelines for the clean-up and remediation of meth lab sites. (36) Members of the Alliancehave noted the need for federally funded short- and long-term health-effects studies, health-basedcleanup standards, and scientifically validated field test-kits, as well as methods forsample-collection and remediation. Having reviewed existing state and local laws, policies,guidelines, and ordinances pertaining to meth lab remediation, NAMSDL released its preliminaryoutline of key components that the Alliance may include in a draft model act or model guidelines: State Agency Authority: oversight of clean-up program (probably withdesignated responsibilities to local health departments in regulation); set requirement for owner toclean property; promulgate related regulation; keep database of properties deemed to becontaminated; keep list of certified contractors and approved laboratories. Notification Responsibilities: making uniform requirements regarding whomust be notified, when, how, and for how long, about the existence and status of a meth lab (likelyparties include first responders, law enforcement, local health officers and departments, buildingcode and local or other property records officials; owners; and the public via signage on the propertyitself). Contractor/Industrial Hygienists: certification; training; site safetyresponsibilities; monitoring of contractors' work. Preliminary Assessment and Work Plan. Decontamination Procedures: for walls, furniture, ventilation systems, varietyof surfaces; waste characterization and disposal. Confirmation of Decontamination: decontamination standards; samplingmethods; laboratory analytical testing. (37) After various reviews and approval by NAMSDL's Board of Directors, the model would bedistributed to Alliance contacts in the states, including governors and attorneys general. The modelalso would be posted on NAMSDL's website ( http://www.natlalliance.org ). (38) In the 109th Congress, 11 bills authorize funds to help local and state governments pay forcleaning former meth production sites. One bill provides for research and development ofremediation standards and other related activities. H.R. 4763 , the Methamphetamine Eradication Act, authorizes funds for theCOPS Program, the Byrne Formula Grant Program, DEA, EPA Local Governments ReimbursementProgram, and Department of Transportation, for remediation actions, equipment, and training. H.R. 3324 and S. 430 , the Arrest Methamphetamine Act of2005 , authorizes funds for the COPS Program and provides authority to the Attorney General,through the Bureau of Justice Assistance, to make grants to States to undertake meth clandestine labenvironmental clean-ups. H.R. 3889 , the Metheamphetamine Epidemic Elimination Act , authorizesfunds to reimburse DEA for remediation activities. H.R. 3199 , the USA Patriot Improvement and Reauthorization Act of2005 , became P.L. 109-177 on March 9, 2006. Authorized to be appropriated each fiscal year 2006through 2010 are $99 million to reimburse DEA for remediation work and to support state and localenvironmental meth-related activities, among other things. H.R. 1446 , the Methamphetamine Abuse Prevention Act of 2005 , expandsauthority to include the hiring of personnel and the purchasing of equipment for cleaning STLs. H.R. 314 and S. 103 , the Combat Meth Act of 2005 , wouldamend the Omnibus Crime Control and Safe Streets Act of 1968 to authorize the use of grant fundsto hire personnel and purchase equipment to assist in cleaning methamphetamine-affected areas. H.R. 13 , the Clean, Learn, Educate, Abolish, Neutralize, and UndermineProduction (CLEAN-UP) of Methamphetamines Act, authorizes funds for grants, through theSecretary of Labor and Occupational Safety and Health Administration, to state and local lawenforcement for training and equipment acquisition for cleaning former meth lab sites; funds for theUnited States Department of Agriculture to clean former STLs; and funds, through DEA, for meth-related training activities. S. 2118 , To Amend the USA Patriot Act , extends certain provisions of theAct to March 31, 2006, and authorizes funds to reimburse DEA for clean-up expenses. S. 259 , the Federal Emergency Meth Lab Cleanup Funding Act of 2005 ,would make funding available from the Department of the Treasury Forfeiture Fund for payment todesignated state, local, or tribal law enforcement, environmental, or health entities for experts andconsultants needed to clean areas formerly used as meth labs. It would also provide that if a methlaboratory is located on private property not more than 90% of the costs may be paid only if theproperty owner (1) did not have knowledge of the existence or operation of such laboratory beforethe law enforcement action to close it or (2) notifies law enforcement not later than 24 hours afterdiscovering the existence of such laboratory. H.R. 798 , the Methamphetamine Remediation Research Act of 2005 ,passed by the House on December 13, 2005, would require the Assistant Administrator for Researchand Development of EPA to establish (1) voluntary guidelines, based on the best currently availablescientific knowledge, for the remediation of former meth laboratories, including guidelines regardingpreliminary site assessment and the remediation of residual contaminants, and (2) a program ofresearch to support the development and revision of such guidelines. It also would direct theAssistant Administrator to (1) periodically convene a conference of appropriate state agencies, aswell as individuals or organizations involved in research and other activities directly related to theenvironmental or biological impacts of former meth laboratories, and (2) enter into an arrangementwith the National Academy of Sciences for a study of the status and quality of research on theresidual effects of meth laboratories. H.R. 798 also would require the Director of theNational Institute of Standards and Technology to support a research program to develop (1) newmeth detection technologies, with an emphasis on field test kits and site detection, and (2)appropriate standard reference materials and validation procedures for meth detection testing.

Methamphetamine (meth), a drug with limited medical use and high potential for abuse andaddiction, is a subject of widespread concern. Once associated mainly with the West Coast andwhite, male, blue-collar workers, illicit meth is now used by diverse population groups nationwide,with concentrations in the West, Southwest, and Midwest. Meth is supplied primarily by clandestinelabs in California and Mexico. The drug is relatively simple to make from easily obtained recipes,but access to certain ingredients has become more difficult. Meth production in small, toxic labs(STLs) increased initially due to the successful closure of some "super-labs" (labs capable of makingmore than 10 pounds of meth in a 24-hour cycle), relative ease of making meth, continuing demandfor the drug, and desire for potential wealth and involvement in a criminal underground socialactivity. Although the greater fraction of meth used and distributed across the nation comes fromsuper-labs, the sheer number of STLs, their geographic diffusion, and their residual impacts haveprompted concern in Congress, state and local governments, law enforcement agencies, and realestate and other groups. Meth labs have many significant and widespread residual impacts. According to the UnitedStates Drug Enforcement Administration (DEA), there were 9,092 STLs and related meth sites in2000 and 17,356 in 2003; the number has been declining since. These sites can be found in a widerange of places, such as apartments, motel rooms, abandoned buildings, and packed in car trunks inparks and other locations. Meth makers can use common items such as mason jars, coffee filters,hot plates, over-the-counter medications containing pseudoephedrine or ephedrine (e.g., Sudafed andsome other nonprescription decongestants), acetone, hydrochloric acid, and anhydrous ammonia. Making meth can result in eye and respiratory irritations, chemical burns, explosions and fires, toxicwastes, and contaminated surroundings. Some residual impacts of meth production threaten thehealth and welfare of children removed from meth sites. This report focuses on the residualenvironmental impacts of STLs. Cleaning and remediating a meth site can cost more than $200,000, depending on themagnitude of contamination. State and local governments that incur expenses cleaning a site canapply to the U.S. Environmental Protection Agency (EPA) for reimbursement, up to $25,000 perincident. Alternatively, rather than incur costs and apply for a capped reimbursement, state and localgovernments can notify DEA of a site, and DEA will perform and pay for cleaning. In addition,funds have been available from the Department of Housing and Urban Development (HUD) toredevelop a former meth production site. No uniform federal guidelines or standards exist governing the process or the endpoint forcleaning or remediating STLs. Across various states, acceptable levels of meth residue, afterremediation, range from 0.05 to 0.1 micrograms of meth per 100 square centimeters of surface. Twelve congressional bills, one enacted into law in March, relate broadly to meth site cleaning orremediation. This report will be updated as warranted.

Since the invention of the first computer-assisted industrial control system (ICS) device over 40 years ago, both the technical and national security communities have voiced concerns about software and hardware vulnerabilities and potential security risks associated with these devices. Such concerns have generally involved the infiltration of a computer system for purposes of degrading its capabilities, manipulating data, or using the device to launch cyber attacks on other systems. The Stuxnet worm, which was first reported in June 2010 by a security firm in Belarus, appears to be the first malicious software (malware) designed specifically to attack a particular type of ICS: one that controls nuclear plants, whether for power or uranium enrichment. The malware attacks and disrupts a Microsoft Windows-based application that is employed by a particular ICS produced by the German company Siemens. The worm can be spread through an air-gapped network by a removable device, such as a thumb drive, and possibly through computers connected to the Internet, and it is often capable of remaining hidden from detection. It is difficult to determine the geographic origin of the malware, as cyber attackers often employ sophisticated methods such as peer-to-peer networking or spoofing IP addresses to obviate attribution. Likewise, malware placed on a removable device may contain no signatures that would identify its author. Some security analysts speculate that Stuxnet could have been developed by a Siemens insider who had direct access and knowledge of the system; others contend that the code's sophistication suggests that a nation state was behind the worm's development, either through proxy computer specialists or a government's own internal government and military capabilities. To date, numerous countries are known to have been affected by the Stuxnet worm to varying degrees of disruption in their technology systems. These include Iran, Indonesia, India, Pakistan, Germany, China, and the United States. A lack of publicly available information on the damage caused by Stuxnet in these countries makes it difficult to determine the malware's potency. In attempting to assess the Stuxnet worm's potential targets and ascertain how best to identify and slow progress of its spread to other ICSs, numerous researchers have speculated as to the identity of the software code's developer. To date, no country or group has claimed responsibility for developing what has been termed by some as "the world's first precision guided cybermunition." Given the Stuxnet worm's reported technical sophistication, numerous researchers and media outlets have speculated that a government most likely produced it. According to these accounts, the developer had to be financially well resourced, employ a variety of skill sets (including expertise in multiple technology areas), have an existing foreign intelligence capability in order to gain access and knowledge of a foreign system, and be able to discretely test the worm in a laboratory setting. Moreover, states appear to possess a motive to develop Stuxnet because, unlike other forms of malware, the worm is not designed to steal information, but rather to target and disrupt control systems and disable operations. Countries thought to have the expertise and motivation of developing the Stuxnet worm include the United States, Israel, United Kingdom, Russia, China, and France. In addition to speculating on the developer's identity, observers have formulated theories about the worm's intended purpose. For example, some argue that Stuxnet's developer may not have intended the worm to spread beyond its desired target, thus bringing unwarranted attention to this emerging cyber capability. Furthermore, it is likely the developer did not consider the unintended consequence of the worm becoming widely available and subject to manipulation to make it less identifiable and more potent. A terrorist organization intent on carrying out attacks on a nation's critical infrastructure may also be interested in targeting a type of ICS known as supervisory control and data acquisition (SCADA) systems. It is widely believed that terrorist organizations do not currently possess the capability or have made the necessary arrangements with technically savvy organizations to develop a Stuxnet-type worm. However, the level of attention the Stuxnet worm has received creates a possible proliferation problem and what some have termed a "cyber arms race." The Stuxnet code itself is now freely available on the Internet, as are the particular vulnerabilities it exploits, as well as the web addresses of unsecured SCADA systems. As software developers often revise and reformulate existing code, Stuxnet's design revelations may make it easier for terrorist organizations to develop such capabilities in the future. Melissa Hathaway, former acting senior director for cyberspace for the National Security and Homeland Security Councils, was recently quoted as saying, "Proliferation [of cyber weapons] is a real problem, and no country is prepared to deal with it. All of these [computer security] guys are scared to death. We have about 90 days to fix this [new vulnerability] before some hacker begins using it." It is also worth noting that, in the future, a non-state actor may not necessarily need to possess the Stuxnet code in order to use the worm. Cybercrime organizations have been said to "rent" networks of infected computers, known as "botnets," for use in politically motivated cyber attacks on government websites and computer networks. It may become possible for organizations to develop and either rent or sell malware such as Stuxnet or access to infected computers for malicious use against government or civilian infrastructure. In addressing concerns about threats emanating from cyberspace from a variety of potential actors, Deputy Defense Secretary William J. Lynn III noted, "Once the province of nations, the ability to destroy via cyber means now also rests in the hands of small groups and individuals: from terrorist groups to organized crime, hackers to industrial spies to foreign intelligence services." Early reports indicated that the intended target of Stuxnet may have been SCADA-controlled nuclear facilities in Iran that used the Siemens product. If a country developed Stuxnet and the target was a single country's infrastructure, the worm's spread to multiple countries has implications for the lack of precision targeting of cyber weapons, their unknown secondary and tertiary effects, and for the rules of engagement for responding to a cyber attack. Iran has apparently suffered the most attacks by the Stuxnet worm and, as noted, may well have been its main target. A September 2010 study by Symantec argued that the "concentration of infections in Iran likely indicates that this was the initial target for infections and was where infections were initially seeded." As of September 25, 2010, Iran had identified "the IP addresses of 30,000 industrial computer systems" that had been infected by Stuxnet, according to Mahmoud Liaii, director of the Information Technology Council of Iran's Industries and Mines Ministry, who argued that the virus "is designed to transfer data about production lines from our industrial plants" to locations outside of Iran. Iranian officials have indicated that the worm infected computers associated with the country's nuclear power plant under construction near Bushehr. Dr. Mohammad Ahmadian, an Iranian Atomic Energy Organization official, stated in October that the worm may have been transferred to computers at the reactor site via "CDs and Flash memory sticks," adding that the affected computers have since been "inspected and cleaned up." Some of those responsible for transferring the worm were "foreign experts who had been frequenting industrial centres," Iran's minister of communication Reza Taqipur stated in October. Iranian officials have indicated that the reactor, which is not yet operational, has not been affected by Stuxnet. Olga Tsyleva, press-secretary of the Atomstroyeksport, the Russian contractor for the Bushehr project, confirmed October 5, 2010, that the worm had spread to the Bushehr facility's computers but had not caused any damage. In addition to Liaii's description of Stuxnet's purpose, reports of the Stuxnet infections in Iran have, as noted, fueled speculation that the virus was part of an effort by some countries, including the United States and Israel, to sabotage Tehran's nuclear programs. In addition to the Bushehr reactor, Iran has constructed both a pilot and a commercial gas centrifuge-based uranium enrichment facility near Natanz. Tehran continues enrichment operations at the Natanz facilities, according to a November 23, 2010, report by International Atomic Energy Agency Director-General Yukiya Amano. Uranium enrichment can produce fuel for nuclear reactors, but can also produce fissile material for use in nuclear weapons. Iran's uranium enrichment facilities seem to be a more likely target for a cyber attack than does the Bushehr reactor. Mark Fitzpatrick, former acting Deputy Assistant Secretary of State for Non-proliferation, argued in September that such an attack would not make sense because the reactor is not a prime proliferation concern, the Financial Times reported. Iranian officials have themselves indicated that the Bushehr reactor may not have been the worm's only target. For example, an October 5 statement from Iran's Foreign Ministry spokesman Ramin Mehmanparast appeared to reference Iran's uranium enrichment program. Moreover, Ali Akbar Salehi, the head of Iran's Atomic Energy Organization, suggested September 29 that "enemies" had attempted to infect nuclear facilities other than Bushehr. More recently, some experts have argued that, because Stuxnet was designed to manipulate equipment used in centrifuge facilities, the worm may have been developed to sabotage Iran's enrichment plant. Whether the Natanz facility contains Siemens components that would be affected by the virus is unclear. The presence of such components in the Bushehr reactor appears to be more likely because Siemens originally worked on the project. Stuxnet's impact on Iran's nuclear facilities is unclear. Although, as noted, some Iranian officials have stated that the Bushehr reactor was not affected, some accounts suggest that the malicious software may have slowed down or disabled operations at Iran's enrichment facilities. For example, Iranian President Mahmoud Ahmadinejad said of the cyber attack that unnamed perpetrators "were able to cause minor problems with some of our centrifuges by installing some software in electronic parts. They did wrong. They misbehaved but fortunately, our experts discovered it." Moreover, an unnamed "senior diplomat" suggested that Stuxnet may have caused Iran to shut down its commercial centrifuge facility for a few days in November 2010, Reuters reported November 23. Iranian officials have attributed the Stuxnet infections to a cyber attack, with some suggesting that Western countries are responsible. For example, Mahmoud Liaii characterized the worm as part of an "electronic war [that] has been launched against Iran." Additionally, Mehmanparast suggested October 5 that the "West" is taking "steps and efforts to use every possible means to prevent the peaceful nuclear activities of our country." An October 20 Open Source Center analysis, however, observed that Iranian officials have "largely remained vague" about Stuxnet's "target, intent, and origin." There have been previous allegations of efforts by the United States and other governments, including Israel, to sabotage Iran's centrifuge program. The New York Times reported in January 2009 that such efforts have included "undermin[ing] electrical systems, computer systems and other networks on which Iran relies," according to unnamed senior U.S. and foreign government officials. One effort involved foreign intelligence services sabotaging "individual power units that Iran bought in Turkey" for Tehran's centrifuge program. "A number of centrifuges blew up," according to the Times . Western governments have reportedly made other efforts to sabotage centrifuge components destined for Iran, according to some non-governmental experts. Additionally, New York Times reporter James Risen wrote in 2006 that, according to unnamed U.S. officials, the United States engaged in a covert operation to provide Iran with flawed blueprints for a device designed to trigger a nuclear explosion. Vulnerabilities in industrial control systems have long been an issue of concern to both the security and technology communities. Modern critical infrastructure facilities rely on computer hardware and software continuously to monitor and control equipment that supports numerous industrial processes, including nuclear plant management, electrical power generation, water distribution and waste control, oil and gas refinement, chemical production, and transportation management. The Department of Homeland Security (DHS) categorizes 18 critical infrastructure sectors as "essential to the nation's security, public health and safety, economic vitality, and way of life." The advent of the Stuxnet virus has raised questions on the vulnerabilities of national critical infrastructure. In the absence of specific information on the full impact of Stuxnet, one can speculate that all of these sectors may be at risk. Many observers fear that a successful infiltration and attack could degrade or stop the operation of a critical infrastructure facility that delivers water, gas, or other essential utility, or affect multiple facilities due to the interdependent nature of the nation's infrastructure sectors responsible for providing essential services. Sean McGurk, the Department of Homeland Security's acting director of the National Cybersecurity and Communications Integration Center, stated during a November 2010 hearing, "We have not seen this coordinated effort of information technology vulnerabilities and industrial control exploitation completely wrapped up in one unique package. To use a very overused term, it is a game-changer." Unclassified reports suggest that the Stuxnet worm was specifically developed to seek out and exploit vulnerabilities in software that manages ICSs found in most critical infrastructure facilities. One type of ICS, a Supervisory Control and Data Acquisition (SCADA) system, is a computer that controls industrial processes and infrastructures. SCADA systems can be accessed and managed directly at computer terminals, either from remote locations that are connected to the control system, or through the emerging trend of controlling these systems from mobile wireless devices. In 2009, DHS conducted an experiment that revealed some of the vulnerabilities to cyber attack inherent in the SCADA systems that control power generators and grids. The experiment, known as the Aurora Project, simulated a computer-based attack on a power generator's control system that caused operations to cease. The same vulnerabilities are said to exist in other critical infrastructure, which, if disabled, could both cripple the economy and have physical consequences; an electrical blackout for a prolonged period of time could potentially lead to loss of life if essential services were not restored. Yet some experts argue that the cyber threat to critical infrastructure is exaggerated, regardless of the perpetrators' capabilities. For example, although the computer systems that control electricity plants could be penetrated by a sophisticated hacker, some infrastructure experts argue that the multitude of public and private companies and the overlapping nature of their operations creates a resiliency that would make long-term and widespread damage implausible. Moreover, the North American power grid is segmented into four large regions, reducing the risk of a nation-wide failure. Yet due to their interconnected nature, it is possible that a failure in one system could cause cascading effects across an entire region. An example of this was seen in August 2003, when high-voltage power lines in Ohio came in contact with trees, triggering the automatic safety system to disconnect. Safety mechanisms of other generators then shut down and severed links between them, causing a blackout throughout the northeastern United States and Canada. Experts offer various recommendations to address the vulnerabilities described above. Some information security experts advocate mandatory encryption of computer data in SCADA-controlled utilities transmission and distribution systems. The Department of Energy is undertaking research and development efforts to modernize the electric grid with new information technology and thereby create a so-called "Smart Grid" that will be more prevalent and accessible throughout the nation and may also be more secure. However, some security observers argue that creating a dependency on ubiquitous computer technologies will increase vulnerabilities to hacking, worms, viruses, or other cyber threats, and that a multi-layered, redundant network creates a higher level of protection. Another option is to enhance the protection of the physical aspects of the nation's critical infrastructure, thus mitigating possible damage from a Stuxnet worm type of attack and also better preparing facilities to respond to natural or man-made threats. Whether it is electricity, telecommunications, transportation, or other essential services, many federal government activities rely on critical infrastructures that are predominately owned and operated by the private sector, which has an expectation of immediately accessible and fully operational use of these resources. Should the ICS of a critical infrastructure facility become affected by a Stuxnet worm or similar malicious code, disruptions could hamper the government's ability to provide domestic and international security, safety, and essential services for lengthy periods of time. Such an occurrence could also degrade the government's ability to pursue or maintain national security goals and thereby make the nation more vulnerable to a variety of foreign and domestic threats or contribute to a loss of public confidence in the government. The predominant view of many security observers appears to be that the recent emergence of the worm may be a new type of threat that could potentially lead to short- and long-term adverse global security consequences. However, some security experts claim that the threat of cyberwar in general is exaggerated by security firms and government entities in an effort to procure more resources and control over information technology. Yet these claims are not related specifically to Stuxnet. In October 2010, Dr. Udo Helmbrecht, executive director of the European Network and Information Security Agency, stated, "Stuxnet is really a paradigm shift, as Stuxnet is a new class and dimension of malware. Not only for its complexity and sophistication ... the fact that perpetrators activated such an attack tool can be considered as the 'first strike,' i.e. one of the first organized, well prepared attack against major industrial resources. This has tremendous effect on how to protect national (critical infrastructure) in the future." The Stuxnet worm is unique because the software code appears to have been designed to infiltrate and attack an ICS often used by critical infrastructure facilities in order to cause long-term physical damage to them. Although the full extent of damage caused by Stuxnet is unknown, the potential implications of such a capability are numerous in that the worm's ability to identify specific ICSs and wait for an opportune time to launch an attack could have catastrophic consequences on nations' critical infrastructures. The possibility of this type of cyber threat to national critical infrastructure raises several questions for policymakers. It is said that actions in cyberspace are conducted in milliseconds. When the consequences of retaliatory actions in cyberspace may be unknown, is an immediate response required, or a longer, more deliberative process? The lack of clear attribution further complicates the issue. If a cyber attack appeared to be launched from an unsuspecting neutral country, it may not be possible to formally engage that country in stopping an attack that is taking place in milliseconds. What authorities should be in place if such an attack were deemed to warrant an immediate response from the affected nation? Is an international treaty or convention necessary to curb proliferation and use of cyber-based weapons? Many arms control treaties are built upon inspection, verification, and compliance regimes. As nefarious activities in cyberspace defy geographical boundaries and often attribution, how would such activities be conducted in a cyber arms control treaty? Another issue raised by Stuxnet is the government's role in protecting critical infrastructure. Is the Department of Homeland Security equipped to protect national infrastructure? Would new authorities be necessary in order to oversee the defense of privately owned critical infrastructure facilities? What is the military's role in defending national critical infrastructure from cyber attack? What role should intelligence agencies have in monitoring private infrastructure? Is the threat of cyber war exaggerated in order to shift power over the Internet to the military and intelligence agencies? Is the private sector the first line of defense in the event of a cyber attack on critical infrastructure? Is new legislation required to standardize and regulate critical infrastructure protection throughout the various sectors?

In September 2010, media reports emerged about a new form of cyber attack that appeared to target Iran, although the actual target, if any, is unknown. Through the use of thumb drives in computers that were not connected to the Internet, a malicious software program known as Stuxnet infected computer systems that were used to control the functioning of a nuclear power plant. Once inside the system, Stuxnet had the ability to degrade or destroy the software on which it operated. Although early reports focused on the impact on facilities in Iran, researchers discovered that the program had spread throughout multiple countries worldwide. From the perspective of many national security and technology observers, the emergence of the Stuxnet worm is the type of risk that threatens to cause harm to many activities deemed critical to the basic functioning of modern society. The Stuxnet worm covertly attempts to identify and exploit equipment that controls a nation's critical infrastructure. A successful attack by a software application such as the Stuxnet worm could result in manipulation of control system code to the point of inoperability or long-term damage. Should such an incident occur, recovery from the damage to the computer systems programmed to monitor and manage a facility and the physical equipment producing goods or services could be significantly delayed. Depending on the severity of the attack, the interconnected nature of the affected critical infrastructure facilities, and government preparation and response plans, entities and individuals relying on these facilities could be without life sustaining or comforting services for a long period of time. The resulting damage to the nation's critical infrastructure could threaten many aspects of life, including the government's ability to safeguard national security interests. Iranian officials have claimed that Stuxnet caused only minor damage to its nuclear program, yet the potential impact of this type of malicious software could be far-reaching. The discovery of the Stuxnet worm has raised several issues for Congress, including the effect on national security, what the government's response should be, whether an international treaty to curb the use of malicious software is necessary, and how such a treaty could be implemented. Congress may also consider the government's role in protecting critical infrastructure and whether new authorities may be required for oversight. This report will be updated as events warrant.

Much is written on the topics of current gaps in the education and training of a cybersecurity workforce and the need for technology research and development (R&D) to solve cybersecurity technical issues. This CRS report directs the reader to authoritative sources that address many of these prominent issues. The annotated descriptions of these sources are listed in reverse chronological order, with an emphasis on material published in the past several years. It includes resources and studies from government agencies (federal, state, local, and international), think tanks, academic institutions, news organizations, and other sources related to Table 1 --education and training, including scholarships, internships, the cybersecurity workforce, and the National Cybersecurity Centers of Excellence (NCCoE); and Table 2 --R&D, including the Defense Advanced Research Project Agency (DARPA), National Science Foundation (NSF), Department of Defense (DOD), and private industry R&D programs and funding.

Much is written on the topics of current gaps in the education and training of a cybersecurity workforce and the need for technology research and development (R&D) to solve cybersecurity technical issues. This CRS report directs the reader to authoritative sources that address these issues. The annotated descriptions of these sources are listed in reverse chronological order, with an emphasis on material published in the past several years. This report also includes resources and studies from government agencies (federal, state, local, and international), think tanks, academic institutions, news organizations, and other sources. Table 1 provides education and training resources, including scholarships, internships, the cybersecurity workforce, and the National Cybersecurity Centers of Excellence (NCCoE). Table 2 provides R&D resources, including the Defense Advanced Research Project Agency (DARPA), National Science Foundation (NSF), Department of Defense (DOD), and private industry R&D programs and funding. The following CRS reports comprise a series that compiles authoritative reports and resources on these cybersecurity topics: CRS Report R44405, Cybersecurity: Overview Reports and Links to Government, News, and Related Resources, by [author name scrubbed] CRS Report R44408, Cybersecurity: Cybercrime and National Security Authoritative Reports and Resources, by [author name scrubbed] CRS Report R44410, Cybersecurity: Critical Infrastructure Authoritative Reports and Resources, by [author name scrubbed] CRS Report R44417, Cybersecurity: State, Local, and International Authoritative Reports and Resources, by [author name scrubbed] CRS Report R44427, Cybersecurity: Federal Government Authoritative Reports and Resources, by [author name scrubbed] CRS Report R43317, Cybersecurity: Legislation, Hearings, and Executive Branch Documents, by [author name scrubbed] CRS Report R43310, Cybersecurity: Data, Statistics, and Glossaries, by [author name scrubbed]

One consequence of unemployment is that individuals and their family members can lose their health insurance. Loss of insurance may have little impact on individuals who do not use many health care services. However, for those who have health problems or who are injured, loss of coverage can be serious. Without insurance, individuals often have difficulty obtaining needed care and have problems paying for the care they receive. Unemployed individuals and their family members who cannot postpone care may incur large bills that create or add to financial distress. Some of the unemployed and/or their family members will be eligible for Medicaid coverage. Others may be able to obtain insurance through a spouse or parent or by paying Consolidated Omnibus Budge Reconciliation Act (COBRA) premiums, though the cost of COBRA premiums can be prohibitive. The Patient Protection and Affordable Care Act (ACA, P.L. 111-148 as amended) is intended to improve access to health insurance coverage, but it does not necessarily provide immediate access to coverage for unemployed individuals and their family members. Some provisions of the ACA that improve access to care have been implemented, but they apply to specific populations (e.g., individuals with preexisting conditions). Other provisions of the ACA that more broadly apply to individuals, including unemployed individuals (e.g., health insurance exchanges), will generally not be implemented until 2014. This results in an interim period when unemployed individuals may have few health insurance options and/or lack the resources to pay for insurance. Concern about unemployment and health insurance has grown because of the recent economic recession and the jobless recovery. In December 2011, the nation's unemployment rate was 8.5% (about 13.1 million individuals), whereas the underemployment rate, which includes individuals who are working part-time because their hours have been cut and other individuals who have given up looking for jobs, reached 15.2% (about 23.4 million individuals). The Congressional Budget Office (CBO) expects the unemployment rate to remain above 8.0% through 2014, indicating that the impact of unemployment on health insurance is likely to continue for some time to come. This report contains information and analysis intended to inform congressional debate over whether to address these issues, and if so, how, and to what extent. It is divided into five parts: 1. analysis showing the diversity of the unemployed population; 2. analysis showing the relationship between unemployment and loss of employer-sponsored health insurance; 3. analysis of certain unemployed individuals at risk for being uninsured; 4. summaries of current federal programs and tax treatments that can help some unemployed individuals obtain or retain health insurance; and 5. additional options that might be considered. The unemployed are a diverse population in terms of age, gender, marital status, income, and other characteristics. These attributes indicate that they likely have differing health care needs and different capacities to pay for care and insurance. This section describes the diversity of the unemployed population, broken down by various demographic categories. Age can affect the probability that an individual will need health care services. One study finds that adults aged 55 to 64 are more likely to have chronic conditions and are more likely to have higher premiums and out-of-pocket costs compared to younger adults. Another study finds that only one-fifth of an individual's lifetime health care expenditures occur before age 41, while nearly half accrue after age 65. As follows, the older unemployed will most likely incur greater health care expenditures than the younger unemployed. The age of an unemployed individual can also affect the availability of financial resources. Younger unemployed individuals may have less savings to draw from compared to their older counterparts. However, younger unemployed individuals may also be able to rely more on parents for family assistance. For example, under the ACA, individuals under age 26 may be able to qualify for dependent coverage through a parent's health plan. Table 1 shows the unemployment rate by age group and the age distribution of the unemployed at the beginning of the last recession in December 2007 and again in December 2011. Unemployment rates have increased since 2007 across all age groups. While the unemployment rates remain highest among individuals aged 16 to 19 and 20 to 24, the unemployment rates increased the most between 2007 and 2011 among individuals aged 25 and older. For those aged 25 and over, unemployment rates nearly doubled across all age categories. The distribution of the unemployed shows that since the start of the recession in December 2007, unemployed individuals are increasingly older. In December 2011, the share of the unemployed population aged 16 to 24 declined compared to December 2007, while the share of the unemployed aged 25 and older increased (from 66.3% in 2007 to 73.2% in 2011). Among those aged 25 and older, the largest percentage point increase in the share of unemployed between 2007 and 2011 was among those aged 55 and older. Figure 1 shows the unemployed population by marital status, gender, and the presence of children in a household. The majority of the unemployed as of December 2011 were single men (36.7%), followed by single women without children (20.6%). Married men comprised 17.8% of the unemployed. Married women accounted for 14.9% of the unemployed, and single women with children comprised 10.0%. Marital status has a direct impact on the probability that an unemployed individual will continue to be covered by health insurance, in some cases making it more likely that an unemployed individual maintains access, and in other cases making it more likely that the unemployed individual and his or her entire family will lose coverage. Individuals married to a spouse who has a job and insurance coverage may be able to enroll in their spouse's plan if they lose their coverage. On the other hand, workers who are married (or who are the head of a household) may be providing the main health insurance for their families. In 2010, about half of the nonelderly with employer-sponsored coverage received that coverage as a dependent (i.e., as a spouse, partner, or child of an individual with employer-sponsored coverage). A single parent who is the head of household and unemployed is also at risk of losing employer-sponsored coverage for the family. The unemployed and/or their dependents may, however, be eligible for public assistance through Medicaid (see the discussion on " Medicaid " below) or the State Children's Health Insurance Program (CHIP). As of December 2011, 58.0% of unemployed individuals had been out of work for 15 weeks or longer. Nearly 43.0% had been unemployed for more than six months in December 2011, compared to 18.0% who were unemployed for more than six months when the recession began in December 2007. Research suggests that the longer a person remains unemployed and uninsured, the greater the delay in seeking medical treatment (see discussion on " Health Status " below). The health status of the unemployed could be affected by whether they have health insurance coverage, their demographic composition, and the duration of their unemployment. As noted earlier, the unemployed today tend to be older than at the beginning of the recession in December 2007, and health expenditures are typically greater for older compared to younger populations. Some research shows that age and health status are strongly correlated, indicating that because the unemployed are older, they may also be less healthy. Table 2 presents data by perceived health status by age (regardless of employment status). In all age groups, around 30.0% of the population reports very good health. However, compared with individuals aged 18 to 24, individuals aged 45 to 64 are more than twice as likely to report fair health and over six times more likely to report poor health. Compared to individuals aged 25 to 44, individuals aged 45 to 64 are about twice as likely to report fair health and more than three times more likely to report poor health. As noted earlier, the unemployed today are more likely to have been unemployed for longer than six months, which may further delay necessary medical treatment. One study shows that more than 70.0% of adults with gaps in health care coverage tend to forgo needed care because of cost, up from just over half in 2001. Uninsured adults are also less likely than those with insurance to obtain tests such as blood pressure, cholesterol, and cancer screening. These problems may be further exacerbated among the older unemployed and/or those with longer durations of unemployment. Individuals who become unemployed may be eligible for unemployment compensation (UC). Eligibility, benefit amount, and duration of UC is determined by each state. Generally, UC benefits are based on wages for covered work during a 12-month period. Most state benefit formulas replace half of a claimant's average weekly wage up to a weekly maximum. The average regular UC benefit duration as of December 2011 was 17.5 weeks. Approximately 3.6 million individuals claimed regular state UC benefits in a given week in December 2011. Average weekly unemployment benefits were $291, translating to an average monthly benefit of $1,261. The availability of other forms of income for the unemployed is important in determining their ability to pay for health insurance coverage or health care services directly out-of-pocket. Unemployment compensation by itself could be insufficient to pay for these costs. For example, among the unemployed whose only option is to purchase insurance in the individual market, the cost of coverage could be prohibitive. In 2010, the average monthly cost of premiums for coverage bought in the individual market was $301 for self-only coverage and $592 for family coverage. Assuming premiums did not increase in 2011 (which is unlikely), the average monthly cost of the premium for self-only coverage would consume 23.9% of the average monthly unemployment benefit, and the average monthly cost of the premium for family coverage would consume 46.9%. Data on the income distribution of those currently unemployed are not available. However, the most recent data from the Internal Revenue Service show the number of returns with UC by household income in 2009 (see Table 3 ). Individuals with household income of $15,000 up to $20,000 are the most likely to have UC, with 11.6% of all returns reporting UC. Examining the distribution of returns with UC by income, about 44% of those who received UC benefits had household income below $25,000, while nearly 30% had household income of $50,000 or more. The ability of the unemployed to purchase insurance depends on income from other sources in addition to UC, current living expenses, and other factors, such as whether individuals in the household have preexisting conditions that could significantly increase the cost of coverage. Beyond UC, individuals also may draw down their savings (including retirement savings) to pay for household expenses. Employer-sponsored health insurance represents the largest source of coverage to workers and their dependents. In 2010, about 68.0% of workers received employer-sponsored coverage from an employer, either in their own names (51.0%) or as dependents of another family member's employer (17.0%). Among other factors, the nature of unemployment for an individual (i.e., whether an individual is permanently or temporarily laid off) and the industry in which an individual had been employed can affect an individual's likelihood of having employer-sponsored coverage. Those most likely to have lost employer-sponsored coverage are the nearly 6.4 million unemployed who report that they have been permanently laid off from their jobs, comprising nearly half (48.3%) of the 13.1 million unemployed workers as of December 2011. Another 1.4 million individuals (9.0% of the unemployed) have been temporarily laid off. These workers may still have access to health insurance and other employer-provided benefits (if they were available prior to their change in work status). About 900,000 individuals, 7.0% of the unemployed, left their jobs voluntarily. A closer look at the industry characteristics of the unemployed provides some insight into their health insurance status prior to becoming unemployed. Individuals who had coverage prior to becoming unemployed may be better able to maintain or obtain coverage while unemployed. Table 4 shows the percentage of workers with health insurance in their own names in each industry in 2010, and the number of unemployed workers and the unemployment rate among industries as of December 2011. Workers laid off in the mining and manufacturing sectors had the highest likelihood of having health insurance through their previous employer. Workers laid off in wholesale and retail trade, construction, and leisure and hospitality were the least likely to have health insurance from their previous employer prior to being laid off. The industries with the largest numbers of unemployed individuals are professional and business services, wholesale and retail trade, construction, and leisure and hospitality. Combined, workers in these four industries account for about 46.0% of all unemployed individuals. Those considered unemployed include individuals seeking to enter or re-enter the workforce and actively looking for a job. Over one-third of the unemployed (35.4%) are just entering the labor force either for the first time (9.7%) or re-entering after being out for some time (25.7%). This latter group could include family caregivers looking to return to work, retirees looking to return to work to supplement their income in the "down" economy, or those looking to return to work after an extended illness. Those seeking to enter or re-enter the labor force did not necessarily lose employer-sponsored coverage in their own names because they may not have had access to such coverage. Some may have coverage through their spouse or parents, some may have retiree health benefits from a prior employer, or some may be purchasing COBRA; others may be uninsured. For those who do not have coverage, entering or re-entering the workforce may not provide immediate access to employer-sponsored insurance. In 2011, 72% of newly insured employees were subject to a waiting period before becoming covered, and the average waiting period was 2.2 months. Complicating the analysis of unemployment and insurance coverage are certain other at-risk groups who are not technically unemployed but who do not have coverage due to a change in work status. These other at-risk groups include involuntary part-time workers and discouraged workers who have left the workforce altogether. If these individuals were counted in the December 2011 unemployment rate, it would increase from 8.5% to 15.2%. Legislative proposals to help the unemployed with health insurance typically focus solely on individuals who do not have a job and are actively searching for work; however, individuals in other at-risk groups may also be without health insurance. The number of involuntary part-time workers has decreased over the past year, from 8.9 million to 8.1 million. These are individuals who wanted to work full-time but instead had to work part-time. Part-time workers are 1.5 times more likely to be uninsured (27.6%) compared to full-time workers (17.6%), as employers are more likely to provide health benefits to full-time workers than to part-time workers. In 2011, about 60.0% of all employers offered health benefits, but only 16.0% of these employers offered health benefits to part-time workers. Another group at risk for not having health insurance coverage is discouraged workers--individuals not currently looking for work because they believe jobs are not available for them. As of December 2011, there were approximately 945,000 discouraged workers. This number has more than doubled since the recession began in December 2007. Current federal law includes several programs and tax treatments that might help some unemployed with respect to health insurance. Programs and tax treatments for which coverage is directly or otherwise closely related to being unemployed include the mechanisms listed below. In subsequent sections, each of these programs and tax treatments is briefly summarized and assessed. The assessment considers the advantages and disadvantages of each mechanism from the perspective of unemployed individuals. COBRA Health Coverage Tax Credit Medicaid Itemized Deduction for Medical Expenses Health Savings Accounts Title X of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA, P.L. 99-272 ) generally requires employers with 20 or more workers to provide employees and their families the right to continue participation in the company's group health plan in case of certain events, one of which is involuntary dismissal. Depending on the triggering event, the continuation period generally lasts up to 18 or 36 months. One attraction of COBRA for unemployed individuals is that they can continue in the health plan they had while working; this is especially important when the plan is linked to particular doctors and other providers. Additionally, employer plans have group rates, which often are lower than individual market insurance premiums for similar benefits when individuals are older or have health conditions. One limitation of COBRA for the unemployed has been that covered individuals usually have to pay 102% of the health plan's full premium (i.e., both the employee's and the employer's share, plus a 2% administrative fee). Without subsidies, typical premiums can consume a large part of an unemployment benefit, or even exceed it in the case of family coverage. A second limitation of COBRA for the unemployed is that if a firm files for bankruptcy under Chapter 7 of Title 11 of the U.S. Code, the employer ceases to exist. Because COBRA is provided through the employer, if there is no employer, there is no COBRA obligation. The Health Coverage Tax Credit (HCTC) is an individual income tax credit that is both refundable (allowing taxpayers to receive the full amount regardless of their tax liability) and advanceable to health plans (allowing taxpayers to benefit from the credit while they have coverage, not just after they file their returns the next year). The 72.5% credit can be applied to premiums for 11 types of health insurance, 4 of which (including COBRA) are available nationwide, but 7 of which first require state approval. Eligible taxpayers must be receiving Trade Adjustment Assistance (TAA) benefits (or would be except that they have not exhausted their unemployment benefits), Reemployment Trade Adjustment Assistance benefits, or pension benefits being paid because the Pension Benefit Guaranty Corporation has taken over their pension plan. Individuals are not eligible if they are enrolled in employer-sponsored insurance, Medicare Part B, Medicaid, or CHIP (among others), or if they are entitled to Medicare Part A (among others). One attraction of the HCTC for the unemployed is that the 72.5% premium credit applies regardless of annual income, which can help individuals who have income earned earlier in the year before they become unemployed or who have a spouse who remains employed. Limitations of the HCTC for the unemployed include restricted eligibility categories, short eligibility periods for some TAA beneficiaries (eligibility can range from less than a year to over two years, depending on state residency and other circumstances), and the inability of cash-strapped taxpayers to pay the remaining part of the premium. Medicaid is a federal-state entitlement program targeted toward low-income individuals. It finances health and long-term care services primarily for the elderly, individuals with disabilities, members of families with dependent children, and certain other pregnant women and children. Participants must meet low-income and sometimes limited-resource or asset tests that are established by states within federal guidelines. States must cover certain categorical groups and provide various defined services, but they have options to cover other groups and add other services. One attraction of Medicaid for the unemployed is that the program can pay for a wide range of medically necessary treatments, usually with small deductibles or copayments relative to employer-sponsored coverage. A limitation of Medicaid for the unemployed is that they might not meet income and asset tests the states impose, and some (such as childless, non-disabled adults) might not be categorically eligible. In addition, the doctors and other providers they had prior to becoming unemployed might not accept Medicaid. (See discussion about future expansions to Medicaid to non-traditional groups in section on " The Affordable Care Act and the Unemployed .") Taxpayers who itemize their deductions may deduct certain unreimbursed medical expenses that exceed 7.5% of their adjusted gross income. These medical expenses include insurance premiums, insurance deductibles and copayments, and direct payments to providers, among other things. Most state income tax systems also allow a deduction for medical expenses, providing additional tax savings. One attraction of the itemized deduction for the unemployed is that it has no employment-related eligibility tests; some individuals who have lost full-time jobs but are not defined as unemployed (such as those who can only find intermittent part-time work) could still use it. A limitation of the itemized deduction is that one must itemize deductions to use it; most lower-income taxpayers find that their standard deduction is larger. The 7.5% adjusted gross income floor further limits its use. In addition, deductions result in little tax savings for lower-income taxpayers because their marginal tax rates are relatively low (typically 10.0% or 15.0%). If taxpayers have no taxable income prior to considering their medical expenses, the deduction would not help them. A second limitation of the itemized deduction is that it is not advanceable. Individuals who plan to deduct their medical expenses must still pay for the medical expenses at the time they are used. For example, a medical expense paid in March 2010 could not be itemized until taxes are filed in 2011. This could be a significant financial burden for individuals, particularly for those who are unemployed. Health Savings Accounts (HSAs) are tax-advantaged accounts that individuals can use to pay unreimbursed qualified medical expenses such as deductibles, copayments, and services not covered by insurance. Contributions, which are either excluded from taxes (if made by employers) or deductible (if made by individuals) can be made only when individuals have qualifying high-deductible health insurance; for most, the annual contributions in 2012 are limited to $3,100 for self-only coverage and $6,250 for family coverage. Amounts not used one year can be rolled over to the next. Withdrawals used to pay health insurance premiums usually are taxable, but not when one is receiving unemployment benefits or within a COBRA continuation period. One attraction of HSAs is that they can serve as a rainy-day health care fund. If individuals contribute to them regularly over a number of years, they could accumulate a balance that can be used when they are unemployed. HSAs are portable and not tied to continued work for a particular employer. A limitation of HSAs for the unemployed is that one must have high-deductible insurance (deductibles of at least $1,200 for single coverage or $2,400 for family coverage in 2012) in order to be eligible to make contributions to the HSA; many individuals are reluctant to accept the risk of such a high deductible, even though high-deductible insurance premiums are somewhat lower. Individuals with high-deductible insurance sometimes do not contribute to an HSA or, if they do, they use the money soon afterwards and cannot build up substantial balances. The ACA provides a number of immediate reforms to the health insurance market. Several provisions of the ACA are intended to increase consumer access to health insurance. For example, the ACA creates the Pre-Existing Condition Insurance Plan (PCIP). The PCIP is a temporary, high-risk pool program that provides coverage to individuals who have been uninsured for at least six months, have a preexisting condition or have been denied coverage because of a health condition, and are U.S. citizens or legal aliens. The PCIP provides access to health insurance to these individuals, but it does not provide financial assistance to the individuals. The PCIP operates in every state and is to remain in effect until 2014, when individuals in the program will have access to coverage through the health insurance exchanges created by the ACA. As of November 2011, there were 44,852 individuals throughout the country enrolled in the PCIP. An ACA provision that is helping certain unemployed individuals under age 26 obtain or retain health insurance is the expansion of dependent coverage. Effective for plan years beginning after September 23, 2010, the ACA generally requires that if a plan provides for dependent coverage of children, the plan must continue to make such coverage available for an adult child until age 26. This provision is effective only if the parent has health insurance and that insurance covers dependents. Recently, the Department of Health and Human Services reported that since the policy took effect in September 2010, the percentage of adults aged 19-25 who are covered by private insurance has increased significantly, from 64% in September 2010 to 73% in June 2011. Beyond the immediate reforms to the health insurance market, beginning in 2014 the ACA will also provide premium tax credits and cost-sharing subsidies for certain eligible individuals who obtain coverage through a health insurance exchange, which could include some unemployed individuals. The premium tax credit will be an advanceable, refundable tax credit, meaning taxpayers can benefit from the credit before the end of the tax year and may claim the full credit amount even if they have little or no federal income tax liability. Those who qualify for premium credits and are enrolled in certain plans in the health insurance exchange could also be eligible for assistance in paying any required cost-sharing for their health services. In addition, in 2014, or sooner at state option, the ACA will expand Medicaid access to certain individuals who are under age 65 with modified adjusted gross income (MAGI) up to 133% of the federal poverty level ($30,657 for a family of four in 2012). The ACA not only expands eligibility to a group that is not currently eligible for Medicaid (low-income childless adults), but also raises Medicaid's mandatory income eligibility level for certain existing groups up to 133% of FPL. Since most of these provisions will not be implemented until 2014, this results in an interim period when unemployed individuals lack assistance in obtaining health insurance coverage. While some unemployed individuals may access coverage before then (due to possible early state expansions, for example), most unemployed individuals will not obtain financial assistance for coverage before 2014. It is difficult to predict how long Americans will continue to feel the effects of the recent economic recession. Even if economic growth recovers, growth in employment may lag; the CBO expects the national unemployment rate to remain above 8.0% through 2014. Unemployment could remain high in some areas and for some groups even after the national average goes down. Whatever the pattern, the unemployed might have difficulty obtaining and/or affording health insurance for some time. As shown in the preceding discussions, the unemployed are not a homogenous group. Some individuals lose employer-sponsored health insurance when they lose their jobs, but other unemployed individuals may not have coverage to begin with. In addition, there are involuntary part-time workers and discouraged workers who do not have coverage. These issues raise related policy questions, including, Should the federal government provide assistance to all of these groups? If so, what are the advantages and disadvantages of providing assistance? For those considering assistance, what are the advantages and disadvantages to giving higher priority to some groups? Several issues are involved: Given that many people will receive assistance in 2014, is it preferable to maintain the status quo until then? Among those who support more assistance and/or immediate assistance: In general, there appears to be a trade-off between concerns about cost and concerns about equity. Providing assistance to all the groups mentioned above would cost more than helping just those who lost employer-sponsored coverage, but on grounds of equity it may be difficult to justify not helping all. However, if the immediate goal is not to allow the number of uninsured individuals to increase, there is something to be said for giving higher priority to those who recently had coverage. If assistance is given to those who did not have employer-sponsored coverage, what form of coverage should they have? Should they be enrolled in public programs such as Medicaid or Medicare, or should they be permitted private insurance options? If the latter were allowed, what benefit and consumer protection standards might apply? While comprehensive health care reform has been enacted, it will not provide immediate health insurance coverage to all currently unemployed individuals. For those considering more immediate action, there are a number of legislative proposals that could be considered in the 112 th Congress. The proposed programs would likely be temporary, however, and would provide some coverage until the ACA is fully implemented and the health care exchanges are operational (in 2014). Legislative proposals to extend COBRA include extending the eligibility period for the COBRA premium subsidy included in the American Recovery and Reinvestment Act of 2009 (ARRA, P.L. 111-5 and subsequently extended) to those unemployed after May 31, 2010, and/or extending the eligibility period for receiving COBRA at unsubsidized rates beyond 18 months. A provision of ARRA, as extended through subsequent amendments, provided a 65% COBRA subsidy in the form of an employer tax credit for eligible workers who became unemployed before May 31, 2010. The subsidy was limited to 15 months, and individuals had to pay the remaining balance. This provision has since expired. The COBRA premium subsidy was not available for those who lost their jobs after May 31, 2010. One advantage of further expanding eligibility for COBRA premium subsidies is that the legislative and regulatory frameworks (including administrative procedures and legal interpretations) are already in place. A disadvantage for the unemployed is that COBRA subsidies are limited to only a portion of those out of work, and they do not apply to those who may be just entering or re-entering the workforce after an extended absence. In addition, some employers find changes to COBRA administratively burdensome, and the extensions would add expenditures to an already strained federal budget. In addition to extending the COBRA premium subsidy, another possible option is to extend the COBRA eligibility period, which now is generally limited to 18 months. An extension could help individuals who need more time in a prolonged recession (or in its after effects) to find jobs that provide health insurance. As noted earlier, a limitation of unsubsidized COBRA for the unemployed has been that covered individuals usually have to pay 102% of the health plan's full premium. Because most employers subsidize health insurance premiums for their workers, the 102% COBRA premium may not be affordable for the unemployed, especially when compared with the average level of unemployment compensation. Employers might argue that extended coverage would be most attractive to individuals who have (or whose family members have) serious health problems. If this were the case, covering these individuals in the plan could raise costs for others in the plan. While extending COBRA would not increase federal expenditures, it would provide access to health insurance, but not necessarily financial relief from paying for the coverage, to individuals. As noted in the preceding discussion, individuals aged 55 and older are a growing segment of the unemployed population. Unemployed individuals in this age group often have more difficulty finding another job (or at least another job comparable to the one they lost), have fewer working years remaining to recover financially, and are at an increased risk of health problems. Some have proposed allowing older unemployed individuals to buy into Medicare early, that is, to join the Medicare program by paying premiums. Individuals are generally not eligible for Medicare until age 65. Many different design options need to be considered in this approach, including who would be eligible and the possibility of subsidies. One approach is not to provide subsidies, but instead to fully fund the program by charging premiums for individuals aged 62 to 64. Individuals who do not have employer-sponsored health insurance or Medicaid could voluntarily enroll in Medicare. Premiums would equal the average expected cost of the program plus an administrative fee of 5%. CBO estimated that the annual premium for single coverage would be $7,600 in 2011. CBO also estimated that this would indirectly increase mandatory spending for Social Security, as it may encourage some individuals to retire earlier than they otherwise would have. A Medicare buy-in is similar in some ways to expanding the eligibility period for COBRA beyond the 18-month window. Both would require enrollees to pay the full cost of the coverage. There are advantages, however, to the COBRA option versus the Medicare buy-in. First, the COBRA option would be available to all the unemployed who have access to employer-sponsored insurance through former employment, regardless of age. Second, for the older unemployed, the premiums would most likely be lower under the COBRA option because the pool of applicants would include a more diverse group in terms of age and the administrative cost (of 2%) is lower. The advantage of the Medicare buy-in proposal compared to the COBRA option is that the Medicare buy-in would cover older workers re-entering the labor force, whereas the COBRA option would apply only to those individuals who had left a job.

When workers lose their jobs, they can also lose their health insurance. If that health insurance is family coverage, then a worker's family members can also become uninsured. For individuals who do not typically use many health care services, loss of insurance might have little impact. However, for individuals who have health problems or who are injured, loss of coverage can be serious. Without insurance, individuals often have difficulty obtaining needed care and problems paying for the care they receive. Unemployed individuals and their family members who cannot postpone care may incur large bills that create or add to financial distress. With the Congressional Budget Office expecting the unemployment rate to remain above 8.0% through 2014, retaining or obtaining health insurance may continue to be difficult for the unemployed and their family members. The 111th Congress passed legislation that temporarily addressed part of this problem through a temporary premium subsidy for health insurance coverage through Title X of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA, P.L. 99-272). COBRA generally requires certain employers to provide employees and their families the right to continue participation in the employer's health plan in the case of certain events, including involuntary dismissal. To continue coverage, workers must pay both the employee's and the employer's share of the premium, plus a 2% administrative fee. The premium subsidy that reduced the cost of COBRA coverage for certain individuals who lost their jobs expired on May 31, 2010. The Patient Protection and Affordable Care Act (ACA, P.L. 111-148 as amended) is intended to expand access to health insurance coverage. Some ACA provisions made immediate market reforms to increase consumer access to health insurance, particularly for young adults, individuals with preexisting conditions, and other, higher-risk groups. For example, one provision of the ACA generally allowed dependents up to age 26 to remain eligible for insurance coverage through their parents' plans, which could help the younger unemployed. Some other provisions of the ACA that increase access to coverage do not become effective until 2014, however. Those provisions include expansion of Medicaid to those with modified adjusted gross income (MAGI) up to 133% of the federal poverty level (FPL) and insurance premium credits and subsidies for individuals and families with MAGI below 400% FPL. Currently, certain individuals cannot benefit from the expanded access to coverage under the ACA because either the provisions do not apply to them or because applicable provisions have not yet taken effect. These individuals could include unemployed individuals and their family members. This report examines access to health insurance coverage among the unemployed population and provides information and analysis to inform the congressional debate on this issue. The report is divided into five parts: (1) analysis showing the diversity of the unemployed population, (2) analysis showing the relationship between unemployment and loss of employer-sponsored health insurance, (3) analysis of certain unemployed individuals at-risk for being uninsured, (4) summaries of current federal programs and tax treatments that can help some unemployed individuals (and their families) obtain or retain health insurance, and (5) additional options that might be considered, including extending the COBRA eligibility period and allowing unemployed individuals under age 65 to "buy-in" to Medicare--that is, to pay premiums to join Medicare before they reach age 65.

This report summarizes the potential consequences, with respect to congressional status, that may result when a sitting Member of the United States Senate is indicted for or is convicted of a felony. If a sitting United States Senator is indicted for a criminal offense that constitutes a felony, the status and service of that Member is not directly affected by any federal statute, constitutional provision, or Rule of the Senate. No rights or privileges are forfeited under the Constitution, statutory law, or the Rules of the Senate merely upon an indictment for an offense. Internal party rules in the Senate may be relevant, however, and the Senate Republican Conference Rules, for example, have required an indicted chairman or ranking Member of a Senate committee, or a member of the Senate party leadership, to temporarily step aside from his or her leadership or chairmanship position, although the Member's service in Congress would otherwise continue. It should be noted that Members of Congress do not automatically forfeit their offices even upon conviction of a crime that constitutes a felony. There is no express constitutional disability or "disqualification" from Congress for the conviction of a crime, other than under the Fourteenth Amendment for certain treasonous conduct after having taken an oath of office. Under party rules, however, Members may lose their chairmanships of committees or ranking Member status upon conviction of a felony, and this has been expressly provided under the Senate Republican Conference Rules. Conviction of certain crimes may subject Senators to internal legislative disciplinary proceedings, including resolutions of censure, as well as expulsion from the Senate upon approval of two-thirds of the Members. Expulsion of a Member from Congress does not result in the forfeiture or loss of one's federal pension, but the Member's conviction of certain crimes may lead to such forfeiture of retirement annuities, or the loss of all of the "creditable service" as a Member that one would have earned towards a federal pension. Indictment and/or conviction of a crime that is a felony does not constitutionally disqualify one from being a Member of Congress (nor from being a candidate for a future Congress), unless a Member's conviction is for certain treasonous conduct committed after taking an oath of office to support the Constitution. There are only three qualifications for congressional office and these are set out in the United States Constitution at Article I, Section 3, clause 3 for Senators (and Article I, Section 2, clause 2, for Representatives): age, citizenship, and inhabitancy in the state when elected. These constitutional qualifications are the exclusive qualifications for being a Member of Congress, and they may not be altered or added to by Congress or by any state unilaterally. Once a person meets those constitutional qualifications, that person, if elected, is constitutionally "qualified" to serve in Congress, even if under indictment or a convicted felon. No specific or formal Rule of the Senate exists concerning the status of a Senator who has been indicted with respect to chairmanships or ranking Member status on committees of the Senate. However, the political parties in the Senate may adopt internal conference and caucus rules that may affect a Senator's leadership and committee positions and assignments. For example, Senate Republican Conference Rules have provided for the temporary loss of one's position as the chairman or ranking Member of a committee, and the temporary loss of one's leadership position, if the Senator has been indicted for a felony; and if the Senator is convicted, the replacement of the chair/ranking Member on the committee. Although Members of the House of Representatives convicted of an offense that may result in two or more years' imprisonment are instructed under House Rule XXIII (10) to "refrain from participation in the business of each committee of which he is a member, and a Member should refrain from voting" on any question on the floor of the House until his or her presumption of innocence is restored (or until the individual is reelected to Congress), there is no comparable provision in the Senate Rules. Each house of Congress has the express authority under Article I, Section 5, clause 2, of the United States Constitution to punish a Member for "disorderly Behaviour" and, with the concurrence of two-thirds, to expel a Member. Although the breadth of authority and discretion within the Senate (and House) as to the timing, nature, and underlying conduct involved in an internal discipline of a Member of that body is extensive, the traditional practice in Congress, in cases where a Member of Congress has been indicted, has been to wait to impose congressional discipline, such as expulsion or censure against the Member, until the question of guilt has been at least initially resolved through the judicial system. Members of Congress, like many other individuals, have been indicted and charged with various offenses and then been subsequently exonerated in judicial proceedings. Both the Senate and the House have thus been reluctant to remove from Congress individuals who have been lawfully elected to represent their constituents based merely upon charges in an indictment. However, no impediment in law or rule exists for ongoing congressional inquiries concurrent with criminal proceedings (although such actions may complicate some evidentiary issues in subsequent judicial proceedings, and certain internal, concurrent congressional inquiries have in the past been postponed or partially deferred because of arrangements with the Department of Justice). An attempt to mandatorily suspend an indicted or convicted Member from voting or participating in congressional proceedings raises several issues. In general, elected Senators are not in the same situation as persons appointed to positions in the government with indefinite tenure, nor as private professionals, who might be suspended for a period of time merely upon suspicion or charges being levied, because Members of Congress are directly elected by, answerable to, and personally represent the people of their state or district in the Congress. The authority of either house of Congress to mandatorily suspend a Member from participation in congressional business has thus been questioned on grounds of both policy and power because such action would, in effect, disenfranchise that Member's constituency, deprive the people of their full constitutional representation in Congress, and would not allow the constituents to replace a Member, such as they could after an expulsion action. Conviction of a crime may subject a Member of the Senate to internal disciplinary action, including a resolution for censure of the Member, up to and including an expulsion from Congress upon a two-thirds vote of the Members of the Senate present and voting. The Senate has demonstrated that in cases of conviction of a Member of crimes that relate to official misconduct that the institution need not wait until all the Senator's appeals are exhausted, but that the Senate may independently investigate and adjudicate the underlying factual circumstances involved in the judicial proceedings, regardless of the potential legal or procedural issues that may be raised and resolved on appeal. No specific guidelines exist regarding actionable grounds for congressional discipline under the constitutional authority of each house to punish its own Members. Each house of Congress has significant discretion to discipline misconduct that the membership finds to be worthy of censure, reprimand, or expulsion from Congress. When the most severe sanction of expulsion has been actually employed in the Senate (and in the House of Representatives), however, the conduct has historically involved either disloyalty to the United States or the violation of a criminal law involving the abuse of one's official position, such as bribery. In the United States Senate, 15 Senators have been expelled, 14 during the Civil War period for disloyalty to the Union (one expulsion was later revoked by the Senate), and one Senator was expelled in 1797 for other disloyal conduct. Although the Senate has actually expelled relatively few Members, and none since the Civil War, other Senators, when facing a recommended expulsion for misconduct, have resigned their seat rather than face the potential expulsion action. In addition to expulsion, the Senate as an institution may take other disciplinary actions against one of its Members, including censure or fine. The Senate, like the House of Representatives, has taken a broad view of its authority to censure or otherwise discipline its Members for any conduct that the Senate finds to be reprehensible and/or to reflect discredit on the institution and which is, therefore, worthy of rebuke or condemnation. A censure by the Senate, whereby the full Senate adopts by majority vote a formal resolution of disapproval of a Member, may therefore encompass conduct that does not violate any express state or federal law, nor any specific Rule of the Senate. The Senate, in a similar manner as the House of Representatives in relation to its Members, has expressed reticence to exercise the power of expulsion (but not censure) for conduct in a prior Congress when a Senator has been elected or reelected to the Senate after the Member's conviction, when the electorate knew of the misconduct and still sent the Member to the Senate. The apparent reticence of the Senate or House to expel a Member for past misconduct after the Member has been duly elected or reelected by the qualified electors of a state, with knowledge of the Member's conduct, appears to reflect the deference traditionally paid in U.S. heritage to the popular will and election choice of the people. The authority to expel would thus be used cautiously when the institution of Congress might be seen as usurping or supplanting its own institutional judgment for the judgment of the electorate as to the character or fitness for office of an individual whom the people have chosen to represent them in Congress. Concerning a sitting Member of the Senate (or House) who is either indicted for or convicted of a felony offense, it should be noted that the United States Constitution does not provide for nor authorize the recall of any United States officials, such as United States Senators, Representatives to Congress, or the President or Vice President, and thus no Senator or Representative has ever been recalled in the history of the United States. Under the Constitution and congressional practice, Members of Congress may have their services ended prior to the normal expiration of their constitutional terms of office by their resignation, death, or by action of the house of Congress in which they sit by way of an expulsion or by a finding that a subsequent public office accepted by a Member is "incompatible" with congressional office (and that the Member has thus vacated his seat in Congress). The recall of Members of Congress was considered during the drafting of the federal Constitution, but no such provisions were included in the final version sent to the states for ratification, and the drafting and ratifying debates indicate a clear understanding and intent of the framers and ratifiers of the Constitution that no right or power to recall a Senator or Representative from Congress existed under the Constitution. As noted by an academic authority on this subject, The Constitutional Convention of 1787 considered but eventually rejected resolutions calling for this same type of recall [recall of Senators as provided in the Articles of Confederation].... In the end, the idea of placing a recall provision in the Constitution died for lack of support.... Although the Supreme Court has not needed to address the subject of recall of Members of Congress directly, other Supreme Court decisions, as well as other judicial and administrative rulings, decisions, and opinions, indicate that (1) the right to remove a Member of Congress before the expiration of his or her constitutionally established term of office resides exclusively in each house of Congress as established in the expulsion clause of the United States Constitution and (2) the length and number of the terms of office for federal officials, established and agreed upon by the states in the Constitution creating that federal government, may not be unilaterally changed by an individual state, such as through the enactment of a recall provision or other provision limiting, changing, or cutting short the term of a United States Senator or Representative. State administrative and judicial rulings have thus consistently found that there exists no right or power for an electorate in that state to "recall" a federal officer such as a United States Representative or Senator, regardless of the language of a particular state statute. No law or Rule exists providing that a Member of the Senate who is indicted for or convicted of a crime must forfeit his or her congressional salary. As discussed earlier concerning qualifications to hold the office of Member of Congress, indictment for or conviction of a felony offense is not a constitutional bar for eligibility to be elected or reelected as a Member of Congress, other than a conviction for treasonous conduct after having taken an oath of office, under the "disqualification" provision of the Fourteenth Amendment. Additionally, a congressional censure or expulsion does not act as a permanent disability to hold congressional office in the future. A person under indictment or a convicted felon, even one who has also been disciplined by Congress, may run for and, in theory, be reelected to Congress and may not be "excluded" from Congress, but must be seated, if such person meets the three constitutional qualifications for office and has been duly elected. Once a Member is seated, however, that Member may be subject to certain discipline by the Senate. Under the United States Constitution there is no impediment for the people of a state (or district in the case of a Representative) to choose an individual who is under indictment, or who is a convicted felon, to represent them in Congress. Furthermore, because the qualifications for elective federal office are established and fixed within the United States Constitution, they are the exclusive qualifications for congressional office, and may not be altered or added to by the state legislatures except by constitutional amendment. The states may not, therefore, by statute or otherwise, bar from the ballot a candidate for federal office because such person is indicted or has been convicted of a felony. The required qualifications, as well as the disqualifications, to serve in Congress were intentionally kept at a minimum by the framers of the Constitution to allow the people broad discretion to send whom they wish to represent them in Congress. That is, the people voting in a district or state, rather than the institutions of Congress, the courts, or the executive, were meant to substantially control their own decisions concerning their representation in the federal legislature. Officers and employees of the United States, including Members of Congress, do not, upon indictment for any crime, nor upon conviction of every crime that constitutes a felony, forfeit the federal pensions for which they qualify and the retirement income that they have accumulated. However, the federal pensions of Members of Congress will be affected in two general instances: upon the conviction of a crime concerning any of the national security offenses listed in the so-called "Hiss Act," and upon the conviction of any one of several felony offenses relating to public corruption, abuse of one's official position in the Congress, fraud, or campaign finance laws if the elements of the offense relate to the official duties of the Member. Under the so-called "Hiss Act," Members of Congress, in a similar manner as most other officers and employees of the federal government, forfeit all of their federal retirement annuities for which they had qualified if convicted of a federal crime which relates to disclosure of classified information, espionage, sabotage, treason, misprision of treason, rebellion or insurrection, seditious conspiracy, harboring or concealing persons, gathering or transmitting defense information, perjury in relation to those offenses, and other designated offenses relating to secrets and national security offenses against the United States. Additionally, under provisions of law first enacted in 2007, and then expanded in 2012, a Member of Congress will lose all "creditable service" as a Member for federal pension (and disability) purposes if that Member is convicted for conduct which constitutes a violation of any one of a number of federal laws concerning public corruption, fraud, and campaign finance regulation. The forfeiture provisions of this law will apply if the criminal misconduct was engaged in while the individual was a Member of Congress (or while the individual was the President, Vice President, or an elected official of a state or local government), and if every element of the offense "directly relates to the performance of the individual's official duties as a Member, the President, the Vice President, or an elected official of a State or local government." The laws within these pension forfeiture provisions include, for example, bribery and illegal gratuities; conflicts of interest; acting as an agent of a foreign principal; false claims; vote buying; unlawful solicitations of political contributions; theft or embezzlement of public funds; false statements or fraud before the federal government; wire fraud and mail fraud, including "honest services" fraud; obstruction of justice; extortion; money laundering; bribery of foreign officials; depositing proceeds from various criminal activities; obstruction of justice or intimidation or harassment of witnesses; an offense under "RICO," racketeer influenced and corrupt organizations; conspiracy to commit an offense or to defraud the United States to the extent that the conspiracy constitutes an act to commit one of the offenses listed above; conspiracy to violate the post-employment, "revolving door" laws; perjury in relation to the commission of any offense described above; or subornation of perjury in relation to the commission of any offense described above. As to the loss of one's federal pension annuity, or the loss of creditable service as a Member for the purposes of the Member's retirement annuity, the nature and the elements of the offense are controlling; and it does not matter if the individual resigns from office prior to or after indictment or conviction, or if the individual is expelled from Congress.

There are no federal statutes or Rules of the Senate that directly affect the status of a Senator who has been indicted for a crime that constitutes a felony. No rights or privileges are forfeited under the Constitution, statutory law, nor the Rules of the Senate upon an indictment. Under the Rules of the Senate, therefore, an indicted Senator may continue to participate in congressional proceedings and considerations. Under the United States Constitution, a person under indictment is not disqualified from being a Member of or a candidate for reelection to Congress. Internal party rules in the Senate may, however, provide for certain steps to be taken by an indicted Senator. For example, the Senate Republican Conference Rules require an indicted chairman or ranking Member of a Senate committee, or a member of the party leadership, to temporarily step aside from his or her leadership or chairmanship position. Members of Congress do not automatically forfeit their offices upon conviction of a crime that constitutes a felony. No express constitutional disability or "disqualification" from Congress exists for the conviction of a crime, other than under the Fourteenth Amendment for certain treasonous conduct by someone who has taken an oath of office to support the Constitution. Unlike Members of the House, Senators are not instructed by internal Senate Rules to refrain from voting in committee or on the Senate floor once they have been convicted of a crime which carries a particular punishment. Internal party rules in the Senate may affect a Senator's position in committees. Under the Senate Republican Conference Rules, for example, Senators lose their chairmanships of committees or ranking Member status upon conviction of a felony. Conviction of certain crimes may subject--and has subjected in the past--Senators to internal legislative disciplinary proceedings, including resolutions of censure, as well as an expulsion from the Senate upon approval of two-thirds of the Members. Conviction of certain crimes relating to national security offenses would result in the Member's forfeiture of his or her entire federal pension annuity under the provisions of the so-called "Hiss Act" and, under more recent provisions of law, conviction of a number of crimes by Members relating to public corruption, fraud, or campaign finance law will result in the loss of the Member's entire "creditable service" as a Member for purposes of calculating his or her federal retirement annuities if the conduct underlying the conviction related to one's official duties. This report has been updated from an earlier version, and will be updated in the future as changes to law, congressional rules, or judicial and administrative decisions may warrant.

This report addresses frequently asked questions related to the Common Core State Standards and federal involvement with the standards. For a more detailed discussion of these issues, please see CRS Report R43711, Common Core State Standards and Assessments: Background and Issues , by [author name scrubbed] and [author name scrubbed]. The No Child Left Behind Act (NCLB) required states participating in ESEA Title I-A to: develop and adopt content and performance standards and aligned assessments in the subjects of mathematics and reading in each of grades 3-8 and for at least one grade in grades 10-12 by the end of the 2005-2006 school year, assuming certain minimum levels of annual federal funding were provided for state assessment grants; adopt content and performance standards in science (at three grade levels--grades 3-5, 6-9, and 10-12) by the end of the 2005-2006 school year; and adopt assessments in science (at three grade levels) by the end of the 2007-2008 school year. The academic achievement standards must include at least three levels of performance: partially proficient (basic), proficient, and advanced. The same academic content and achievement standards must apply to all students. The assessments must be aligned with the state's academic content and achievement standards. Each state was permitted to select its own reading, mathematics, and science content standards, performance standards, and assessments. Title VI-A of the ESEA provides grants to states to develop and administer the required assessments. Under the provisions of ESEA, states have had the flexibility to select their own content and performance standards. This flexibility has led to the development of different accountability systems in each state. Concerns related to the diversity of accountability systems, student mobility, consistent expectations for students, preparation of students for global competition, and skills students need for employment spurred a grassroots movement led by the National Governors Association and the Council of Chief State School Officers to develop common standards for English language acquisition (ELA) and mathematics in grades K-12. These standards are known as Common Core State Standards, and the effort to develop these standards is referred to as the Common Core State Standards Initiative (CCSSI). According to the CCSSI, "The purpose of this state-led initiative ... is to create a rigorous set of shared standards that states can voluntarily adopt. The standards are crafted to 'define the knowledge and skills students should have within their K-12 education careers so they graduate from high school able to succeed in entry-level, credit-bearing academic college courses and workforce training programs.'" Adoption of the Common Core State Standards is optional. However, according to CCSSI, a state is considered to have adopted the Common Core State Standards only if (1) a state adopts 100% of the standards in ELA and in mathematics (word for word), "with the option of adding up to 15% of standards on top of the core" standards, and (2) the body authorizing standards in the state has taken formal action to adopt and implement the standards. As of August 2014, 43 states, the District of Columbia, 4 outlying areas, and the Department of Defense Education Activity (DoDEA) had adopted the Common Core State Standards. This total does not include Indiana and Oklahoma who recently became the first states to adopt and subsequently discontinue use of the Common Core State Standards. South Carolina has indicated that the Common Core State Standards will be fully implemented for the 2014-2015 school year but will be replaced by "new, high-level College and Career Ready standards" in the 2015-2016 school year. Minnesota has adopted the ELA Common Core State Standards but not the Common Core State Standards for mathematics. Alaska, Nebraska, Texas, Virginia, and Puerto Rico have not adopted the Common Core State Standards for ELA or mathematics. While the federal government did not have a role in developing the Common Core State Standards, the Obama Administration has taken three major steps to incentivize the adoption and implementation of the standards: (1) Race to the Top (RTT) State Grants, (2) RTT Assessment Grants, and (3) ESEA flexibility package. It is not possible to assess how many states would have adopted the Common Core State Standards in the absence of these incentives. The RTT State Grant program was initially authorized under the State Fiscal Stabilization Fund (SFSF) included in the American Recovery and Reinvestment Act (ARRA; P.L. 111-5 ). Under the program, over $4 billion in competitive grants were awarded to 18 states and the District of Columbia. These grantees agreed to implement reforms in various areas, including enhancing standards and assessments. The Department of Education (ED) specified that participating states had to adopt "internationally-benchmarked standards and assessments that prepare students for success in college and the workplace." States received additional points for their applications if they demonstrated they were participating in a consortium of states that was working toward developing and adopting a "common set of K-12 standards" that met the aforementioned requirements. Points were also awarded for states that were working with a consortium that included "a significant number of states." In addition, states were awarded points for adopting such standards by specified deadlines. For example, states received the highest number of points for adopting "common" K-12 standards by August 2, 2010. As of August 2, 2010, 30 states and the District of Columbia had adopted such standards. With respect to assessments, states were evaluated on the extent to which they demonstrated a commitment to improving the quality of their assessments as evidenced by participation in a consortium of states that "is working toward jointly developing and implementing common, high-quality assessments ... aligned with the consortium's common set of K-12 standards." States were also evaluated based on whether the consortium in which they were participating included a "significant" number of states. States could earn the highest number of points by joining a consortium that included the majority (more than 50%) of all states. ED also used a portion of the funds appropriated under ARRA to award RTT Assessment grants to two consortia of states to "develop and implement common, high-quality assessments aligned with common college- and career-ready K-12 standards." Both winning consortia, Partnership for the Assessment of Readiness for College and Careers (PARCC) and the SMARTER Balanced Assessment Consortium (Smarter Balanced), are using the Common Core State Standards as the common standards to which their assessments will be aligned. This grant competition was run simultaneously with the RTT State Grant competition, so states were able to indicate whether they were going to participate in a consortium to develop assessments aligned with common standards in the RTT State Grant applications, which in turn made them eligible to receive extra points under the RTT State Grants program. As of July 30, 2014, 34 states and the District of Columbia were still involved with one or more of the consortia. While states voluntarily joined a consortium knowing that they would be using the Common Core State Standards as their common standards upon which to align their assessments, the availability of RTT funding to develop the assessments may have further incentivized the adoption and implementation of the Common Core State Standards and aligned assessments. And, while the federal government did not tell the consortia which common standards to use in their work, without federal financial support for the development of assessments associated with the Common Core State Standards, it is unclear where funding to support the development of those assessments would have been provided. However, it is possible that states may have been able to use federal funds provided for State Assessment Grants under Title VI-A of the ESEA to support the joint development of these assessments. On September 23, 2011, President Obama and the Secretary of Education announced the availability of an ESEA flexibility package for states and described the principles that states must meet to obtain the included waivers. The waivers apply to school years 2011-2012, 2012-2013, and 2013-2014. States that were approved to begin implementing ESEA flexibility during the 2012-2013 school year are eligible to apply for a one-year extension of their flexibility packages that would continue to provide ESEA flexibility through the 2014-2015 school year. The waivers exempt states from various NCLB requirements related to academic accountability requirements, teacher qualifications, and funding flexibility. State educational agencies (SEAs) may also apply for optional waivers. However, in order to receive the waivers, SEAs must agree to meet four principles established by ED for "improving student academic achievement and increasing the quality of instruction." The four principles include (1) college- and career-ready expectations for all students, including adopting college- and career-ready standards in reading/language arts and mathematics and aligned assessments; (2) state-developed differentiated recognition, accountability, and support; (3) supporting effective instruction and leadership; and (4) reducing duplication and unnecessary burden. With respect to the adoption of college- and career-ready standards, states have to select from two options when completing the ESEA flexibility package application. A state can either adopt reading/language arts and mathematics standards that are common to a "significant number" of states or adopt college- and career-ready standards in reading/language arts and mathematics that have been approved by a state network of institutions of higher education that certify that any student meeting the standards will not require remedial course work at the postsecondary level. It should be noted that "common to a significant number of states" is not defined. At the time the ESEA flexibility package was announced, over 40 states had already adopted the Common Core State Standards. Based on an examination of the approved state applications for the ESEA flexibility package, nearly every state that has received approval has opted to implement the Common Core State Standards in some form, although some states have opted to have their standards approved by state institutions of higher education. For example, Minnesota implemented the Common Core State Standards for ELA but not for mathematics, which is instead based on the Minnesota College and Work Readiness Expectations for Math. Rather than using the Common Core State Standards, Virginia is using its Standards of Learning, Texas is using the Texas Essential Knowledge and Skills Curriculum Standards, and Alaska is using the Alaska Content and Performance Standards. To receive a waiver for assessments, an SEA must develop and administer, "annual, statewide, aligned, high-quality assessments, and corresponding academic achievement standards, that measure student growth in at least grades 3-8 and once in high school." The ESEA flexibility request lists three options for demonstrating compliance with the "high-quality assessments" requirements: (1) the SEA is participating in a state consortium funded by RTT; (2) the SEA is not participating in a state consortium funded by RTT but plans to develop and administer "high-quality assessments" by school year 2014-2015; and (3) the SEA has developed and begun administering "high-quality assessments" independent of the state consortia funded by RTT. As noted above, neither the RTT program nor the ESEA waiver package explicitly required states to adopt the Common Core State Standards. However, both initiatives provided significant incentives to states that adopted college- and career-ready standards that met specified requirements, and the Common Core State Standards was the most widely available set of standards that met such requirements. As a result, the RTT program and ESEA flexibility waivers could both be characterized as incentivizing the adoption of Common Core. Such incentives, however, are a common feature of federal grant programs, and they do not appear to violate any current education statute. Nevertheless, some critics have alleged that the significant financial and regulatory incentives provided under the RTT program and the flexibility waivers are unconstitutionally coercive because these initiatives made it extremely difficult for a state to reject the Common Core State Standards. Generally, a state's participation in programs that rely on such incentives is viewed as voluntary by the courts. The latter interpretation may be supported by the fact that several states have declined to adopt the Common Core State Standards or to seek flexibility waivers. This view may also be bolstered by Supreme Court doctrine on congressional authority under the spending clause of the Constitution. Under the Court's jurisprudence, a state's participation in a grant program that conditions receipt of federal funds on compliance with federal requirements has traditionally been treated as voluntary, and such conditions have been deemed unconstitutionally "coercive" only in rare instances. As discussed above, states are required to adopt and implement two types of academic standards as a condition of receiving Title I-A funding. These include content standards and performance (or achievement) standards. In general, content standards specify what students are expected to know and be able to do. Performance standards are explicit definitions of what students must know and be able to do to demonstrate proficiency. According to ED, "Achievement standards further define content standards by connecting them to information that describes how well students are acquiring the knowledge and skills contained in academic content standards." In neither case are standards synonymous with curricula, method of instruction, or classroom materials. There is not a single, broadly agreed upon definition of curriculum. It can mean anything from lesson plans to textbooks to frameworks that can be generated at the state or local level or purchased off the shelf. In general, however, the development and use of curriculum is part of the process for operationalizing state standards. According to ED, "A curriculum aligned with the State's standards is necessary for students to achieve and demonstrate proficiency on a State's tests." Thus, according to ED, while standards and curriculum are different concepts, the alignment of standards and curriculum is needed for students to demonstrate proficiency on state assessments, which must be aligned with the standards. Critics of the Common Core State Standards have expressed concern that adoption and implementation of these standards and aligned assessments will result in national standards and national assessments. Despite grassroots efforts to develop the Common Core State Standards and actions by the Obama Administration to support the standards and the development of assessments aligned with these standards, the end result will not yield a single set of national standards in reading and mathematics or a single set of assessments in these subject areas. For example, states that adopt the Common Core State Standards are permitted to add additional standards of their own choosing to the Common Core State Standards. Thus, each state adopting and implementing the Common Core State Standards could continue to have a unique set of state standards that share common elements with other adopting states. As a result of the RTT common assessment competition, there will be at least two different assessments linked to the Common Core State Standards, and based on a recent survey conducted by Education Week , it appears that at least 17 states are planning to use something other than the assessments being developed by PARCC and Smarter Balanced. In addition, even among the states that are still planning to use tests developed by one of the two consortia, some states are planning on using a consortium-developed test only for some but not all grade levels tested. The Common Core State Standards are also not synonymous with a national curriculum. Standards determine what needs to be taught, and curriculum is used to help operationalize the standards. Decisions regarding how standards are taught to students and how students are prepared for assessments remain a state and local decision in states that adopt and implement the Common Core State Standards. However, if enough states that are implementing the Common Core State Standards voluntarily worked together to develop materials for teaching the standards, or textbook publishers and other organizations that create materials for classroom use developed materials that are clearly aligned with the Common Core State Standards and were adopted by multiple states, it is possible that these actions could result in multiple states using similar materials in the classroom. Further complicating the landscape of state standards and assessments are RTT State Grant and ESEA flexibility waiver requirements aimed at increasing the number of states that develop and implement teacher and school leader evaluation systems that are based in part on student achievement. The use of student assessments required under ESEA Title I-A could provide the means by which student achievement and growth are determined for purposes of teacher and school leader evaluation systems. Under RTT State Grants, states earned points on their application for improving teacher and principal effectiveness through the development of teacher and principal evaluation systems that would be based, in part, on student growth. The RTT application defines student growth to mean "the change in student achievement ... for an individual student between two or more points in time." Student achievement is defined as a student's score of the state assessments under ESEA for tested grades and subjects and, as appropriate, other measures of student learning provided they are rigorous and comparable across classrooms. Thus, teacher and principal effectiveness will be determined, in part, on student growth on assessments, which may include newly implemented assessments based on new standards, such as the Common Core State Standards. To receive the ESEA flexibility package, state and local educational agencies must commit to develop, adopt, pilot, and implement teacher and principal evaluation and support systems that, among other things, use multiple valid measures in determining performance levels, including data on student growth, and other measures of professional practice and will be used to inform personnel decisions. However, depending on when a state had its ESEA flexibility package application approved, there may be little time between (1) implementing a new set of state ELA and mathematics standards, (2) implementing new assessments aligned with those standards, and (3) evaluating teachers based on student growth on those assessments. There are concerns among educators that the process of implementing new standards, new assessments, and new evaluation systems is moving too quickly. For example, while both the National Education Association and the American Federation of Teachers have supported the use of the Common Core State Standards, both organizations have been critical of the timeline for implementing curriculum and teacher evaluations associated with the standards. In the last year, ED has made multiple announcements regarding flexibility that will be provided to states with respect to the use of student growth data in the teacher and principal evaluation systems and the use of these data to make personnel decisions. In making these announcements, ED noted that additional flexibility will not be granted to states that have laws that prevent them from implementing teacher and principal evaluation systems that meet the requirements of the ESEA flexibility package. As Congress considers ESEA reauthorization, it is likely that attention will be devoted to the nature and extent of an ongoing federal role in encouraging or requiring the development and implementation of state academic standards and test-based accountability. Congress has several options for addressing current requirements regarding standards, assessments, and related issues. One option would be for Congress to amend the ESEA in such a way as to require states to use the Common Core State Standards and aligned assessments of either their own choosing or developed by one of the two consortia. Requiring adoption and implementation of a specific set of standards, however, would be more prescriptive than current law which allows states to select their own standards and assessments. Another option would be for Congress to amend the ESEA in such a way that states could choose to, but would not be required to, use the Common Core State Standards and aligned assessments to meet the requirements of Title I-A. Similarly, Congress could opt not to make changes to the current ESEA requirements related to standards and assessments, which would allow states to continue to use the Common Core State Standards. Congress could also choose to eliminate incentives used by the Administration to encourage the use of the Common Core State Standards by prohibiting ED from conditioning the receipt of grants, preferences, or waivers on a state's adoption of common standards. Related to these issues is whether Congress would wish to modify the current statutory language that requires the adoption and implementation of "challenging" academic content standards and academic achievement standards to require instead the use of "college- and career-ready standards," that has been a condition of receiving RTT grants and ESEA waivers. A change to "college- and career-ready standards" would not necessarily require the adoption and implementation of the Common Core State Standards, but depending on how Congress defined "college- and career-ready standards," the Common Core State Standards might be one readily available set of standards that states could use to meet the new requirements.

Over the last two decades, there has been interest in developing federal policies that focus on student outcomes in elementary and secondary education. Perhaps most prominently, the enactment of the No Child Left Behind Act of 2001 (NCLB; P.L. 107-110), which amended and reauthorized the Elementary and Secondary Education Act (ESEA), marked a dramatic expansion of the federal government's role in supporting standards-based instruction and test-based accountability, thereby increasing the federal government's involvement in decisions that directly affect teaching and learning. Under the ESEA, states are required to have standards in reading and mathematics for specified grade levels in order to receive funding under Title I-A of the ESEA. In response to this requirement, all 50 states and the District of Columbia have adopted and implemented standards that meet the requirements of the ESEA. Since the ESEA was last comprehensively reauthorized by NCLB, recent developments have taken place that have possibly played a role in the selection of reading and mathematics standards by states: (1) the development and release of the Common Core State Standards; (2) the Race to the Top (RTT) State Grant competition and RTT Assessment Grants competition; and (3) the ESEA flexibility package provided by the Department of Education (ED) to states with approved applications. As of June 2014, 43 states, the District of Columbia, 4 outlying areas, and the Department of Defense Education Activity (DoDEA) had at some point adopted the Common Core State Standards. Indiana, Oklahoma, and South Carolina recently became the first states to adopt and subsequently discontinue use of the Common Core State Standards. These three changes have substantially changed the elementary and secondary education federal policy landscape. This short report answers common questions related to K-12 accountability provisions under the ESEA, Common Core State Standards, RTT, and the ESEA flexibility package, including: What NCLB requirements apply to academic standards and assessments? What are the Common Core State Standards? How many states have adopted the Common Core State Standards? What role has the federal government played in the development, adoption, and implementation of the Common Core State Standards? Do states have to adopt and implement the Common Core State Standards? What is the difference between standards and curriculum? Will the Common Core State Standards lead to national standards, national assessments, or a national curriculum? How do the Common Core State Standards relate to teacher evaluation? Are there legislative decisions approaching that are potentially relevant to the Common Core State Standards? A more detailed discussion of the Common Core State Standards and their relationship to RTT grants and the ESEA flexibility package is available in CRS Report R43711, Common Core State Standards and Assessments: Background and Issues, by [author name scrubbed] and [author name scrubbed].

U.S. Citizenship and Immigration Services (USCIS), an agency within the Department of Homeland Security (DHS), performs multiple functions including the adjudication of immigration and naturalization petitions and refugee and asylum claims, as well as other immigration-related services. USCIS currently funds over 95% of its budget by charging user fees to petitioners for its services. The agency and its predecessor, the former Immigration and Naturalization Service (INS), have had the legal authority to do so since at least the passage of the Immigration and Nationality Act of 1952 (INA). In 1988, Congress created the Immigration Examinations Fee Account, which made the portion of USCIS's budget collected from user fees no longer subject to annual congressional approval. This budgetary structure has attracted congressional attention as the result of President Obama's recent executive action on immigration. Among its other provisions, the action would expand the current use of deferred action that some estimate could affect up to 5 million unauthorized aliens living in the United States. USCIS would process all new deferred action petitions, the cost of which would be paid for through user fees. Some Members of Congress oppose the executive action, particularly its expansion of existing deferred action provisions. However, because USCIS's funding is largely independent of the annual appropriations process, Congress cannot use that process to halt the deferred action programs contained in the President's executive action. If Congress wanted to alter existing statutory provisions governing the collection of user fees in the Immigration Examinations Fee Account, the availability of user fees for expenditure, or the prohibition of user fees for certain purposes, it would need to enact legislation. Apart from the agency's accountability to Congress, other issues may merit congressional attention. These include the agency's capacity to handle surges in application volume while maintaining stable service levels for the rest of its caseload; whether the underlying reasoning used to establish petition fees continues to be appropriate; whether current fees are at a level where they may be affecting or altering both the pool of applicants who apply for benefits and the pool of lawful permanent residents who decide to naturalize; and the pace and progress of information technology modernization within an agency that remains reliant upon paper copies of petitions and documents. This report begins with a brief overview of USCIS functions. It then describes the agency's budgetary structure, including its three primary fee accounts for processing user fees. It discusses how the agency calculates user fees for particular immigration services and benefits. The report closes with a discussion of issues for Congress. USCIS was established with the Homeland Security Act of 2002 and assumed responsibility for the immigration service functions of the federal government on March 1, 2003. USCIS has over 200 offices around the world and employs roughly 19,000 employees and contractors within four directorates and nine program offices. Processing petitions and applications, which is most of the agency's workload, occurs in four major USCIS Service Centers and 83 Field Offices in the United States, Puerto Rico, and Guam. Three major activities dominate USCIS functions: adjudication of immigration petitions, adjudication of naturalization petitions, and consideration of refugee and asylum claims and related humanitarian and international concerns. USCIS also provides a range of immigration-related services, such as employment authorizations and change-of-status petitions. While most costs are directly related to the agency's processing functions, other costs, such as administrative overhead, support these functions indirectly. Of the activities listed below, only humanitarian functions generally have no associated fee. Immigration Adjudication : USCIS processes roughly 6 million petitions each year, including about 1 million for permanent status and 5 million for temporary nonimmigrant status. USCIS adjudicators determine the eligibility of immediate relatives and other family members of U.S. citizens and lawful permanent residents (LPRs); employees that U.S. businesses have demonstrated that they need (and their immediate family members); and other foreign nationals who meet specified criteria. They also must determine whether a foreign national in the United States on a temporary visa (i.e., a nonimmigrant) is eligible to change to another nonimmigrant status or adjust to LPR status. Work Authorization : USCIS adjudicates work authorizations for aliens who meet certain conditions. Employment Verification : USCIS is responsible for the Electronic Employment Eligibility Verification (E-Verify) program used by employers to ensure that their employees possess lawful status to work in the United States. Since FY2007, congressional appropriations have supported the E-Verify program. International Services : The USCIS Office of International Affairs adjudicates refugee applications and conducts background and record checks related to some immigrant petitions abroad. The largest component of this program is the asylum officer corps, a small but occasionally high-profile part of USCIS's workload, whose members interview and screen asylum applicants. Fraud Detection and National Security : USCIS must confirm that all applicants are eligible for the particular immigration status they are seeking, or alternatively, determine they should be rejected because they fail to meet other legal requirements. USCIS established the Office of Fraud Detection and National Security at the agency's inception in 2003 to work with the appropriate law enforcement entities to handle foreign nationals whose applications and petitions trigger national security and criminal database notifications and to identify systemic fraud in the application process. Many such duties formerly performed by the INS enforcement arm are now the responsibility of DHS's Immigration and Customs Enforcement (ICE). Civic Integration : USCIS promotes instruction and training on citizenship rights and responsibilities and provides immigrants with the information and tools necessary to successfully integrate into American civic culture. This includes maintaining a Citizenship Resource Center website and managing the Immigrant Integration Grants Program, which assists public or private nonprofit organizations that provide citizenship instruction and naturalization application services to LPRs. Naturalization : USCIS is responsible for naturalization, a process that grants U.S. citizenship to LPRs who fulfill the related requirements established by Congress in the Immigration and Nationality Act of 1952 (INA). Adjudicators must determine whether aliens have continuously resided in the United States for a specified period; possess good moral character, are able to read, write, speak, and understand English; and possess a basic knowledge of U.S. civics and history. USCIS's workload can fluctuate considerably from year to year. To facilitate planning, USCIS regularly projects total application workload volume and associated user fees based on which applicants pay fees or receive exemptions. While USCIS makes such projections by using modeling techniques and by anticipating filing trends and events that may influence volume, the agency's final tallies are influenced by factors such as shifts in U.S. immigration policy, the economy, and international political events, all of which can affect the decisions of people abroad who consider immigrating to the United States. USCIS continues to process petitions in a paper-based form. This mode of operation generates complaints of lost files. Many observers comment that it is entirely outmoded to meet the growing workload and challenges facing the agency. Since 2008, USCIS has been implementing a long-term project to modernize its systems and processes in an effort to improve information sharing, workload capacity, and system integrity (see " IT Modernization and Client Service " below). Referred to as the USCIS Transformation, the project is expected to transition the paper-based system to a digital format managed and accessed online by USCIS and users. Over two decades ago, the budgetary structure of USCIS's predecessor agency, the former INS, was transformed when the Immigration Examinations Fee Account (IEFA) was created to fund the agency's activities and operations. Since the creation of USCIS in 2003, the agency has been largely dependent upon fees to fund its operations. The agency has two other smaller accounts described below that were created to receive monies to support specific purposes both within and outside USCIS: the H-1B Non-Immigrant Petitioner Fee Account and the H-1B and L Fraud Prevention and Detection Fee Account. USCIS also receives a small portion of its budget through appropriations. USCIS receives direct appropriations through the annual DHS appropriations process. In earlier years, appropriations funded temporary special projects such as backlog reduction. More recently, appropriations have exclusively funded E-Verify and immigrant integration grants. (See Appendix A for a brief history of USCIS fee-funding.) In FY2014, direct appropriations constituted less than 4% of USCIS's budget ( Figure 1 ). USCIS funds the processing and adjudication of immigrant, nonimmigrant, refugee, asylum, and citizenship benefits through its user fees deposited into the Immigration Examination Fee Account (IEFA). This account is not subject to annual congressional approval. The INA states that user fees be set at a level that ensures recovery of the full costs of providing adjudication and naturalization services, including similar services to those people who are not charged, such as asylum applicants. User fees can also be set at levels to cover "costs associated with the administration of the fees collected." Further, the INA provides that deposited funds remain available until expended "for expenses in providing immigration adjudication and naturalization services and the collection, safeguarding and accounting for fees deposited in and funds reimbursed from the 'Immigration Examinations Fee Account.'" As such, the authority to set user fee levels and expend user fees is controlled outside the annual appropriations process and does not depend on annual action by Congress. In 1998, Congress passed the American Competitiveness and Workforce Improvement Act (ACWIA), which, among other provisions, temporarily increased the number of temporary skilled H-1B workers admitted to the United States. To provide training for American workers and thus reduce employer reliance on nonimmigrant workers, the act established the H-1B Nonimmigrant Petitioner Fee Account to fund training and education programs administered by the Department of Labor and the National Science Foundation, thereby establishing an affirmative role for U.S. employers to assist with education and training efforts for U.S. workers. The statutorily set H-1B Nonimmigrant Petitioner Fee is currently $1,500 ($750 if the employer has 25 or fewer full-time equivalent employees). USCIS receives 5% of the fees paid into the account by all employers participating in the H-1B program. In FY2014, the USCIS share of funding in this account was $13 million, representing 0.07% of the USCIS budget. On December 8, 2004, Congress passed the H-1B Visa Reform Act of 2004, which established the Fraud Prevention and Detection Account. This account receives funds for fraud detection and prevention activities from a "Fraud Fee" (currently $500) that must be submitted with a petition seeking an initial grant of H-1B, H-2B, or L visa classification to foreign nationals or by an employer seeking to change an alien's employer within those classifications. USCIS receives 33% of the Fraud Detection and Prevention Account fees. As with the H-1B Nonimmigrant Petitioner Fee, the Fraud Prevention and Detection Fee is set by statute, and DHS has no authority to adjust it. In FY2014, the USCIS share of funding in this account was $41 million, representing 1.36% of the USCIS budget. USCIS maintains a cash reserves balance--the accumulated excess of user fees collected over user fees expended. As of February 2015, this balance totaled $1.3 billion. USCIS asserts that because it operates similar to a commercial enterprise, it must maintain a cash reserve balance of at least $600 million annually for its fiscal protection. As noted above, the INA permits USCIS to collect fees at a level that ensures recovery of the full costs of providing adjudication and naturalization services, including services provided without charge to asylum applicants and certain other immigrant applicants, as well as administrative costs. (See Appendix B for a list of selected USCIS petition fees as well as actual (FY2014) and projected (FY2015) petition processing volumes.) As such, USCIS can (with exceptions) adjust fees according to its budgetary needs. Setting fee levels, however, can be politically contentious (see " Fee Levels and Public Policy " below). To do so, USCIS must regularly assess the cost of providing its services and apply cost accounting analyses to appropriately and accurately assess fees to each petition type. Such analyses are particularly important for an agency that derives most of its operating budget from user fees. Since its formation, USCIS has come under scrutiny for weak cost assessments and occasional long processing waiting periods. (For a brief history of USCIS fees, see Appendix A .) The Government Accountability Office (GAO) has investigated the degree to which the USCIS fee schedule corresponds to its processing costs. Substantial revisions to USCIS fees in FY2004, FY2007, and FY2010 have resulted in part from such GAO reviews. For instance, the FY2004 fee adjustments stemmed from a cost review and fee assessment in FY1998. The FY2007 fee adjustment was based on a cost review in FY2006, the first in eight years. In contrast, the FY2010 fee adjustments emerged following a cost review completed in FY2009, just three years after the previous one. The timing of GAO and internal assessments can significantly affect both the average level of fee increases as well as USCIS workloads. In its 2009 report GAO recommended more frequent fee reviews to reduce the need for disproportionately large increases. For instance, the FY2010 fee review resulted in an average fee increase of about 10%, compared with an 88% fee increase in FY2007. In the month prior to when USCIS enacted the FY2007 fee increase, application volume soared, outpacing the agency's processing capacity. This contributed to a processing backlog of roughly 1.5 million petitions and created unplanned costs for the agency to store its paper-based applications. As of April 2015, USCIS was working on a fee review for the FY2016-FY2017 biennial period. Based on the results of the fee review, USCIS will determine whether to adjust its fee structure. The President's executive action of November 20, 2014, highlights the challenges facing Congress if it wishes to exert control over USCIS's budget or activities which are funded through user fees. As mentioned, in 1988 Congress effectively delegated to USCIS the authority to set fees, and to expend those fees once collected, through the law that established the Immigration Examinations Fee Account. Some may appreciate that a declining portion of USCIS's budget consists of appropriations because it reduces the agency's fiscal burden on U.S. taxpayers. Others may be concerned about the limits it places on congressional oversight of the agency. Some immigration observers have argued that greater dependence of USCIS upon appropriations increases congressional oversight and provides an additional check on the executive branch. Some contend that USCIS, by not having to request budgetary resources from Congress each year for many of its day-to-day operations, also faces fewer incentives to provide timely, efficient, or effective customer service. To alter existing statutory provisions concerning the collection of the fees in the Immigration Examinations Fee Account, the availability of user fees for expenditure, or the prohibition of its use for certain purposes would require an enactment of law. Provisions of a bill or joint resolution to accomplish these purposes would be subject to the constitutional requirements associated with the lawmaking process, which include that the measure be signed by the President. Such an enactment would be within Congress's constitutional authority to legislate. The practice of charging user fees for immigration services has long created a rift between those who prefer that USCIS be entirely funded through fees ( agency cost advocates ) and those who prefer that fees reflect only the cost of specific services provided ( service cost advocates ). Service cost advocates have called on Congress to prevent fee increases at times when USCIS was considering fee structure revisions. Although they have generally not opposed increased funding for USCIS, they have argued that the agency should recover only direct service costs and otherwise request direct appropriations to offset agency costs. Service cost advocates believe that more rigorous oversight by Congress of appropriated funds would protect the interests of immigration services applicants and provide more transparency and accountability in the agency. They contend that if costs escalate, fees could also increase to levels that may be prohibitive for some potential applicants. Agency cost advocates, on the other hand, have argued that USCIS fees are set at reasonable levels that reflect the full cost of delivering immigration services and that provide users with valuable benefits. They note that fees include costs for preventing fraud and providing services to those applying for immigration benefits on the basis of humanitarian need. They argue that subsidizing agency costs might be disadvantageous because it would keep fees at levels that would permit some immigrants to receive immigration services who would otherwise be classified as "public charges" under the INA. These two perspectives reflect a debate over who pays for immigration services received by beneficiaries who are exempted from fees. For example, when a policy decision is made to exempt foreign national victims of human trafficking (T visa) or victims of certain crimes (U Visa) from paying petition fees, the processing costs for those petitions must then be recovered through the fees charged against other applications. Fee levels for immigration services can reflect policy considerations. In its 2010 review of USCIS fees, GAO outlined four broad policy considerations that could be used when considering how to set fee levels: equity (everyone pays his/her fair share), efficiency (simultaneously constrain demand and reveal the value that beneficiaries place on the service), revenue adequacy (the extent to which fee collections cover the intended share of costs), and administrative burden (the entire cost of administering the fee). Policy considerations not only affect how the fees are set, but also who should pay. In the case of USCIS, these policy considerations can conflict with each other. For instance, while the agency pursues revenue adequacy as a goal, it nevertheless does not collect fees from asylees and refugees on humanitarian grounds. Similarly, USCIS aims for equity in establishing fee levels, but when attempting to adjust fees for naturalization petitions on par with other petition fee adjustments, it confronts a vocal immigration advocacy community as well as its own broader policy objectives to foster citizenship. Immigrant advocates in particular argue that fee increases place disproportionate hardship on applicants for immigration services and benefits. They contend that higher fees force some families to seek services and benefits incrementally rather than as a family unit, causing some members to forgo the application process entirely. Some argue that high fees discourage eligible lawful permanent residents (LPRs) from naturalizing. At a broader level, immigration advocates have argued that sizeable fee increases may make wealth a de facto driving element of immigration policy. They have also suggested that increased fees might impact the size of the unauthorized alien population by encouraging illicit work arrangements and visa overstays. Under current regulations, applicants may receive a fee waiver if they can demonstrate an inability to pay. According to USCIS, about 1% of applicants apply for fee waivers. Others argue that some fees in the United States, such as that for naturalization, are substantially higher than comparable fees in other advanced economies. Agency cost advocates cite immigration statutes to argue that concerns about the potential financial hardship are not valid criteria for developing a USCIS fee schedule. They argue that immigrants who receive the many benefits of living in the United States should pay the full cost the U.S. government incurs on their behalf to make their immigration possible. They contend that substantial fee increases should not be judged to be excessive if they accomplish the goal of recovering the full cost of services provided to immigrants, including expenses such as overhead, personnel support, and particularly, the cost of background checks and fraud reduction. They object to a fee structure that requires "overtaxed and overstretched Americans" to support an agency that benefits immigrants. USCIS customers who seek immigration services and benefits often face challenges as they navigate the complexity of U.S. immigration laws and regulations. Obtaining answers to questions and resolving issues may require visits to USCIS offices that can be time-consuming and inconvenient. For many services, USCIS customers must apply for most benefits by mail. USCIS employees then review submitted paper files and ship documents between offices to complete their adjudication. According to the DHS Inspector General's office, USCIS was relying on paper-based processes to manage the filing and adjudication of immigration benefits as recently as 2011. As part of a comprehensive set of initiatives to modernize the agency, USCIS embarked on an agency-wide investment referred to as "transformation" that began transitioning the agency from a fragmented, paper-based operational environment to a centralized and consolidated environment facilitating electronic processing of the adjudication function. In 2012, USCIS formally launched the first two phases of its electronic immigration application system, known as ELIS. Under ELIS, eligible individuals can establish an account and apply online to extend or change their nonimmigrant status for certain visa types. ELIS enables USCIS officers to review and adjudicate filings online. It also includes tools to combat fraud and identify national security concerns. Nevertheless, ELIS still possesses limited features and must expand substantially before USCIS can move to an entirely electronic platform. Congress has repeatedly called upon USCIS to improve its processing times and, on occasion, to eliminate backlogs of applications awaiting adjudication. Between FY2002 and FY2010, Congress provided approximately $574 million in direct appropriations towards backlog reduction efforts. Immigration observers questioned some backlog reduction efforts that resulted from changes in how USCIS defined the backlog. Some critics believe that USCIS's reliance on other agencies to conduct background checks limits the agency from preventing future backlogs, even with funding that fully covers adjudication costs. If reforms or changes to immigration laws or regulations occur that affect large numbers of individuals, the issue of managing adjudication workloads and recovering service costs could become an issue for USCIS. Some observers question whether the agency can process in a timely fashion the increased application volumes resulting from such changes. Previous efforts at immigration reform, for example, resulted in substantial increases in applications for immigration services as well as USCIS's overall adjudication costs. USCIS regularly faces concerns from immigration observers about the agency's ability to manage adjudication workloads, particularly during surges in application volume that result from changes in immigration policy or other major events. The issue arose most recently with the President's executive action, causing some to question how the agency would handle the workload from as many as 5 million new deferred action applications. Agency spokespersons posit that USCIS has the capacity to quickly scale up and deal with surges in volume such as those expected to result from the President's executive action. They argue that the agency's experience with the 2012 Deferred Action for Childhood Arrivals (DACA) program served as a test case for handling larger workloads anticipated from the most recent executive action. They also cite past examples, such as the roughly 2.7 million persons the agency processed between 1987 and 1989 following passage of the Immigration Reform and Control Act of 1986 (IRCA, P.L. 99-603 ), which, by most accounts, was successfully administrated. Other immigration observers refute such assessments. They note that USCIS struggled for several years to reduce a processing backlog caused by the surge in petition volume from its relatively large FY2007 fee adjustments. Going back earlier, GAO noted that when the 3 million individuals who legalized under IRCA in 1986 became eligible for naturalization in 1995, the application backlog increased markedly. Processing backlogs may affect processing times for other petitions as resources within the agency are reconfigured to address urgent needs. This latter concern has been raised by some who argue the agency is diverting resources used to process petitions of those immigrating to the United States legally in order to process DACA and other petitions that benefit the unauthorized alien population. Critics also describe a processing system that continues to rely primarily on paper applications and postal mail and argue that other agency services will suffer from the diversion of USCIS resources to attend to the pressing caseload caused by the 2014 executive action. Since it was announced in November, the agency has made plans to hire over 1,000 full and part-time personnel to handle the workload. Costs for the new hires reportedly would be covered by the DACA petition fees. If the executive action goes forward as planned, it remains to be seen whether the new personnel and required procedures would be in place and sufficient to handle the volume of related petitions. Over two decades ago, the budget structure of USCIS's predecessor agency, the former INS, was transformed by the law that created the Immigration Examinations Fee Account to fund the agency's activities and operations. Since that time, and particularly since USCIS was created in 2002, the agency has relied almost entirely on user fees to fund its operations. Appropriations have been granted for special projects and currently fund the E-Verify program. Having a government agency funded by user fees reduces the fiscal burden on U.S. taxpayers. However, it also might reduce the influence and oversight that Congress can exert over how the agency spends its user fees. Such limitations became more apparent following the passage of the President's executive action of November 20, 2014, which included a new deferred action program that some Members of Congress oppose. Some have expressed concerns about the impact that a relatively sudden and large demand for USCIS adjudication services might have on the rest of the agency's workload. USCIS has experience in handling surges in petition volume. It also has, with the existing DACA program initiated in 2012, an active model for confronting potential challenges posed by similar programs initiated within the recent executive action. However, past experience also suggests that processing backlogs could occur, as well as increases in processing times for other types of petitions. Such delays underscore both the agency's limited personnel resources and its continued reliance on a largely paper-based system. In addition to these issues, immigration observers continue to express concerns over several perennial issues related to USCIS. The most frequently cited concern involves fee levels. Some evidence suggests that the current naturalization petition fee, in particular, poses a barrier to individuals wishing to become U.S. citizens, a critical step toward political and civic incorporation. While immigrant advocacy groups argue that lower fees would increase the numbers of LPRs who naturalize, USCIS has not signaled any plans to adjust its fee structure to address this concern beyond maintaining the naturalization petition fee at its current level. Appendix A. History of USCIS Fee Funding In its original version, the Immigration and Nationality Act of 1952 (INA) prescribed fees for certain immigration services. Furthermore, a general "user" statute in Title V of the Independent Offices Appropriations Act of 1952 granted government agencies the authorization to charge fees for services performed. Legislation in 1968 removed the enumeration of statutory fees under the INA, and subsequently immigration fees were prescribed in regulations under the authorization of the latter "user" statute. Following the 1968 legislation, the former Immigration and Naturalization Service (INS) continued to periodically adjust fees as it deemed necessary. However, the second term of the Reagan Administration saw more concerted efforts to make INS adjudication functions fee-reliant. At the same time that Congress passed the Immigration Reform and Control Act of 1986 (IRCA), which included a legalization program for certain unlawfully present aliens, the INS decreased fees for stays of deportation but increased them for certain other deportation-related motions. In the publication of the final fee schedule after passage of IRCA, the agency stated that it believed it was legally required to recover all of its costs for services it provided. The 1987 amendment to the fee schedule added fees for the legalization program under IRCA, and despite opposition to the $185 filing fee, the INS maintained the charge was needed to ensure the program was self-funding. In 1988, Congress mandated the creation of the Immigration Exam Fee Account (IEFA) in the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1989, such that the funding for the legalization fees could be isolated and a portion of those fees retained by the agency. These fees would then be available to the INS to recover some of the costs associated with providing immigration services. The following fiscal year, the IEFA was amended in the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1990, giving INS the authority to retain and expend all of the adjudication fees collected. The purpose of this change was that funding for the Adjudications and Naturalization Program of the INS would be financed solely through this mechanism. Following the passage of the Immigration Act of 1990, the INS experienced a period of unprecedented growth in applications and petitions for immigration services. This growth was further compounded in 1995 when approximately 3 million individuals who had legalized under IRCA became eligible to naturalize. At roughly the same time, GAO released a report on the financial practices of the INS that found inadequate controls over fee funding and vulnerability to fraud and other abuses. GAO also found that despite a large increase in fee funding, the agency suffered from inadequate service processing times and weak leadership and management. The INS responded to this report through centralization initiatives and by stating that its new fee schedule of 1991 would reduce the growing applications backlog. Yet, by 1993 observers expressed growing concerns that increased fees had not yielded the promised performance improvements. Some asserted that the INS was using a portion of funds from the IEFA for enforcement activities rather than adjudication services. Between 1993 and 2001, the INS continued to receive criticism for not meeting its service objectives, despite increases in funding from fees and appropriations. Many observers continued to assert that INS was using a portion of its immigration services collections to fund non-service activities such as border security and interior enforcement. This suspected interweaving of service and non-service funding prompted a push to separate the service and enforcement functions of the INS. In 1997, the U.S. Commission on Immigration Reform recommended that the INS be dismantled and the adjudication and enforcement functions be divided up between the Department of State and the Department of Justice (DOJ), respectively. The Clinton and Bush Administrations, however, categorically rejected the proposed dismantling of INS and instead encouraged internal reforms. Following the terrorist attacks of September 11, 2001, Congress decided to formally separate INS's enforcement and adjudication functions. With the passage of the Homeland Security Act of 2002 (HSA), Congress dissolved the INS and established USCIS, a new immigration adjudication agency, within the newly formed Department of Homeland Security (DHS). The INS did attempt to increase its fees in FY2003 to cover anticipated additional costs related to security checks, but DOJ did not act upon the request due to the upcoming transition of immigration functions from DOJ to DHS. Since its creation, USCIS has been largely dependent upon fees to fund its services, with direct appropriations provided primarily for temporary projects. Appendix B. Fee and Processing Volume Statistics

U.S. Citizenship and Immigration Services (USCIS), an agency within the Department of Homeland Security (DHS), performs multiple functions including the adjudication of immigration and naturalization petitions, consideration of refugee and asylum claims and related humanitarian and international concerns, and a range of immigration-related services, such as issuing employment authorizations and processing nonimmigrant change-of-status petitions. Processing immigrant petitions remains USCIS's leading function. In FY2014, it handled roughly 6 million petitions for immigration-related services and benefits. USCIS's budget relies largely on user fees. The agency and its predecessor, the former Immigration and Naturalization Service (INS), have had the legal authority to charge fees for immigration services since before the passage of the Immigration and Nationality Act of 1952 (INA). In 1988, Congress created the Immigration Examinations Fee Account, which made the portion of USCIS's budget collected from user fees no longer subject to annual congressional approval. Since the President announced the Immigration Accountability Executive Action on November 20, 2014, USCIS's budgetary structure has received increased attention. Among other provisions, the executive action included an expansion of the existing Deferred Action for Childhood Arrivals (DACA) program that was initiated in 2012, as well as a new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program that grants certain unauthorized aliens protection from removal, and work authorization, for three years. If implemented, these programs would require applicants to submit petitions and pay a user fee to USCIS. The user fees would purportedly pay for the cost of administering the program. Some in Congress oppose deferred action programs. However, Congress has limited options for halting the programs using the annual appropriations process. The executive action highlights some challenges Congress faces if it wishes to exert control over an agency whose funding is largely independent of the annual appropriations process. To alter existing statutory provisions governing the collection of user fees in the Immigration Examinations Fee Account, the availability of user fees for expenditure, or their prohibited use for certain purposes would require an enactment of law. Congress does appropriate a small portion of the agency's budget each year, primarily to fund E-Verify, a system used to electronically confirm that individuals have proper authorization to work in the United States. Since 2003, such annual direct appropriations have constituted a declining portion of USCIS's budget. While some have welcomed this trend for reducing the cost to U.S. taxpayers of running USCIS, others have voiced concerns over the limitations on congressional oversight it reflects. Some contend that such budget independence also makes the agency less responsive to the need for affordable user fees and timely and effective customer service. Potential issues that Congress may decide to consider include USCIS's accountability to Congress, given that much of its funding does not require annual congressional approval; whether some fees are at levels that inhibit some potential applicants from applying for benefits or inhibit lawful permanent residents from becoming citizens; whether the pace and progress of information technology modernization is sufficient to meet the agency's multiple functions and efficiently serve petitioners; and whether USCIS's management of its personnel and resources adequately addresses sudden demands for processing and adjudication of petitions while maintaining processing times and adequate levels of service for all other petitions.

It has been proposed that there be a domain on the Internet exclusively for Websites that contain sexually explicit material; it might be labeled ".xxx" to complement the current ".com," ".org," and others. Some propose making use of a ".xxx" domain voluntary, but others propose that Congress make it mandatory. The latter proposal raises the question whether a mandatory separate domain would violate the First Amendment, and this report focuses on that question. Congress has already provided for a ".kids" domain: the Dot Kids Implementation and Efficiency Act of 2002 directs the National Telecommunication and Information Administration (NTIA), which is an agency in the Department of Commerce, to establish a "new domain" "that provides access only to material that is suitable for minors and not harmful to minors." The URL for the domain is http://www.kids.us , and that site lists 20 websites that use the domain. An article reports that chairman and president of ICM Registry Inc., "Stuart Lawley, a Florida entrepreneur, [is] trying to establish a pornography-only '.xxx' domain. In such a realm, Lawley could restrict porn marketing to adults only, protect users' privacy, limit span and collect fees from Web masters. The .xxx proposal was finally slated for approval in August [2005] by the Internet Corporation for Assigned Names and Numbers (Icann), but because of a flurry of protest," was deferred, and, on May 10, 2006, ICANN voted against the establishment of a ".xxx" domain. Another article explains that the reason that the proposal was put off is that "the Commerce Department sought more time to hear objections [and] ICANN cannot move forward without Commerce Department approval." On January 6, 2007, the Associated Press reported that ICANN had revived the proposal and opened it for public comment, but, on March 30, 2007, ICANN rejected the proposal. On June 26, 2008, ICANN approved a plan that would allow a virtually unlimited number of top-level domains names. The plan could disallow a name for only a few reasons, such as that it is confusingly similar to an existing name or is "contrary to generally accepted legal norms relating to morality and public order that are recognized under international principles of law." It remains to be seen whether, under this plan, ICANN would approve an application to use a ".xxx" domain. Before the plan takes effect, ICANN must approve a final version of it; this is expected to occur in early 2009. Some opponents of pornography support the proposal for a voluntary ".xxx" domain and some oppose it; likewise, some in the pornography business support the proposal and some oppose it. Both the above-mentioned articles comment on the support and opposition to the proposal: The proposal has had its share of critics. Some of them claim that a .xxx domain would provide legitimacy to the pornography industry. Supporters claim that a .xxx domain would make it easier for people to filter out content they do not want. The Family Research Council warns that it [the proposal] will simply breed more smut. But Senator Joe Lieberman supports a virtual red-light district because he says it would make the job of filtering out porn easier. Meanwhile, some pornographers, apparently drawn by the promise of catchier and more trustworthy U.R.L.'s, have gotten behind Lawley. Other skin-peddlers, echoing the A.C.L.U., see the establishment of a voluntary porn zone as the first step toward the deportation of their industry to a distant corner of the Web, where their sites could easily be blocked by skittish Internet service providers, credit card companies and even governments. Finally, some opponents of pornography oppose the proposal for a voluntary ".xxx" domain because "sites would be free to keep their current '.com' address in effect making porn more easily accessible by creating yet another channel to house it." Two bills have been introduced to create a mandatory ".xxx" domain for material that is "harmful to minors," as the bills would define the term. They are S. 2426 , 109 th Congress, which was introduced by Senator Baucus, and S. 2137 , 107 th Congress, which was introduced by Senator Landrieu. Both bills direct the Secretary of Commerce, acting through the National Telecommunications and Information Administration, to establish the new domain. The rest of this report will consider the constitutionality of a mandatory ".xxx" domain, without focusing on these bills or any other particular proposal. It does not matter for constitutional purposes specifically how the bill would define the material that it would require to be in the ".xxx" domain; we will assume merely that such material would include sexually explicit material that is protected by the First Amendment. And all sexually explicit material is generally protected by the First Amendment, unless it constitutes obscenity, or child pornography that is produced with an actual minor. To require that websites with sexually explicit material be under a separate domain name would be to treat such material differently from other speech, and therefore could be viewed as discriminating against speech on the basis of its content. The Supreme Court has said that "[i]t is rare that a regulation restricting speech because of its content will ever be permissible." As a general rule, the Supreme Court will uphold a content-based speech regulation only if it satisfies "strict scrutiny," which means only if it is necessary "to promote a compelling interest" and is "the least restrictive means to further the articulated interest." By contrast, if a regulation of speech is " justified without reference to the content of the speech," then the Supreme Court considers it "content-neutral" and will uphold it if it "is designed to serve a substantial governmental interest and allows for reasonable alternative avenues of communication." In other words, if a regulation of speech has a purpose other than to protect people from harm that the speech itself might cause, then it stands a better chance of being found constitutional. One might argue that, although requiring sexually explicit material to be under a separate domain name would discriminate against speech on the basis of its content, that would not be the purpose of the requirement, and the requirement could be justified without reference to the content of the speech it would regulate. Its purpose would arguably be to facilitate parents' or librarians' use of filters when children access the Internet. It would accomplish this by dividing websites into two categories--those with sexually explicit material and those without it. This could be viewed as analogous to requiring "adult" movie theaters to locate in areas that are zoned for them. In City of Renton v. Playtime Theaters, Inc. , the Supreme Court upheld such zoning on the theory that it "is not aimed at the content of the films shown at 'adult motion picture theaters,' but rather at the secondary effects of such theaters on the surrounding community." "The ordinance by its terms is designed to prevent crime, protect the city's retail trade, maintain property values, and generally 'protec[t] and preserv[e] the quality of [the city's] neighborhoods, commercial districts, and the quality of urban life,' not to suppress the expression of unpopular views." Analogously, one might argue, to restrict sexually explicit material to a separate domain name arguably would "zone" certain websites not because of the content of their speech but to lessen the "secondary effect" of minors' viewing those websites without parental approval. In effect, the proposal, like a zoning ordinance, would seek to isolate certain material into particular "neighborhoods" in cyberspace, and assist parents in preventing their children from visiting those "neighborhoods." A possibly fatal flaw with this analogy, however, is that, in Renton , the secondary effects that the zoning ordinance sought to prevent--crime, lowered property values, and a deterioration in the quality of urban life--were not effects of viewing the regulated speech itself. The ".xxx" proposal, by contrast, would apparently attempt to protect minors from the effects of viewing the regulated speech itself, and these effects therefore are arguably not "secondary" in the sense that the Supreme Court meant in Renton . The ".xxx" proposal, from this view, would impose a burden on speech because Congress deems it harmful, and that is not a sufficient basis on which the government may regulate speech in a manner that affects adults, unless the regulation satisfies strict scrutiny. In Ashcroft v. Free Speech Coalition , for example, the Supreme Court struck down a federal statute that banned "virtual" child pornography and other child pornography produced without the use of an actual minor, despite various harms that the government claimed that viewing such pornography could cause, such as "whet[ting] the appetites of pedophiles and encourag[ing] them to engage in illegal conduct." The Supreme Court has stated: "We have made clear that the lesser scrutiny afforded regulations targeting the secondary effects of crime or declining property values has no application to content-based regulations targeting the primary effects of protected speech. The statute now before us burdens speech because of its content; it must receive strict scrutiny." Thus, a court might view the ".xxx" proposal either as a content-based regulation, which is constitutional only if it satisfies strict scrutiny by advancing a compelling governmental interest by the least restrictive means; or as a content-neutral regulation, which is constitutional if it advances a substantial governmental interest and allows for reasonable alternative avenues of communication. We will apply these two tests to the ".xxx" proposal, in the sections below titled "Strict scrutiny" and "Content-neutral scrutiny." First, however, we will explain why the ".xxx" proposal would even raise a free speech issue, in light of the fact that it would not censor speech. The ".xxx" proposal could be viewed as, in effect, compelling speech on the part of websites with sexually explicit material. It would compel them to identify themselves, through use of a separate domain name, as containing such material. In general, it is as unconstitutional for the government to compel speech as it is for it to censor speech, except in the commercial context. In Riley v. National Federation of the Blind of North Carolina, Inc. , a North Carolina statute required professional fundraisers for charities to disclose to potential donors the gross percentage of revenues retained in prior charitable solicitations. The Supreme Court held this unconstitutional, writing There is certainly some difference between compelled speech and compelled silence, but in the context of protected speech, the difference is without constitutional significance, for the First Amendment guarantees "freedom of speech," a term necessarily comprising the decision of both what to say and what not to say. In Meese v. Keene , however, the Court upheld compelled disclosure in a noncommercial context. This case involved a provision of the Foreign Agents Registration Act of 1938, which requires that, when an agent of a foreign principal seeks to disseminate foreign "political propaganda," he must label such material with certain information, including his identity, the principal's identity, and the fact that he has registered with the Department of Justice. The material need not state that it is "political propaganda," but one agent objected to the statute's designating material by that term, which he considered pejorative. The agent wished to exhibit, without the required labels, three Canadian films on nuclear war and acid rain that the Justice Department had determined were "political propaganda." In Meese v. Keene , the Supreme Court upheld the statute's use of the term, essentially because it considered the term not necessarily pejorative. On the subject of compelled disclosure, the Court wrote: Congress did not prohibit, edit, or restrain the distribution of advocacy materials. . . . To the contrary, Congress simply required the disseminators of such material to make additional disclosures that would better enable the public to evaluate the import of the propaganda. One might infer from this that compelled disclosure, in a noncommercial context, gives rise to no serious First Amendment issue, and nothing in the Court's opinion would seem to refute this inference. Thus, it seems impossible to reconcile this opinion with the Court's holding a year later in Riley (which did not mention Meese v. Keene ) that, in a noncommercial context, there is no difference of constitutional significance between compelled speech and compelled silence. In Meese v. Keene , furthermore, the Court did not mention earlier cases in which it had struck down laws compelling speech in a noncommercial context. For example, in Wooley v. Maynard , the Court struck down a New Hampshire statute requiring motorists to leave visible on their license plates the motto "Live Free or Die" ; in West Virginia State Board of Education v. Barnette , the Court held that a state may not require children to pledge allegiance to the United States ; and, in Miami Herald Publishing Co. v. Tornillo , the Court struck down a Florida statute that required newspapers to grant political candidates equal space to reply to the newspapers' criticism and attacks on their record. In any event, if one views the ".xxx" proposal as discriminating on the basis of content, then one could cite most of the compelled speech cases for the proposition that the ".xxx" proposal would be unconstitutional unless it can pass strict scrutiny. But one could cite Meese v. Keene (adapting the above quotation from it) to argue that the ".xxx" proposal would be constitutional because it would "not prohibit, edit, or restrain the distribution of [sexually explicit material]. . . . To the contrary, Congress [would] simply require[ ] the disseminators of such material to make additional disclosures that would better enable the public to evaluate the [content] of the [website]." If the ".xxx" proposal were viewed as content-based, and not as constitutional simply by virtue of its similarity to the statute upheld in Meese v. Keene , then, as noted, it would be subject to "strict scrutiny," which means that it would be constitutional only if it is necessary "to promote a compelling interest," and is "the least restrictive means to further the articulated interest." Though the Supreme Court may be becoming less absolute in viewing the protection of all minors, regardless of age, from all sexual material, to be a compelling interest, it has never struck down, on the ground that it did not further a compelling governmental interest, a statute aimed at denying minors access to sexual material. Rather, the Court tends to assume the existence of a compelling governmental interest in denying minors access to pornography and move on to the "least restrictive means" part of the strict scrutiny test, upholding or striking down the statute on that issue. In striking down the part of the Communications Decency Act of 1996 that banned from the Internet all "indecent" material that was accessible to minors, the Court wrote: In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve. The ".xxx" proposal would not suppress speech, but would only compel it to be under a separate domain name. But are there less restrictive means by which to accomplish the ".xxx" proposal's goal? We will consider two alternative means. One alternative might be to make use of the separate domain name voluntary. The question with respect to this alternative would be whether there would be an incentive for sexually explicit websites to use a separate domain name voluntarily--an incentive sufficient to induce enough of them to use a separate domain name so as to make the proposal as effective as it would be if it compelled them to use a separate domain name. An incentive, arguably, is that, just as the proposal would make it easier to block websites that use a separate domain name, it might make it easier to locate websites that use a separate domain name. In addition, one might argue, a statute could effectively make use of a separate domain name mandatory only for websites based in the United States, as the U.S. government does not generally have authority over foreign websites. Therefore, a statute that mandated use of a separate domain name would not cover all websites with sexually explicit material, and this would appear to strengthen the case that voluntary use of a separate domain name would be as effective as mandatory use. A second alternative to the proposal might be one that already exists: the Dot Kids Implementation and Efficiency Act of 2002, mentioned at the beginning of this report. This statute may enable parents who wish to do so to block out all websites not under the "dot kids" domain name. If parents used a filter to prevent their children from gaining access to any website that does not use the "dot kids" domain, then they would be denying their children access to much material on the Internet that is not sexually explicit. If one deems a purpose of both the "Dot Kids" statute and the ".xxx" proposal to be not only to deny children access to sexually explicit material, but not to deny them access to non-sexually explicit material, then the "Dot Kids" Act might be viewed as less effective than the ".xxx" proposal, and therefore as not an adequate alternative to the latter. But, in another respect, the "Dot Kids" statute could be more effective because it could enable parents to block foreign as well as domestic websites; in that respect it might be viewed as an adequate alternative to the ".xxx" proposal. If a court were to find the ".xxx" proposal to be analogous to the zoning of "adult" theaters that the Supreme Court has upheld, then it would ask whether the proposal is designed to serve a substantial governmental interest and allows for reasonable alternative avenues of communication. Because it appears that a court would likely find the proposal to serve a "compelling" interest, a court would ipso facto likely find the proposal to meet the less rigorous test of serving a "substantial" interest. And, because the proposal would not prevent anyone from posting protected speech, but would merely require them to post some speech under a separate domain name, it apparently could not even be said to reduce their avenues of communication except insofar as Internet users chose to block websites that used the separate domain name. Though the proposal would presumably facilitate such blocking, it would not require it, and therefore would seem likely to be found constitutional if this less-than-strict-scrutiny test were applied. A factor that might make a difference to the ".xxx" proposal's constitutionality is whether it imposed criminal penalties; if it did, that might tip the balance toward making it unconstitutional. In Reno v. American Civil Liberties Union , the Supreme Court, in striking down the Communications Decency Act of 1996, was apparently influenced by the fact that the statute would have imposed criminal penalties, including imprisonment. It distinguished Federal Communications Commission v. Pacifica Foundation , in which it had upheld the ban on "indecent" material on broadcast media, in part on the ground that the radio station that had broadcast George Carlin's "Filthy Words" monologue had been penalized with only a Federal Communications Commission declaratory order. "[T]he Commission's declaratory order," the Court in Reno wrote, "was not punitive; we expressly refused to decide whether the indecent broadcast 'would justify a criminal prosecution.'" Another factor that might make a difference to the ".xxx" proposal's constitutionality is whether it applied only to websites that contained predominantly pornographic material, or it applied to any posting of material that might be deemed pornographic, even on websites that did not contain predominantly pornographic material. The latter approach would seem more problematic from a constitutional standpoint because it would deter any website not under the ".xxx" domain name from posting material that might be deemed pornographic, even if the website posted it for other than pornographic purposes, and even if the website contained material that was predominantly, for example, of a literary, artistic, or medical nature that would not attract children. But even a proposal that applied only to websites that contained predominately pornographic material might be unconstitutional if it defined too vaguely the websites that it would require to use the ".xxx" domain. The constitutional problem with an overly vague definition is that it might deter a website that did not use the ".xxx" domain from posting sexually explicit material for its literary, artistic, or medical content. It might be deterred for fear that the material could be construed as pornographic and the website sanctioned. A vague law violates due process because it fails to "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. . .. [P]erhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights. If, for example, the law interferes with the right of free speech or of association, a more stringent vagueness test should apply." If a court were to apply "strict scrutiny" to the ".xxx" proposal, then it appears difficult to predict whether it would be constitutional. Although it seems likely that the Supreme Court would find that it serves a compelling governmental interest, it is not certain whether it would find that it would be the least restrictive means to serve that interest. If a court were to apply "content-neutral scrutiny," or if the Court were to follow its reasoning in Meese v. Keene , then it seems likely that it would find the ".xxx" proposal to be constitutional.

It has been proposed that there be a domain on the Internet exclusively for websites that contain sexually explicit material; it might be labeled ".xxx" to complement the current ".com," ".org," and others. Some propose making use of a ".xxx" domain voluntary, and a June 26, 2008, decision by the Internet Corporation for Assigned Names and Numbers (ICANN) to allow a virtually unlimited number of top-level domain names may make the voluntary use of ".xxx" possible in 2009. Others propose that Congress make use of ".xxx" mandatory for websites that contain sexually explicit material. This proposal raises the question whether a mandatory separate domain would violate the First Amendment, and this report focuses on that question. It is unclear whether making a ".xxx" domain mandatory would violate the First Amendment. Whether it would be constitutional might depend upon whether a court viewed it as a content-based restriction on speech or as analogous to the zoning of adult theaters, or even as a mere disclosure requirement that did not raise a significant First Amendment issue. If a court viewed it as a content-based restriction on speech, then it would be constitutional only if the court found that it served a compelling governmental interest by the least restrictive means. Other factors that could affect its constitutionality might be whether it imposed criminal penalties and whether it were limited to websites that are predominantly pornographic.

B eginning in late 2005, the New York Times reported that the federal government had "monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people in the United States without warrants." Subsequently, President George W. Bush acknowledged that, after the attacks of September 11, 2001, he had authorized the National Security Agency to conduct a Terrorist Surveillance Program (TSP) to "intercept int ernational communications into and out of the United States" by "persons linked to al Qaeda or related terrorist organizations" based upon his asserted "constitutional authority to conduct warrantless wartime electronic surveillance of the enemy." Now discontinued, the TSP appears to have been active from shortly after September 11, 2001, to January 2007. After the TSP activities were concluded in 2007, Congress enacted the Protect America Act (PAA, P.L. 110-55 ), which established a mechanism for the acquisition, via a joint certification by the Director of National Intelligence (DNI) and the Attorney General (AG), but without an individualized court order, of foreign intelligence information concerning a person reasonably believed to be outside the United States. This temporary authority ultimately expired after approximately six months, on February 16, 2008. Several months later, Congress enacted the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008, which created separate procedures for targeting non-U.S. persons and U.S. persons reasonably believed to be outside the United States under a new Title VII of FISA. Title VII of FISA was reauthorized in late 2012; this authority now sunsets on December 31, 2017. Significant details about the use and implementation of the Section 702 of Title VII, which provides procedures for targeting non-U.S. persons, became known to the public following reports in the media beginning in summer 2013. According to a partially declassified 2011 opinion from the Foreign Intelligence Surveillance Court (FISC), the National Security Agency (NSA) collected 250 million Internet communications per year under Section 702. Of these communications, 91% were acquired "directly from Internet Service Providers," using a mechanism referred to as "PRISM collection." The other 9% were acquired through what NSA calls "upstream collection," meaning acquisition while Internet traffic is in transit from one unspecified location to another. Like its predecessor in the PAA, Section 702 permits the AG and the DNI to jointly authorize targeting of persons reasonably believed to be located outside the United States, but is limited to targeting non-U.S. persons. Once authorized, such acquisitions may last for periods of up to one year. Under Subsection 702(b) of FISA, such an acquisition is also subject to several limitations. Specifically, an acquisition may not intentionally target any person known at the time of acquisition to be located in the United States; may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States; may not intentionally target a U.S. person reasonably believed to be located outside the United States; may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and must be conducted in a manner consistent with the Fourth Amendment to the Constitution of the United States. Acquisitions under Section 702 are also geared towards electronic communications or electronically stored information. This is because the certification supporting the acquisition, discussed in the next section, requires the AG and DNI to attest that, among other things, the acquisition involves obtaining information from or with the assistance of an electronic communication service provider. This would appear to encompass acquisitions using methods such as wiretaps or intercepting digital communications, but may also include accessing stored communications or other data. Such a conclusion is also bolstered by the fact that the minimization procedures required to be developed under Section 702 reference the minimization standards applicable to physical searches under Title III of FISA. Section 702 requires the joint AG/DNI authorization to be predicated on either the existence of a court order approving of a joint certification submitted by the AG and DNI, or a determination by the two officials that exigent circumstances exist. The certification is not required to identify the individuals at whom such acquisitions would be directed. Rather, the certification must attest, in part, that targeting procedures are in place that have been approved, have been submitted for approval, or will be submitted with the certification for approval by the FISC, that are reasonably designed to ensure that an acquisition is limited to targeting persons reasonably believed to be located outside the United States, and to prevent the intentional acquisition of any communication where the sender and all intended recipients are known at the time of the acquisition to be located in the United States. The applicable targeting and minimization procedures are subject to judicial review by the FISC, but the court is not required to look beyond the assertions made in the certification. Generally, if the certification and targeting and minimization procedures meet the statutory requirements and are consistent with the Fourth Amendment, a FISC order approving them will be issued prior to implementation of the acquisition of the communications at issue. If the FISC finds deficiencies in the certification, targeting procedures, or minimization procedures, the court will issue an order directing the government to, at the government's election and to the extent required by the court's order, correct any such deficiency within 30 days, or cease the implementation of the authorization for which the certification was submitted. In the absence of a court order described above, the AG and DNI may also authorize the targeting of persons reasonably believed to be non-U.S. persons abroad if they determine that exigent circumstances exist which would cause the loss or delay of important national security intelligence. A certification supporting such acquisition is required to be submitted to the FISC as soon as practicable, but no later than seven days after the determination of exigency has been made. Collection of information is permitted during the period before a certification is submitted to the FISC. In 2015, Congress included an amendment to FISA in the USA FREEDOM Act ( P.L. 114-23 ), to facilitate the continued surveillance of a target that was believed to be abroad, but is later found to be within the United States. As noted above, Section 702 originally did not permit surveillance of persons reasonably believed to be in the United States at the time of acquisition. As amended by the USA FREEDOM Act, surveillance of a non-U.S. person may continue for 72 hours after the target is reasonably believed to be within the United States, if a lapse in surveillance of the target poses a threat of death or serious bodily harm. A traditional FISA order for electronic surveillance must be obtained to continue surveillance after that period. Upon enactment of Title VII, a number of organizations brought suit challenging the joint authorization procedure for surveillance of non-U.S. persons reasonably believed to be abroad. The suit alleged that this authority violated the Fourth Amendment's prohibition against unreasonable searches. In order to establish legal standing to challenge Title VII, the plaintiffs had argued that the financial costs they incurred in order to avoid their reasonable fear of being subject to surveillance constituted a legally cognizable injury. However, on February 26, 2013, in Clapper v. Amnesty International , the U.S. Supreme Court held that the plaintiffs had not suffered a sufficiently concrete injury to have legal standing to challenge Title VII. Because the Court had no jurisdiction to proceed to the merits of the plaintiffs' claims, it did not decide the merits of the plaintiffs' constitutional claim. In August 2013, the Obama Administration partially declassified several opinions of the FISC regarding collection activities under Section702. The first of these opinions, dated October 3, 2011, evaluated the targeting and minimization procedures proposed by the government to deal with new information regarding the scope of "upstream collection," in which communications are acquired from Internet traffic that is in transit from one unspecified location to another. Specifically, the government had recently discovered that its upstream collection activities had acquired unrelated international communications as well as wholly domestic communications due to technological limitations. After being presented with this new information, the FISC found the proposed minimization procedures to be deficient on statutory and constitutional grounds. With respect to the statutory requirements, the FISC noted that the government's proposed minimization procedures were focused "almost exclusively" on information that an analyst wished to use and not on the larger set of information that had been acquired. Consequently, communications that were known to be unrelated to a target, including those that were potentially wholly domestic, could be retained for up to five years so long as the government was not seeking to use that information. The court found that this had the effect of maximizing the retention of such information and was not consistent with FISA's mandate to minimize the retention of U.S. persons' information. The FISC also held that the proposed minimization procedures did not satisfy the Fourth Amendment. The FISC found that, under the facts before it, the balance required under the Fourth Amendment's reasonableness test did not favor the government, particularly in light of the statutory deficiencies. Following the FISC's determination that the Fourth Amendment had been violated, the government presented revised minimization procedures to the FISC, and the court approved those procedures on November 30, 2011. The revised minimization procedures addressed the court's concerns by requiring the segregation of those communications most likely to involve unrelated or wholly domestic communications; requiring special handling and markings for those communications which could not be segregated; and reducing the retention period of upstream collection from five years to two. With these modifications, the court found that the balancing test required under the Fourth Amendment supported the conclusion that the search was constitutionally permissible. While the Clapper Court dismissed the case on standing grounds, the Supreme Court did so in part relying on the fact that a criminal defendant could potentially have standing to challenge Section 702. At least five criminal defendants have been notified by the government that incriminating evidence was gathered pursuant to Section 702. Several of these defendants have moved to suppress such evidence, arguing that it was gathered unconstitutionally. The defendants in these cases raise Fourth Amendment challenges as well as alleging that Section 702 violates Article III of the Constitution, which limits the jurisdiction of federal courts to "cases" or "controversies." None of the courts to address these claims has ruled in favor of the defendants. Two cases involving criminal defendants are currently pending before the U.S. Courts of Appeals for the Second and Ninth Circuits, while a third is proceeding to trial in the U.S. District Court for the District of Colorado.

After the attacks of September 11, 2001, President George W. Bush authorized the National Security Agency to conduct a Terrorist Surveillance Program (TSP) to "intercept international communications into and out of the United States" by "persons linked to al Qaeda or related terrorist organizations." After the TSP activities were concluded in 2007, Congress enacted the Protect America Act (PAA, P.L. 110-55 ), which established a mechanism for the acquisition, via a joint certification by the Director of National Intelligence (DNI) and the Attorney General (AG), but without an individualized court order, of foreign intelligence information concerning a person reasonably believed to be outside the United States. This temporary authority ultimately expired after approximately six months, on February 16, 2008. Several months later, Congress enacted the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008 ( P.L. 110-261 ), which created separate procedures for targeting non-U.S. persons and U.S. persons reasonably believed to be outside the United States under a new Title VII of FISA. Title VII of FISA was reauthorized in late 2012 ( P.L. 112-238 ); this authority now sunsets on December 31, 2017. Significant details about the use and implementation of Section 702 of Title VII, which provides procedures for targeting non-U.S. persons who are abroad, became known to the public following reports in the media beginning in summer 2013. According to a partially declassified 2011 opinion from the Foreign Intelligence Surveillance Court (FISC), the National Security Agency (NSA) collected 250 million Internet communications per year under Section 702. Of these communications, 91% were acquired "directly from Internet Service Providers," using a mechanism referred to as "PRISM collection." The other 9% were acquired through what NSA calls "upstream collection," meaning acquisition while Internet traffic is in transit from one unspecified location to another. In 2015, Congress enacted the USA FREEDOM Act ( P.L. 114-23 ) to reauthorize and amend various portions of FISA. While most of the amendments dealt with portions of FISA that were unrelated to Section 702, the act did include authority to continue surveillance of a non-U.S. person for 72 hours after the target is reasonably believed to be within the United States, but only if a lapse in surveillance of the target would pose a threat of death or serious bodily harm. A traditional FISA order for electronic surveillance must be obtained to continue surveillance after that period.

The Emergency Food Assistance Program (TEFAP; previously the Temporary Emergency Food Assistance Program) provides federally purchased commodities and a smaller amount of cash support to food banks, food pantries, soup kitchens, shelters, and other types of emergency feeding organizations serving low-income households and individuals. Commodities include fruits, vegetables, meats, and grains, among other foods. In addition to serving needy individuals, TEFAP's domestic commodity purchases support the agricultural economy by reducing supply on the market, thereby increasing food prices. TEFAP is administered by the U.S. Department of Agriculture's Food and Nutrition Service (USDA-FNS). TEFAP was established under the Emergency Food Assistance Act of 1983 in an effort to dispose of government-held agricultural surpluses and alleviate hunger in the wake of a recession and declining food stamp benefits. Since then, TEFAP has evolved into a permanent program with mandatory, annually appropriated funding that operates in all 50 states, the District of Columbia, and several U.S. territories. The program was most recently reauthorized by the 2014 farm bill ( P.L. 113-79 ) and has been included in farm bill reauthorization efforts in the 115 th Congress. At the federal level, TEFAP is administered by USDA-FNS in collaboration with USDA's purchasing agencies, the Agricultural Marketing Service (AMS) and Commodity Credit Corporation (CCC). At the state level, TEFAP is administered by a "state distributing agency" designated by the governor or state legislature: generally the state department of health and human services, agriculture, or education. Federal commodities and funds may flow through the state or directly to feeding organizations (called "recipient agencies") based on how the state agency structures the program. States will often task food banks with processing and distributing food to local feeding organizations. Food banks typically operate regional warehouses and distribute food to other organizations rather than to households directly. Figure 1 depicts the flow of commodities and funds through TEFAP. TEFAP is part of a larger web of food assistance programs. Some of these programs provide cash assistance while others primarily distribute food. TEFAP foods may reach individuals who do not qualify for other food assistance programs or supplement the assistance that individuals receive through other programs. With nearly $354 million in appropriated funding in FY2018, TEFAP is the largest source of federal support for emergency feeding organizations. Other related federal programs include the Federal Emergency Management Agency's (FEMA's) Emergency Food and Shelter Program, funded at $120 million in FY2018, which, among its other services for homeless individuals, provides food through shelters, food banks, and food pantries. In addition, USDA's Commodity Supplemental Food Program, funded at $238 million in FY2018, distributes monthly food packages to low-income elderly individuals through local organizations, which can include food banks and pantries. This report begins by describing the population using emergency food assistance. It goes on to discuss the TEFAP program, including its administration at the federal, state, and local levels, eligibility rules, and funding structure. The report concludes by summarizing TEFAP's role in disaster response and recent reauthorization efforts. Appendix A lists TEFAP expenditures from the program's inception in 1983 to present; Appendix B provides a brief legislative history of TEFAP; and Appendix C lists TEFAP funding by state. According to an analysis of Current Population Survey (CPS) data by USDA's Economic Research Service (ERS), an estimated 5.9 million households (4.7%) utilized food pantries (see Figure 2 ) and at least 726,000 households (0.6%) utilized soup kitchens in 2017. However, this is likely an underestimate of the population using emergency food assistance because the sample did not include certain households over 185% of poverty and the CPS does not fully capture households who are homeless or in tenuous housing arrangements. For comparison, a survey by Feeding America, a nonprofit membership and advocacy organization, estimated that approximately 15.5 million households accessed its network of feeding organizations in 2013 (the same year, ERS estimated that 6.9 million households used food pantries and soup kitchens). The Feeding America network represents a large segment of emergency feeding organizations nationwide. Data on the number of TEFAP recipients specifically are not available, in part because TEFAP commodities are mixed in with other commodities provided by emergency feeding organizations and because of "the transient nature of participation." Food insecurity is common among households using emergency feeding organizations. According to the ERS analysis, approximately 65% of households using food pantries and soup kitchens were food insecure in 2017, meaning that they had difficulty providing enough food for all of their members at times during the year due to a lack of resources. Roughly half of these households experienced very low food security, meaning that the food intake of some household members was reduced and normal eating patterns were disrupted due to limited resources. Nationally, the percentage of households experiencing food insecurity was 11.8% in 2017, down from a recent high of 14.9% in 2011. According to the ERS analysis, households using food pantries were more likely to have incomes below 185% of poverty compared to the general population (70% vs. 21%) and to include children (39% vs. 30%). Meanwhile, according to the 2014 Feeding America survey, individuals using meal programs (e.g., soup kitchens and shelters) were generally single-person households and were more likely to be homeless. In 2013, just over 70% of households using the Feeding America network of meal programs had a single member and nearly 34% were homeless or living in temporary housing. In addition, emergency feeding organizations may act as a safety net for food insecure households who are ineligible for or do not participate in other federal food assistance programs. For example, in the case of the Supplemental Nutrition Assistance Program (SNAP), households may have an income too high to qualify for assistance but still experience difficulty purchasing food, or they may fail to meet other program eligibility rules. Among households using feeding organizations affiliated with Feeding America's network, a little more than half (55%) reported receiving SNAP benefits in 2013. TEFAP is administered by USDA's Food and Nutrition Service (FNS), which is responsible for allocating aid to states (see " State Allocation Formula ") and coordinating the ordering, processing, and distribution of commodities. Specifically, FNS receives requests for certain quantities and types of commodities from state agencies, which place orders based on their entitlement allocation and in consultation with recipient agencies. FNS then collaborates closely with USDA's purchasing agencies--the Agricultural Marketing Service (AMS) and Commodity Credit Corporation (CCC)--to fulfill the orders. FNS also collaborates with AMS and CCC to purchase bonus commodities throughout the year that are not based on state requests but rather USDA's discretion to support different crops. Commodities are delivered to state distribution points, which may be operated by a state agency, private contractor, or recipient agency. According to a 50-state survey conducted by the Washington State Department of Agriculture in 2015, most states reported that commodities were sent to nonprofit-run warehouses (i.e., food banks). FNS also issues regulations and guidance and provides general oversight of states' TEFAP operations. FNS provides oversight by reviewing and approving state TEFAP plans, which are documents that outline each state's operation of TEFAP. States are required to submit amendments to the plan for approval "when necessary to reflect any changes in program operations or administration as described in the plan, or at the request of FNS, to the appropriate FNS Regional Office." TEFAP is administered at the state level by an agency designated by the governor "or other appropriate State executive authority" that enters into an agreement with FNS. As of 2015, states most commonly housed TEFAP in a health and human services department (18 states), agriculture department (13 states), or education department (8 states). State agencies administering TEFAP are responsible for creating eligibility criteria (see " Eligibility Rules for Individuals and Households "), selecting recipient agencies, distributing commodities and funds to recipient agencies, and overseeing recipient agencies. States also maintain state TEFAP plans, which contain program and eligibility rules. Federal regulations allow states to delegate a number of responsibilities to recipient agencies, if desired. States can (and often do) delegate the responsibility of warehousing and transporting commodities to one or more eligible recipient agencies, most often to food banks. They also frequently delegate the role of selecting and contracting with other recipient agencies; for example, enabling a food bank to contract with multiple food pantries. States cannot delegate their responsibility to set eligibility rules or oversee recipient agencies. States must review at least 25% of recipient agencies contracting directly with the state (e.g., food banks) at least once every four years, and at least one-tenth or 20 (whichever is fewer) of other recipient agencies each year. If the state finds deficiencies in the course of review, the state agency must submit a report with the findings to the recipient agency and ensure that corrective action is taken. Organizations that are eligible for TEFAP aid are referred to as "recipient agencies" in the Emergency Food Assistance Act. According to the statute, recipient agencies are public or nonprofit organizations that administer emergency feeding organizations; charitable institutions; summer camps or child nutrition programs; nutrition projects operating under the Older Americans Act of 1965; or disaster relief programs. The first category of organizations--emergency feeding organizations (EFOs)--receive priority under TEFAP statute and regulations and the majority of TEFAP aid. EFOs are defined as public or nonprofit organizations "providing nutrition assistance to relieve situations of emergency and distress through the provision of food to needy persons, including low-income and unemployed persons." They include food banks, food pantries, soup kitchens, and other organizations serving similar functions. Recipient agencies are responsible for serving and distributing TEFAP foods to individuals and households. As discussed above, they may also have additional responsibilities as delegated by the state agency; for example, food banks, which operate food warehouses, may be tasked with distributing food to subcontracting recipient agencies like food pantries and soup kitchens, which in turn distribute foods or serve prepared meals to low-income individuals and families. In addition, recipient agencies must adhere to program rules. For example, they must safely store food and comply with state and/or local food safety and health inspection requirements. Recipient agencies must also maintain records of the commodities they receive and a list of households receiving TEFAP foods for home consumption. There are also restrictions on the types of activities that can occur at distribution sites. Recipient agencies must ensure that any unrelated activities are conducted in a way that makes clear that the activity is not part of TEFAP and that receipt of TEFAP foods is not contingent on participation in the activity. Activities may not disrupt food distribution or meal service and may not be explicitly religious. In addition, recipient agencies may not engage in recruitment activities designed to persuade an individual to apply for SNAP benefits. Under broad federal guidelines, states set eligibility rules for individuals and households participating in TEFAP. Eligibility rules differ for organizations distributing commodities directly to households (e.g., food pantries) and organizations providing prepared meals (e.g., soup kitchens). States must develop income-based standards for households receiving foods directly, but cannot set such standards for individuals receiving prepared meals. However, organizations serving prepared meals must serve predominantly needy persons, and states "may establish a higher standard than 'predominantly' and may determine whether organizations meet the applicable standard by considering socioeconomic data of the area in which the organization is located, or from which it draws its clientele." Income eligibility rules for households receiving TEFAP foods directly vary by state. Many states limit income eligibility to household incomes at or below 185% of poverty. Some states also confer household eligibility based on participation in other federal and state programs ("categorical eligibility"). States may also create other eligibility rules for households' receipt of TEFAP foods, such as requiring identification or proof of residency within the state. However, according to federal regulations, length of residency cannot be a criterion. Federal assistance through TEFAP is primarily provided in the form of USDA-purchased domestic agricultural products ("USDA Foods"). A smaller amount of assistance is provided in the form of cash support for administrative and distribution costs. Roughly half of the funding for TEFAP's commodities is an appropriated entitlement ("entitlement" commodities), meaning that the authorizing law sets the level of spending but an annual appropriation is needed to provide funding. The other half of TEFAP's commodity funding is not included in the TEFAP appropriation and is instead provided by separate USDA budget authority. These funds are used by USDA for "bonus" commodity purchases for the program throughout the year. TEFAP's administrative funds are discretionary spending, requiring an annual appropriation. In FY2018, the enacted appropriation provided $289.5 million for entitlement commodities and $64.4 million for administrative costs. Appropriations for TEFAP's entitlement commodities were contained in the SNAP account and appropriations for administrative costs were contained in the Commodity Assistance Program (CAP) account. In FY2017 (the most recent year with complete data), USDA purchased and distributed $268.6 million worth of bonus commodities for TEFAP. Mandatory funding for TEFAP commodities is authorized by Section 27 of the Food and Nutrition Act (7 U.S.C. 2036). The act authorizes $250 million annually plus additional amounts each year in FY2015 and onward as a result of amendments made by the 2014 farm bill ( P.L. 113-79 ) . For FY2018 and subsequent years, the additional amounts are $15 million annually. Both amounts are adjusted for food price inflation. Based on statute, FY2018 appropriations provided $289.5 million for TEFAP's entitlement commodities (contained in the SNAP account) (see Table 1 ). Appropriations occasionally provide additional discretionary funding for commodities beyond the levels set in the Food and Nutrition Act. Most recently, $19 million was appropriated through a general provision in FY2017. Historically, appropriations laws have allowed states to convert a portion of their funds for entitlement commodities into administrative funds. In recent years, states were allowed to convert 10% of funds; FY2018 appropriations increased the proportion to 15%. States generally exercise this option; in FY2017, states converted $22.9 million out of a possible $29.7 million in eligible funds. States are also allowed to carry over entitlement commodity funds into the next fiscal year. Bonus commodities are purchased at USDA's discretion throughout the year using separate (non-TEFAP) USDA budget authority for that purpose. USDA may learn about these needs through its own commodity experts or be informed of surpluses or other economic problems by farm and industry organizations. The amount and type of bonus commodities that USDA purchases for TEFAP fluctuates from year to year, and depends largely on agricultural market conditions. In FY2017, USDA purchased $268.6 million in bonus commodities for TEFAP. The level of bonus commodities has fluctuated substantially over time (see Figure 3 ). USDA's purchases of bonus commodities stem from two accounts: "Section 32" and the Commodity Credit Corporation (CCC). Section 32 is a permanent appropriation that sets aside the equivalent of 30% of annual customs receipts to support the farm sector through the purchase of surplus commodities and a variety of other activities. The Section 32 appropriation has totaled nearly $10 billion annually in recent years, a small portion of which goes toward TEFAP commodities. USDA's Agricultural Marketing Service (AMS) makes Section 32 purchases. The CCC is a government-owned entity that finances authorized programs that support U.S. agriculture. Its operations are supported by USDA's Farm Service Agency. The CCC has permanent, indefinite authority to borrow up to $30 billion from the U.S. Treasury to finance its programs. In recent years, Section 32 has financed TEFAP commodities to a greater extent than the Commodity Credit Corporation. Unlike CCC support, which is normally limited to price-supported commodities (such as milk, grains, and sugar), Section 32 is less constrained in the types of commodities that may be provided, and can include meats, poultry, fruits, vegetables, and seafood. Within USDA, the Food and Nutrition Service (FNS) works closely with AMS and the CCC to determine what purchases are made for TEFAP. FNS also solicits input from state and local agencies. According to TEFAP's authorization of appropriations in the Food and Nutrition Act, USDA must, "to the extent practicable and appropriate, make purchases based on (1) agricultural market conditions; (2) preferences and needs of States and distributing agencies; and (3) preferences of recipients." USDA-purchased agricultural products ("USDA Foods") in TEFAP include a variety of products, such as meats, eggs, vegetables, soup, beans, nuts, peanut butter, cereal, pasta, milk, and juice. Most foods are nonperishable and ready for distribution when delivered to states, although some foods, such as some meat and dairy products, require refrigeration. States and recipient agencies can request entitlement commodities from a list of USDA Foods. USDA selects bonus foods based on market conditions. In FY2017, bonus foods included Alaska pollock, apples, applesauce, apple slices, beans, blueberries, cranberries, cranberry sauce, eggs, figs, grape juice, peaches, pears, plums, raisins, and turkey. According to a 2012 USDA study, TEFAP foods are relatively nutritious compared to foods in the average American diet. The study found that TEFAP entitlement and bonus foods delivered to states in FY2009 scored 88.9 points out of a possible 100 points on the Healthy Eating Index--a measure of compliance with federal dietary guidelines--compared to 57.5 points scored by the average American diet. Keeping in mind that TEFAP foods are generally meant to supplement diets, the study also found that these foods would supply 81% of fruits, 69% of vegetables, 98% of grains, 171% of protein, 36% of dairy, 84% of oils, and 39% of the maximum solid fats and added sugars recommended for a 2,000-calorie diet. TEFAP provides funds to cover state and recipient agency costs related to processing, storing, transporting, and distributing USDA-purchased commodities, as well as administrative costs related to determining eligibility, training staff, recordkeeping, and publishing announcements. Administrative funds can also be used to support states' food recovery efforts. The Emergency Food Assistance Act authorizes $100 million to be appropriated annually for administrative costs. In FY2018, appropriations provided $64.4 million in discretionary funding (contained in the Commodity Assistance Program [CAP] account), a slight increase over recent years (see Table 1 ). The act also authorizes up to $15 million to be appropriated for TEFAP infrastructure grants; however, funds have not been appropriated for these grants since FY2010. The Emergency Food Assistance Act specifies that administrative funds must be made available to states, which must in turn distribute at least 40% of the funds to emergency feeding organizations. However, states are required to match whatever administrative funds they keep. As a result, states typically send nearly all of these funds to emergency feeding organizations. States can convert any amount of their administrative funds to food funds, but this happens to a lesser extent than the conversion of food funds to administrative funds. In FY2017, states converted $260,250 of administrative funds to food funds. Figure 3 displays TEFAP's expenditures on administrative costs, entitlement commodities, and bonus commodities from the program's inception (FY1983) to FY2018 (see Appendix A for specific dollar amounts). Originally, bonus foods were the only type of commodities in TEFAP; the program served as a means for disposing of large stockpiles of government-held commodities. Beginning in FY1989, the value of bonus foods dropped substantially as federal acquisitions and stocks waned, and commodities purchased specifically for TEFAP became the majority of the commodities in the program according to requirements in law (see Appendix B , "Legislative History of TEFAP"). TEFAP expenditures increased in FY2009 and FY2010, largely as a result of additional funding for entitlement commodities and administrative costs provided by the American Recovery and Reinvestment Act of 2009 (ARRA; P.L. 111-5 ). The 2008 farm bill ( P.L. 110-246 ) also increased funding for TEFAP's entitlement commodities. Since FY2011, spending on bonus and entitlement commodities has fluctuated between approximately $500 million and $650 million (inflation-adjusted). TEFAP's entitlement commodity and administrative funds are allocated to states based on a statutory formula that takes into account poverty and unemployment rates. Specifically, USDA calculates each state's share of the total national number of households with incomes below the federal poverty level and each state's share of the total national number of unemployed individuals. A state's share of households in poverty is then multiplied by 60% and its share of unemployed individuals is multiplied by 40% to calculate the state's share of TEFAP commodities and funds. For example, if a state has 4% of all households in poverty and 2% of all unemployed individuals, it would receive (4% x 0.60 = 2.4%) + (2% x 0.40 = 0.8%) = 3.2% of TEFAP funds. As noted previously, states may carry over any extra food or administrative funds for one fiscal year (e.g., from FY2017 to FY2018). States must match any administrative funds that are not allocated to emergency feeding organizations (EFOs) or expended by the state on behalf of EFOs. In practice, most states use 90% to 100% of their administrative funds to support EFOs, resulting in a small state match requirement. Beyond the state match, 14 states reported supplying additional state funds "to support the TEFAP program either directly or indirectly" in the 2015 Washington State Department of Agriculture survey (discussed previously). There is a maintenance of effort requirement in TEFAP, meaning that states cannot reduce their own funding or commodity support for recipient agencies below the level that they were supporting such organizations at the program's inception or FY1988 (when the maintenance of effort went into effect)--whichever is later. States have the authority to distribute existing inventories of USDA Foods to disaster relief organizations when the President issues a disaster declaration. This includes foods from TEFAP inventories and other food assistance programs such as the National School Lunch Program. For example, foods intended for TEFAP were used for disaster response in Florida, Texas, and Puerto Rico following Hurricanes Irma, Harvey, and Maria in 2017. TEFAP foods used for disaster assistance are replenished by USDA, so the overall level of commodities in the program is not affected and program operations continue in the aftermath of a disaster. At times, Congress may appropriate additional funds for TEFAP for the purposes of disaster relief. Recently, the Bipartisan Budget Act of 2018 ( P.L. 115-123 ) provided $24 million in supplemental funding for TEFAP commodities and administrative funds to jurisdictions that received a major disaster or emergency declaration related to the consequences of Hurricanes Harvey, Irma, and Maria or wildfires in 2017. The House- and Senate-passed 2018 farm bills (two versions of H.R. 2 ) include TEFAP provisions. Both bills would extend TEFAP's $250 million (plus inflation adjustment) in mandatory funding for entitlement commodities through 2023. Both bills would also continue the additional mandatory funding for entitlement commodities provided by the 2014 farm bill--the House bill (SS4032) to a greater extent than the Senate bill (SS4115). In addition, both bills would authorize new aspects of TEFAP, taking similar but not identical approaches to incorporating new donated foods and reducing food waste. The House bill would establish a "Farm-to-Food-Bank Fund" where, of the TEFAP entitlement commodity funds provided, USDA would be required to distribute $20 million for states or food banks to procure excess fresh fruits and vegetables grown in the state or surrounding regions for distribution to recipient agencies. Meanwhile, the Senate bill would establish "Projects to Harvest, Process, and Package Donated Commodities." This would provide $4 million in mandatory funding for each of FY2019-FY2023 for states and recipient agencies to harvest, process, or package "commodities donated by agricultural producers, processors, or distributors for use by emergency feeding organizations." Federal funds may not exceed 50% of the cost of the projects. The Senate bill would also require state agencies to include, in their TEFAP state plans, a plan to provide emergency feeding organizations or recipient agencies with an opportunity to provide input on commodity preferences and needs. It would also require the Secretary to issue guidance outlining best practices to minimize food waste of commodities donated by non-USDA entities. Finally, the bill would reauthorize discretionary funding of $15 million annually for TEFAP infrastructure grants through FY2023. Appendix A. TEFAP Expenditures, FY1983-FY2017 Appendix B. Legislative History of TEFAP Legislative History, 1981 to 2001 1980s . TEFAP began in 1981-82 as a temporary expedient designed to dispose of stockpiles of government-held food commodities. Establishment of TEFAP occurred in the aftermath of noticeable reductions in the coverage of and benefits provided by federal food assistance programs (e.g., food stamps, school meal programs) legislated in 1981 and 1982, and in the midst of an economic recession and concern over hunger and homelessness. The Reagan Administration began distribution of excess federally held food commodities in 1981-1982. These commodities, often termed "bonus" commodities, were in excess of those needed to fulfill other domestic and international federal commitments to provide food commodities (e.g., to schools operating school meal programs). In 1983, Congress followed up with legislative authority that created what was known for more than a decade as the Temporary Emergency Food Assistance Program (TEFAP), as well as funding for grants to help with distribution costs. Establishment of TEFAP helped reduce federal commodity stocks (and storage costs associated with holding them), provided an alternative source of food assistance for low-income individuals, and supported an expanding network of emergency food aid providers that also drew food and other resources from many nongovernmental sources. In TEFAP's early years, the only significant federal expenditures involved were appropriations for the grants supporting providers' distribution costs; the bonus commodities that were provided were acquired under separate USDA programs to support the agricultural economy. However, when commodity holdings began to drop substantially in the late 1980s because of changes in agricultural policies and the economy, Congress established the practice of providing federal funds to buy food commodities specifically for donation through TEFAP (in addition to continuing support for cash grants for distribution costs). 1988-1990. In 1988, after the Administration indicated plans to phase out TEFAP because of the lack of commodity inventories, Congress mandated funding (starting at $120 million for FY1989) in the Hunger Prevention Act of 1988 to buy commodities for distribution through TEFAP, thereby "entitling" the program to a minimum level of support regardless of the level of federal commodity holdings. The law also created a separate mandatory program to buy commodities for soup kitchens and other organizations not receiving TEFAP commodities (mandating funding starting at $40 million for FY1989). While some soup kitchens and other entities could receive federal food donations through a small separate initiative to help charitable organizations and others could participate as local TEFAP providers, the separate program was established out of a concern that most commodities for emergency feeding were going to local agencies that distributed food packages directly to individuals and families (e.g., food pantries), rather than to shelters, soup kitchens, and other providers serving meals in congregate settings. Two years later, the 1990 omnibus farm bill made commodity and cash-grant funding authority for TEFAP and the soup kitchen program "discretionary"--that is, expenditures on commodities and distribution-cost grants were made dependent on annual appropriations decisions, not "mandated" by the authorizing law entitling the program to a specific minimum funding level. 1990s. Although the authorizing law for TEFAP, the Emergency Food Assistance Act (EFA) of 1983, has been amended a number of times and the word "Temporary" has been dropped from the program's official title, perhaps the most significant changes since 1988 were made in 1996. The 1996 farm bill ( P.L. 104-127 ) extended the discretionary authority to appropriate money for commodities and distribution-cost grants for TEFAP and soup kitchen programs through FY2002. But, more significantly, the subsequent 1996 welfare reform law (the Personal Responsibility and Work Opportunity Reconciliation Act; P.L. 104-193 ) changed how these federal efforts are structured and funded. The welfare reform law (1) consolidated TEFAP and the soup kitchen program in one statute (the EFA) so that states could get a single TEFAP grant of commodities and distribution-cost funds for all types of emergency feeding organizations and (2) mandated funding of $100 million a year (through FY2002) to purchase food commodities for the program. This was in addition to any commodities that might be bought with money appropriated under discretionary authority in the EFA and any bonus commodities that might be made available at USDA's discretion. This second change was intended to entitle the program to a minimum level of commodity support when regularly appropriated money is not made available to buy commodities or excess federal commodity holdings for TEFAP distribution are minimal or nonexistent. It was accomplished through an amendment to the Food Stamp Act (now, the Food and Nutrition Act) effectively setting aside $100 million a year in "entitlement" appropriations under the act to purchase TEFAP commodities. As a result, the majority of funding for TEFAP (i.e., for commodity purchases) typically is now made available under the aegis of the Food and Nutrition Act appropriation unless Congress chooses to appropriate additional money for commodities under authority provided in the EFA. The minority of funding--funds for administrative and distribution costs--is appropriated under the authority of the EFA. Appendix C. TEFAP Funding by State

The Emergency Food Assistance Program (TEFAP) is a federal food distribution program that supports food banks, food pantries, soup kitchens, and other emergency feeding organizations serving low-income Americans. Federal assistance takes the form of federally purchased commodities--including fruits, vegetables, meats, and grains--and funding for administrative costs. Food aid and funds are distributed to states using a statutory formula that takes into account poverty and unemployment rates. TEFAP is administered by the U.S. Department of Agriculture's Food and Nutrition Service (USDA-FNS). TEFAP was established as the Temporary Emergency Food Assistance Program by the Emergency Food Assistance Act of 1983. The Emergency Food Assistance Act continues to govern program operations, while the Food and Nutrition Act provides mandatory funding authority for TEFAP commodities. Based on levels set in statute, appropriations provided $289.5 million in mandatory funding for TEFAP's "entitlement" commodities in FY2018. TEFAP also incorporates "bonus" commodities, which are distributed at USDA's discretion throughout the year to support different crops using separate budget authority. USDA purchased $268.6 million worth of bonus commodities for TEFAP in FY2017. A smaller amount of cash assistance ($64.4 million in FY2018) is appropriated to cover administrative and distribution costs under Emergency Food Assistance Act authority. These administrative funds are discretionary. USDA-FNS coordinates the purchasing of commodities and the allocation of commodities and administrative funds to states, and provides general program oversight. State agencies--often state departments of health and human services, agriculture, or education--determine program eligibility rules and allocations of aid to feeding organizations (called "recipient agencies"). States often task food banks, which operate regional warehouses, with distributing foods to other recipient agencies. TEFAP aid makes up a modest proportion of the food and funds available to emergency feeding organizations, which are reliant on private donations as well. TEFAP is the largest source of federal support for emergency feeding organizations. Other related food distribution programs focus on specific subpopulations; for example, the Federal Emergency Management Agency's (FEMA's) Emergency Food and Shelter Program distributes food to homeless individuals and USDA's Commodity Supplemental Food Program distributes food to low-income elderly individuals. TEFAP is typically amended and reauthorized through farm bills. Most recently, the 2014 farm bill (P.L. 113-79) extended and provided additional funding for TEFAP's entitlement commodities. Current 2018 farm bill proposals (two versions of H.R. 2) would reauthorize and continue additional funding for entitlement commodities (as of the date of this report). They also include different approaches to incorporating non-federally donated foods and reducing food waste. Recent program developments include TEFAP's use in disaster response and receipt of commodities from the 2018 trade aid package.

According to a U.S. Census Bureau report, in 2012, approximately 64% of individuals in the United States were covered by a form of private health insurance provided either through an employer or a union, or purchased by an individual from a private company. While states traditionally have been the principal regulators of health insurance, since the 1970s the federal government has become increasingly involved. The Patient Protection and Affordable Care Act (ACA), as amended, greatly expanded federal regulation of health insurance by adding a number of health insurance market reforms designed to increase access to private health insurance for individuals and enhance the quality of health care. Among many other things, ACA sets new minimum standards for private health insurance coverage, including an extension of dependent coverage to age 26; the elimination of preexisting condition exclusions; a bar on lifetime and certain annual benefit limits; coverage of certain essential health benefits; a prohibition on health insurance rescissions except under limited circumstances; and coverage of preventive health services without cost sharing. These requirements may apply to group health plans, broadly defined as plans established or maintained by an employer that provides medical care. Group health plans can be insured (i.e., purchased from an insurance carrier) or self-insured (funded directly by the employer). ACA's requirements may also apply to "health insurance issuers," health insurers that issue a policy or contract to provide group or individual health insurance coverage. This coverage may be sold both inside and outside of state health insurance exchanges (i.e., "marketplaces"). In large part, Title I of ACA does not expressly contain enforcement tools, such as judicial review or civil monetary penalties, which may be imposed for violating these new private health insurance requirements. However, since ACA amends three preexisting statutes--the Employee Retirement Income Security Act (ERISA), the Public Health Service Act (PHSA), and the Internal Revenue Code (IRC)--enforcement under federal law may be carried out through mechanisms in those statutes. This report examines these selected federal mechanisms. In order to examine how ACA's private health insurance requirements will be enforced, it is helpful to understand the basic landscape of federal private health insurance regulation. Traditionally, health insurance matters were primarily regulated at the state, rather than the federal, level. Accordingly, states can and do regulate health insurance and insurers comprehensively. These requirements vary from state to state, but many states require insurers, for example, to be financially solvent and to pay claims promptly, and to mandate certain benefits (i.e., require health insurers to cover services provided by certain medical specialties or cover treatments for specific diseases). Congress explicitly recognized the role of the states in the regulation of insurance with the passage of the McCarran-Ferguson Act of 1945. This law was passed in response to the Supreme Court's ruling in United States v. South-Eastern Underwriters , in which the Court affirmed the federal government's right to regulate the competitive practices of insurers under the Commerce Clause of the U.S. Constitution. The intent of the McCarran-Ferguson Act was to grant states the explicit authority to regulate insurance in light of this decision. Section 2(a) of the act states, "The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business." However, under the act, Congress also reserved to itself the right to enact federal statutes that specifically relate to "the business of insurance." Pursuant to this right, Congress has passed legislation which regulates insurance in particular instances. For example, in the 1970s, Congress passed ERISA to regulate private-sector employee benefit plans. While ERISA was primarily enacted to regulate pension plans, certain provisions of the act applied to welfare benefit plans, including those that provide medical, surgical, and other health benefits. Following passage of the act, like other non-pension plans governed by ERISA, these health plans were subject to fiduciary standards, reporting and disclosure requirements, and procedures for appealing a denied claim for benefits. In 1996, Congress passed the Health Insurance Portability and Accountability Act (HIPAA), which established certain minimum national standards for private health insurance. The basic intent of HIPAA's health insurance provisions was to reduce the possibility that individuals and certain employers would lose existing health plan coverage, and to help individuals to maintain coverage when changing jobs or purchasing coverage on their own. Under HIPAA, group health plans and health insurance issuers that provided group health coverage were subject to limitations on the period of time that an individual could be excluded from coverage because of a preexisting condition. The act also prohibited plans and issuers in the group health insurance market from discriminating against individuals in terms of eligibility for coverage, enrollment, premiums, or other contributions based on certain health-related factors, such as medical history or disability. The group health coverage requirements of HIPAA were set out as substantively similar provisions in three federal statutes: ERISA, the PHSA, and the IRC. These three statutes apply to different types of private health insurance coverage and contain different types of enforcement mechanisms. Following enactment of HIPAA, Congress enacted other statutes that mirrored the three-statute regulatory model. These include the Newborns' and Mothers' Health Protection Act, which sets standards for benefits provided to mothers and newborns following childbirth; the Mental Health Parity Act of 1996, providing for parity between medical/surgical benefits and mental health benefits; the Women's Health and Cancer Rights Act, requiring group health plans providing mastectomy coverage to cover prosthetic devices and reconstructive surgery; and Michelle's Law, which extends the ability of dependents to remain on their parents' plan for a limited period of time during a medical leave from full-time student status. These federal insurance standards created by HIPAA and subsequent acts were intended to act as a federal "floor," while preserving the states' role in regulating health insurance. ERISA and the PHSA specify that the federal health insurance requirements as applied to health insurance issuers do not supersede state law, except to the extent that a state law "prevents the application" of a federal requirement. Thus, states are allowed to regulate health insurance more comprehensively than federal law, so long as these requirements do not conflict with federal standards. As noted above, ACA significantly amended and expanded upon these federal health insurance standards, adding several new requirements for group health plans and health insurance issuers in the group and individual markets. These provisions were added to the PHSA and incorporated by reference into ERISA and the IRC. Accordingly, the enforcement mechanisms of these three laws may be applied. As noted above, Title XXVII of the PHSA, Part 7 of ERISA, and Chapter 100 of the IRC generally apply federal health insurance standards to different types of private-sector health coverage. Further, the Secretaries of HHS, Labor, and the Treasury have shared interpretive and enforcement authority under these sections of the three statutes. In general, and discussed in more detail below, Title XXVII of the Public Health Service Act, administered by the Department of Health and Human Services, applies to health insurance issuers providing individual and group health coverage, and self-insured governmental plans. Part 7 of ERISA is administered by the Department of Labor and regulates health coverage provided by employers in the private sector. ERISA applies to insured and self-insured group health plans, as well as insurance issuers providing group health coverage. However, ERISA does not generally apply to governmental or church plans. The IRC, as administered by the Department of Treasury, covers employment-based group health plans, including church plans, but does not apply to health insurance issuers. The enforcement mechanisms are different under each of the three statutes. In general, the private health insurance requirements of Title XXVII of the Public Health Service Act apply to health insurance issuers in the group and individual markets and to self-funded non-federal governmental group plans. With respect to health insurance issuers, states are the primary enforcers of the private health insurance requirements. If the Secretary determines that a state has failed to substantially enforce a provision of Title XXVII of the PHSA with respect to health insurance issuers in the state, the Secretary is responsible for enforcing these provisions. While the statute does not specify what a state needs to do in order to be considered "substantially enforcing" the requirements of the PHSA, regulations outline the procedure to be followed by HHS in making a determination as to whether federal enforcement is needed. According to the Centers for Medicare and Medicaid Services (CMS), while the vast majority of states are enforcing ACA's health insurance market reforms, some have indicated that they lack authority to enforce or are otherwise not taking enforcement actions. The Secretary may impose a civil monetary penalty on insurance issuers that fail to comply with the PHSA requirements. The maximum penalty imposed under the PHSA is $100 per day for each individual with respect to which such a failure occurs. Similar to the IRC (discussed below), certain minimum penalty amounts may apply to a plan or employer if the violation is not corrected within a specified period, or if a violation is considered to be more than de minimis. In determining the amount of the penalty, the Secretary must take into account the entity's previous record of compliance with the PHSA provisions. In addition, a penalty may not be imposed for a violation if it is established to the Secretary's satisfaction that none of the entities knew (or if exercising reasonable diligence would have known) that the violation existed. If the violation was due to reasonable cause and not willful neglect, a penalty would not be imposed if the violation were corrected within 30 days of discovery. Entities found to violate the PHSA requirements may challenge the penalty in a hearing subject to a decision by an administrative law judge. Following this administrative hearing, entities may file an action for judicial review. Health insurance issuers may also sell coverage to qualified individuals and small employers through exchanges that are established in each state. Exchanges are set up either by the state itself as a "state-based exchange" or by the Secretary of Health and Human Services (HHS) as a "federally-facilitated exchange. Each exchange must, among other things, facilitate the purchase of "qualified" health plans that are offered by health insurance issuers. The health insurance market reforms included in the PHSA apply to the insurance coverage sold in an exchange by these issuers. Additionally, the enforcement structure of the PHSA applies to health insurance exchanges, and so states have the primary role in enforcing exchange standards. With respect to governmental plans, the Secretary of Health and Human Services is the primary enforcer of the PHSA requirements. Prior to ACA, state and local governments could elect to exempt their plans from certain requirements of the PHSA, subject to certain exceptions. However, this election is not applicable to the provisions added to the PHSA by ACA, and thus these plans are subject to ACA's federal health insurance standards. The provisions of ACA were incorporated by reference into Part VII of ERISA. The Secretary of Labor may take enforcement action against group health plans of employers that violate ERISA, but may not enforce ERISA's requirements against health insurance issuers. In addition, Section 502(a) of ERISA authorizes various civil actions that may be brought by a participant or beneficiary of a plan against group health plans and health insurance issuers. This section also provides for and limits the remedies (i.e., relief) available to a successful plaintiff. The Supreme Court has found that Section 502(a) contains "exclusive" federal remedies, and it preempts state or common law causes of action that may provide for more generous remedies than those available under ERISA. The preemption of these state law claims has been controversial, as it can significantly affect a plaintiff's opportunity to recover damages under state law. Since ACA did not amend Section 502 of ERISA, presumably the section authorizes review of claims arising out of a violation of the incorporated ACA provisions. Among the claims that may be brought under Section 502(a) of ERISA, Section 502(a)(1)(B) authorizes a plaintiff (i.e., a participant or a beneficiary in an ERISA plan) to bring an action against the plan to recover benefits under the terms of the plan, or to enforce or clarify the plaintiff's rights under the terms of the plan. Under this section, if a plaintiff's claim for benefits is improperly denied, the plaintiff may sue to recover the unpaid benefit. A plaintiff may also seek a declaration to preserve a right to future benefits or an injunction to prevent a future denial of benefits. In terms of monetary remedies, Section 502(a)(1)(B) provides that a successful plaintiff may only receive the benefits the plaintiff would have been entitled to under the terms of the plan. Compensatory or punitive damages are not available under this subsection. In general, the group health provisions in Chapter 100 of the Internal Revenue Code apply to all group health plans (including church plans), but they do not apply to governmental plans and health insurance issuers. Under the IRC, the group health plan requirements are enforced through the imposition of an excise tax. For single-employer plans, employers are generally responsible for paying this excise tax. Under multiemployer plans, the tax is imposed on the plan. A group health plan that fails to comply with the pertinent requirements in the IRC may be subject to a tax of $100 for each day in the noncompliance period with respect to each individual to whom such failure relates. However, if failures are not corrected before a notice of examination for tax liability is sent to the employer, and these failures occur or continue during the period under examination, the penalty will not be less than $2,500. Where violations are considered to be more than de minimis, the amount will not be less than $15,000. Limitations on a tax may be applicable under certain circumstances (e.g., if the person otherwise liable for such tax did not know or if exercising reasonable diligence would not have known that such violation existed). Since the provisions of ACA are incorporated by reference into Chapter 100 of the IRC, and Section 4980D of the IRC imposes a tax on any failure of a group health plan to meet the requirements of the chapter, group health plans subject to the Internal Revenue Code could be subject to the excise tax for violations of the ACA provisions. The following table summarizes applicability and enforcement mechanisms of the PHSA, ERISA, and the IRC.

The Patient Protection and Affordable Care Act (ACA), as amended, greatly expanded the scope of federal regulation over health insurance provided through employment-based group health plans, as well as coverage sold in the individual insurance market. Federal health insurance standards created by ACA require an extension of dependent coverage to age 26 if such coverage is offered; the elimination of preexisting condition exclusions; coverage of certain essential health benefits; a bar on lifetime or annual limits on the dollar value of certain benefits; a prohibition on health insurance rescissions except under limited circumstances; and coverage of preventive health services without cost-sharing, among many other things. While some of these changes took effect in 2010, others begin in 2014. In large part, ACA does not explicitly include any means for enforcing these health insurance requirements. However, these requirements were added to Title XXVII of the Public Health Service Act (PHSA), and incorporated by reference into Part 7 of the Employee Retirement Income Security Act (ERISA) and Chapter 100 of the Internal Revenue Code (IRC). Accordingly, if these ACA provisions are not followed, enforcement may be carried out through mechanisms (such as judicial review and other penalties) that existed prior to ACA in these three federal statutes. The PHSA, ERISA, and the IRC apply to different types of health coverage and contain different types of enforcement mechanisms. In general, the private health insurance requirements of Title XXVII of the PHSA apply to health insurers offering group and individual health coverage, as well as health plans offered to government employees. With respect to health insurers, the PHSA allows states to be the primary enforcers of the federal private health insurance requirements, but the Secretary of Health and Human Services (HHS) assumes this responsibility if it is determined that a state has failed to "substantially enforce" the federal provisions. Pursuant to this enforcement structure, states are primarily responsible for enforcing federal health insurance requirements both inside and outside of health insurance exchanges. ERISA generally applies to group health coverage provided by private-sector employers. Section 502(a) of ERISA authorizes various civil actions that may be brought by a participant or beneficiary of a plan against both group health plans and health insurers. Chapter 100 of the IRC applies to group health coverage, and the Department of Treasury can enforce the health plan requirements through the imposition of an excise tax. This report examines these provisions in ERISA, the PHSA, and the IRC that may be used to enforce the ACA health insurance market reforms.

In MedImmune v. Genentech , the U.S. Supreme Court held that, at least in instances where the licensor-patentee has implicitly or explicitly threatened to sue for patent infringement if the licensee did not pay the demanded royalties, a patent licensee need not terminate or breach its license agreement before it may bring suit to obtain a declaratory judgment that the underlying patent is invalid, unenforceable, or not infringed. The U.S. Court of Appeals for the Federal Circuit had previously adopted a procedural rule that a licensee must stop paying royalties (and thereby materially breach the agreement) before bringing suit to challenge the validity or scope of the licensed patent. The MedImmune decision thus repudiates the Federal Circuit's rule that had resulted in federal courts dismissing such declaratory judgment actions for lack of subject matter jurisdiction. Because the Patent Act expressly provides that "patents shall have the attributes of personal property," patent holders may sell their patent rights in a legal transfer called an "assignment." Alternatively, patent holders may grant others a "license" to exercise one of the five statutory patent rights. A license is not a transfer of ownership of the patent, but rather is the patent holder's permission to another entity to use the invention in a limited way, typically in exchange for periodic royalty payments during the term of the patent. A patent holder may grant to a licensee the right to practice the invention through a contract (typically known as a patent licensing agreement). The terms of the licensing agreement, however, may include conditions upon the grant of rights--for example, restricting the licensee from making the invention but allowing that party to sell it. A licensee that performs an act that exceeds the scope of the license (through a violation of the limitations and conditions of the grant of rights) or refuses to comply with the terms of the license agreement (such as by refusing to pay the required royalties) is potentially liable to the patent holder for breach of contract as well as for patent infringement. Over the term of a patent license agreement, a licensee may wish to challenge the validity of the underlying patent because he or she discovers information suggesting that the patent had been improvidently granted by the U.S. Patent and Trademark Office (for example, if the new information demonstrates that a patent had been issued for an invention that actually fails to meet all of the statutory standards for patentability--novelty, utility, and nonobviousness). By challenging the validity of the underlying patent, the licensee could avoid paying royalties or freely pursue other activities that had previously appeared to come within the scope of the patent. However, prior to 1969, an equitable doctrine known as "licensee estoppel" prevented a patent licensee from denying the validity of the licensed patent; this doctrine was developed by courts that were interested in supporting general principles of contract law, which normally do not permit buyers to repudiate their promises to purchase goods when they become unhappy with the contract made with the sellers, at least without some form of compensation to the other party. In 1969, the Supreme Court overruled the licensee estoppel doctrine by announcing in Lear, Inc. v. Adkins that a license agreement does not bar the licensee from challenging the validity of a patent. The Court explained that "the important public interest in permitting full and free competition in the use of ideas which are in reality a part of the public domain" trumps "the technical requirements of contract doctrine." Furthermore, other policy considerations weigh in favor of abrogating licensee estoppel: "Licensees may often be the only individuals with enough economic incentive to challenge the patentability of an inventor's discovery. If they are muzzled, the public may continually be required to pay tribute to would-be monopolists without need or justification." Under Article III of the U.S. Constitution, the jurisdiction of federal courts is limited to actual, ongoing cases and controversies. The Declaratory Judgment Act, codified at 28 U.S.C. SS 2201, authorizes a federal court to issue a judgment declaring the legal rights of any interested party seeking such declaration, "whether or not further relief is or could be sought," in a "case of actual controversy within its jurisdiction." The U.S. Supreme Court has held that an action for declaratory relief qualifies as a "case or controversy" under Article III; furthermore, it has explained: "[T]he question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." The Court has also stressed that Article III requires that the dispute at issue "must be definite and concrete, touching the legal relations of parties having adverse legal interests"; and that "[i]t must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." However, the Supreme Court has previously opined that "the difference between an abstract question and a 'controversy' contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy." The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) had attempted to articulate such a test. The Federal Circuit developed a two-part test to determine whether there was an "actual controversy" in a declaratory judgment action for patent non-infringement or invalidity: There must be both (1) an explicit threat or other action by the patentee, which creates a reasonable apprehension on the part of the declaratory judgment plaintiff that it will face an infringement suit, and (2) present activity which could constitute infringement or concrete steps taken with the intent to conduct such activity. In the Lear case discussed above, the licensee had refused to continue paying royalties and thus was sued by the licensor-patentee for breach of contract. The lower courts in that case had applied the licensee estoppel doctrine to prevent the licensee from raising patent invalidity as a defense to the lawsuit; as previously discussed, the Supreme Court overruled those courts and expressly repudiated the licensee estoppel doctrine. In 2004, the Federal Circuit, in Gen-Probe Inc. v. Vysis, Inc ., opined that the Lear doctrine "does not grant every licensee in every circumstance the right to challenge the validity of the licensed patent." The appellate court in Gen-Probe explained: [A] licensee ... cannot invoke the protection of the Lear doctrine until it (i) actually ceases payment of royalties, and (ii) provides notice to the licensor that the reason for ceasing payment of royalties is because it has deemed the relevant claims to be invalid. This language posits that a licensee must, at a minimum, stop paying royalties (and thereby materially breach the agreement) before bringing suit to challenge the validity or scope of the licensed patent. The question that the U.S. Supreme Court faced in MedImmune v. Genentech was whether a patent licensee in good standing (meaning that the licensee is complying fully with the license terms, meeting royalty payment obligations, and cannot be sued by the licensor-patentee) must terminate or breach its license agreement before it can bring a declaratory judgment action to challenge a demand to pay royalties, on the grounds that the underlying patent is invalid, unenforceable, or not infringed. MedImmune, Inc. is a pharmaceutical company that manufactures a drug, Synagis, used to prevent respiratory tract disease in infants and young children. A year before the U.S. Food and Drug Administration approved Synagis for marketing to consumers, MedImmune had entered into a patent license agreement with the biotechnology company Genentech in 1997, concerning an existing Genentech patent relating to the production of "chimeric antibodies" (the Cabilly I patent) and also a then-pending patent application for "the coexpression of immunoglobulin chains in recombinant host cells." MedImmune agreed to pay royalties on sales of any "licensed products" that it may make or sell which would infringe the claims of either of the patents, if not for the license agreement. In December 2001, Genentech was awarded a patent on the "coexpression" application that was the subject of the licensing agreement (Cabilly II patent). Genentech sent MedImmune a letter, asserting that the Synagis drug came within the scope of the new Cabilly II patent, and that therefore it was a "licensed product" for which royalties are owed under the 1997 license agreement. MedImmune, however, believed the Cabilly II patent invalid and unenforceable or, alternatively, that Synagis did not infringe the patent's claims. Despite this assessment, MedImmune paid the royalties "under protest," because it considered Genentech's letter a threat to sue for patent infringement if it failed to comply with the demands therein. As this drug accounted for more than 80% of the company's revenue from sales since 1999, MedImmune was unwilling to risk the consequences of losing a patent infringement suit, which included being enjoined from selling Synagis. MedImmune initiated a declaratory judgment action against Genentech, seeking a declaration that the patent was invalid and unenforceable. Genentech filed a defense motion pursuant to Federal Rules of Civil Procedure 12(b)(1), asserting that the federal courts lacked Article III jurisdiction over the claim because no "actual controversy" existed between the parties. The U.S. District Court for the Central District of California granted Genentech's motion, dismissing the case for lack of subject matter jurisdiction. The district court explained that it was obliged to dismiss the case due to the controlling precedent of the Federal Circuit's Gen-Probe Inc. v. Vysis, Inc. decision in 2004, which had held that "a patent licensee in good standing cannot establish an Article III case or controversy with regard to validity, enforceability, or scope of the patent because the license agreement 'obliterates any reasonable apprehension' that the licensee will be sued for infringement." Because MedImmune continued to pay royalties under the license agreement and did not otherwise breach it, it was a licensee in good standing and was not under threat or in reasonable apprehension of suit, the court reasoned. On appeal, MedImmune conceded that it was free of apprehension of suit, and that it continued to pay royalties only to avoid the consequences of a successful patent infringement suit by Genentech. However, MedImmune asserted that the Lear case provided it with "the absolute right to challenge the validity or enforceability of the patent, whether or not it breaches the license and whether or not it can be sued by the patentee," and appealed for Gen-Probe to be overruled. In response, Genentech argued that the facts of the case did not support invocation of Lear (which had dealt with licensee estoppel), but rather that the threshold question for the dispute concerned Article III jurisdiction under the Declaratory Judgment Act. The Federal Circuit agreed with Genentech and affirmed the district court's judgment, relying on its earlier Gen-Probe decision in determining that there was a lack of a justiciable controversy. The appellate court rejected the applicability of Lear because in that case, the licensee had ceased royalty payments, thus breaching the license, and was then sued by the patentee. In contrast, the Federal Circuit explained, here such "breach was assiduously avoided. Thus this case does not raise the question of whether patent invalidity is available as a defense to suit against a defaulting licensee--the licensee estoppel that was laid to rest in Lear --for there is no defaulting licensee and no possibility of suit." The Supreme Court granted certiorari on February 21, 2006, to review the MedImmune case, in order to answer the following question: Does Article III's grant of jurisdiction of "all Cases ... arising under ... the Laws of the United States," implemented in the "actual controversy" requirement of the Declaratory Judgment Act, 28 U.S.C. SS 2201(a), require a patent licensee to refuse to pay royalties and commit material breach of the license agreement before suing to declare the patent invalid, unenforceable or not infringed? On January 9, 2007, the Supreme Court reversed the Federal Circuit's judgment in an 8-1 decision, and remanded the case to the district court. The Court held that a patent licensee is not required to repudiate its license agreement before seeking a declaratory judgment in federal court that the underlying patent is invalid, unenforceable, or not infringed. Writing for the majority, Justice Antonin Scalia first explained that the Article III "case or controversy" requirement would have been satisfied if MedImmune had refused to make royalty payments. At issue here, however, was whether a case or controversy still existed when MedImmune's compliance with the license terms eliminated the immediate threat of injury from a patent infringement lawsuit. Justice Scalia offered a comparison to a situation where the government threatens legal action, in which there is no requirement that "a plaintiff [] expose himself to liability before bringing suit to challenge the basis for the threat--for example, the constitutionality of a law threatened to be enforced." In such a case, he noted, courts have not found Article III jurisdiction to be lacking despite the fact that the plaintiff's own action (or inaction) in failing to violate the law eliminates the imminent threat of prosecution. Although a private party, rather than the government, threatened the enforcement action in MedImmune , this distinction does not make a significant legal difference that would eliminate jurisdiction, Justice Scalia argued. He identified an earlier Supreme Court decision, Altvater v. Freeman , that had a substantially similar fact pattern as MedImmune. In Altvater, the patentees had filed suit against their licensees to enforce territorial restrictions in the license. The licensees then filed a counterclaim for declaratory judgment that the underlying patents were invalid. However, the licensees continued to pay royalties "under protest," although it was being required to do so under an injunction decree that the patentees had obtained in an earlier case. Yet Justice Scalia explained that the absence of an injunction in MedImmune does not distinguish the case from Altvater because if the Altvater licensee had stopped paying the royalties in defiance of the injunction, the licensee would have risked being liable for actual and treble damages in a patent infringement lawsuit. The Altvater Court had held [C]ertainly the requirements of [a] case or controversy are met where payment of a claim is demanded as of right and where payment is made, but where the involuntary or coercive nature of the exaction preserves the right to recover the sums paid or to challenge the legality of the claim. Here, Genentech had demanded that MedImmune make royalty payments under the licensing agreement and apparently threatened to bring a patent infringement lawsuit to enjoin sales of MedImmune's Synagis drug if royalties were not paid. MedImmune's payment of royalties under such "coercive" circumstances does not eliminate jurisdiction of a court to entertain a declaratory judgment action, Justice Scalia stated. He opined, "The rule that a plaintiff must destroy a large building, bet the farm, or (as here) risk treble damages and the loss of 80 percent of its business, before seeking a declaration of its actively contested legal rights finds no support in Article III." Justice Scalia cautioned that the Supreme Court's decision in this case is limited to the procedural issue of whether federal courts have subject matter jurisdiction over these types of declaratory judgment actions brought by nonrepudiating licensees; the Court declined, however, to express an opinion on the merits of the arguments made by the licensor-patentee for denying declaratory relief to the licensee. In its briefs filed with the Court, Genentech had appealed to a common-law doctrine that a party to a contract cannot challenge its validity while simultaneously continuing to reap its benefits. Furthermore, Genentech had argued that the license agreement itself precluded the suit, because [w]hen a licensee enters such an agreement ... it essentially purchases an insurance policy, immunizing it from suits for infringement so long as it continues to pay royalties and does not challenge the covered patents. Permitting it to challenge the validity of the patent without terminating or breaking the agreement alters the deal, allowing the licensee to continue enjoying its immunity while bringing a suit, the elimination of which was part of the patentee's quid pro quo. Justice Scalia observed, however, that these two points raised by Genentech went to the merits of the case, and not to the question of whether Article III jurisdiction is available over MedImmune's declaratory judgment action. Finally, noting that the Declaratory Judgment Act provides that a court " may declare the rights and other legal relations of any interested party," Justice Scalia decided to "leave the equitable, prudential, and policy arguments in favor of such a discretionary dismissal for the lower courts' consideration on remand." Similarly left for consideration on remand are any merits-based arguments for denial of declaratory relief in the case. In lone dissent, Justice Clarence Thomas maintained that a patent licensee in good standing must breach its license prior to challenging the validity of the underlying patent. He stated, "[T]he declaratory judgment procedure cannot be used to obtain advanced rulings on matters that would be addressed in a future case of actual controversy." In his view, MedImmune's suit was an attempt to seek a ruling on hypothetical or conjectural matters, and thus federal courts lacked Article III jurisdiction over its claims. Since MedImmune was decided, the Federal Circuit has acknowledged that the first prong of its "two-part test" for declaratory judgment jurisdiction, the "reasonable apprehension of suit" prong, is no longer valid because it contradicts Supreme Court precedent as explained by the MedImmune Court. MedImmune, however, left open several unresolved questions whose impact on the patent law remain to be seen; lower courts' interpretations of the decision will be instructive, and the Supreme Court may well revisit the issues it declined to address in MedImmune during a future case. For example, the Lear Court had ruled that a repudiating licensee need not comply with its contract and continue paying royalties until the patent is held invalid by a court. However, the MedImmune Court "express[ed] no opinion" on whether a nonrepudiating licensee is relieved of its contract obligations during the suit challenging the patent's validity. Therefore, the applicability of the licensee estoppel doctrine to this situation is an open question after MedImmune. Also, the MedImmune Court had emphasized that district courts still have statutory discretionary authority to decline to hear declaratory judgment actions; it will be up to licensors-patentees to craft "equitable, prudential, and policy arguments" to successfully persuade the district court to exercise that discretion. Finally, the MedImmune Court did not consider the enforceability of drafting a provision in a license agreement that obliged a licensee not to challenge the validity of the underlying patent unless he or she breached the license. Other ramifications of MedImmune on the patent law are significant. First, the ruling may spark an increase in patent litigation activity, as more patent licensees may find it easier to bring declaratory judgment actions to challenge the patent's validity--without having to terminate or breach their license agreements before doing so. Second, the decision promises to play a role in drafting and negotiating the terms of patent licensing agreements, as licensors-patentees may be interested in having licensees agree to the inclusion of "no challenge" clauses. It is also likely that the decision may have an impact beyond patent law, as it may be applicable to licensing and contract law matters that do not involve intellectual property.

According to earlier precedent of the U.S. Court of Appeals for the Federal Circuit, a suit filed by a patent licensee in good standing, seeking to declare the underlying patent invalid, unenforceable, or not infringed, is non-justiciable under the Declaratory Judgment Act because there is no actual controversy between the licensee and licensor. The Federal Circuit had asserted that a license agreement eliminates any "reasonable apprehension" that the nonrepudiating licensee will be sued for infringement and thus federal courts must dismiss such declaratory judgment actions for lack of subject matter jurisdiction under Article III of the U.S. Constitution. In MedImmune v. Genentech (549 U.S. __, No. 05-608, decided January 9, 2007), the U.S. Supreme Court rejected the jurisdictional rule adopted by the Federal Circuit, holding to the contrary that a patent licensee need not materially breach its license agreement (for example, by ceasing royalty payments to the patent holder) before it may bring suit to obtain a judgment that the underlying patent is invalid, unenforceable, or not infringed, in situations where the licensor-patentee has implicitly or explicitly threatened to sue for patent infringement if the licensee did not pay the demanded royalties. Payment of royalties under such "coercive" circumstances does not eliminate the jurisdiction of the federal courts to entertain declaratory judgment actions from patent licensees in good standing, the Court explained. Notably, this decision is limited to the procedural issue of whether federal courts have subject matter jurisdiction over these types of claims; the Supreme Court declined to express an opinion on the merits of the arguments made by the licensor-patentee in the case for denying declaratory relief to the licensee. This report provides a summary and analysis of the Supreme Court's opinion in MedImmune and discusses its potential ramifications on patent law.

Medicare is a federal insurance program that pays for covered health services for most persons 65 years of age and older and for most permanently disabled individuals under the age of 65. Part A of the program, the Hospital Insurance program, covers hospital services, up to 100 days of post-hospital skilled nursing facility services, post-institutional home health visits, and hospice services. Part B, the Supplementary Medical Insurance program, covers a broad range of medical services including physician services, laboratory services, durable medical equipment, and outpatient hospital services. Part B also covers some home health visits. Part C (also known as Medicare Advantage, or MA) provides private plan options, such as managed care, for beneficiaries who are enrolled in both Parts A and B. Part D provides optional outpatient prescription drug coverage. In general, the total payment received by a provider for covered services provided to a Medicare beneficiary is composed of two parts: a program payment from Medicare plus any beneficiary cost-sharing that is required. (The required beneficiary out-of-pocket payment may be paid by other insurance, if any.) Medicare has established specific rules governing its program payments for all covered services as well as for beneficiary cost sharing as described below. Medicare has established specific rules governing payment for covered services. For example, the program pays for most acute inpatient and outpatient hospital services, skilled nursing facility services, and home health care under a prospective payment system (PPS) established for the particular service; under PPS, a predetermined rate is paid for each unit of service such as a hospital discharge or payment classification group. Payments for physician services, clinical laboratory services, and certain durable medical equipment covered under Part B are made on the basis of fee schedules. Certain other services are paid on the basis of reasonable costs or reasonable charges. In general, the program provides for annual updates of the program payments to reflect inflation and other factors. In some cases, these updates are linked to the consumer price index for all urban consumers (CPI-U) or to a provider-specific market basket (MB) index which measures the change in the price of goods and services purchased by the provider to produce a unit of output. However, updates to the physician fee schedule are determined by a statutory formula, known as the sustainable growth rate (SGR) system, which links annual updates to how cumulative actual expenditures compare with a cumulative expenditures target. In addition to premiums, there are two aspects of beneficiary payments to providers: required cost-sharing amounts (coinsurance, copayments, or deductibles) and the amounts that beneficiaries may be billed over and above Medicare's recognized payment amounts for certain services. Almost all persons age 65 and over are automatically entitled to premium-free Medicare Part A, as they, or their spouse, have at least 40 quarters of Medicare covered employment. For Part A, coinsurance and deductible amounts are established annually; these payments include deductibles and coinsurance for hospital services, coinsurance for skilled nursing facilities (SNFs), no cost sharing for home health services, and nominal cost sharing for hospice care. For Part B, beneficiaries are generally responsible for monthly premiums, which range from $104.90 to $335.70 in 2013 (depending on the beneficiary's income), a $147 deductible in 2013 (updated annually by the increase in the Part B premium), and a coinsurance payment of 20% of the established Medicare payment amounts. For Part C, cost sharing is determined by the private plans. Through 2005, the total of premiums for basic Medicare benefits and cost sharing (deductibles, coinsurance, and co-payments) charged to a Part C enrollee could not exceed actuarially determined levels of cost sharing for those same benefits under original Medicare. This meant that plans could not charge a premium for Medicare-covered benefits without reducing cost-sharing amounts. Beginning in 2006, the constraint on a plan's ability to charge a premium for basic Medicare benefits was lifted. The bidding mechanism established by the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) allows plans to charge a premium to cover basic Medicare benefits if the costs to the plan exceed the maximum amount the Centers for Medicare & Medicaid Services (CMS) will pay for Medicare-covered benefits. The MMA eliminated the explicit inverse relationship between cost sharing for basic Medicare benefits and a premium for basic Medicare benefits. Aggregate enrollee cost sharing under Part C is now only constrained by the actuarial value of cost sharing under original Medicare. However, also beginning in 2006, the Secretary has expanded authority to negotiate or reject a bid from a managed care organization in order to ensure that the bid reasonably reflects the plan's revenue requirements. The base beneficiary premium under part D for 2013 is $31.17 per month; however, actual premiums vary by plan and are increased for beneficiaries with incomes above specified thresholds, similar to Part B premiums. Part D cost sharing includes a deductible, co-payments, and catastrophic limits on out-of-pocket spending. For most services, there are rules on amounts beneficiaries may be billed over and above Medicare's recognized payment amounts. Under Part A, providers agree to accept Medicare's payment as payment in full and cannot bill a beneficiary amounts in excess of the coinsurance and deductibles. Under Part B, providers and practitioners are subject to limits on the amounts they can bill beneficiaries for covered services depending on their participation status in the Medicare program. A participating physician agrees to accept the approved fee schedule amount as payment in full (assignment) for all services delivered to Medicare beneficiaries, of which 80% is paid by the Medicare program and the beneficiary is responsible for the 20% coinsurance plus any unmet deductible. Physicians who do not agree to accept assignment on all Medicare claims in a given year are referred to as nonparticipating physicians . Nonparticipating physicians may or may not accept assignment for a given service. If they do not, they may charge beneficiaries more than the fee schedule amount on nonassigned claims; for physicians, these balance billing charges are subject to certain limits. Assignment is mandatory for some providers, such as nurse practitioners, physician assistants, and clinical laboratories; these providers can only bill the beneficiary the 20% coinsurance and any unmet deductible. For other Part B services, such as durable medical equipment, assignment is optional; providers may bill beneficiaries for amounts above Medicare's recognized payment level and may do so without limit. Because of its rapid growth, both in terms of aggregate dollars and as a share of the federal budget, the Medicare program has been a major focus of legislative attention, as outlined below. With a few exceptions, savings in program spending have been achieved largely through reductions in the updates to provider payments, primarily hospitals, physicians, and MA plans. However, even when payments are frozen (as has been the case in some years with payments to acute care hospitals, inpatient rehabilitation facilities, long term care hospitals, and with the physician fee schedule), Medicare spending continues to increase each year as the number of beneficiaries increases, and the number and complexity of services becomes greater. The Patient Protection and Affordable Care Act ( P.L. 111-148 as amended, ACA), is estimated to achieve substantial program savings through, permanent reductions in the maximum amount paid to MA plans, and reductions in the annual updates to Medicare's fee-for-service (FFS) providers (other than physicians' services), among other provisions. The anticipated savings from payment changes to FFS providers is substantially due to the application of a productivity adjustment. (Productivity, in general, is a measure of output produced relative to the amount of work required to produce it.) The ACA productivity adjustment marks a departure from most previous legislative actions to reduce Medicare program spending in two specific respects. First, it is a permanent, rather than time-limited, adjustment to (non-physician) payment updates. Second, in general, it specifies that the adjustment allows for negative payment updates and as such, payment rates for a year may be less than for a preceding year. At the time of passage, the ACA was estimated to achieve net Medicare savings of approximately $430 billion over the 10-year budget window (FY2010-FY2019), based on a CRS analysis of the Congressional Budget Office estimates for provisions affecting the Medicare program. Though the ACA payment changes to Medicare providers and plans is expected to slow the growth in Medicare spending and extend the solvency of the Hospital Insurance (Part A) Trust Fund, some have suggested that such a policy may not be sustainable in the long run, "without unprecedented improvements in health care provider productivity." Once the impact of the provider payment changes from the ACA is known, Congress may wish to revisit the issue of the productivity adjustments to determine whether rates are much higher or much lower than originally estimated. As in the case of physician payment updates, it is unclear whether Congress will allow providers to be paid less than in a previous year under this new provision. In addition, the ACA created an Independent Payment Advisory Board (IPAB), and charged it with developing proposals to "reduce the per capita rate of growth in Medicare" if spending goes above targets specified in the statute. IPAB is prohibited from recommending changes that would reduce payments to certain providers before 2020 and is also prohibited from recommending changes in premiums, benefits, eligibility, and taxes or other changes that would result in rationing. Unlike other agencies that advise Congress, IPAB's recommendations are to be automatically implemented unless Congress acts. Congress can alter the Board's proposals, within limitations, or discontinue the automatic implementation of proposals. The Board is to be appointed by the President in consultation with congressional leadership and with the advice and consent of the Senate. It is to submit its first set of recommendations to the President and to Congress, if required, by January 15, 2014. However, the CBO has projected that the IPAB trigger may not be activated in the near future. Provisions in the Budget Control Act of 2011 ( P.L. 112-25 , BCA) impact Medicare payments in 2013. The BCA established a Joint Select Committee on Deficit Reduction and tasked it with providing to Congress by November 23, 2011 recommendations on ways to reduce the deficit over the subsequent 10 years. When the Committee did not provide the recommendations, this triggered a government-wide sequestration process to reduce Federal spending beginning in 2013. Payments for most Medicare benefits will be subject to a maximum 2% reduction each year from March 2013 through 2021. Starting April 1, 2013, for payments made to providers and suppliers under Medicare Parts A and B, the percentage reduction applies to individual payments for items and services provided. In the case of Medicare Parts C and D, reductions are made to the monthly payments made to the private plans that administer these parts of the program. Certain parts of Medicare, however, are exempt from sequestration. These include (1) the Part D low-income subsidies; (2) the Part D catastrophic subsidy; and (3) Qualified Individual (QI) premiums. Outlays for certain Medicare administrative expenditures (non-benefit spending) are not subject to the 2% limit. Provider-specific sequestration adjustments are not reflected in the tables that follow because they are temporary adjustments to payment systems. In addition, the Temporary Payroll Tax Cut Continuation Act of 2011 (TPTCCA, P.L. 112-78 ), the Middle Class Tax Relief and Job Creation Act of 2012 (MCTRJCA, P.L. 112-96 ), and the American Taxpayer Relief Act of 2012 ( P.L. 112-240 ) extended certain time-limited payment adjustments to specified Medicare providers. This report provides a guide to Medicare payment rules by type of benefit. The information is presented through a series of tables, each representing a provider type, such as physicians, or Medicare Advantage plans. The first column in each table lists the type of payments that may be received by the provider (e.g., the separate operating and capital payments paid to short-term general hospitals under the prospective payment system as described in Medicare Payment Policies ( Table 1 ), or lists subcategories of providers under the general provider category (such as the different types of non-physician providers that are all listed in Table 7 ). The second column of each table discusses the general policy for determining payments while column three describes how the general payment amounts are updated, or adjusted each year (e.g., amounts may be updated by a measure of inflation, economy-wide productivity, or statutorily specified reductions to updates). The final column presents the most recent update amounts. A complete list of acronyms used in this report is included the Appendix . This report is updated to reflect the most recent legislative changes to the program and payment updates available through January 2013. The following table includes health care acronyms used in this report. It also includes acronyms for laws that have amended Medicare since 1997.

Medicare is a federal insurance program that pays for covered health services for most persons 65 years of age and older and for most permanently disabled individuals under the age of 65. Part A of the program, the Hospital Insurance program, covers hospital, post-hospital, and hospice services. Part B, the Supplementary Medical Insurance program, is optional and covers a broad range of complementary medical services including physician, laboratory, outpatient hospital services, and durable medical equipment. Part C provides private plan options for beneficiaries enrolled in both Parts A and B. Part D is an optional outpatient prescription drug program. Medicare has established specific rules for payment of covered benefits. Some, such as physician services and most durable medical equipment, are based on fee schedules. A fee schedule is a list of Medicare payments for specific items and services, which are calculated according to statutorily specified formula and take into account the actual amount of care provided. Many services, including inpatient and outpatient hospital care, are paid under different prospective payment systems (PPSs). A prospective payment system is a method of paying hospitals, or other providers, amounts or rates of payment that are established in advance for a defined period and are generally based on an episode of care, regardless of the actual amount of care used. Other payments are based, in part, on a provider's bid (an estimate of the cost of providing a service) relative to a benchmark (the maximum amount Medicare will pay). Bids and benchmarks are used to determine payments in Medicare Parts C and D. Payments for some items of durable medical equipment in specified locations are also based on the bids of competing providers. In general, the program provides for annual updates to these payment amounts. The program also has rules regarding the amount of cost sharing, if any, that beneficiaries can be billed in excess of Medicare's recognized payment levels. Unlike other services, Medicare's outpatient prescription drug benefit can be obtained only through private plans. Further, while all Part D plans must meet certain minimum requirements, they differ in terms of benefit design, formulary drugs, premiums, and cost-sharing amounts. Medicare payment policies and potential changes to these policies are of continuing interest to Congress. The Medicare program has been a major focus of deficit reduction legislation since 1980. In each Congress since the 105th Congress, laws have been passed to both increase, but more often slow, the rate of growth of payments to Medicare providers and private plans. Perhaps of particular interest in the 113rd Congress is the update to the Medicare physician fee schedule. The method for updating the physician fee schedule amount, known as the sustainable growth rate (SGR), would have resulted in negative updates for physician payments in recent years, except that Congress has stepped in to stop the updates. Physician payment rates, which would have fallen 26.5% in the absence of congressional action, are frozen through December 31, 2013. Under current law, Medicare physician fee schedule payments are to be reduced by 24.4% beginning January 2014. This report provides an overview of Medicare payment rules by type of service, outlines current payment policies, and summarizes the basic rules for payment updates. In addition to the payment information provided in the tables of this report, Medicare is subject to a maximum 2% payment reduction due to sequestration. This report will be updated twice a year to reflect recent fiscal year and calendar year changes, and will be updated to reflect the details of how the 2% reduction in payments will be applied.

Anti-poverty interventions that provide resources to local communities, based on the characteristics of those communities, have been of interest to Congress. One such policy, dubbed the "10-20-30 rule," was implemented in the American Recovery and Reinvestment Act of 2009 (ARRA, P.L. 111-5 ). Title I, Section 105 of ARRA required the Secretary of Agriculture to allocate at least 10% of funds from three rural development program accounts to persistent poverty counties; that is, to counties that have had poverty rates of 20% or more for the past 30 years, as measured by the 1980, 1990, and 2000 decennial censuses. One notable characteristic of this rule is that it did not increase spending for the rural development programs addressed in ARRA, but rather targeted existing funds differently. Given Congress's interest both in addressing poverty and being mindful about levels of federal spending, several bills had been introduced in the 114 th Congress that sought to apply the 10-20-30 rule to other programs and in other executive departments. This report explains why targeting funds to persistent poverty counties might be of interest, how "persistent poverty" is defined and measured, and how different interpretations of the definition and different data source selections could yield different lists of counties identified as persistently poor. This report does not compare the 10-20-30 rule's advantages and disadvantages against other policy options, nor does it examine the range of programs or policy goals for which the 10-20-30 rule might be an appropriate policy tool. Research has suggested that areas for which the poverty rate (the percentage of the population that is below poverty) reaches 20% experience systemic problems that are more acute than in lower-poverty areas. The poverty rate of 20% as a critical point has been discussed in academic literature as relevant for examining social characteristics of high-poverty versus low-poverty areas. For instance, property values in high-poverty areas do not yield as high a return on investment as in low-poverty areas, and that low return provides a financial disincentive for property owners to spend money on maintaining and improving property. The ill effects of high poverty rates have been documented both for urban and rural areas. Therefore, policy interventions at the community level, and not only at the individual or family level, could be of interest to Congress. Poverty rates are computed by the Census Bureau for the nation, states, and smaller geographic areas such as counties. The official definition of poverty in the United States is based on the money income of families and unrelated individuals. Income from each family member (if family members are present) is added together and compared against a dollar amount called a poverty threshold, which represents a level of economic hardship and varies according to the size and characteristics of the family (ranging from one person to nine persons or more). Families (or unrelated individuals) whose income is less than their respective poverty threshold are considered to be in poverty. Every person in a family has the same poverty status. Thus, it is possible to compute a poverty rate based on counts of persons (dividing the number of persons below poverty within a county by the county's total population, and multiplying by 100 to express as a percentage). Poverty rates are computed using data from household surveys. Currently, the only data sources that provide poverty estimates for all U.S. counties are the American Community Survey (ACS) and the Small Area Income and Poverty Estimates program (SAIPE). Before the mid-1990s, the only poverty data available at the county level came from the Decennial Census of Population and Housing, which was only collected once every 10 years, and used to be the only source of estimates that could determine whether a county had persistently high poverty rates (ARRA referred explicitly to decennial census poverty estimates for that purpose). However, after Census 2000 the decennial census no longer collects income information, and as a result cannot be used to compute poverty estimates. Therefore, to determine whether an area is persistently poor in a time span that ends after 2000, it must first be decided whether ACS or SAIPE poverty estimates will be used for the later part of that time span. The ACS and the SAIPE program serve different purposes. The ACS was developed to provide continuous measurement of a wide range of topics similar to that formerly provided by the decennial census long form, available down to the local community level. ACS data for all counties are available annually, but are based on responses over the previous five-year time span (e.g., 2011-2015). The SAIPE program was developed specifically for estimating poverty at the county level for school-age children and for the overall population, for use in funding allocations for the Elementary and Secondary Education Act. SAIPE data are also available annually, and reflect one calendar year, not five. However, unlike the ACS, SAIPE does not provide estimates for a wide array of topics. For further details about the data sources for county poverty estimates, see the Appendix . Because poverty estimates can be obtained from multiple data sources, the Census Bureau has provided guidance on the most suitable data source to use for various purposes. SAIPE poverty estimates are recommended when estimates are needed at the county level, especially for counties with small populations, and when additional demographic and economic detail is not needed at that level. When additional detail is required, such as for county-level poverty estimates by race and Hispanic origin, detailed age groups (aside from the elementary and secondary school-age population), housing characteristics, or education level, the ACS is the recommended data source. For counties (and school districts) of small population size, SAIPE data have an advantage over ACS data in that the SAIPE model uses administrative data to help reduce the uncertainty of the estimates. However, ACS estimates are available for a wider array of geographic levels, such as ZIP code tabulation areas, census tracts (sub-county areas of roughly 1,200 to 8,000 people), cities and towns, and greater metropolitan areas. While the ACS has greater flexibility in the topics measured and the geographic areas provided, it can only provide estimates in five-year ranges for the smallest geographic areas. Five years of survey responses are needed to obtain a sample large enough to produce meaningful estimates for populations below 65,000 persons. In this sense the SAIPE data, because they are based on a single year, are more current than the data of the ACS. The distinction has to do with the reference period of the data--both data sources release data on an annual basis; the ACS estimates for small areas are based on the prior five years, not the prior year alone. Poverty status is not defined for persons in institutions, such as nursing homes or prisons, nor for persons residing in military barracks. These populations are excluded from totals when computing poverty statistics. Furthermore, the homeless population is not counted explicitly in poverty statistics. The ACS is a household survey, thus homeless individuals who are not in shelters are not counted. SAIPE estimates are partially based on Supplemental Nutrition Assistance Program (SNAP) administrative data and tax data, so the part of the homeless population that either filed tax returns or received SNAP benefits might be reflected in the estimates, but only implicitly. Poverty status also is not defined for persons living in college dormitories. However, students who live in off-campus housing are included. Because college students tend to have lower money income (which does not include school loans) than average, counties that have large populations of students living off-campus may exhibit higher poverty rates than one might expect given other economic measures for the area, such as the unemployment rate. Given the ways that the populations above either are or are not reflected in poverty statistics, it may be worthwhile to consider whether counties that have large numbers of people in those populations would receive an equitable allocation of funds. Other economic measures may be of use, depending on the type of program for which funds are being targeted. The 10-20-30 rule was developed to identify counties with persistently high poverty rates. Therefore, using that rule by itself would not allow flexibility to target counties that have recently fallen on hard times, such as counties that had a large manufacturing plant close within the past three years. Other interventions besides the 10-20-30 rule may be more appropriate for counties that have had a recent spike in the poverty rate. In ARRA, persistent poverty counties were defined as "any county that has had 20 percent or more of its population living in poverty over the past 30 years, as measured by the 1980, 1990, and 2000 decennial censuses." Poverty rates published by the Census Bureau are typically reported to one decimal place. The numeral used in the ARRA language was the whole number 20. Thus, for any collection of poverty data, there are two reasonable approaches to compiling a list of persistent poverty counties: using poverty rates of at least 20.0% in all three years, or using poverty rates that round up to the whole number 20% or greater in all three years (i.e., poverty rates of 19.5% or more in all three years). The former approach is more restrictive and results in a shorter list of counties; the latter approach is more inclusive. Table 1 illustrates the number of counties identified as persistent poverty counties using the 1990 and 2000 decennial censuses, and various ACS and SAIPE datasets for the last data point, under both rounding schemes. The rounding method and data source selection can have a large impact on the number of counties listed. Approximately 30 more counties appear in SAIPE-based lists compared to ACS-based lists using the same rounding method. Compared to using 20.0% as the cutoff (rounded to one decimal place), rounding up to 20% from 19.5% adds approximately 50 counties to the lists based on ACS five-year data, and approximately 60 counties to the lists based on SAIPE data. Taking both the data source and the rounding method together, the list of persistent poverty counties could vary by roughly 80 to 100 counties in a given year depending on the method used. The list of persistent poverty counties below ( Table 2 ) is based on data from the 1990 Census, Census 2000, and the 2015 SAIPE estimates, and included counties with poverty rates of 19.5% or greater (that is, counties with poverty rates that were at least 20% with rounding applied to the whole number). These same counties are mapped in Figure 1 . Decennial Census of Population and Housing, "Long Form" Poverty estimates are computed using data from household surveys, which are based on a sample of households. In order to obtain meaningful estimates for any geographic area, the sample has to include enough responses from that area so that selecting a different sample of households from that area would not likely result in a dramatically different estimate. If estimates for smaller geographic areas are desired, a larger sample size is needed. A national-level survey, for instance, could produce reliable estimates for the United States without obtaining any responses from many counties, particularly counties with small populations. In order to produce estimates for all 3,143 county areas in the nation, however, not only are responses needed from every county, but those responses have to be plentiful enough from each county so that the estimates are meaningful (i.e., their margins of error are not unhelpfully wide). Before the mid-1990s, the only data source with a sample size large enough to provide meaningful estimates at the county level (and for other small geographic areas) was the decennial census. The other household surveys available prior to that time did not have a sample size large enough to produce meaningful estimates for small areas such as counties. Income questions were asked on the census long form, which was sent to one-sixth of all U.S. households; the rest received the census short form, which did not ask about income. While technically still a sample, one-sixth of all households was a large enough sample to provide poverty estimates for every county in the nation, and even for smaller areas such as small towns. The long form was discontinued after Census 2000, and therefore poverty data are no longer available from the decennial census. Beginning in the mid-1990s, however, two additional data sources were developed to ensure that poverty estimates for small areas such as counties would still be available: the American Community Survey (ACS), and the Small Area Income and Poverty Estimates program (SAIPE). American Community Survey (ACS) The ACS replaced the decennial census long form. It was developed to accommodate the needs of local government officials and other stakeholders who needed detailed information on small communities on a more frequent basis than once every 10 years. To that end, the ACS questionnaire was designed to reflect the same topics asked in the census long form. In order to produce meaningful estimates for small communities, however, the ACS needs to collect a number of responses comparable to what was collected in the decennial census. In order to collect that many responses while providing information more currently than once every 10 years, the ACS collects information from respondents continuously, in every month, as opposed to at one time of the year, and responses over time are pooled to provide estimates at varying geographic levels. To obtain estimates for geographic areas of 65,000 or more persons, one year's worth of responses are pooled--these are the ACS one-year estimates. For the smallest geographic levels, which include the complete set of U.S. counties, five years of monthly responses are needed: these are the ACS five-year estimates. Even though data collection is ongoing, the publication of the data takes place only once every year, both for the one-year estimates and the estimates that represent the previous five-year span. Small Area Income and Poverty Estimates (SAIPE) The SAIPE program was developed in the 1990s in order to provide state and local government officials with poverty estimates for local areas in between the decennial census years. In the Improving America's Schools Act of 1994 (IASA, P.L. 103-382 ), which amended the Elementary and Secondary Education Act of 1965 (ESEA), Congress recognized that providing funding for children in disadvantaged communities created a need for poverty data for those communities that were more current than the once-a-decade census. In the IASA, Congress provided for the development and evaluation of the SAIPE program for its use in Title I-A funding allocations. SAIPE estimates are model-based, meaning they use a mathematical procedure to compute estimates using both survey data (ACS one-year data) and administrative data (from tax returns and numbers of participants in the Supplemental Nutrition Assistance Program, or SNAP). The modeling procedure produces estimates with less variability than estimates computed from survey data alone, especially for counties with small populations. Guidance from the U.S. Census Bureau, "Which Data Source to Use" The CPS ASEC provides the most timely and accurate national data on income and is the source of official national poverty estimates, hence it is the preferred source for national analysis. Because of its large sample size, the ACS is preferred for subnational data on income and poverty by detailed demographic characteristics. The Census Bureau recommends using the ACS for 1-year estimates of income and poverty at the state level. Users looking for consistent, state-level trends before 2006 should use CPS ASEC 2-year averages. For substate areas, like counties, users should consider their specific needs when picking the appropriate data source. The SAIPE program produces overall poverty and household income 1-year estimates with standard errors usually smaller than direct survey estimates. Users looking to compare estimates of the number and percentage of people in poverty for counties or school districts or the median household income for counties should use SAIPE, especially if the population is less than 65,000. Users who need other characteristics such as poverty among Hispanics or median earnings, should use the ACS, where and when available. The SIPP is the only Census Bureau source of longitudinal poverty data. It provides national estimates and since the 2004 Panel, provides reliable state-level estimates for select states. As SIPP collects monthly income over 3 or 4 year panels, it is also a source of poverty estimates for time periods more or less than one year, including monthly poverty rates. The chart below summarizes the recommendations at various geographic levels:

Anti-poverty interventions that provide resources to local communities, based on the characteristics of those communities, have been of interest to Congress. One such policy, dubbed the "10-20-30 rule," was implemented in the American Recovery and Reinvestment Act of 2009 (ARRA, P.L. 111-5). Title I, Section 105 of ARRA required the Secretary of Agriculture to allocate at least 10% of funds from three rural development program accounts to persistent poverty counties; that is, to counties that have had poverty rates of 20% or more for the past 30 years, as measured by the 1980, 1990, and 2000 decennial censuses. One notable characteristic of this rule is that it did not increase spending for the rural development programs addressed in ARRA, but rather targeted existing funds differently. Research has suggested that areas for which the poverty rate (the percentage of the population that is below poverty) reaches 20% experience systemic problems that are more acute than in lower-poverty areas. Therefore, policy interventions at the community level (such as applying the 10-20-30 rule to other programs besides those cited in ARRA), and not only at the individual or family level, could continue to be of interest to Congress. Poverty rates are computed using data from household surveys. Currently, the only data sources that provide poverty estimates for all U.S. counties are the American Community Survey (ACS) and the Small Area Income and Poverty Estimates program (SAIPE); before the mid-1990s, the decennial census was the only source of county poverty estimates. Therefore, to determine whether an area is "persistently" poor in a time span that ends after the year 2000, it must first be decided whether ACS or SAIPE poverty estimates will be used for the later part of that time span. Lists of persistent poverty counties may differ by roughly 80 to 100 counties in a particular year, depending on the data source selected to compile the list and the rounding method used for the poverty rate estimates. When determining the method to be used to compile a list of persistent poverty counties, the following may be relevant to consider: Characteristics of interest: SAIPE is suited for poverty or median income alone; ACS for other topics in addition to poverty and income. Geographic areas of interest: SAIPE is recommended for counties and school districts only; ACS produces estimates for other small geographic areas as well. Reference period of estimate: SAIPE for one year; ACS for a five-year span. Rounding method for poverty rates: rounding to 20.0% (one decimal place) yields a shorter list than rounding to 20% (whole number). Poverty status is not defined for all persons: foster children (unrelated individuals under age 15), institutionalized persons, and residents of college dormitories are excluded; the homeless are not targeted by household surveys; and areas with large numbers of students living off-campus may have high poverty rates.

This report explains the process for filling positions to which the President makes appointments with the advice and consent of the Senate (PAS positions). It also identifies, for the 110 th Congress, all nominations to executive-level full-time positions in the 15 departments. Profiles of the departments provide information regarding their full-time PAS positions and related appointment activity during the 110 th Congress. The President and the Senate share the power to appoint the principal officers of the United States. The Constitution (Article II, Section 2, clause 2) empowers the President to nominate and, by and with the advice and consent of the Senate, to appoint the principal officers of the United States. Three distinct stages mark the appointment process: selection, clearance, and nomination by the President; consideration by the Senate; and appointment by the President. In the first stage, the White House selects and clears a prospective appointee before sending a formal nomination to the Senate. There are a number of steps in this stage of the process for most Senate-confirmed positions. First, with the assistance of, and preliminary vetting by, the White House Office of Presidential Personnel, the President selects a candidate for the position. Members of Congress and interest groups sometimes recommend candidates for specific PAS positions. They may offer their suggestions by letter, for example, or by contact with a White House liaison. In general, the White House is under no obligation to follow such recommendations. In the case of the Senate, however, it has been argued that Senators are constitutionally entitled, by virtue of the advice and consent clause noted above, to provide advice to the President regarding his selection; the extent of this entitlement is a matter of some debate. As a practical matter, in instances where Senators perceive insufficient pre-nomination consultation has occurred, they have sometimes exercised their procedural prerogatives to delay or even effectively block consideration of a nomination. During the clearance process, the candidate prepares and submits several forms, including the "Public Financial Disclosure Report" (Standard Form (SF) 278), the "Questionnaire for National Security Positions" (SF 86), and the White House "Personal Data Statement Questionnaire." The Office of the Counsel to the President oversees the clearance process, which often includes the collection and review of background information by the Federal Bureau of Investigation (FBI), Internal Revenue Service (IRS), Office of Government Ethics (OGE), and an ethics official for the agency to which the candidate is to be appointed. If conflicts of interest are found during the background check, OGE and the agency ethics officer may work with the candidate to mitigate the conflicts. Once the Office of the Counsel to the President has cleared the candidate, the nomination is ready to be submitted to the Senate. The selection and clearance stage has often been the longest part of the appointment process. There have been, at times, lengthy delays, particularly when many candidates have been processed simultaneously, such as at the beginning of an Administration, or where conflicts needed to be resolved. Candidates for higher-level positions have often been accorded priority in this process. At the end of 2004, in an effort to reduce the elapsed time between a new President's inauguration and the appointment of his or her national security team, Congress enacted amendments to the Presidential Transition Act of 1963. These amendments encourage a President-elect to submit, for security clearance, potential nominees to high-level national security positions as soon as possible after the election. A separate provision of law, enacted as part of the Federal Vacancies Reform Act of 1998, lengthens, during presidential transitions, the potential duration of a temporary appointment by 90 days. Although this provision might give some additional flexibility to an incoming President, it might also lengthen the appointment process for some positions by, in effect, extending the deadline by which a permanent appointment must be completed. For a position located within a state (e.g., U.S. attorney, U.S. marshal, and U.S. district judge), the President, by custom, normally has nominated an individual recommended by one or both Senators (if they are from the same party as the President) from that state. In instances where neither Senator is from the President's party, he usually has deferred to the recommendations of party leaders from the state. Occasionally, the President has solicited recommendations from Senators of the opposition party because of their positions in the Senate. If circumstances permit and conditions are met, the President could give the nominee a recess appointment to the position (see section entitled " Recess Appointments " below). Recess appointments have sometimes had political consequences, however, particularly where Senators perceived that such an appointment was an effort to circumvent their constitutional role. Some Senate-confirmed positions, such as many of those in the executive departments, may also be temporarily filled under the Vacancies Act. A nominee has no legal authority to assume the duties and responsibilities of the position; a nominee who is hired by the agency as a consultant while awaiting confirmation may serve only in an advisory capacity. Authority to act comes once there is Senate confirmation and presidential appointment, or if another method of appointment, such as a recess appointment or a temporary appointment, is utilized. (For further information on these methods, see sections entitled " Recess Appointments " and " Temporary Appointments " below.) In the second stage, the Senate alone determines whether or not to confirm a nomination. The way the Senate has acted on a nomination has depended largely on the importance of the position involved, existing political circumstances, and policy implications. Generally, the Senate has shown particular interest in the nominee's views and how they are likely to affect public policy. Two other factors have sometimes affected the examination of a nominee's personal and professional qualities: whether the President's party controlled the Senate, and the degree to which the President became involved in supporting the nomination. Much of the Senate confirmation process occurs at the committee level. Administratively, nominations are received by the Senate executive clerk, who arranges for the referral of the nominations to committee, according to the Senate rules and precedents. Committee nomination activity has generally included investigation, hearing, and reporting stages. As part of investigatory work, committees have drawn on information provided by the White House, as well as information they themselves have collected. Some committees have held hearings on nearly all nominations; others have held hearings for only some. Hearings provide a public forum to discuss a nomination and any issues related to the program or agency for which the nominee would be responsible. Even where confirmation has been thought to be a virtual certainty, hearings have provided Senators and the nominee with opportunities to go on the record with particular views or commitments. Senators have used hearings to explore nominees' qualifications, articulate policy perspectives, or raise related oversight issues. A committee may decline to act on a nomination at any point--upon referral, after investigation, or after a hearing. If the committee votes to report a nomination to the full Senate, it has three options: it may report the nomination favorably, unfavorably, or without recommendation. A failure to obtain a majority on the motion to report means the nomination will not be reported to the Senate. If the committee declines to report a nomination, the Senate may, under certain circumstances, discharge the committee from further consideration of the nomination in order to bring it to the floor. The Senate historically has confirmed most, but not all, executive nominations. Rarely, however, has a vote to confirm a nomination failed on the Senate floor. Unsuccessful nominations usually do not make it past the committee stage. Failure of a nomination to make it out of committee has occurred for a variety of reasons, including opposition to the nomination, inadequate amount of time for consideration of the nomination, or factors that may not be directly related to the merits of the nomination. Senate rules provide that "[n]ominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President." In practice, such pending nominations have been returned to the President at the end of the session or Congress. Pending nominations also may be returned automatically to the President at the beginning of a recess of more than 30 days, but the Senate rule providing for this return is often waived. In the final stage, the confirmed nominee is given a commission bearing the Great Seal of the United States signed by the President and is sworn into office. The President may sign the commission at any time after confirmation, at which point the appointment becomes official. Once the appointee is given the commission and sworn in, he or she has full authority to carry out the responsibilities of the office. The Constitution also empowers the President to make limited-term appointments without Senate confirmation when the Senate is in recess. Such recess appointments expire at the end of the next session of the Senate. Appendix C provides a table showing the dates of the Senate recesses for the 110 th Congress and showing that during this Congress, President Bush made no recess appointments to executive department positions. Presidents have occasionally used the recess appointment power to circumvent the confirmation process. In response, Congress has enacted provisions that restrict the pay of recess appointees under certain circumstances. Because most potential appointees to full-time positions cannot serve without a salary, the President has an incentive to use his recess appointment authority in ways that allow them to be paid. Under the provisions, if the position falls vacant while the Senate is in session and the President fills it by recess appointment, the appointee may not be paid from the Treasury until he or she is confirmed by the Senate. However, the salary prohibition does not apply (1) if the vacancy arose within 30 days before the end of the session of the Senate; (2) if, at the end of the session, a nomination for the office, other than the nomination of an individual appointed during the preceding recess of the Senate, was pending before the Senate for its advice and consent; or (3) if a nomination for the office was rejected by the Senate within 30 days before the end of the session and an individual other than the one whose nomination was rejected thereafter receives a recess appointment. A recess appointment falling under any one of these three exceptions must be followed by a nomination to the position not later than 40 days after the beginning of the next session of the Senate. For this reason, when a recess appointment is made, the President generally submits a new nomination for the nominee even when an old nomination is pending. These provisions have been interpreted by the Department of Justice to preclude payment of an appointee who is given successive recess appointments to the same position. Although recess appointees whose nominations to a full term are subsequently rejected by the Senate may continue to serve until the end of their recess appointment, a provision of the FY2008 Financial Services and General Government Appropriations Act may prevent them from being paid after their rejection. The provision reads, "Hereafter, no part of any appropriation contained in this or any other Act shall be paid to any person for the filling of any position for which he or she has been nominated after the Senate has voted not to approve the nomination of said person." Prior to this provision, similar wording was included in annual funding measures for most or all of the previous 50 years. Another recent congressional response to the President's use of recess appointments was the decision, during the latter part of the first session of the 110 th Congress, to restructure the Senate's longer recesses into a series of shorter recesses divided by pro forma sessions. Based upon the notion that the President can be restricted from making recess appointments during a recess that is no more than three days, the Senate sought to prevent recess appointments by holding pro forma sessions approximately every three days. Beginning in November of 2007, the Senate agreed to regularly scheduled pro forma sessions during periods that would have otherwise been recesses of duration of a week or longer. The Senate recessed on November 16, and pro forma meetings were convened on November 20, 23, 27, and 29, with no business conducted. The Senate reconvened and conducted business beginning on December 3, 2007. Similar procedures were followed for the remainder of the 110 th Congress during other periods that would otherwise have been Senate recesses of at least a week in duration. For the remainder of his presidency, President Bush did not make any more recess appointments. Congress has provided limited statutory authority for the temporary filling of vacant positions requiring Senate confirmation. It is expected that, in general, officials holding PAS positions who have been designated as "acting" are holding their offices under this authority or other statutory authority specific to their agencies. Under the Federal Vacancies Reform Act of 1998, when an executive agency position requiring confirmation becomes vacant, it may be filled temporarily in one of three ways: (1) the first assistant to such a position may automatically assume the functions and duties of the office; (2) the President may direct an officer in any agency who is occupying a position requiring Senate confirmation to perform those tasks; or (3) the President may select any officer or employee of the subject agency who is occupying a position for which the rate of pay is equal to or greater than the minimum rate of pay at the GS-15 level, and who has been with the agency for at least 90 of the preceding 365 days. The temporary appointment is for 210 days, but the time restriction is suspended if a first or second nomination for the position is pending. In addition, during a presidential transition, the 210-day restriction period does not begin to run until either 90 days after the President assumes office, or 90 days after the vacancy occurs, if it is within the 90-day inauguration period. The act does not apply to positions on multi-headed regulatory boards and commissions and to certain other specific positions that may be filled temporarily under other statutory provisions. Table 1 summarizes appointment activity, during the 110 th Congress, related to full-time positions in the 15 departments. President George W. Bush submitted to the Senate 172 nominations to executive department full-time positions. Of these 172 nominations, 125 were confirmed; 13 were withdrawn; and 34 were returned to the President under the provisions of Senate rules. President Bush did not make any recess appointments to the departments during this period. The length of time a given nomination may be pending in the Senate has varied widely. Some nominations were confirmed within a few days, others were confirmed within several months, and some were never confirmed. This report provides, for each executive department nomination that was confirmed in the 110 th Congress, the number of days between nomination and confirmation ("days to confirm"). For confirmed nominations, an average (mean) of 104 days elapsed between nomination and confirmation. The median number of days elapsed was 92. The methodology used in this report to count the length of time between nomination and confirmation differs from that which was used in previous similar CRS reports. The statistics presented here include the days during which the Senate was adjourned for its summer recesses and between sessions of Congress. The methodological change reduces the direct comparability of statistics in this report with those of the earlier research. Reasons for the change include the conversion of long recesses into a series of short recesses punctuated by pro forma sessions during the 110 th Congress; the fact that although committees may not be taking direct action on nominations in the form of hearings or votes, they are likely still considering and processing nominations during recesses; and a desire to be consistent with the methodology used by a majority of political scientists as well as CRS research on judicial nominations. In addition, an argument could be made that the decision to extend Senate consideration of nominees over the course of a recess is intentional, and the choice to extend this length of time is better represented by including all days, including long recesses. A more detailed explanation of this methodological change is located in Appendix E . Each of the 15 executive department profiles provided in this report is organized into two parts: a table providing information, as of the end of the 110 th Congress, regarding the organization's full-time PAS positions, and a table listing nominations and appointments to these positions during the 110 th Congress. Data for these tables were collected from several authoritative sources. The first of these two tables identifies, as of the end of the 110 th Congress, each full-time PAS position in the department, its incumbent, and its pay level. For most presidentially appointed positions requiring Senate confirmation, the pay levels fall under the Executive Schedule, which, as of January 2009, ranged from level I ($196,700) for Cabinet-level offices to level V ($143,500) for the lowest-ranked positions. An incumbent's name followed by "(A)" indicates an official who was, at that time, serving in an acting capacity. Vacancies are also noted in the first table. The appointment action table provides, in chronological order, information concerning each nomination. It shows the name of the nominee, position involved, date of nomination or appointment, date of confirmation, and number of days between receipt of a nomination and confirmation. Actions other than confirmation (i.e., nominations returned to or withdrawn by the President) are also noted. Some individuals were nominated more than once for the same position, usually because the first nomination was returned to the President. Each appointment action table provides the average "days to confirm" in two ways: mean and median. Both are presented because the mean can be influenced by outliers in the data, while the median does not tend to be influenced by outliers. In other words, a nomination that took an extraordinarily long time might cause a significant change in the mean, but the median would be unaffected. Presenting both numbers is a better way to look at the central tendency of the data. For a small number of positions in this report, the two tables may give slightly different titles to the same position. This is a result of the fact that the titles used in the nomination the White House submits to the Senate, the title of each position as established by statute, and the title of the position used by the department itself are not always identical. The first table presented for each department, the table listing the incumbents at the end of the 110 th Congress, relies upon data provided by the department itself in listing the positions. The second table presented, the list of nomination action within each department, relies primarily upon the Senate nominations database of the Legislative Information System (LIS). This information is based upon the nomination sent to the Senate by the White House, which is not always identical to the exact title of the position used by the department. However, the inconsistency only appears in a small minority of the positions listed in this report. Inconsistencies are noted in the footnotes following each appointment table. Appendix A presents a table of all nominations and recess appointments to positions in executive departments, alphabetically organized by last name, and follows a similar format to that of the department appointment action tables. It identifies the agency involved and the dates of nomination and confirmation. The table also indicates if a nomination was confirmed, withdrawn, or returned. The mean and median numbers of days taken to confirm a nomination are also provided. Appendix B provides a table with summary information on appointments and nominations, by department. For each of the 15 executive departments discussed in this report, the table provides the number of positions, nominations, individual nominees, confirmations, nominations returned, and nominations withdrawn. The table also provides the mean and median numbers of days to confirm a nomination. Appendix C provides a table showing the dates of the Senate recesses for the 110 th Congress. A list of department abbreviations can be found in Appendix D . As noted above, this report employs certain methods that differ from reports tracking appointments during previous Congresses. These methodological changes are explained in detail in Appendix E . Appendix A. Presidential Nominations, 110 th Congress Appendix B. Nomination Action, 110 th Congress Appendix C. Senate Intersession Recesses and Intrasession Recesses of Four or More Days, 110 th Congress Appendix D. Abbreviations of Departments Appendix E. Change in Methodology from Previous Tracking Reports The calculations of nomination-to-confirmation intervals provided in this report counted all the days within the interval, including those during summer recesses and between sessions of the Senate. The inclusion of all days differs from the methodology used in similar CRS reports for previous Congresses. In these earlier reports, days during August and intersession recesses were not included in calculations of nomination-to-confirmation intervals. The rationale for the earlier methodology was that the Senate was unlikely to continue consideration of nominations during these periods; committee hearings and votes, among other activities, typically do not occur during these times. The exclusion of days during only certain periods of adjournment--intersession recesses and August recesses, which are usually longer than 30 days--is suggested by Senate rules regarding when nominations are to be returned to the President. These provide, Nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President; and if the Senate shall adjourn or take recess for more than thirty days, all nominations pending and not finally acted upon at the time of taking such adjournment or recess shall be returned by the Secretary to the President. This earlier methodology was also consistent with the approach of some political scientists who study executive branch appointments. The methodology for this report is different from that which was used in previous similar reports for several reasons. First, as discussed above in the section on recess appointments, from the latter part of the first session through the end of the 110 th Congress, the Senate chose to break up what would otherwise have been longer recesses into shorter recesses separated by pro forma sessions. This introduced two options for this report with regard to the calculation of nomination-to-confirmation intervals. The first option would have been to treat each series of short recesses created in this fashion as one long recess and to subtract these days from the nomination-to-confirmation interval. The second option would have been to treat each recess in the series of short recesses created in this fashion as a short recess, and not to subtract these days from the nomination-to-confirmation interval. Arguably, actions of the Senate and the President were consistent with the latter construction--short recesses as short recesses. Otherwise, Senate rules would have required the return of pending nominations (or the waiver of that rule) and the President could have made recess appointments. The Senate and the President did not take these actions. As a result, short recesses created by pro forma sessions are treated as short recesses in the count of the length of time to confirmation. It should be noted, however, that the inclusion of these days reduces the comparability of statistics provided in this report with statistics in previous similar tracking reports, since the intervals calculated in this report include days that in previous reports were part of longer recesses and therefore were subtracted from the length of the interval. Although the phenomenon underlying this methodological problem first arose during the 110 th Congress, it could arise again in future Congresses. Other reasons for the methodological change are not unique to the 110 th Congress. First, in some cases, committee or floor action on a nomination that could have been completed before a recess has been, instead, deferred until after the recess. For such a nomination, the period of Senate consideration arguably has been intentionally extended. Counting all days, including those during a long recess, in calculations of elapsed time reflects that extension of Senate consideration. Second, it is unlikely that all work pertaining to nominations stops over a recess, and the inclusion of recess days is a reflection of the fact that the nominee is still under consideration, even during recess. Member and committee staffs may still be considering nominations at that time, even though they may not take direct action in the form of hearings or votes on the nominees. Ongoing activities may include investigatory work and interviews with nominees. Finally, although, as mentioned above, some political scientists who study nominations do subtract recess days during calculations of nomination-to-confirmation intervals, many others do not. In addition, the calculation of nomination-to-confirmation intervals in CRS research concerning judicial nominations does not exclude days that fall during recesses. By using methodology that is more similar to the work of other political scientists and to CRS judicial nominations research, the research presented here could be more easily compared and combined with related work. For all of these reasons, in this report, we employ a new methodology for calculating nomination-to-confirmation intervals.

The appointment process for advice and consent positions consists of three main stages. The first stage is selection, clearance, and nomination by the President. This step includes preliminary vetting, background checks, and ethics checks of potential nominees. At this stage, the president may also consult with Senators who are from the same party if the position is located in a state. The second stage of the process is consideration of the nomination in the Senate, most of which takes place in committee. Finally, if a nomination is approved by the full Senate, the nominee is given a commission signed by the President, which makes the nomination official. During the 110th Congress, the President submitted to the Senate 172 nominations to executive department full-time positions. Of these 172 nominations, 125 were confirmed; 13 were withdrawn; and 34 were returned to him in accordance with Senate rules. For those nominations that were confirmed, an average of 104 days elapsed between nomination and confirmation. The median number of days elapsed was 92. The methodology used in this report to count the length of time between nomination and confirmation differs from that which was used in previous similar CRS reports. The statistics presented here include the days during which the Senate was adjourned for its summer recesses and between sessions of Congress. The methodological change, which may reduce the comparability of statistics in this report with those of the earlier research, is discussed in the text of this report as well as in an appendix. Reasons for the change include the conversion of long recesses into a series of short recesses punctuated by pro forma sessions during the 110th Congress; the fact that although committees may not be taking direct action on nominations in the form of hearings or votes, they are likely still considering and processing nominations during recesses; and a desire to be consistent with the methodology used by many political scientists as well as CRS research on judicial nominations. In addition, an argument could be made that the decision to extend Senate consideration of nominees over the course of a recess is intentional, and the choice to extend this length of time is better represented by including all days, including long recesses. President George W. Bush did not make any recess appointments to executive department full-time positions during the 110th Congress. Information for this report was compiled from data from the Senate nominations database of the Legislative Information System http://www.congress.gov/nomis/, the Congressional Record (daily edition), the Weekly Compilation of Presidential Documents, telephone discussions with agency officials, agency websites, the United States Code, and the 2008 "Plum Book" (United States Government Policy and Supporting Positions). This report will not be updated.

This report describes and analyzes annual appropriations for the Department of Homeland Security (DHS) for FY2016. It compares the enacted FY2015 appropriations for DHS, the Administration's FY2016 budget request, the appropriations proposed by Congress in response, and those enacted thus far. This report identifies additional informational resources, reports, and products on DHS appropriations that provide additional context for the discussion, and it provides a list of CRS policy experts whom clients may consult with inquiries on specific topics. The suite of CRS reports on homeland security appropriations tracks legislative action and congressional issues related to DHS appropriations, with particular attention paid to discretionary funding amounts. The reports do not provide in-depth analysis of specific issues related to mandatory funding--such as retirement pay--nor do they systematically follow other legislation related to the authorization or amending of DHS programs, activities, or fee revenues. Discussion of appropriations legislation involves a variety of specialized budgetary concepts. The Appendix to this report explains several of these concepts, including budget authority, obligations, outlays, discretionary and mandatory spending, offsetting collections, allocations, and adjustments to the discretionary spending caps under the Budget Control Act ( P.L. 112-25 ). A more complete discussion of those terms and the appropriations process in general can be found in CRS Report R42388, The Congressional Appropriations Process: An Introduction , by [author name scrubbed], and the Government Accountability Office's A Glossary of Terms Used in the Federal Budget Process . Except in summary discussions and when discussing total amounts for the bill as a whole, all amounts contained in the suite of CRS reports on homeland security appropriations represent budget authority and are rounded to the nearest million. However, for precision in percentages and totals, all calculations were performed using unrounded data. Data used in this report for FY2015 amounts are derived from the Department of Homeland Security Appropriations Act, 2015 P.L. 114-4 ) and the explanatory statement that accompanied H.R. 240 as printed in the Congressional Record of January 13, 2015, pages H275-H322. Contextual information on the FY2016 request is generally from the Budget of the United States Government, Fiscal Year 2016 , the FY2016 DHS congressional budget justifications, and the FY2016 DHS Budget in Brief . However, most data used in CRS analyses in reports on DHS appropriations is drawn from congressional documentation to ensure consistent scoring whenever possible. Data on the FY2016 budget request and Senate-reported recommended funding levels are from S. 1619 and S.Rept. 114-68 . Information on the House-reported recommended funding levels is from H.R. 3128 and H.Rept. 114-215 . Data for FY2016 are derived from P.L. 114-113 , the Omnibus Appropriations Act, 2016--Division F of which is the Homeland Security Appropriations Act, 2016--and the accompanying explanatory statement published in Books II and III of the Congressional Record for December 17, 2015. Generally, the homeland security appropriations bill includes all annual appropriations provided for DHS, allocating resources to every departmental component. Discretionary appropriations provide roughly two-thirds to three-fourths of the annual funding for DHS operations, depending how one accounts for disaster relief spending and funding for overseas contingency operations. The remainder of the budget is a mix of fee revenues, trust funds, and mandatory spending. Appropriations measures for DHS typically have been organized into five titles. The first four are thematic groupings of components: Title I, Departmental Management and Operations, the smallest of the first four titles, contains appropriations for the Office of the Secretary and Executive Management (OSEM), the Office of the Under Secretary for Management (USM), the Office of the Chief Financial Officer, the Office of the Chief Information Officer (CIO), Analysis and Operations (A&O), and the Office of the Inspector General (OIG). The Administration requested $1,396 million in FY2016 net discretionary budget authority for components included in this title. The appropriations request was $255 million (22.3%) more than was provided for FY2015. Senate-reported S. 1619 envisioned the components included in this title receiving $1,346 million in net discretionary budget authority. This would have been $50 million (3.6%) less than requested, but $205 million (18.0%) more than was provided in FY2015. House-reported H.R. 3128 envisioned the components included in this title receiving $1,217 million in net discretionary budget authority, a $179 million (12.8%) decrease from the request and $76 million (6.7%) above FY2015. Division F of P.L. 114-113 included $1,546 million in net discretionary budget authority for the components in this title, a $150 million (10.7%) increase from the request and $405 million (35.5%) above FY2015. Title II, Security, Enforcement, and Investigations, comprising roughly three-quarters of the funding appropriated for the department, contains appropriations for Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), the Transportation Security Administration (TSA), the Coast Guard (USCG), and the Secret Service. The Administration requested $32,481 million in FY2016 net discretionary budget authority for components included in this title, as part of a total budget for these components of $39,431 million for FY2016. The appropriations request was $807 million (2.5%) more than was provided for FY2015. Senate-reported S. 1619 envisioned the components included in this title receiving $32,484 million in net discretionary budget authority. This would have been $3 million (0.01%) more than requested, and $810 million (2.6%) more than was provided in FY2015. House-reported H.R. 3128 envisioned the components included in this title receiving $32,182 million in net discretionary budget authority. This would have been $299 million (0.9%) less than requested, and $508 million (1.6%) more than was provided in FY2015. Division F of P.L. 114-113 included $33,062 million in net discretionary budget authority for the components in this title, a $581 million (1.8%) increase from the request and $1,388 million (4.4%) above FY2015. Title III, Protection, Preparedness, Response, and Recovery, the second-largest of the first four titles, contains appropriations for the National Protection and Programs Directorate (NPPD), the Office of Health Affairs (OHA), and the Federal Emergency Management Agency (FEMA). The Administration requested $6,222 million in FY2016 net discretionary budget authority for components included in this title, as part of a total budget for these components of $19,020 million for FY2016. The appropriations request was $267 million (4.5%) more than was provided for FY2015. Senate-reported S. 1619 envisioned the components included in this title receiving $6,291 million in net discretionary budget authority. This would have been $69 million (1.1%) more than requested, and $336 million (5.6%) more than was provided in FY2015. House-reported H.R. 3128 envisioned the components included in this title receiving $6,122 million in net discretionary budget authority. This would have been $100 million (1.6%) less than requested, and $167 million (2.8%) more than was provided in FY2015. Division F of P.L. 114-113 included $6,353 in net discretionary budget authority for the components in this title, a $131 million (2.1%) increase from the request and $398 million (6.7%) above FY2015. Title IV, Research and Development, Training, and Services, the second-smallest of the first four titles, contains appropriations for the U.S. Citizenship and Immigration Services (USCIS), the Federal Law Enforcement Training Center (FLETC), the Science and Technology Directorate (S&T), and the Domestic Nuclear Detection Office (DNDO). The Administration requested $1,554 million in FY2016 net discretionary budget authority for components included in this title, as part of a total budget for these components of $5,427 million for FY2016. The appropriations request was $251 million (13.9%) less than was provided for FY2015. Senate-reported S. 1619 envisioned the components included in this title receiving $1,451 million in net discretionary budget authority. This would have been $103 million (6.6%) less than requested, and $344 million (19.2%) less than was provided in FY2015. House-reported H.R. 3128 envisioned the components included in this title receiving $1,503 million in net discretionary budget authority. This would have been $51 million (3.3%) less than requested, and $302 million (16.3%) less than was provided in FY2015. Division F of P.L. 114-113 included $1,499 in net discretionary budget authority for the components in this title, a $55 million (2.2%) decrease from the request and $296 million (16.5%) below FY2015. A fifth title contains general provisions, the impact of which may reach across the entire department, impact multiple components, or focus on a single activity. Rescissions of prior-year appropriations--cancellations of budget authority that reduce the net funding level in the bill--are found here. The Administration proposed rescinding $255 million in prior-year appropriations as part of its FY2016 budget request. Senate-reported S. 1619 included $1,359 million in rescissions, while House-reported H.R. 3128 included $1,692 million. Division F of P.L. 114-113 included $1,506 million in rescissions. The following tables present comparisons of FY2015 enacted and FY2016 requested, House and Senate appropriations committee-reported, and enacted appropriations for the department by thematic grouping. References to titles refer to the organization of the funding in the FY2016 appropriations cycle, not the Administration's budget request. The tables summarize the appropriations provided for each component, subtotaling the resources provided through the appropriations legislation. Indented text and bracketed numbers indicate resources either provided through provisions separate from the base appropriations for the component, or that do not count as net discretionary budget authority (see below). A subtotal for each component of total estimated resources that would be available under the legislation and from other sources (such as fees, mandatory spending, and trust funds) for the given fiscal year is also provided. At the bottom of each table, three totals indicate the total for the title on its own, the total for title's components in the entire bill, and the projected total FY2016 funding for the title's components from all sources (such as fees not governed by the bill, trust funds, etc.). Most of the DHS budget is outside of the defense budget function (050). As a result, the department competes with the rest of the federal nondefense budget for discretionary spending allocations under the budget controls imposed by the Budget Control Act. The funding to be allocated among the appropriations subcommittees is not anticipated to rise at the same rate as envisioned in the Administration's budget request. House Homeland Security Subcommittee Chairman John Carter described the tension this creates at a subcommittee hearing on the request: To begin, the $1.5 billion increase [proposed for DHS] absorbs almost 75% of non-defense, discretionary spending available under the limits of the Budget Control Act of 2013. Mr. Secretary ... the Congress intends to live within the confines of the law even if the Administration does not. As a result, I doubt DHS's budget will rise as steeply as the request proposes. The Administration proposed a 1.3% pay increase for all civilian federal employees and members of the military in its FY2016 budget request. Almost all DHS employees are considered civilians, with the significant exception of Coast Guard military personnel. The Senate Appropriations Committee report stated that "the committee assumes the COLA for civilian employees across the Department will be absorbed within amounts appropriated in this act." Likewise, the House Appropriations committee report indicated that funding was not provided for the civilian pay increase, but that if the Administration provides a civilian pay increase that it would "be absorbed within other amounts appropriated for FY2016." The House Appropriations Committee report indicated that the military pay raise was fully funded. The explanatory statement accompanying the omnibus did not provide further guidance or contradict any of the above directions. Executive Order 13715 issued by President Barack Obama on December 18, 2015, authorized a 1.3% pay adjustment for almost all federal civilian employees effective in January 2016. The FY2016 Homeland Security Appropriations Act included a general provision that had been carried in both House- and Senate-reported bills that prohibited the obligation of appropriated funds for any structural pay reform that affects more than 100 full-time positions or costs more than $5 million in a single year until the end of the 30-day period that begins when the Secretary notifies Congress about (1) the number of FTE positions affected by the change, (2) funding required for the change for the current year and through the Future Years Homeland Security Program, (3) the justification for the change, and (4) an analysis of the compensation alternatives to the change that the department considered. The Senate Appropriations Committee report stated that although Congress has provided for the increased personnel that the department has consistently requested, "DHS has failed to bring those funded positions on board for a myriad of reasons including delays in obtaining suitability determinations and a backlog in polygraphs." According to the committee, hiring difficulties are exacerbated by qualified applicants who have withdrawn from the process or accepted other positions by the time an offer of employment is made. Hiring times have increased department-wide (from 146 days in 2013 to 163 days in 2014) and at CBP (from 278 days in 2013 to 308 days in 2014). While noting that the U.S. Secret Service improved its hiring times (from 327 days in 2013 to 295 days in 2014), the committee report stated that the hiring process "still takes an inordinately long time." The Senate report directed the department to report on its strategy to reduce hiring times and time to hire statistics within 60 days after the act's enactment. In addition, DHS and its major components were directed to develop metrics to track the status of hiring actions, including measuring the time spent on actions within each step of the process. The USM was directed to provide a briefing on the development of the metrics within 90 days after the act's enactment. According to the House Appropriations Committee report, "Chronic and systemic personnel shortfalls and lengthy hiring times jeopardize DHS's homeland security mission" and attrition rates are outpacing hiring in several components of the department. The report stated that DHS expects to end FY2015 "more than 6,000 FTEs below the number for which funds were provided" and would have to hire more than 7,000 FTEs between July 2015 and September 30, 2015, to reach the FTE level requested for FY2016. Given these circumstances, the report states that, for FY2016, "the Committee is unconvinced DHS will be able to spend the funds requested in the budget" and therefore, "reduce[d] funding in various agencies to reflect a more realistic and achievable number of FTEs." Going forward, the House report mandated two actions. First, the USM was directed to prepare "a root cause analysis" of the attrition and hiring shortfalls, "develop a corrective action plan" that will include metrics to measure the outcomes of initiatives, and provide monthly updates, beginning on January 15, 2016, to the committee on the results of the initiatives. Second, the department was again directed to provide a report, on a strategy for reducing hiring times and provide data on those hiring times by component, by quarter, within 30 days after the act's enactment and thereafter, each quarter. The committee required that the report include additional content on hiring times and metrics. The explanatory statement accompanying the omnibus repeated the direction for DHS to produce a root cause analysis for the delays in hiring and a corrective action plan, and mandated that reporting on the corrective action plan and hiring metrics begin on January 15, 2016, and that monthly reports on the metrics continue until further notice. Outside the appropriations process, in September 2015, the Office of Personnel Management granted DHS special "Schedule A" authority to expedite the hiring of up to 1,000 cybersecurity professionals until June 30, 2016, or new streamlined regulations are implemented. Schedule A allows for streamlined and tailored recruiting and expedited hiring in cases where it is not practicable to apply competitive service qualification standards and requirements. The Senate Appropriations Committee report stated that the committee seeks "to understand how the Department proposes to balance real technology needs against manpower costs" and has requested "reports and briefings on the right balance of people, technology, and infrastructure" to support DHS operations. The House Appropriations Committee report asserts that "the lack of a rigorous and consistent methodology to determine" the department's personnel requirements and costs is a "strategic problem." To address this matter, the committee directed USM to require the OCFO "to conduct an analysis of force structure that identifies the operations in which DHS personnel are expected to perform, the effects they must achieve, the attributes the forces must possess, and what kind and size of force is needed to execute the operations successfully." The committee also directed that the OCFO provide quarterly briefings on the progress of the study and apply recommendations from its analysis to the FY2018 budget request, with personnel funding shortfalls noted. The explanatory statement accompanying the consolidated appropriations act directed the CFO to "conduct a department-wide force structure analysis to inform component-level staffing and budget requirements not later than the fiscal year 2019 budget request." Several DHS components have specific limitations placed on their funding for "reception and representation expenses." These limits range from $2,000 for the Office of the Under Secretary for Management in House-reported H.R. 3128 to $34,425 for Customs and Border protection in both Senate and House-reported bills. Thirteen such limitations, totaling $177,505, appear in Senate-reported S. 1619 , and 14 such limitations, totaling $166,955, appear in House-reported H.R. 3128 . Aside from the specific direction provided in the Senate- and House-reported legislation, both committee reports provided additional direction. The Senate Appropriations Committee report continued to require quarterly reports on obligations for all reception and representation expenses and stated that the funds should not be used "to purchase unnecessary collectibles or memorabilia." The House committee report directed the department to review representation allowances for all DHS agencies to ensure the equitable alignment of funds with responsibilities, and submit any proposed changes with the FY2017 budget request. The Homeland Security Appropriations Act, 2016, included thirteen specific allocations of official reception and representation expenses, totaling $169,655. No additional direction was provided in the explanatory statement. For additional perspectives on FY2016 DHS appropriations, see the following: CRS Report R44186, DHS Appropriations FY2016: Departmental Management and Operations ; CRS Report R44215, DHS Appropriations FY2016: Security, Enforcement and Investigations ; CRS Report R44182, DHS Appropriations FY2016: Protection, Preparedness, Response, and Recovery ; CRS Report R44183, DHS Appropriations FY2016: Research and Development, Training, and Services ; CRS Report R44048, Trends in the Timing and Size of DHS Appropriations: In Brief ; CRS Report R44051, Comparing DHS Appropriations by Component, FY2016: Fact Sheet ; and CRS Report R44052, DHS Budget v. DHS Appropriations: Fact Sheet . Readers also may wish to consult CRS's experts directly. The following table lists names and contact information for the CRS analysts and specialists who contribute to CRS DHS appropriations reports: Budget Authority, Obligations, and Outlays Federal government spending involves a multistep process that begins with the enactment of budget authority by Congress. Federal agencies then obligate funds from enacted budget authority to pay for their activities. Finally, payments are made to liquidate those obligations; the actual payment amounts are reflected in the budget as outlays. Budget authority is established through appropriations acts or direct spending legislation and determines the amounts that are available for federal agencies to spend. The Antideficiency Act prohibits federal agencies from obligating more funds than the budget authority enacted by Congress. Budget authority also may be indefinite, as when Congress enacts language providing "such sums as may be necessary" to complete a project or purpose. Budget authority may be available on a one-year, multiyear, or no-year basis. One-year budget authority is only available for obligation during a specific fiscal year; any unobligated funds at the end of that year are no longer available for spending. Multiyear budget authority specifies a range of time during which funds may be obligated for spending, and no-year budget authority is available for obligation for an indefinite period of time. Obligations are incurred when federal agencies employ personnel, enter into contracts, receive services, and engage in similar transactions in a given fiscal year. Outlays are the funds that are actually spent during the fiscal year. Because multiyear and no-year budget authorities may be obligated over a number of years, outlays do not always match the budget authority enacted in a given year. Additionally, budget authority may be obligated in one fiscal year but spent in a future fiscal year, especially with certain contracts. In sum, budget authority allows federal agencies to incur obligations and authorizes payments, or outlays, to be made from the Treasury. Discretionary agencies and programs, and appropriated entitlement programs, are funded each year in appropriations acts. Discretionary and Mandatory Spending Gross budget authority , or the total funds available for spending by a federal agency, may be composed of discretionary and mandatory spending. Discretionary spending is not mandated by existing law and is thus appropriated yearly by Congress through appropriations acts. The Budget Enforcement Act of 1990 defines discretionary appropriations as budget authority provided in annual appropriations acts and the outlays derived from that authority, but it excludes appropriations for entitlements. Mandatory spending , also known as direct spending , consists of budget authority and resulting outlays provided in laws other than appropriations acts and is typically not appropriated each year. Some mandatory entitlement programs, however, must be appropriated each year and are included in appropriations acts. Within DHS, Coast Guard retirement pay is an example of appropriated mandatory spending. Offsetting Collections Offsetting funds are collected by the federal government, either from government accounts or the public, as part of a business-type transaction such as collection of a fee. These funds are not considered federal revenue. Instead, they are counted as negative outlays. DHS net discretionary budget authority , or the total funds that are appropriated by Congress each year, is composed of discretionary spending minus any fee or fund collections that offset discretionary spending. Some collections offset a portion of an agency's discretionary budget authority. Other collections offset an agency's mandatory spending. These mandatory spending elements are typically entitlement programs under which individuals, businesses, or units of government that meet the requirements or qualifications established by law are entitled to receive certain payments if they establish eligibility. The DHS budget features two mandatory entitlement programs: the Secret Service and the Coast Guard retired pay accounts (pensions). Some entitlements are funded by permanent appropriations, and others are funded by annual appropriations. Secret Service retirement pay is a permanent appropriation and, as such, is not annually appropriated. In contrast, Coast Guard retirement pay is annually appropriated. In addition to these entitlements, the DHS budget contains offsetting Trust and Public Enterprise Funds. These funds are not appropriated by Congress. They are available for obligation and included in the President's budget to calculate the gross budget authority. 302(a) and 302(b) Allocations In general practice, the maximum budget authority for annual appropriations (including DHS) is determined through a two-stage congressional budget process. In the first stage, Congress sets overall spending totals in the annual concurrent resolution on the budget. Subsequently, these totals are allocated among the appropriations committees, usually through the statement of managers for the conference report on the budget resolution. These amounts are known as the 302(a) allocations . They include discretionary totals available to the House and Senate Committees on Appropriations for enactment in annual appropriations bills through the subcommittees responsible for the development of the bills. In the second stage of the process, the appropriations committees allocate the 302(a) discretionary funds among their subcommittees for each of the appropriations bills. These amounts are known as the 302(b) allocations . These allocations must add up to no more than the 302(a) discretionary allocation and form the basis for enforcing budget discipline, since any bill reported with a total above the ceiling is subject to a point of order. The 302(b) allocations may be adjusted during the year by the respective Appropriations Committee issuing a report delineating the revised suballocations as the various appropriations bills progress toward final enactment. No subcommittee allocations are developed for conference reports or enacted appropriations bills. Table A-1 shows comparable figures for the 302(b) allocation for FY2015, based on P.L. 114-4 , the President's request for FY2016, House and Senate subcommittee allocations for the Homeland Security appropriations bills for FY2016, and the allocation that would have been needed to accommodate the FY2016 enacted Homeland Security Appropriations Act, 2016. The Budget Control Act, Discretionary Spending Caps, and Adjustments The FY2012 appropriations bills were the first appropriations bills governed by the Budget Control Act, which established discretionary security and nonsecurity spending caps for FY2012 and FY2013. The bill also established overall caps that govern the actions of appropriations committees in both chambers. Subsequent legislation, including the Bipartisan Budget Act of 2013, amended those caps. For FY2015, the overall cap on discretionary spending is $1,014 billion. Separate limitations are made for defense and nondefense spending--roughly $521 billion and $492 billion, respectively. Most of the budget for DHS is considered nondefense spending. In addition, the Budget Control Act allows for adjustments that would raise the statutory caps to cover funding for overseas contingency operations/Global War on Terror, emergency spending, and, to a limited extent, disaster relief and appropriations for continuing disability reviews and control of health care fraud and abuse. Three of the four justifications outlined in the Budget Control Act for adjusting the caps on discretionary budget authority have played a role in DHS's appropriations process. Two of these--emergency spending and overseas contingency operations/Global War on Terror--are not limited. The third justification--disaster relief--is limited. Under the Budget Control Act, the allowable adjustment for disaster relief is determined by the Office of Management and Budget (OMB), using the following formula: Limit on disaster relief cap adjustment for the fiscal year = Rolling average of the disaster relief spending over the last ten fiscal years (throwing out the high and low years) + the unused amount of the potential adjustment for disaster relief from the previous fiscal year. For FY2014, OMB determined the allowable adjustment for disaster relief was $12,143 million, of which only $5,717 million was exercised. In February 2015, OMB noted the FY2015 allowable adjustment for disaster assistance was $18,430 million: $11,913 million from the rolling average and $6,517 million in carryover from FY2014. FY2015 was the first year in which more than $1 billion of allowable adjustment for disaster relief carried over from the previous fiscal year. The disaster relief allowable adjustment for FY2016 was $14,125 million.

This report discusses the FY2016 appropriations for the Department of Homeland Security (DHS) and provides an overview of the Administration's FY2016 request. The report makes note of many budgetary resources provided to DHS, but its primary focus is on funding approved by Congress through the appropriations process. It also includes an Appendix with definitions of key budget terms used throughout the suite of Congressional Research Service reports on homeland security appropriations. It also directs the reader to other reports providing context for and additional details regarding specific component appropriations and issues engaged through the FY2016 appropriations process. The Administration requested $41.4 billion in adjusted net discretionary budget authority for DHS for FY2016, as part of an overall budget that the Office of Management and Budget estimates to be $64.8 billion (including fees, trust funds, and other funding that is not annually appropriated or does not score against discretionary budget limits). The request amounted to a $1.7 billion, or 4.4%, increase from the $39.7 billion enacted for FY2015 through the Department of Homeland Security Appropriations Act, 2015 (P.L. 114-4). The Administration also requested an additional $6.7 billion not reflected above for the Federal Emergency Management Agency (FEMA) in disaster relief funding, as defined by the Budget Control Act (BCA, P.L. 112-25), and a $160 million transfer from the Navy to the Coast Guard for overseas contingency operations (OCO) funding. Neither the disaster relief funding nor the OCO funding is considered when calculating the total amount of adjusted net discretionary budget authority, as neither count against the discretionary spending limit. On June 18, 2015, the Senate Committee on Appropriations reported out S. 1619, accompanied by S.Rept. 114-68. S. 1619 included $40.2 billion in adjusted net discretionary budget authority for FY2016. This was $1.2 billion (2.9%) below the level requested by the Administration, but over $0.5 billion (1.4%) above the enacted level for FY2015. The Senate committee-reported bill included the Administration-requested levels for disaster relief funding and OCO funding covered by BCA adjustments--the latter as an appropriation in the DHS appropriations bill rather than the requested transfer. On July 14, 2015, the House Committee on Appropriations reported out H.R. 3128, accompanied by H.Rept. 114-215. H.R. 3128 included $39.3 billion in adjusted net discretionary budget authority for FY2016. This was almost $2.1 billion (5.0%) below the level requested by the Administration, and $337 million (0.8%) below the FY2015 enacted level. While the House-reported bill included the Administration-requested level for disaster relief funding, overseas contingency operations funding for the Coast Guard covered by BCA adjustments was provided in the House-passed Department of Defense appropriations act as a transfer from the Navy--therefore it is not included in the total funding in this bill for DHS. On December 18, 2015, the President signed into law P.L. 114-113, the Consolidated Appropriations Act, 2016, Division F of which was the Department of Homeland Security Appropriations Act, 2016. The act included almost $41.0 billion in adjusted net discretionary budget authority for DHS for FY2016, almost $1.3 billion more than was provided for FY2015, and $443 million less than was requested. The enacted bill included the requested overseas contingency operations and disaster relief funding as well. This report will be updated in the event a supplemental appropriation is provided for DHS for FY2016.

The steady growth within U.S. borders of new immigrant populations, whose primary language is other than English, has created a public policy divide on issues of language diversity. On one side, opposition to expanded foreign language use has led at least 30 states to enact statutes or amend state constitutions to declare English the official state language. Federal statutes and the U.S. Constitution, however, have traditionally afforded some legal protection to minority language rights. For example, the Voting Rights Act of 1965, as amended, mandates the use of bilingual voting materials in states and political subdivisions when certain conditions are met. Other federal statutory safeguards include Title VI of the 1964 Civil Rights Act and the Equal Educational Opportunities Act. In addition, state and federal policies mandate the use of languages other than English when necessary for effective delivery of public and private services to non-English speakers in judicial and law enforcement proceedings, health and managed care services, conduct of state and local administrative agencies, business and professions, elections, and other critical areas. Congressional proposals to install English as the official language of the United States reflect yet another aspect of the complicated ongoing national debate over federal immigration policy. The modern "Official English" movement in Congress is traceable to the mid-1980's, when various proposals to achieve linguistic uniformity by constitutional amendment were considered. When that approach failed, Congress renewed its efforts to codify English as the official language, proceeding on a statutory track. This effort culminated in 1996 with House passage of H.R. 123 , declaring English the official language of the United States Government and restricting other linguistic usage in the conduct of "official" governmental business. The "Language in Government Act" passed the House in the 104 th Congress but died in the Senate. Substantially amended versions of this earlier measure, however, have appeared in subsequent legislative sessions. For example, during the 109 th Congress, the Senate adopted the Inhofe Amendment as part of its comprehensive immigration reform package ( S. 2611 ), declaring English to be our "national language" and calling for a governmental role in "preserving and enhancing" the role of English. An alternative offered by Senator Salazar also passed the Senate; it would have recognized English as the "common and unifying language of the United States," while protecting existing rights of non-English speakers "to services and materials provided by the government" in languages other than English. In the 110 th Congress, both the Inhofe and Salazar proposals were once again approved as amendments to a comprehensive immigration reform bill that was under consideration in the Senate ( S. 1348 ). The Inhofe proposal was reintroduced in the 111 th Congress as a stand-alone bill ( H.R. 1229 / S. 992 ), as were several other similar bills, but no action was taken. Standing alone, a legislative declaration of English as the "official" or "national" language of the United States would be a largely symbolic act of negligible legal effect. Although an affirmation by the Congress of the central place of English in our national life and culture, such a pronouncement would not, of its own force, require or prohibit any particular action or policy by the government or private persons. Nor would it, without more, imply the repeal or modification of existing federal or state laws and regulations sanctioning the use of non-English for various purposes. As in the past, however, any official English proposals introduced in Congress would give varying force to this declaration depending on the degree to which they would propose adherence to English in various governmental activities at the federal and state level. An example of legislation introduced during the 111 th Congress illustrates this concept. The bill proposed by Senator Inhofe in the 111 th Congress ( H.R. 1229 / S. 992 ) included elements from earlier legislative proposals. Declaring English to be our "national language," the measure called on "the Government of the United States ... [to] preserve and enhance" the role of English, and except as otherwise provided by statute, would have denied any private "right, entitlement, or claim" to non-English governmental services or materials. In terms of its jurisdictional scope, the Inhofe bill appeared to be limited to actions of the federal government rather than the states and localities. Indeed, the major controversy over the bill and its predecessors appeared to center on the measure's potential effect on Executive Order 13166, a Clinton-era order directing federal departments and agencies to ensure that individuals with limited English proficiency (LEP) are provided meaningful access to programs and activities conducted by the federal government or by recipients of federal financial assistance. Although proponents of the Inhofe measure appeared concerned that E.O. 13166 currently guarantees LEP individuals the right to receive government services or materials in a language other than English and seemed to believe that the amendment would therefore invalidate E.O. 13166, it is unclear whether either premise is correct. Indeed, although E.O. 13166 directs federal agencies and recipients to provide meaningful access to LEP individuals, nothing in the order currently grants such individuals an enforceable right to receive documents in a language other than English. As a result, it is unclear whether the Inhofe proposal, which did not actually prohibit the federal government from providing services or materials in languages other than English, would have altered existing law. In addition, because the amendment would have denied any right, entitlement, or claim to documents in languages other than English "unless specifically provided by statute," it would not have precluded language claims brought pursuant to Title VI of the Civil Rights Act. (Both E.O. 13166 and Title VI are discussed in more detail in the following section.) Ultimately, given its largely symbolic declaration that English is the "national" or "common" language of the United States and its limited impact on existing laws regarding services or materials provided by the federal government in languages other than English, it appears that, had it been enacted, the Inhofe proposal would not have had a significant effect on current law. The interplay of previously proposed legislation with current federal foreign language policy is perhaps best illustrated by E.O. 13166 and departmental regulations by the federal government issued thereunder. That order, issued by President Clinton in 2000, directed each federal department and agency to "implement a system" for insuring that persons with limited English proficiency (LEP) are provided "meaningful access" to programs and activities conducted by the federal government and by recipients of federal financial assistance covered by Title VI of the 1964 Civil Rights Act. A policy guidance document, released by the Department of Justice (DOJ) on the same day, and referenced in the order, set forth "compliance standards that recipients must follow to ensure that the programs and activities that they normally provide in English are accessible to LEP persons and thus do not discriminate on the basis of national origin in violation of Title VI ... and its implementing regulations." Each federal grant-making agency was to tailor the general standards of the DOJ guidance into an approach "ensuring meaningful access by LEP persons that is practical and effective, fiscally responsible, responsive to the particular circumstances of each agency, and can be readily implemented." The DOJ guidance notes that Title VI and its regulations require recipients of federal funds to take reasonable steps to insure "meaningful" access to information and services they provide. What constitutes reasonable steps, the document advises, will be contingent on a number of factors, such as the number and proportion of LEP persons in the eligible service population, the frequency with which LEP individuals come into contact with the program, the importance of the service provided by the program, and the resources available to the recipient. In balancing factors for determining what steps are reasonable, agencies are to particularly address the appropriate mix of oral and written language assistance. Acknowledging that written translations are a "highly effective way" of communicating with LEP persons, the document states that oral communication may also be a necessary part of the exchange of information. LEP persons include those born in other countries, some children of immigrants born in the United States, and other non-English or limited English proficient persons born in the United States, including some Native Americans. In its guidance, DOJ cited Lau v. Nichols , in which the U.S. Supreme Court interpreted Title VI as requiring that a federal financial aid recipient take steps to insure that language barriers do not exclude LEP children from effective participation in public educational benefits and services. Lau involved a group of Chinese students in the San Francisco public school system who received classroom instruction solely in English. The Court ruled that the failure to provide such students with supplemental instruction in their primary language violated the Title VI ban on national origin discrimination. The DOJ document extrapolates an extension of the Lau doctrine beyond education to other contexts. Note, however, that while the Lau precedent remains intact, its value as precedent may be diminished somewhat by subsequent judicial developments, most notably the Court's decision in Alexander v. Sandoval . The Court's ruling in the Sandoval case was decided after publication of the DOJ guidance, although DOJ has taken the position that the Sandoval decision did not strike down the Title VI regulations that form the basis for Executive Order 13166. At issue in Sandoval was the State of Alabama's "English-only policy" requiring all aspects of its driver's license examination process, including the written portion, to be exclusively in English. In rejecting a Mexican immigrant's claim that the state policy violated Title VI because of its "disparate impact" on ethnic minorities, a five Justice majority ruled that Congress did not intend a private right of action to enforce Title VI except as a remedy for intentional discrimination. Federal regulations prohibiting state practices that have a discriminatory impact, regardless of intent, could not provide a basis for private lawsuits. Sandoval , however, did not directly confront federal agency authority, previously acknowledged by the Court, to enforce Title VI compliance administratively with rules condemning practices discriminatory in their effect on protected minority groups. Thus, at least for now, "disparate impact" rules--mandating language assistance for non-English proficient clients of federally financed programs--may still be enforced by the government, just not by private litigants. However, some previous congressional proposals would arguably have negated any private Title VI remedy for linguistically-based ethnic discrimination. And any requirement regarding the government's "affirmative obligation" to promote English could portend similar perils for agency rules condemning the disparate impact of English-only policies under Title VI. Judicial decisions involving the constitutional implications of government language policies have arisen in a variety of legal contexts. One series of cases has involved non-English speaking plaintiffs who have unsuccessfully sought to require the government to provide them with services in their own language. In Soberal-Perez v. Heckler , for example, the Second Circuit rejected an action on behalf of Hispanic individuals of limited English proficiency who claimed that the equal protection and due process clauses of the Constitution required the Secretary of Health and Human Services to provide them with Social Security forms and instructions in Spanish. The appeals court could find no basis for the constitutional and related statutory claims since the Secretary's action bore a rational relationship to a legitimate governmental purpose: We need only glance at the role of English in our national affairs to conclude that the Secretary's actions are not irrational. Congress conducts it affairs in English, the executive and judicial branches of government do likewise. In addition, those who wish to become naturalized citizens must learn to read English.... Given these factors, it is not irrational for the Secretary to choose English as the one language in which to conduct her official affairs. The federal courts have similarly found no constitutional duty on the part of government to provide certain other forms of official notice or services to individuals in their native tongue. These cases, however, hold only that in the circumstances involved, non-English speakers have no affirmative right to compel government to provide information in a language that they can comprehend. They do not address the converse issue of legislative power to restrict official speech in languages other than English as a matter of state or national policy. Another body of judicial authority has found that certain state law restrictions on linguistic diversity may act as a "proxy" for national origin discrimination or infringe upon First Amendment free speech rights. In Meyer v. Nebraska , for example, the Supreme Court found that a state law prohibiting modern foreign language instruction in any school, public or private, before the ninth grade violated Fourteenth Amendment due process because it infringed upon the liberty of parents to make educational choices for their children. According to the Meyer Court: [t]he protection of the Constitution extends to all, to those who speak other languages as well as to those born with English on the tongue. Perhaps it would be advantageous if all had ready understanding of our ordinary speech, but this cannot be coerced by methods which conflict with the Constitution--a desirable end cannot be promoted by prohibited means. Meyer was applied by the Court in Farrington v. Tokushiga to invalidate a Hawaii statute that singled out "foreign language schools," such as those in which Japanese was taught, for stringent government control. The state's purpose for regulating language instruction in Tokushiga was "in order that the Americanism of the students may be promoted." Similarly, the governmental interests asserted in defense of the Meyer statute were "to create an enlightened American citizenship in sympathy with the principles and ideals of this country," "to promote civic development," and to prevent inculcation in children of "ideas and sentiments foreign to the best interests of the country." Despite a judicial acknowledgment of the validity of such goals, the Court found them insufficient to warrant state interference with foreign language usage in the schools. Yu Cong Eng v. Trinidad considered the constitutionality of a Philippine law forbidding Chinese merchants from keeping their business account books in Chinese, the only language they knew. Finding that enforcement of the law "would seriously embarrass all of [the Chinese merchants] and would drive out of business a great number," the Court held that the law denied the merchants due process and equal protection under the Constitution. Although based on the substantive due process doctrine of an earlier period, reverberations of Yu Cong Eng and Meyer may be found in rulings of more recent vintage. In Hernandez v. New York , for example, the Court determined that peremptory challenges directed at Latino jurors because of their bilingualism and demeanor were not unconstitutional because the factors motivating the prosecutor's action in that case did not function as a proxy for race. Writing for the plurality, however, Justice Kennedy stated that: [w]e would face a quite different case if the prosecutor had justified his peremptory challenges with the explanation that he did not want Spanish-speaking jurors. It may well be, for certain ethnic groups and in some communities, that proficiency in a particular language, like skin color, should be treated as a surrogate for race under an equal protection analysis. The U.S. Supreme Court in Arizonans for Official English v. Arizona side-stepped constitutional controversy when it vacated for procedural irregularities a ruling by the Ninth Circuit voiding Arizona's official English law. In 1988, Arizona voters had approved by referendum a state constitutional amendment providing that English is the official language of the State of Arizona and that the state and its political subdivisions--including "all governmental officials and employees during the performance of government business"--must "act" only in English. A former insurance claims manager for the state who spoke both English and Spanish in her daily service to the public argued that the law had a silencing and chilling effect on constitutionally protected speech of bilingual, monolingual, and Spanish-speaking public employees and their clients. Despite assertions by Arizona's Attorney General that communications "to facilitate delivery of governmental services" were not "official acts" covered by the law, the Ninth Circuit held that the "plain wording" of the law defied such limitation and was an overly broad restriction on free speech rights of state employees and the public they served. The First Amendment analysis applied by the 6-5 en banc majority of the Ninth Circuit required balancing the right of public employees to speak on matters of "public import" against the government's legitimate interest as an employer "in achieving its goals as effectively and efficiently as possible." Although the government may generally regulate public employee speech concerned simply with "matters of personal or internal interest," the Arizona law "significantly interfere[d]" with "communications by or with government employees" related to "the provision of government services and information," a form of public discourse entitled to greater constitutional protection. Moreover, the efficiency and effectiveness considerations constituting fundamental governmental interests in the usual "public concern" case--and that provide the justification against which the employee's First Amendment interests must be weighed--were found totally lacking by the Ninth Circuit. Indeed, the appeals court determined that government efficiency would actually be promoted rather than hindered by permitting public employee speech in languages other than English. Nor was the state's asserted interest in forging "unity and political stability" by "encouraging a common language" sufficient to warrant restrictions on foreign language usage. The Supreme Court vacated and remanded the case, in effect leaving the Arizona law intact for the time being. Speaking for a unanimous Court, Justice Ginsburg declared the case moot since the plaintiff had resigned from state employment prior to appeal and had never sought to have the case certified a class action. In addition, the Justices had "grave doubts" whether Arizonans for Official English, original sponsors of the ballot initiative, had standing to appeal the case as a party after the Arizona Governor declined to do so. Finally, the federal district and appeals courts had erred by failing to certify unsettled state-law questions regarding the scope of the English-only amendment to the Arizona Supreme Court for "authoritative construction" before proceeding with the case. The Supreme Court thus left a constitutional ruling on the Arizona Official English law for another day. In 1998, the Arizona Supreme Court decided Ruiz v. Hull , holding that the state's English-only amendment violated the First Amendment and the Equal Protection Clause. Like the Ninth Circuit, the Arizona Court found a core First Amendment right in a citizen's ability to receive essential information from government officials and to petition the government for redress of grievances. According to the opinion, the state law "effectively cuts off governmental communication with thousands of limited-English-proficient and non-English-speaking persons in Arizona, even when the officials and employees have the ability and desire to communicate in a language understandable to them." Applying strict scrutiny analysis, Ruiz held the English-only amendment violated the First Amendment because it was overbroad and could not satisfy the compelling state interest test. The Arizona Court also found an Equal Protection violation based on earlier precedents establishing a "fundamental individual right of choice of language." Pending a definitive federal court ruling, however, the constitutionality of restrictive official English policies remains a somewhat unsettled matter. Besides voting rights, federal statutory requirements regarding foreign language interpretation and use are included in various other federal programs and activities. For example: American Indians: Congress enacted the Native American Languages Act to "preserve, protect, and promote the rights and freedom of Native Americans to use, practice, and develop Native American languages." (25 U.S.C. SS 2903(1)) The law is supported by congressional findings relative to the "unique" and "special" status of Native-American language and culture, and to the need for the "United States, individual States, and territories to encourage the full academic and human potential achievements of all students and citizens and to realize these ends ... " ( Id. at SS 2901) Specifically, in regard to education, the declaration of policy "encourage[s] and support[s]" the use of Native American languages "as a medium of instruction" in Indian schools, and also "encourages" all other "elementary, secondary, and higher education" institutions to "afford full academic credit" and "include Native American languages in the curriculum in the same manner as foreign languages." ( Id. at SS 2903) In aid of this policy, the statute further provides that "[t]he right of Native Americans to express themselves through the use of Native American languages shall not be restricted in any public proceeding, including publicly supported education programs." ( Id. at SS 2904) Federal departments and agencies are to evaluate their policies and procedures, and laws within their administrative jurisdiction, for compliance with the stated policy, but no procedure for governmental enforcement of the linguistic "right" created by the law is provided. Immigration: Interpreters must be provided during physical and mental examinations of alien immigrants seeking entry into the United States (8 U.S.C. SS 1222 (b)). Judicial proceedings: The Director of the Administrative Office of the U.S. Courts is to establish a program for the use of foreign language interpreters in federal civil and criminal proceedings instituted by the United States (28 U.S.C. SS 1827); courts may appoint interpreter to be paid by the government in federal criminal proceedings (Rule 28, Fed. R. Crim. Proc.); service of judicial process by the United States and state courts on a foreign state, its political subdivisions, agencies, or instrumentalities must be accompanied by a translation "into the official language of the foreign state" (28 U.S.C. SS 1608); employment of interpreters in court-martial, military commission, or court of inquiry proceedings is required, if needed. (10 U.S.C. SS 828). Social and health care services: Notices must be provided "in language that is easily understandable to reader" under various Social Security Act programs (42 U.S.C. SSSS 405, 1383). Foreign language interpreters or translations are required in connection with federally funded migrant and community health centers (42 U.S.C. SSSS 254b(b)(1)(a)(iv) and 254b(j)); in a grant program for certain health care services for the homeless (42 U.S.C. SS 256); in alcohol abuse and treatment programs, which serve a substantial number of non-English speaking persons (42 U.S.C. SS 4577(b)); and in the grant program for supportive services under the Older Americans Act (42 U.S.C. SS 3030d(a)(3)). Agriculture: Department of Agriculture funds may be used for translation of publications into foreign languages (7 U.S.C. SS 2242b). As noted, 30 states have adopted Official English laws in various forms. Some enactments make a simple declaration of English as the official state language, without more. Others arm state legislatures with power to enforce linguistic uniformity, or otherwise to preserve and enhance the official role of the English language. More specific measures expressly prohibit or restrict, in one fashion or another, foreign language usage by state agencies or employees in the conduct of official business. Specific exceptions to English-only requirements are frequently included, however, particularly where necessary to comply with federal law. Meanwhile, a plethora of other laws have also been enacted by various state legislatures to facilitate communication with persons of limited English proficiency in the provision of needed public and private services. For example, most states require the use of interpreters in courtroom and other law enforcement settings, while many states require similar services for LEP individuals appearing before administrative agencies or seeking health care. Similar requirements regarding interpretation and translation also appear in state laws pertaining to professional licensing, business and employment, state and local elections, and military justice.

Congressional proposals to install English as the official language of the United States reflect yet another aspect of the complicated ongoing national debate over immigration policy. The modern "Official English" movement may be traced to the mid-1980s, when various proposals to achieve linguistic uniformity by constitutional amendment were considered. While these earlier federal efforts failed, some legislation promoting official English laws at the state level was more successful. At least 30 states have laws declaring English to be the official state language. In response, renewed congressional efforts to codify English as the "official" or "national" language by statute largely replaced the constitutional amendment approach of earlier years. For over a decade, legislation that would either declare English the official language of the United States government or that would oppose such declarations has been introduced in Congress. This report discusses the legal effect of some of these congressional proposals, as well as current federal policy on foreign language assistance, the constitutional law implications of official English proposals, and legal issues regarding state laws on official English.

RS20798 -- Taiwan: Findings of a Congressional Staff Research Trip, December 2000 January 31, 2001 Background. Elected in March 2000 with 39% of the popular vote, (1) Taiwan President Chen Shui-bian hassince faced an uncooperative legislature and has endeavored to establish a firm grip on his government. Chen'sDemocratic Progressive Party (DPP) currentlyholds only 67 seats in Taiwan's 225-member legislature, the Legislative Yuan. The Nationalist Party, orKuomintang (KMT), which lost the presidential election- the first time it has not ruled the Republic of China (ROC) - holds a plurality of 109 seats. Together, threeopposition parties - the KMT, the New Party, and thePeople First Party (PFP) - which tend to be economically and politically conservative compared to the DPP andmore inclined to consider eventual unificationwith China, have blocked, thwarted, and defied many of Chen Shui-bian's policies. Because the DPP lacksadministrative experience, many leadership postswithin the government remain filled by KMT members. Chen Shui-bian has faced several contentious issues during his first several months as President. These include: an economic downturn; labor demonstrations; Chen's anti-corruption campaign aimed at KMT vote-buying and gang-related politics ("black gold"); and PremierChang Chun-hsiung's announcement that workon Taiwan's fourth nuclear power plant, a project begun by the previous KMT government, would be halted. Opposition members have threatened to introducemotions of no confidence in Premier Chang and to recall President Chen. However, they have recently backeddown, partly in response to public demands toreduce political deadlock. Research Trip Findings. Taiwan's democracy is experiencing a period of rancor and instability as it undergoesa process of political maturation. Some Taiwanese government and party officials repeated the saying that "theDPP has not yet learned how to rule while theKMT has not yet learned how not to rule." The congressional staff delegation observed severalimportant features of Taiwan's "transition politics." One, thepolitical system lacks institutions for moderating partisanship and facilitating the transfer of power. For example,few formal and informal procedures andprecedents have been established for divided government. Two, Taiwanese political parties do not have experienceforming coalitions and creating stableparliamentary majorities. Three, voter identification tends to be unstable and unpredictable. A DPP representativeexplained that political personalities, ratherthan party ideologies, drive Taiwanese politics. An American observer stated that intra-party factionalism furtherdestabilizes Taiwanese politics. Four, the massmedia, though "free," lack traditions of objective reporting. A spokesperson for the Government Information Officestated that most mass media in Taiwan,including newspapers and television, are government- or party-affiliated and politically-biased. (2) There are no firm indications about how Taiwan's political parties will fare in the December 2001 legislative elections, although no party is expected to attain amajority in the Legislative Yuan. According to an American observer at the American Chamber of Commerce(AmCham) in Taipei, while the KMT continues towield economic clout and political influence, its popularity has continued to wane for several reasons: it has notdemocratized from within, expanded its partybase, created a compelling alternative vision for the country, or produced a charismatic leader. Background. President Chen faces some troubling economic indicators. At the end of 2000, Taiwan's stockmarket had fallen by more than 50% since Chen's election and unemployment had reached a 15-year high. (3) Taiwanese investment in the People's Republic ofChina (PRC) nearly doubled in 2000, which resulted in the transfer of many skilled and high tech jobs to themainland. According to some estimates,non-performing loans have reached 12-17 percent of all Taiwan bank loans. (4) Research Trip Findings. An expert at the American Institute in Taiwan (AIT), which conducts U.S.-ROCrelations, stated that the notion of a "troubled" Taiwanese economy is more a perception than a reality. Nonetheless,AIT officials envisioned several long-termtrends that would challenge the Taiwanese economy. These include declining exports to the United States,increasing imports from abroad if Taiwan joins theWTO, (5) greater economic competition from China,the loss of global competitive advantage of some Taiwanese export items, and falling consumer demand athome. Some American and Taiwanese economic analysts viewed China as the key to Taiwan's continueddevelopment. They told the delegation that the PRC'saccession to the WTO and direct trade, transportation, and communication between the mainland and Taiwan wouldfurther open China to Taiwanese investmentand exports. Because of a common language and culture, Taiwanese investors and traders on the mainland alreadyhave an edge over their American, Japanese,and European counterparts. However, ROC government officials stated that some restrictions on investment inmainland China were necessary in order to helppreserve Taiwanese technological superiority, economic autonomy, and political leverage. DPP Policy. The platform of the DPP has long advocated independence for Taiwan. (7) However, in hisinauguration speech of May 20, 2000, Chen Shui-bian promised that, as long as the PRC did not use military forceagainst Taiwan, he would not declareindependence. (8) Analysts have posited several factorsand considerations that may explain Chen's break from past positions and pro-independence members inhis party, including Chen's pragmatic nature, pressure from the PRC, Taiwanese public opinion, and U.S.-Chinarelations. Opposition Party Efforts. While President Chen and the PRC government have made little progress in breakingthe impasse on opening formal talks, many opposition lawmakers - up to one-third of the legislature - reportedlyhave gone to Beijing to engage in informaldiscussions on cross-strait issues. They and the PRC government have appeared eager both to resume the dialoguethat broke off in 1995 and to underminePresident Chen's role in the process. (9) Chen Shui-bianhas expressed a willingness to resume cross-strait talks, but without agreeing to the PRC's "one-Chinaprinciple" as a starting point. By contrast, opposition leaders have been more accepting of the "one-China" principleas a basis of negotiations. (10) Research Trip Findings. Taiwanese and American political experts told the delegation that following the March2000 presidential election, both the DPP and the KMT have taken more conciliatory stances toward the mainland. The KMT has downplayed former PresidentLee Teng-hui's suggested "state-to-state" framework for negotiations. The DPP has conveyed greater acceptanceof the idea that some political accommodationwith the PRC is inevitable, while the independence faction within the party has been marginalized. Severalgovernment officials privately suggested that VicePresident Annette Lu, an ardent member of the independence faction, does not enjoy widespread public support. An official at the ROC Mainland Affairs Council (MAC) stated that DPP and KMT positions on cross-straitissues have converged somewhat. Both partiessupport the "status quo" - a position of neither independence nor unification - for the time being. Both put forthdemocratization on the mainland as a conditionfor substantive moves toward greater political ties or unification. A DPP authority on international affairs cautioned,however, that the maintenance of Taiwan'ssovereignty is still a central goal of the party. He suggested that sovereignty could be achieved in two ways -through independence or a cross-strait politicalarrangement that is mandated by the Taiwanese electorate. Background. Despite the uncertain and often tense political atmosphere, cross-strait economic ties have grownconsiderably since the late 1980s. Bilateral trade was worth $25.8 billion in 1999, up 14.5 percent from 1998. Inthe first half of 2000, cross-strait trade increased29%. According to PRC data, Taiwan is China's largest source of imports. Taiwanese firms have invested anestimated $40 billion in more than 40,000enterprises on the mainland. Some analysts report that business interests on both sides of the strait are pursuinggreater economic cooperation in preparation forPRC and ROC accession to the WTO. (11) Research Trip Findings. Taiwanese leaders explained that growing economic ties with the mainland havecreated a dilemma for the new government. On the one hand, the mainland economy provides ample opportunitiesfor Taiwanese businesses. Economicinterdependence may also discourage the PRC from using force against Taiwan. On the other hand, Taiwaneseofficials worried, increased investment may causeTaiwan to lose jobs and technological know-how to the mainland. Furthermore, if the Taiwanese economy wereto become too intertwined with that of themainland, it may become vulnerable to economic shocks on the mainland or Taiwan may become beholden to PRCpolitical demands. Nonetheless, the DPP hascautiously encouraged greater trade and investment. President Chen has considered easing existing restrictions onTaiwanese businesses, which apply tolarge-scale investment, construction, and high tech manufacturing on the mainland. On January 2, 2001, the Chenadministration formally opened two ROCoffshore islands to trade and travel with the mainland as a precursor to broader direct links. (12) Research trip findings. (13) Officials of the ROC government and military establishment discussed military andpolitical solutions to the cross-strait tensions. Officials at the Ministry of National Defense raised several concerns. First, they articulated Taiwan's requirementsfor more sophisticated U.S. armaments in general. (14) Second, Taiwanese military leaders discussed their inability to fully utilize some U.S. hardwarebecause ofthe need for components, military training, and joint exercises. Third, they expected the PRC-Taiwan dialogue toresume within two years and help diffusetensions. Fourth, they expressed the desire not to unnecessarily aggravate strains in U.S.-PRC relations. ROC defense officials asserted that a mainland military attack was possible but not likely in the short-term. They stated, on the one hand, that the PRC still lackedthe capability to successfully invade the island. Furthermore, one official contended, although the PRC carried outmilitary exercises on a frequent basis, not all ofthem constituted preparation for an attack. An ROC general maintained that although the PRC White Paper ofFebruary 2000 added a condition for the PRC's useof force - Taiwan's "refusal" to enter into negotiations - it did not indicate greater imminence than before of amainland attack. On the other hand, Taiwanesedefense leaders argued that currently the mainland could pressure Taiwan through conducting missile tests, shootingdown Taiwanese fighters or sinking its ships,or taking over offshore islands. An American military specialist in Taipei concurred that although the ROC'sequipment and training were still superior to themainland's, a PRC missile attack could "wreak havoc" on the island and China's capabilities were expected toimprove substantially over the next five years. However, AIT officials suggested that the mainland's military buildup was not the only factor influencing the PRC's actions toward Taiwan. First, the PRCleadership is likely split between hardline and liberal factions. Second, the PRC leadership is torn betweenconflicting goals: the PRC government's antipathytoward foreign interference in China's "domestic affairs" and frequent exploitation of Chinese nationalism may fuelmilitaristic behavior; China's emphasis oneconomic development and aspirations for international prestige may discourage a military solution. Thus,considerations of coercive actions against Taiwan maybe checked by their perceived economic and political costs. AIT officials described the critical U.S. policyobjectives as encouraging liberal forces in PRCpolitics and raising the economic and political as well as military costs to the PRC of using force against Taiwan. Two trends have helped to stabilize PRC-Taiwan relations in the short term. First, the development of real political competition in Taiwan has encouraged themajor parties to appeal to the center of the political spectrum. Democratic politics has given strong voice sinceChen's election to the current majority view thatthe status quo in cross-strait relations should be maintained. Although Beijing, the DPP, and opposition parties maydisagree about means and objectives, thestatus quo at least allows for future talks on the issue. The timing of negotiations, however, may depend upon theoutcome of the December 2001 legislativeelections. Second, cross-strait economic ties, which have been bolstered by the prospect of WTO membership forboth sides, have raised the economic andpolitical costs of a military conflict for Beijing and Taipei. Other factors may add to tensions in the future. PRC foreign policy mishaps or social unrest stemming from economic reforms may trigger renewed governmentemphasis on Chinese nationalism. China's military modernization also bears watching.

This report summarizes findings from a congressional staff trip to Taiwan (Republicof China), December 10-17,2000, with supplemental material from other sources. The staff delegation met with Taiwan government andmilitary officials, political party representatives,leading private citizens, and United States officials and business persons in Taipei, the capital. The findings includemajor factors that have shaped relationsbetween Taiwan and the People's Republic of China (PRC) since Chen Shui-bian's election as President of Taiwanin March 2000. Taiwan's democratization andthe growth of cross-strait economic ties have, in some respects, helped to stabilize relations in the short run. Taiwan's legislative elections in December 2001 willlikely focus largely on domestic issues; its impact on cross-strait relations is uncertain. Chinese nationalism andmilitary modernization in the PRC will likelycontinue to contribute to tensions. This report will not be updated.

The United States Army and Marine Corps have been at war--first in Afghanistan and, then Iraq--since November 2001. In a similar manner, the Marine Corps has deployed its forces and equipment in what has been described as "the harsh operating environments of Iraq and Afghanistan" where the heat, sand, and dust as well as operational rates "well in excess of peacetime rates" have taken a heavy toll on the service's equipment, which, in some cases, was more than 20 years old when the conflicts first began. Equipping Reserve and National Guard units also presents challenges to the services. Traditionally, the Army National Guard and Reserve have been characterized as under-equipped and often times equipped with older equipment than their Active component counterparts. The Army has committed to both man and equip the Army Reserves and National Guard in a similar manner to the Active component. The Army and Marine Corps are also undertaking efforts to re-equip their pre-positioned stocks which were drawn upon to provide equipment for use in Afghanistan and Iraq. The Army and Marines are also actively pursuing the acquisition of new equipment based on wartime experiences. The Army and Marines have a number of equipment-related challenges to rectify which may require significant funding and management efforts. Equipping Army and Marine units has been a long-standing concern of Congress that has taken on added importance as weapons and equipment have become exponentially more sophisticated and expensive. With few exceptions, almost all Army and Marine Corps units have historically faced equipment shortages. In these cases, units either "made do" with the equipment on hand or, if leadership directed, equipment could be transferred from one unit to another--referred to as "cross leveling"--to increase a unit's equipment holdings at the expense of another unit or organization. Reserve forces, which in the past constituted the nation's "Strategic Reserve," usually had less equipment than their active duty counterparts and much of this equipment tended to be older models. Protracted conflicts--like Afghanistan and Iraq--serve the purpose of identifying what equipment works and what equipment does not, as well as identifying requirements for new equipment. In the later case, the wars in Iraq and Afghanistan have generated requirements for new equipment such as Mine-Resistant, Ambush-Proof (MRAP) vehicles. Protracted conflicts also dramatically increase equipment operational usage rates, resulting in reduced useful life and increasing repair and replacement requirements. There are a number of dimensions to equipping Army and Marine Corps units that are examined in the following sections. Equipping units might appear to be a relatively straight forward exercise, but there are a variety of factors involved. Funding is perhaps the foremost issue, as funding is often limited, requiring the services often to make trade-offs between equipment needed to sustain operations and equipment for reorganization or modernization efforts. Another issue is that even if funds are readily available, the equipment might not be. Army officials maintain that for some systems, it can take up to three years after receiving funding before they can be fielded to units. Prior to units being deployed on operations, the Army and Marine Corps typically attempt to bring these units up to their authorized levels of both personnel and equipment. In terms of equipping forces, there are a number of options available. The first option is to requisition the needed equipment through each service's respective supply chain, but this option may not be practical if a unit's equipment needs are significant or if the unit does not have a great deal of time before it deploys. Other options for equipping units include cross-leveling and drawing equipment "in-theater" when a unit deploys. These other two options will be discussed in greater detail in following sections. Both the Army and Marines are providing their units with additional equipment over and above their peacetime authorized levels, which is placing significant equipment demands on both services. The Army maintains that its brigade combat teams (BCTs) are operating over a much wider geographical area than they were designed for and therefore require additional equipment to facilitate these dispersed operations. In addition, units such as the 10 th Mountain Division, 101 st Airborne, and 82 nd Airborne, the Army's light, largely foot-mobile infantry units, require extensive equipment augmentation--particularly vehicles--in order to operate over the large areas assigned to them. The Marines suggest that: The Marine Corps is executing a number of operational missions that are inherently ground equipment intensive. Stability and Support Operations (SASO), Counter-Insurgency (COIN), Civil Military Operations, and Foreign Military Training all require a greater quantity of equipment than our programmed levels for traditional combat operations. In order to adapt to these new mission requirements, we have revised the Equipment Density List, increasing the quantity of equipment issued to Marine Units deploying into the CENTCOM ... Our forward operating bases are not in close proximity to each other; the large distances between forward operational bases require additional vehicles, communications capabilities, and crew-served weapons over and above the standard unit Equipment Density List ... The increased ground equipment requirement, when coupled with high utilization rates, results in a Corps-wide degradation of equipment. The following table provides a selective comparison of a Marine Expeditionary Force (MEF) (Forward)--an approximately 18,000 Marine force--pre-war and revised equipment requirements. Cross-leveling is the practice of transferring equipment to a unit either from another unit or from some type of equipment pool such as pre-positioned stocks. In the case of a unit-to-unit transfer, the transferred equipment often comes from a similar-type unit, usually in a non-deployable status. Both the Army and Marines have made extensive use of cross-leveling, particularly early on in the Afghan and Iraq conflicts. The Army has kept large quantities of equipment in theater, primarily to conserve strategic transportation assets and reduce costs, but also to ensure that units are adequately equipped when deployed. This initiative--called Theater Provided Equipment (TPE)--began in late 2003 when Army units, including Active, National Guard and Reserve, were directed to leave much of their equipment in theater when they redeployed back to the United States. This equipment is then "handed-off" to units deploying to both Operations Enduring Freedom (OEF) in Afghanistan and Operation Iraqi Freedom (OIF). TPE consists of a variety of equipment items including armored vehicles, individual soldier body armor, and equipment used to counter improvised explosive devices. The Marines have also directed that equipment needed for OEF and OIF be left in theater. As previously noted, because mission requirements require additional equipment beyond a unit's peacetime equipment allowance, the Marines have developed expanded equipment packages in theater for deploying units. Both Services have also set aside pools of equipment to rapidly replace equipment damaged and destroyed during operations. The Army refers to this pool of equipment as Theater Sustainment Stocks (TSS). This includes as many as 400 different types of vehicles and equipment numbering about 174,000 pieces of equipment including, Abrams tanks, Bradley fighting vehicles, HMMWVs, and other support vehicles. The Marines also have developed a similar pool of equipment known as Forward In-Stores to replace major equipment damaged or destroyed. In late 2003, the Army directed National Guard and Reserve units to leave selected items of equipment in theater when redeploying to the United States. This equipment left behind by Guard and Reserve units is placed in both the TPE and TSS equipment pools, along with equipment left in theater by Active Army units. DOD Policy requires that the Army replace equipment transferred to it by reserve components and if that equipment is left in theater, the Army must provide "plans to replace equipment for units returning home to ensure training readiness." National Guard leadership has reportedly stated that the Army National Guard, on aggregate, has only 56% of its authorized equipment. It is not known if the Army has developed plans to replace National Guard and Reserve equipment left in Iraq and if efforts are underway to meet this DOD policy. The National Defense Authorization Act for FY2008, H.R. 4986 , authorizes $6.68 billion for National Guard and Reserve Equipment, $980 million over the President's FY2008 Budget Request. Another source for equipping Army and Marine Corps units is equipment from prepositioned stocks either ashore or afloat. Reports maintain that both the Army and Marines have drawn extensively on prepositioned stocks to support operations in Iraq and Afghanistan. While drawing on these stocks has facilitated operations in Iraq and Afghanistan, by depleting these stocks, DOD has assumed near-term operational risks if another large scale conflict breaks out. While the remnants of these prepositioned stocks provide a degree of residual capability, there are supposedly some significant inventory and maintenance shortfalls. To support operations, the Army reportedly used almost all of its prepositioned ship stocks and its stocks ashore in Kuwait and Qatar as well as some stocks in Europe. This included more than 10,000 pieces of rolling stock, 670,000 repair parts, 3,000 containers and thousands of other items of equipment. According to Marine Corps leadership, the Marines drew equipment and supplies from the Marine Corp's two prepositioning programs--the Maritime Prepositioning Force and the Marine Corps Prepositioning Program (Norway)--to support operations in Iraq and Afghanistan. Rec onstituting Prepositioned Stocks . The Army and Marines are attempting to reconstitute their prepositioned stocks. The Army is reportedly focusing on building two brigade-sized equipment sets in Kuwait and battalion sized sets in Qatar and Afghanistan. Equipment that is being used to form these sets is coming from a combination of equipment left in theater, equipment being transferred from U.S. depots, and from units around the world. Much of this equipment is described as needing "substantial repair." Reports suggest that prepositioned stocks that were being rebuilt were drawn on heavily primarily to support the Iraq "surge" resulting in the lowest level of prepositioned stocks in five years. Under normal circumstances, the Army has five full brigades' worth of prepositioned equipment available: two brigades' worth in Kuwait; one brigade in Korea, and two brigades' worth aboard ships in Guam and at the U.S. naval base at Diego Garcia. In order to provide equipment to surging forces, the Army used the afloat stocks and are also using the Kuwaiti stocks to equip units. Only the South Korean stocks are largely intact. According to former Chief of Staff of the Army General (GEN) Peter Schoomaker, it will take two years to rebuild the prepositioned stocks, a fact that worries both military officials and Congress, as these equipment shortages severely limit the Army's ability to respond to other military contingencies. The Army estimates that it will require an additional $2.2 billion to replace prepositioned equipment that was issued to support the "surge." The wars in Afghanistan and Iraq have generated a variety of equipment requirements. These requirements range from developing new equipment, providing commercially-available equipment to service members and units, and modifying existing equipment. The early years of the Afghan and Iraq wars revealed deficiencies both in quantity and quality of protective equipment such as body armor for individual troops and armor protection for wheeled vehicles. Congressional involvement has played a significant role in focusing DOD's attention and resources in addressing these force protection deficiencies, which have seen significant improvement over the past few years. Body armor remains an ongoing issue; some are concerned that the Army's M-16 series of weapons are not reliable; and one relatively current force protection initiative, the Mine-Resistant, Ambush-Proof (MRAP) vehicle, is receiving considerable attention. MRAP refers to a family of vehicles produced by a variety of U.S. and international companies that generally incorporate a "V" shaped hull and armor plating designed to provide protection against mines and improvised explosive devices (IEDs) which have been responsible for about 70% of U.S. casualties in Iraq. There are three categories of MRAPs that DOD is procuring: Category I vehicles weighing about seven tons and capable of carrying six passengers. Category II vehicles weighing about 19 tons, are capable of carrying 10 passengers and can perform a variety of missions including ambulance transport and convoy escort. Category III vehicles intended to be used primarily to clear mines and IEDs, weighing about 22.5 tons and capable of carrying up to 12 passengers. The Army and Marines have employed two versions of MRAPs (the Buffalo and Cougar, respectively) in limited numbers in Iraq and Afghanistan since 2003, primarily for route clearance and explosive ordnance disposal (EOD) operations. MRAPs have been described as providing "twice as much protection against IEDs" as uparmored HMMWVs. The Secretary of Defense, Robert Gates, has made MRAP procurement one of DOD's top priorities, and Service requirements have varied greatly. On June 28, 2007, the Joint Requirements Oversight Council (JROC) reportedly endorsed a requirement to replace every HMMWV in with a MRAP, potentially pushing the MRAP requirement to more than 23,000 vehicles. The JROC capped overall MRAP procurement at 15,374 vehicles in September 2007 but suggested that these numbers could change, based on the assessment of commanders. In June 2007, the Government Accountability Office (GAO) reported that "the Army and Marines are currently meeting theater ballistic requirements and the required amount of body armor needed for personnel in theater, including amounts needed for the surge of troops to Iraq." Both the Army and Marines are involved in efforts to improve the current Interceptor body armor systems used in Iraq and Afghanistan. On March 17, 2006, the Army issued a Safety of Use Message discontinuing the use of Dragon Skin body armor--a commercially developed product by Pinnacle Armor--that some soldiers had acquired privately for use in Iraq and Afghanistan. Army officials at the time, who had been examining Dragon Skin for potential use by the Army, stated that Dragon Skin was "not certified against small arms threats." Since the ban on Dragon Skin by the Army, Pinnacle Armor Inc., as well as others have alleged that Dragon Skin performed better on the Army's tests and subsequent private tests than the Army has suggested. On May 21, 2007, to counter these charges, the Army held a press conference where Army officials allege that Dragon Skin had "catastrophically failed" the Army's tests. On May 21, Senators Levin and McCain wrote Secretary of Defense Gates asking him to have the Directors of Defense Research Engineering and Operational Test and Evaluation "conduct a comprehensive technical assessment of the individual body armor systems currently available." During a House Armed Services Committee hearing on body armor on June 6, 2007, committee members called for additional testing for Dragon Skin body armor and the Army reportedly agreed to re-test Dragon Skin if its maker responded to the Army's current request for proposal (RFP) for new body armor. The Air Force Material Command has reportedly recommended that the Air Force prohibit Pinnacle Armor, Inc., from signing new contracts with the U.S. government due the allegation that Pinnacle Armor had made false claims about Dragon Skin meeting government testing standards. In the mid-1990s, the Army began fielding the M-4 carbine, a lighter, more compact version of the Vietnam-era M-16 rifle which had a history of malfunctioning in combat. Both M-16 and M-4 carbines are manufactured by Colt and are currently used by U.S. forces fighting in Iraq and Afghanistan. While many maintain that the M-4 is a much more reliable rifle than the M-16, it is alleged that soldiers have expressed significant concerns over the M-16's and M-4's lethality and reliability during combat in Iraq and Afghanistan. In 2004, the Army's Special Forces Operational Detachment--Delta (commonly referred to as "Delta Force") replaced their M-4 carbines with Heckler & Koch 416 carbines. The Army's program to replace the M-16 family of weapons--the Objective Individual Combat Weapon (OICW) program--began in 1994 and one component of that program, Heckler & Koch's XM-8 assault rifle, was considered by some as the M-16's/M-4's replacement. As late as 2005, the XM-8 was reportedly close to being officially approved as the Army's new assault rifle, but alleged acquisition and bureaucratic conflicts within the Army and between the Army and DOD supposedly compelled the Army to cancel the XM-8 program in October 2005. The Army reportedly plans to continue its procurement of M-16s and M-4s for "years to come," and some in Congress have called for a "open competition" to choose a successor to the M-16 and M-4 assault rifles. Replacing damaged, destroyed, and worn-out equipment arguably constitutes the most significant equipment issue - both in terms of cost and magnitude - facing the Army and Marine Corps. The process of replacing this equipment is generally referred to as "reset" by the Army and the Marines and is further defined as follows: Reset is defined as "a series of actions taken to restore unit equipment to a desired level of combat capability after returning from contingency operations." Reset includes the functions of repairing equipment and replacing equipment that has either been lost in combat or worn to the point of being uneconomically repairable. Reset also includes the function of recapitalization which is the rebuilding or systemic upgrading of currently fielded systems to a "zero time/zero miles" status which is intended to extend service life, reduce operations and support costs, and improve reliability and enhance capability--often based on lessons learned in Iraq and Afghanistan. Army leadership has credited funding and "around-the-clock work" for an increase in FY2007's reset rate. By the end of FY2007, the Army predicted that it should have reset approximately 117,000 major items of equipment, including 557 Aircraft; 1,700 Tracked Vehicles; 8,115 HMMWVs; 1,800 Trucks; 1,200 Trailers; 39,000 Small Arms; and 7,400 Generators. In FY2008, the Army hopes to reset 24 brigade combat teams (BCT), consisting of about 4,000 soldiers and about 40,000 pieces of equipment each, returning from operations in Iraq and Afghanistan. In October 2007, after a year-long study, the Army decided to combine its reset and modernization efforts into a single, two-year $50 billion program. The $50 billion price tag for this effort includes $17 billion spent on rest in FY2007, the Army's $18.4 billion supplemental funding request for FY2008, and $14.5 billion in procurement funds spent in FY2007 and appropriated for FY2008. The Army, which plans to complete this program by the end of FY2009, is said to be taking advantage of resources that they have today that they might not have in the future. Under this effort, the Army plans to go from five Abrams tank variants to two variants by 2011; go from five Bradley fighting vehicles to two by 2011; all Patriot PAC-2 missiles to PAC-3 missiles; 9,000 M-35 two and a half ton trucks to be replaced by the Family of Medium Tactical Vehicles; unmanned systems--3,000 on order for Iraq and Afghanistan; and upgraded ballistic armor protection for HMMWVs and MRAPs. Some analysts believe that this "hurry up" approach of combining reset and modernization could save the Army money, but there are concerns that by combining these efforts, separating and tracking costs and expenditures--already a significant problem--could become more difficult. The National Defense Authorization Act for FY2008, H.R. 4986 , authorizes $18.4 billion for Army reset, $4.8 billion over the Administration's FY2008 budget request. The Marines estimated that the cost to rest the Marine Corps at the end of FY2006 was $13.7 billion, a "rolling estimate that included two years worth of depot at the conclusion of the current hostilities and is thus somewhat variable." The National Defense Authorization Act for FY2008, H.R. 4986 , authorizes $8.6 billion for Marine Corps reset, $ 6.9 billion over the Administration's FY2008 budget request. There are continued concerns about the availability of equipment for reserve forces--particularly the Army National Guard--in terms of readiness to address domestic responsibilities as well as when these units are deployed to Iraq and Afghanistan. In January 2007, Government Accountability Office (GAO) noted that: The high use of the National Guard for federal overseas missions has reduced equipment available for its state-led domestic missions, at the same time it faces an expanded array of threats at home. On March 27, 2007, Lieutenant General H. Steven Blum, Chief of the National Guard Bureau, told the House Subcommittee on Readiness that the Army National Guard had only 40% of its required equipment on-hand, with an additional 11% of that equipment either deployed with units or left in theater for other units to use. Lieutenant General Blum further maintained that this situation hindered the ability to train units and could slow the National Guard's domestic response to disasters or terrorist incidents. Recent reports suggest that National Guard soldiers training for deployment to Iraq and Afghanistan are not able to train with the same rifles, HMMWVs, night vision, and other types of equipment that these soldiers will be issued when they arrive in theater which has raised questions as to how well these units will be able to function in combat when they are provided equipment that they are not familiar with? The Army has reportedly pledged to spend $21 billion over the next four years to re-equip the National Guard, but some are concerned that this equipment will instead be deployed to Iraq to support the "Surge" instead of being used to re-equip depleted National Guard units at home as they prepare to support domestic missions and train for overseas deployments. Given these concerns, Congress might decide to examine DOD's and the Army's plans to re-equip National Guard units. Such an examination could focus on how units will be re-equipped to deal with domestic responsibilities and also how these units will be provided with the same equipment that they will receive upon deployment for home-station training in the United States. This examination might also examine how DOD and the Army plan to bring the Reserve's aggregate equipment level from about the current 40% level to at least the 80% level that Guard and Reserve leadership have called an "acceptable level" to meet both domestic and overseas requirements. Some in Congress have expressed alarm in both the extended duration of time that DOD has allocated to reconstitute prepositioned stocks as well as a lack of a comprehensive plan to reconstitute these strategic assets. In its version of the FY2008 National Defense Authorization Act ( H.R. 1585 ), the House Armed Services Committee requires DOD to submit an annual report on the status of U.S. prepositioned stocks, including funding requirements, intended future strategic use of these stocks, and strategic risk mitigation plan if these stocks are used before fully replenished. There are other potential considerations related to preposition stocks that Congress might decide to review. Will the Army and Marines reconstitute preposition stocks with equipment such as Armored Security Vehicles (ASVs), MRAPs, and other specialized equipment developed in response to wartime needs or will the Services instead replenish prepositioned stocks to pre-war authorization standards? Another consideration is the readiness status of equipment being used for replenishment. Some reports have asserted that much of the equipment being used in DOD's current restocking efforts is in poor condition and requires extensive maintenance. On November 30, 2007, the Marines reduced their MRAP requirement from 3,700 to approximately 2,300 vehicles. The Marines cited six factors in their decision: IED attacks were dramatically down over the preceding six months. The relatively heavy MRAP cannot operate or pursue the enemy off-road, in confined areas, or across most bridges. Reduced need to put Marines on high-threat roads through the use of persistent surveillance and airlift of supplies. Counterinsurgency focus requires Marines dismount and interact closely with the local populace. MRAPs associated with surge forces were no longer needed. MRAP sustainment numbers were lower due to fewer than expected combat losses. The Marine's reduction in its MRAP requirement from 3,700 to 2,300 was anticipated to result in a potential cost savings of approximately $1.7 billion in FY2008 and FY2009. The Army is also expected to cut a number of MRAPs from its current 10,000-vehicle requirement but has not yet publically committed to a specific requirement. The Army also cited decreasing casualties and IED attacks over the previous six months, as well as the need to dismount and interact with the populace, as factors in reducing its original MRAP requirement. While decreasing MRAP requirements based on the improving tactical situation in Iraq and in anticipation of a reduction in troop levels can be considered prudent management by DOD, at some point DOD will need to establish a firm requirement for the total number of MRAPs to be procured. Allegations that the successor of the Army's M-16/M-4 carbine, the Heckler & Koch's XM-8 assault rifle, was cancelled due to bureaucratic conflicts among Army and DOD acquisition officials might be an issue for congressional examination. Some may question why the Army remains committed to upgrading an almost 50-year-old weapon when other DOD organizations, such as special operations units, have adopted other weapons that are considered more reliable and effective in combat than the M-4 carbine. It can be argued that the Army has exhibited a tendency to pursue incremental improvements to legacy systems, such as repeated add-on armor upgrades to HMMWVs, instead of fully examining and rapidly procuring commercially-available systems that prove to be more effective than current systems.

The United States Army and Marine Corps have been at war--first in Afghanistan and then Iraq--since November 2001. The Army's and Marine Corps' equipment has been employed in what has been described as "the harsh operating environments of Iraq and Afghanistan" where the heat, sand, and dust as well as operational rates "well in excess of peacetime rates" have taken a heavy toll on the Army's and Marines' equipment. Re-equipping Reserve and National Guard units that, in many cases, were under-equipped to start with and then required to leave their equipment in theater also presents challenges to the Services. The Army and Marine Corps are also undertaking efforts to re-equip their pre-positioned stocks which were drawn upon to provide equipment for use in Afghanistan and Iraq. There are also concerns that the Army and Marines have not always aggressively pursued the best force protection equipment available and the Army has been questioned on its efforts to improve the standard soldier assault rifle. Congress, in its appropriation, authorization, and oversight roles may be faced with some of the following issues: What are the Department of Defense's (DOD's) and the Service's plans to re-equip reserve forces so that they are sufficiently resourced for domestic missions and to properly train for deployments to Iraq and Afghanistan? What is the current state of pre-positioned stocks that have been drawn down again to support the Iraq "surge"? What type of equipment is being used to restock pre-positioned stocks and is this equipment fully operational or in a lesser state of readiness? How Many MRAPs does DOD intend to procure? Have bureaucratic difficulties attributed to the Army and DOD had an adverse impact on efforts to find a suitable replacement for the Army's M-16/M-4 series of assault rifles? This report will be updated on a periodic basis.

The National Weather Service (NWS), at the discretion of the Secretary of Commerce, has statutory authority for weather forecasting and for issuing storm warnings (15 U.S.C. SS313). The NWS provides weather, water, and climate forecasts and warnings for the United States, its territories, adjacent waters, and ocean areas. The 114 th Congress has expressed its interest in improving forecasts and warnings to protect life and property in the United States from severe weather events through its role in oversight, appropriations, and the authorization of language regarding NWS. NWS is one of several line offices within the National Oceanic and Atmospheric Administration (NOAA). In 2014, NWS restructured its organization structure, which is reflected in its annual congressional budget justifications since then. This report includes tables that summarize appropriated funding for NWS, and the programs within NWS that generate forecasts and warnings, and the funding for NWS in its restructured accounts since FY2014. The report also includes a table with a brief summary and analysis of various bills introduced in the 114 th Congress that would have some bearing, directly or indirectly, on NWS operations. To date, none of the bills has been enacted. NWS's core mission is to provide weather forecasts and warnings for protection of life and property. Apart from the budget for procuring weather satellites, NWS received the most funding of any agency or program within the FY2016 budget for NOAA. Prior to FY2015, NWS's Local Warnings and Forecasts (LW&F) program received approximately 70% of NWS funding each year (from FY2009 through FY2014, see Table 1 ), suggesting that short-term weather prediction and warning is a high priority for NWS and for NOAA, in accord with NOAA's statutory authority. The 122 NWS weather forecast offices distributed throughout the United States provide the forecasts and warnings familiar to most people (see box below). Starting in FY2015, NWS restructured its programs, spreading out the LW&F activities among five separate subprograms. The restructuring makes it difficult to compare funding for LW&F activities prior to FY2015 with funding for forecast and warning activities after FY2014. According to NOAA, the restructuring was "part of a broader effort to align the NWS budget to function and link to performance." Also, NOAA cited two reports that included recommendations for realigning and restructuring its operations. NOAA stated that its commitment to forecasts and warnings continues: "NWS is dedicated to serving the American public by providing a broad spectrum of weather, climate, and hydrological forecast guidance and decision support services. NWS strives to meet society's need for weather and hydrological forecast information." Table 2 displays NWS funding in the restructured accounts for FY2014 through the FY2017 proposed budget. It also shows the percentage of total NOAA funding represented by each account within NWS. As stated above, the restructuring makes it difficult to compare LW&F funding prior to FY2015 with the restructured accounting; however, total NWS funding as a percentage of total NOAA funding appears to have dropped by a percentage point or two in the last few years. The proposed budget for NWS in FY2017 is nearly $5 million less than the enacted budget in FY2016, whereas total proposed spending for NOAA in FY2017 represents an increase of slightly more than 1% over the FY2016 enacted figure. Both the House and the Senate appropriations committees have reported FY2017 appropriations bills that would fund NOAA, including NWS, for FY2017. Reports accompanying each appropriation bill contain language that may influence NWS operations in FY2017 and beyond. In addition, several bills were introduced in the 114 th Congress that, if enacted, could affect NWS. Some of the bills focus on single topics, such as increasing the number of Doppler radar stations across the country. Other bills would address a broader array of programs within NOAA and NWS. Several bills may affect NWS only indirectly, such as those that would authorize strategies to improve resilience to extreme weather events. Table 3 lists legislation introduced in the 114 th Congress that may affect NWS and briefly summarizes relevant provisions. Many different components and programs within NOAA contribute to NWS's mission of providing weather forecasts and warnings. Several of the bills listed in Table 3 indicate congressional interest in some of those components and programs, such as the research programs within the office of Oceans and Atmospheric Research at NOAA, and in the challenge of improving the integration of research results into operational weather forecasting (e.g., H.R. 1561 , S. 1331 ). Several of the bills are more narrowly focused, such as those that would require additional Doppler radars to provide coverage for large population centers or state capitals (e.g., H.R. 3538 , H.R. 5089 , S. 2058 ) or those that would require additional personnel at NWS forecast offices (e.g., S. 1573 ). NOAA weather satellites are also critical components of the NWS's core mission, and Congress has been concerned about possible gaps in coverage and about the future of the weather satellite programs. Congress has expressed concern about the future of the weather satellite program in annual appropriations bills and accompanying reports and will likely continue to do so for the foreseeable future, as the budget for satellite acquisitions continues to be a major component of overall NOAA annual spending. Furthermore, Congress likely will continue to introduce legislation that would shape NWS operations, directly or indirectly, in an overall effort to improve NWS's ability to provide forecasts and warnings for protection of life and property in the United States.

The mission of the National Weather Service (NWS) is to provide weather forecasts and warnings for the protection of life and property. Apart from the budget for procuring weather satellites, NWS received the most funding (about $1.1 billion) of any office or program within the FY2016 budget for the National Oceanic and Atmospheric Administration (NOAA). The largest fraction of the NWS budget has been devoted to local forecasts and warnings, suggesting that short-term weather prediction and warning is a high priority for NWS and for NOAA, in accord with NOAA's statutory authority. Starting in FY2015, NWS restructured its programs, spreading out the local warning and forecast activities among five separate subprograms. The restructuring makes it difficult to compare funding for local warning and forecast activities prior to FY2015 with funding for forecast and warning activities after FY2014. According to NOAA, the restructuring was "part of a broader effort to align the NWS budget to function and link to performance." Several bills introduced in the 114th Congress would directly or indirectly affect NWS if enacted. Some of the bills focus on single topics, such as increasing the number of NWS-operated Doppler radar stations across the country (e.g., H.R. 3538, H.R. 5089, S. 2058). Other bills would address a broader array of programs within NOAA and NWS (e.g., H.R. 1561, S. 1331, S. 1573). Several bills may affect NWS only indirectly, such as those that would authorize strategies to improve resilience to extreme weather events (e.g., H.R., 2227, H.R. 2804, H.R. 3190). Other bills relate to NOAA weather satellites, which are critical components of NWS's mission to provide weather forecasts and warnings (e.g., S. 1331). Congress has been concerned about possible gaps in coverage and the future of the weather satellite programs. The 114th Congress has expressed its interest in improving forecasts and warnings to protect life and property in the United States from severe weather events through its role in oversight, appropriations, and the authorization of language regarding NWS. To date, none of the bills introduced in the 114th Congress has been enacted. However, Congress likely will continue to introduce legislation in the future that would shape NWS operations, directly or indirectly, in an effort to improve forecasts and warnings.

On December 23, 2008, a military junta calling itself the National Council for Democracy and Development (CNDD) seized power in Guinea following the death of longtime President Lansana Conte. A previously little-known army officer, Captain Moussa Dadis Camara, was named president. The CNDD dissolved the constitution and legislature, appointed a civilian prime minister, and promised to hold presidential and legislative elections. However, elections were repeatedly postponed, while Dadis Camara's erratic leadership sparked increasing civilian unrest and concerns that military fragmentation could lead to violence. On September 28, 2009, Guinean security forces opened fire on civilian demonstrators in Conakry who were protesting the CNDD and Dadis Camara's implied intention to run for president, killing over 150 and injuring many more. The crackdown, which was accompanied by reports of widespread military abuses against civilians, sparked fierce international condemnation, including from the United States. On December 3, 2009, Dadis Camara was shot and wounded in the head by a member of his presidential guard. He was evacuated to Morocco for medical treatment. On January 12, 2010, he was unexpectedly flown to Ouagadougou, the capital of Burkina Faso, whose president, Blaise Compaore, had earlier been appointed the regional mediator in Guinea's political crisis by the Economic Community of West African States (ECOWAS). In Dadis Camara's absence, the CNDD defense minister, Brig. Gen. Sekouba Konate, informally assumed the position of acting head of state. However, uncertainty remained over Konate's authorities, the extent of Dadis Camara's injuries, and the future leadership of the country. The power vacuum coincided with reports of rising ethnic tensions, the reported recruitment of militia groups by various factions, and instability within the CNDD and wider armed forces. Fears of imminent conflict caused some Guineans, human rights groups, and diplomats to call for a regional intervention force. On January 15, 2010, Dadis Camara, Konate, and Compaore announced a new political agreement, known as the Joint Declaration of Ouagadougou , after meeting in Burkina Faso. The declaration stated that Konate would assume executive powers as "Interim President" and form a government of national unity. The declaration also promised the following: The appointment of a prime minister from the Forces Vives , a coalition of opposition political parties, trade unions, and civil society groups formed after the 2008 coup d'etat. The inauguration of a quasi-legislative body, the National Transitional Council (CNT). The organization of presidential elections within six months, with Konate, the prime minister, and members of the government, the CNDD, the CNT, and the defense and security forces barred from running as candidates. Reform of the defense and security forces. The statement was widely welcomed as an end to the protracted political vacuum that had followed Dadis Camara's exit from Guinea. While its main points largely reaffirmed previous statements by Konate, the declaration appeared to quell attempts by hard-line CNDD members to wrest power from Konate and push for Dadis Camara's return. Following the declaration, Dadis Camara publicly read a prepared statement expressing full support for Konate's leadership. Although he remains the nominal head of state, Dadis Camara has since declined to return to Guinea from Burkina Faso, where he continues to pursue medical treatment for his wounds. The constitution remains suspended, but restrictions on political and union activity have been lifted. The 111 th Congress has closely monitored events in Guinea since the 2008 coup. Recent activities have focused on human rights abuses under the CNDD, progress toward elections, oversight of U.S. assistance, and the potential for regional destabilization. Recent legislation includes H.Res. 1013 (Ros-Lehtinen), a bill condemning the violent suppression of legitimate political dissent and gross human rights abuses in the Republic of Guinea, introduced January 13, 2010, and passed by the House on January 20, 2010; and S.Res. 345 (Boxer), a resolution deploring the rape and assault of women in Guinea and the killing of political protesters on September 28, 2009, introduced on November 9, 2009, and agreed to in the Senate on February 22, 2010. The key public figures in the government of national unity are Konate, Jean-Marie Dore, and Rabiatou Serah Diallo. Dore, the former spokesman for the Forces Vives coalition, was named prime minister on January 19. Serah Diallo, a prominent trade union leader, was appointed in early March to head the quasi-legislative National Transition Council (CNT), which was inaugurated with 155 members representing political parties, trade unions, civil society groups, and other socioeconomic demographics. The CNT is expected to revise Guinea's electoral laws and the constitution, though its precise mandate and authorities have not been publicly detailed. Dore appointed a 34-person cabinet, composed of 24 civilians and 10 military officers selected by the CNDD, in mid-February. The civilians include representatives of political parties and civil society groups. The Defense Ministry, Security Ministry, and Justice Ministry, however, remain under CNDD leadership. Konate separately appointed a 23-member "presidential cabinet" of advisors, including several hard-line CNDD figures previously seen as loyal to Dadis Camara. The trio of key leaders represents three prominent ethno-regional groups and Guinea's two largest religious identities, Christian and Muslim. Dore and Serah Diallo both have roots in the opposition movement against former President Lansana Conte, though they were not previously seen as allies. They also have little experience in government, which is seen by some as both a potential challenge and an asset, as many are critical of Guinea's poor governance record. Serah Diallo leads a trade union coalition that was instrumental in organizing watershed anti-Conte demonstrations in early 2007. Prior to his appointment, Dore led a small opposition political party, the Union for Guinean Progress (UPG, after its French acronym). He ran for president in 1998 but garnered less than 2% of the vote, far less than the two leading opposition candidates at the time. Dore was later elected to the National Assembly, but he declined to take up his seat after the 2002 legislative elections in a protest against electoral fraud. U.S. officials have expressed strong support for the Ouagadougou declaration and Konate's leadership. Officials have also publicly stated that the United States would prefer Dadis Camara to remain outside of Guinea and suggested that his return could destabilize the fragile political situation. In his February 2010 testimony to Congress, Director of National Intelligence Dennis C. Blair highlighted Guinea's continuing instability but contended that Dadis Camara's departure "has opened a narrow window of opportunity for defusing a volatile situation." Prior to Dadis Camara's exit, the State Department had expressed support for a transitional government led jointly by military and civilian officials. Assistant Secretary of State for African Affairs Johnnie Carson met with Konate in Morocco on January 5, 2010, reportedly emphasizing U.S. support for "a civilian-led transition government leading to free, fair, and transparent democratic elections." Officials have since suggested that the unity government fulfills these criteria. Deputy Assistant Secretary of State William Fitzgerald has said that Konate appears to be "an ideal transition leader." U.S. Ambassador Patricia N. Moller, who arrived in Guinea in late 2009, officially presented her credentials to the government in March; she had previously declined to do so, as the United States did not recognize the CNDD. Addressing Konate, Moller stated that "you and your government hold the key to a brighter future for Guinea." Major donors, the U.N. Secretary-General, and regional organizations--notably the African Union (AU) and ECOWAS--have likewise welcomed the transitional government. Neighboring countries, with which Guinea shares economic and ethno-regional ties, have also expressed support on a bilateral basis, with several hosting state visits by Konate. The International Contact Group on Guinea, a policy coordination group chaired by the AU and ECOWAS, and of which the United States is a member, has called on the new government to hold elections within the agreed-upon timeframe of six months. France, a major donor, resumed bilateral cooperation programs, including military assistance, in February after suspending them in response to the abuses of September 2009. While the European Union has largely maintained targeted sanctions and an arms embargo instituted in October 2009, in March 2010 it removed four individuals, including Konate and Security Minister Mamadouba Toto Camara, from the sanctions list. While the United States has expressed support for the transitional government, restrictions on some forms of U.S. assistance to Guinea remain in place, as do targeted travel restrictions against certain CNDD members, other Guinean officials, and key associates. As electoral preparations advance, a number of issues will confront U.S. policy-makers. These include the status of bilateral relations; the monitoring of progress toward elections; U.S. policy toward a potential International Criminal Court investigation of alleged CNDD human rights abuses; and potential U.S. support for security sector reform. U.S. relations with the unity government, underpinned by support for the Ouagadougou declaration and Konate's transitional leadership, represent a significant shift from U.S. policy toward the government led by Dadis Camara. The United States did not recognize the CNDD and placed restrictions on bilateral aid, meetings between senior U.S. officials and CNDD leaders, and travel to the United States by CNDD members, government officials, and associates. State Department officials have justified U.S. support for the unity government on the basis that it represents an improvement from the junta that took power in 2008, and that Konate's stated commitments to implement the electoral calendar and refrain from running as a candidate will be upheld. Indeed, most Guineans and international observers have welcomed the transitional government and the plan to hold elections. At the same time, some argue that the new government has yet to demonstrate its political will to hold elections, and there are already signs that the timeline may be delayed (see " Progress Toward Elections " below). Critics have also pointed to continuity between the CNDD and the unity government--the CNDD retains control of key ministries and the security forces--and have raised questions as to Konate's role in CNDD abuses. As former commander of the elite airborne battalion known as the BATA, Konate was seen as a powerful figure in the 2008 coup and a close advisor to Dadis Camara. While he was not in Conakry during the September 2009 military crackdown, a United Nations commission of inquiry concluded that his role deserved further investigation. Some observers have seen similarities to the first six months of CNDD rule, when Dadis Camara also repeatedly promised to uphold the electoral calendar and refrain from running as a candidate. The U.S. approach to the transitional government to date appears to highlight tension between the goal of seeking accountability for abuses and the goal of preserving peace in a still-fragile state. Like other transitional regimes, the unity government includes individuals implicated in human rights violations, and there has been little public attempt by the Guinean government to spur prosecutions or broader truth and reconciliation mechanisms. Two CNDD military officers accused of serious abuses have retained their ministerial rank and hold positions in Konate's "presidential cabinet." Human Rights Watch has called for their immediate removal. Others, however, contend that attempts to remove or prosecute such officials prior to elections would be deeply destabilizing, and could lead to a counter-coup or further violence. According to the State Department, the CNDD takeover in 2008 did not trigger legal restrictions, enacted by Congress for over 25 years through annual appropriations legislation, on certain forms of bilateral assistance to countries in which the "duly elected head of government is deposed by military coup or decree," as the deposed government was not "duly elected." Most recently, such restrictions were included in the Consolidated Appropriations Act, 2010 ( P.L. 111-117 , Section 7008, Title VII, Division F, signed into law on December 16, 2009). Restrictions on aid, aside from humanitarian aid and democracy and governance programs, were nonetheless imposed as a matter of U.S. policy. Separately, the Consolidated Appropriations Act, 2010 (Section 7070) restricts International Military Education and Training (IMET) programs in Guinea to Expanded IMET (E-IMET), which emphasizes human rights and civilian control of the military. In practice, security assistance was suspended after the 2008 coup, while most non-military aid to Guinea fit into permitted categories. Notably, the policy restrictions halted security assistance programs aimed at enhancing Guinea's military professionalism and maritime security capacity, which responded in part to growing U.S. concerns over transnational narcotics trafficking through Guinea. Permitted aid includes Projet Faisons Ensemble , a $23 million USAID-funded umbrella project initiated in 2007 that aims to integrate local governance programs with health, education, agriculture, and other development assistance. It also includes over $5.5 million in electoral assistance, expected to fund activities including voter education projects; the provision of electoral materials; and training and assistance for the National Independent Electoral Commission (CENI), poll workers, civil society groups, media, and political parties. State Department officials have recently suggested that limited exceptions may be made to restrictions on security assistance in light of recent positive developments. In March 2010, the State Department notified Congress of its intention to obligate up to $200,000 in FY2005 "no year" IMET funds to conduct courses for military officials and civilians on topics including civil-military relations, military justice, human rights, and the rule of law. At least one course is expected to be held prior to elections. Some argue that aid restrictions should be further rolled back in order to assist the government in maintaining security and preparing for elections. Others contend that they should be maintained until free and fair elections are ascertained to have taken place. Critics have also pointed to the difficulties of vetting beneficiaries of assistance programs for potential involvement in human rights abuses. In October 2009, following the military abuses of September 2009, the U.S. government imposed targeted travel restrictions on "certain members of the military junta and the government, as well as other individuals who support policies or actions that undermine the restoration of democracy and the rule of law in Guinea." These restrictions are still in effect, though a full list of those targeted has not been made public. Some argue that if the restrictions target certain CNDD leaders participating in the unity government--such as Konate himself--they should be repealed in light of the evolving political situation. Others contend that the restrictions should be maintained if they are based on perceived complicity in abuses. Presidential elections are scheduled for June 27, 2010. The date for legislative elections has not been set. Many Guineans appear to support the six-month timeline stipulated in the Ouagadougou declaration, as does the International Contact Group on Guinea. Donors have expressed confidence that funding for the elections--projected to cost roughly $27 million--will not be a challenge. However, several factors could contribute to a delay in the election timetable. Some observers believe such a delay could undermine public support for the unity government or cause popular unrest, as in 2009. The United States has not publicly identified benchmarks for the continuance or suspension of electoral assistance programs. Factors that could potentially lead to a postponement of elections include the political will of the transitional government; the capacity, efficiency, and mandate of the CNT, which is expected to reform the constitution and electoral legislation prior to the vote; ongoing disputes over the reliability of voter lists compiled in 2009 ; the actions of potential political or military "spoilers"; the attempt to register Guinean voters in neighboring countries and overseas, which could prolong the process by months ; and logistics associated with the onset of the rainy season in Guinea. International Criminal Court (ICC) prosecutors announced a "preliminary examination" of the situation in Guinea in October, in connection with the violence of September 28, 2009. A U.N. commission of inquiry later concluded that elements of the crackdown may have constituted crimes against humanity for which the Guinean state carries legal responsibility, in addition to the potential individual criminal liability of Dadis Camara and other security commanders, and recommended referral of certain cases to the ICC. Guinea is a state party to the Court. Obama Administration officials have indicated, amid a wider review of U.S. policy toward the Court, that the Administration is "considering ways in which we may be able to assist the ICC, consistent with our law, in investigations involving atrocities." A determination on what types of assistance, and in which cases, remains under review. Advocates of international justice believe the United States should assist the ICC in its Guinea investigation, and that prosecution of military commanders could serve to deter future abuses. Others counter that ICC involvement could be destabilizing, or that U.S. cooperation with ICC prosecutions is generally undesirable. U.S. officials have recently indicated that the United States may provide assistance for security sector reform (SSR) in Guinea. In March 2010, a U.S. delegation representing the State Department, the U.S. Agency for International Development (USAID), and the Defense Department met with Guinean officials in Conakry to discuss potential U.S. support for "justice and security sector reform" (JSSR) efforts. These could potentially include training of Guinean police and military forces, assistance in military "right-sizing," and assistance for electoral security preparations. The United States is also funding two contracted experts' participation in an assessment of Guinea's security sector led by ECOWAS and the United Nations. Significant U.S. involvement in SSR is unlikely to occur prior to elections, however. U.S. security assistance in Guinea has previously largely focused on providing training and--at times--equipment, not on altering security services' authorities, overall structure, or oversight. Prior to the 2008 coup, Guinea benefitted from IMET, Foreign Military Financing (FMF), "Section 1206" programs , and other U.S. military assistance aimed at enhancing security forces' capabilities and professionalism. In 2002, the United States trained and equipped an 800-person "Ranger" battalion in response to cross-border attacks from Liberia and Sierra Leone. In contrast, in neighboring Liberia, the United States has led efforts to rebuild, restructure, and train the military after it was dissolved following the end of civil conflict in 2003. Nearly all observers point to Guinea's bloated and undisciplined military as a central cause of political instability. Upon former President Conte's death, one analyst noted that "the army that General Conte has bequeathed his country knows little of the role and methods that it would need to employ in a democratic state respectful of its citizens' most basic rights." The military has been implicated in multiple coup attempts, mutinies, and human rights abuses, including the abuses of September 2009 and the shooting of over 100 unarmed anti-government demonstrators in early 2007. Military officers implicated in abuses are perceived as benefiting from near-complete impunity. The armed forces are also divided along ethnic, generational, and factional lines; military factionalization reportedly grew further entrenched under the CNDD. In the eyes of some, the armed forces serve largely as a vehicle for corruption and patronage rather than national defense. The military is thought to exert substantial control over key imports such as rice (a dietary staple) and gasoline. Many mid-ranking and senior members of the officer corps fought in regional conflicts and in Guinea's border war with Liberia (2000-2001); some are understood to have participated in looting, resource trafficking, and other abuses during these operations. Senior military figures were also reportedly involved or complicit in transnational narcotics trafficking during the final years of Conte's rule. At the same time, military salaries and other benefits are seen by many as a vital safety net for a deeply impoverished population. Following the CNDD takeover and throughout 2009, abuses by security forces escalated, including looting, extrajudicial arrests, detentions, torture, extortion, the targeting of political opponents, and other abuses of power. Concurrently, military hierarchy and the chain of command were seen as deteriorating. While many credit Konate with improving military discipline since early January, the potential for abuses remains high. Some also contend that a broad-based truth and reconciliation process is needed to address public perceptions of the armed forces and allegations of abuses stretching back to the post-colonial period. Repeated attempts by civil society groups in recent years to push for official investigations have not succeeded. In addition to perceived impunity and lack of discipline, various other elements are seen as challenges to a well-functioning security sector, as the following sections will address. Guinea's military has not been submitted to effective civilian control in decades. The defense sector's structure, size, and budget are opaque. Under Dadis Camara, the Defense Ministry was staffed and led by uniformed military officers (notably Konate), as it continues to be under the current unity government. Former President Conte came to power in a military coup in 1984, and while he later transformed the regime into one nominally governed by civilian institutions, it retained many aspects of military rule. Attempts to institute budgetary or structural changes during the Conte era were met with mutinies or other violence. Most recently, in May 2008, mutinous troops seized a major army base in Conakry, took senior officials hostage, pillaged shops and homes, and exchanged fire with loyalist soldiers, until the government eventually agreed to pay each soldier over $1,000, sack the defense minister, and grant mass promotions. Guinea's military personnel are thought to number in the tens of thousands, making its standing military one of the region's largest despite a population of roughly 10 million. The size of the military presents a challenge on multiple levels. Personnel reportedly include numerous "ghost" soldiers, as well as individuals brought into the military through irregular processes, outside formal channels of military recruitment and training. Furthermore, military salaries and a government-financed rice subsidy for soldiers represent a significant financial burden on the Guinean state. Both are politically sensitive, not least because military benefits represent scarce safety nets for many families. The ratio of military to civilian security forces is also thought to require redress, as insufficient police capacity is thought by some to have contributed to an overreliance on military force to conduct law enforcement and crowd control operations. The respective roles and mandates of the various security services in Guinea's national security policy are also largely undefined. It is unclear, for example, which security agencies have the lead role in ensuring crowd-control, election security, border security, or counter-insurgency. The role of the so-called "Red Berets," who report directly to the presidency and have repeatedly been accused of human rights abuses, is particularly contentious. The Red Berets have, at various times, comprised the Presidential Guard, the BATA, the U.S.-trained Rangers, and other elite corps, in addition to soldiers who purchased red berets for personal use. Under the CNDD, Red Beret units were regrouped under the Ministry for Presidential Security, outside the purview of the Ministry of Defense. Their current mandate and chain of command remain undefined. Individuals within the CNDD reportedly oversaw the recruitment and training of militias in 2009. Militia fighters, including ex-combatants of neighboring conflicts, are reported to have received training from foreign mercenaries, and to have participated in the September 2009 violence. In January, Konate ordered the militia training camps closed and dispersed the recruits. However, militia fighters' whereabouts and level of cohesion are unclear, and they are thought to represent a potential security risk. According to some reports, some militia trainees may be inducted into the military, further swelling its numbers. The militias trained by the CNDD represent only one example, among many, of irregular recruitment by Guinean authorities in response to perceived security threats; reportedly, previous recruits have not benefited from formal disarmament or reintegration processes. Some observers contend that security sector reform should include a judicial component. Judicial and law enforcement capacity is reportedly very low and further compromised by widespread corruption and politicization. According to the State Department's 2009 Human Rights Report , Guinea's "judicial system was endemically corrupt.... Budget shortfalls, a shortage of qualified lawyers and magistrates, and an outdated and restrictive penal code limited the judiciary's effectiveness." Political interference in the judiciary is commonly reported, and does not appear to have decreased since the advent of the unity government. A regional human rights organization recently concluded that "the lack of judicial independence has created, among Guineans, a sense of vacuum that can only be filled by violence: the law of the jungle is perceived in Guinea as the only way to protect oneself against injustice." Under the CNDD, military leaders further sidelined the role of the judiciary and civilian law enforcement agencies in upholding the rule of law, and encouraged vigilante justice. Successful SSR may require deep structural, policy, and budgetary reforms. These could involve downsizing the total number of security personnel and tailoring the balance between military and civilian services (such as the police) to Guinea's national security strategy and needs. Some further contend that reforms should include prosecuting those implicated in human rights abuses and bolstering military justice mechanisms. Such actions could be perceived as deeply political in the Guinean context, potentially creating clear "winners" (those who retain their positions and/or experience an expansion in their mandate and roles) and "losers" (those who forfeit coveted salaries and privileges). Guinea shares this characteristic with post-conflict states, many of which have benefited from internationally funded disarmament, demobilization, and reintegration (DDR) programs to stem potential violence by ex-combatants. Whether a similar level of donor commitment and coordination could be ensured for Guinea remains to be seen. Additionally, in order to be effective, SSR may require efforts to bolster Guinea's justice sector and civilian oversight of the defense sector, which could be resource- and time-intensive. Overall, SSR in Guinea is likely to be a long-term process, potentially requiring multi-year funding commitments by donors, as well as coordination and oversight. A related issue for U.S. policy, should the United States choose to provide support, will be whether to contribute to a multilateral program, such as one coordinated by ECOWAS, or provide assistance on a bilateral basis. Guinea's current outlook has improved significantly from early January 2010, when the country was beset by deep political uncertainty and fears of imminent civil conflict. However, the formation of a transitional government has not altered the underlying causes of Guinea's recent instability, and the months leading up to planned elections could prove decisive to Guinea's future trajectory and that of the sub-region. Inter-ethnic relations--historically perceived as relatively harmonious in Guinea though subject to political manipulation and occasional violent confrontation--are perceived as having deteriorated under the CNDD, particularly in Conakry and the southeastern Forest Region. Any number of factors, including election delays, regional developments, continued economic hardship, military divisions, and ethnic tensions, could spark renewed insecurity and corresponding challenges to U.S. policy goals in West Africa.

A "government of national unity" was formed in Guinea on January 15, 2010, a year after a military junta, the National Council for Democracy and Development (CNDD), took power in a coup d'etat. While the CNDD has not been dissolved, it has agreed to share power with civilian opposition groups in the lead-up to presidential elections, scheduled for June 27, 2010. Defense Minister Sekouba Konate has assumed executive power as interim president, while opposition spokesman Jean-Marie Dore was named prime minister. The formation of a unity government followed six weeks of political uncertainty after CNDD President Capt. Moussa Dadis Camara was shot in December 2009 by a member of his personal guard and evacuated for medical treatment. The appointment of the unity government has temporarily stemmed international concerns over political instability in Guinea and its potential spillover into fragile neighboring countries, such as Liberia and Cote d'Ivoire. However, concerns remain over the political will to hold elections, impunity and disorder among the security forces, and the potential for "spoilers" to disrupt Guinea's long-awaited transition to civilian rule. The United States, which had been highly critical of Dadis Camara's erratic leadership, has expressed support for Guinea's transitional government. At the same time, certain restrictions on U.S. bilateral assistance and targeted travel restrictions against CNDD members and others remain in place. As electoral preparations advance, a number of issues will confront U.S. policy. These include U.S. relations with the Guinean government; the status of U.S. assistance and travel restrictions on CNDD members; the monitoring of progress toward elections; U.S. policy toward a potential International Criminal Court (ICC) investigation of alleged CNDD human rights abuses; and potential U.S. support for security sector reform in Guinea. The 111th Congress continues to monitor events in Guinea and the potential for regional destabilization. Recent legislation includes H.Res. 1013 (Ros-Lehtinen), a bill condemning the violent suppression of legitimate political dissent and gross human rights abuses in the Republic of Guinea, introduced on January 13, 2010, and passed by the House on January 20, 2010; and S.Res. 345 (Boxer), a resolution deploring the rape and assault of women in Guinea and the killing of political protesters on September 28, 2009, introduced on November 9, 2009, and passed by the Senate on February 22, 2010. For further background on Guinea and issues for U.S. policy, see CRS Report R40703, Guinea: Background and Relations with the United States, by [author name scrubbed] and [author name scrubbed].

Sources of arsenic in water include natural sources, particularly rocks and soils, and also releases from its use as a wood preservative, in semi-conductors and paints, and from mining and agricultural operations. Elevated levels of arsenic are found more frequently in ground water than in surface water. Because small communities typically rely on wells for drinking water, while larger cities often use surface-water sources, arsenic tends to occur in higher concentrations more frequently in water used by small communities. In the United States, the average arsenic level measured in ground-water samples is less than or equal to 1 part per billion (ppb, or micrograms per liter [mg/L]); however, higher levels are not uncommon. Compared with the rest of the United States, Western states have more water systems with levels exceeding 10 ppb; levels in some locations in the West exceed 50 ppb. Parts of the Midwest and New England also have some water systems with arsenic levels exceeding 10 ppb, but most systems meet the new standard. When issuing the rule, EPA estimated that roughly 4,000 (5.5%) of regulated water systems, serving a total of 13 million people, were likely to exceed the 10 ppb standard. The previous drinking water standard for arsenic, 50 ppb, was set by the U.S. Public Health Service in 1942. EPA adopted that level and issued an interim drinking water regulation for arsenic in 1975. This standard was based on estimated total dietary intake and non-cancer health effects. In 1986, Congress amended the Safe Drinking Water Act (SDWA), converted all interim standards to National Primary Drinking Water Regulations, and included arsenic on a list of 83 contaminants for which EPA was required to issue new standards by 1989. EPA's extensive review of arsenic risk assessment issues caused the agency to miss the 1989 deadline. As a result of a citizen suit, EPA entered into a consent decree with a new deadline for the rule of November 1995. EPA continued work on risk assessment, water treatment, analytical methods, implementation, and occurrence issues, but in 1995 decided to delay the rule in order to better characterize health effects and assess cost-effective removal technologies for small utilities. In the 1996 SDWA Amendments ( P.L. 104-182 ), Congress directed EPA to propose a new drinking water standard for arsenic by January 1, 2000, and to promulgate a final standard by January 1, 2001. Congress also directed EPA to develop a research plan for arsenic to support the rulemaking effort and to reduce the uncertainty in assessing health risks associated with low-level exposures to arsenic. EPA was required to conduct the study in consultation with the National Academy of Sciences. In 1996, EPA requested the National Research Council (NRC) to review the available arsenic toxicity data base and to evaluate the scientific validity of EPA's risk assessments for arsenic. The NRC issued its report in 1999 and recommended that the standard be reduced, but it did not recommend a particular level. The NRC affirmed that the available data provided ample evidence for EPA's classification of inorganic arsenic as a human carcinogen, but that EPA's dose-response assessment, which was based on a Taiwan study, deserved greater scrutiny. The NRC explained that the data in the study lacked the level of detail needed for use in dose-response assessment. The Council also reported that research suggested that arsenic intake in food is higher in Taiwan than in the United States, further complicating efforts to use the data for arsenic risk assessment. Based on findings from three countries where individuals were exposed to very high levels of arsenic (several hundreds of parts per billion or more), the NRC concluded that the data were sufficient to add lung and bladder cancers to the types of cancers caused by ingestion of inorganic arsenic; however, the NRC noted that few data addressed the risk of ingested arsenic at lower concentrations, which would be more representative of levels found in the United States. The NRC concluded that key studies for improving the scientific validity of risk assessment were needed, and recommended specific studies to EPA. In June 2000, EPA published its proposal to revise the arsenic standard from 50 ppb to 5 ppb and requested comment on options of 3 ppb, 10 ppb, and 20 ppb. EPA stated that the proposal relied primarily on the NRC analysis and some recently published research, and that it would further assess arsenic's cancer risks before issuing the final rule. As proposed, the standard would have applied only to community water systems. Non-transient, non-community water systems (e.g., schools with their own wells) would have been required only to monitor and then report if arsenic levels exceeded the standard. In the final rule, published on January 22, 2001 (66 FR 6976), EPA set the standard at 10 ppb and applied it to non-transient, non-community water systems, as well as community water systems. The agency gave the water utilities five years to comply (the maximum amount of time allowed under SDWA). EPA estimated that 3,000 (5.5%) of the 54,000 community water systems, and 1,100 (5.5%) of the 20,000 non-transient, non-community water systems, would need to take measures to meet the standard. In developing standards under the Safe Drinking Water Act, EPA is required to set a maximum contaminant level goal (MCLG) at a level at which no known or anticipated adverse health effects occur and that allows an adequate margin of safety. (EPA sets the MCLG at zero for carcinogens [as it did for arsenic], unless a level exists below which no adverse health effects occur.) EPA must then set an enforceable standard, the MCL, as close to the MCLG as is "feasible" using the best technology, treatment, or other means available (taking costs into consideration). EPA's determination of whether a standard is feasible typically has been based on costs to large water systems (serving more than 50,000 people). Less than 2% of community water systems (roughly 750 of 54,000 systems) are this large, but they serve roughly 56% of all people served by community systems. Congress has long recognized that the technical and cost considerations associated with technologies selected for large cities often are not applicable to small systems. In the 1996 amendments, Congress expanded SDWA variance and exemption provisions to address small system compliance concerns. The small system variance provisions require that for each rule establishing an MCL, EPA must list technologies that comply with the MCL and are affordable for three size categories of small systems. If EPA does not list affordable compliance technologies for small systems, then it must list variance technologies. A variance technology need not meet the MCL, but must be protective of public health. If EPA lists a variance technology, a state then may grant a variance to a small system, allowing the system to use a variance technology to comply with a regulation. EPA has not identified variance technologies for arsenic or any other standards because, based on its current affordability criteria, EPA has determined that affordable compliance technologies are available for all standards. Thus, small system variances are not available. Congress took issue with EPA's assessment that small system variance technologies were not merited for the arsenic standard, and in 2002, directed EPA to review the criteria it uses to determine whether a compliance treatment technology is affordable for small systems. In March 2006, EPA proposed three options for revising its affordability criteria (71 FR 10671). Under the current affordability criteria, EPA considers a treatment technology affordable unless the average compliance cost exceeds 2.5% of the area's median household income. Based on this measure, EPA determined that affordable technologies are available for all SDWA standards. The proposed options under consideration are well below the current level: 0.25%, 0.50%, and 0.75% of an area's median household income. EPA also stated that it expects to address in the revised criteria the issue of how to ensure that a variance technology would be protective of public health. According to EPA, the final criteria would apply only to the new Stage 2 Disinfectants/Disinfection Byproducts Rule and future rules, and not to the arsenic rule. Exemptions potentially offer a source of compliance flexibility for small systems. States may grant temporary exemptions from a standard if, for certain reasons (including cost), a system cannot comply on time. The arsenic rule gives systems five years to comply with the new standard; an exemption allows another three years for qualified systems. Systems serving 3,300 or fewer persons may receive up to three additional two-year extensions, for a total exemption duration of nine years (a total of 14 years to achieve compliance). In the final rule, EPA noted that exemptions will be an important tool to help states address the number of systems needing financial assistance to comply with this rule and other SDWA rules (66 FR 6988). However, to grant an exemption, the law requires a state to hold a public hearing and make a finding that the extension will not result in an "unreasonable risk to health." Because the exemption process is complex, states have seldom granted them. State officials have noted that "unreasonable risk to health" has never been defined, and that states must make a separate finding for each system. Many states have granted few or no exemptions for the arsenic rule. When proposing a rule under SDWA, EPA must publish a determination as to whether or not the benefits of the standard justify the costs. If EPA determines that costs are not justified, then it may set the standard at the level that maximizes health risk reduction benefits at a cost that is justified by the benefits. EPA determined that the "feasible" arsenic level (for large systems) was 3 ppb, but that the benefits of that level did not justify the costs. Thus, EPA proposed a standard of 5 ppb. Also, EPA proposed to require non-transient, non-community water systems (e.g., schools) only to monitor and report (as opposed to treating), largely because of cost-benefit considerations. In setting the standard at 10 ppb, EPA cited SDWA, stating that this level "maximizes health risk reduction benefits at a cost that is justified by the benefits." The final rule applies to schools and similar non-community water systems. In the final rule, EPA estimated that reducing the standard to 10 ppb could prevent roughly 19 to 31 bladder cancer cases and 5 to 8 bladder cancer deaths each year. The agency further estimated that the new standard could prevent 19 to 25 lung cancer cases and 16 to 22 lung cancer deaths each year, and provide other cancer and non-cancer health benefits that were not quantifiable. Regarding the cost of meeting the 10 ppb standard, EPA estimated that for systems that serve fewer than 10,000 people, the average cost per household could range from $38 to $327 per year. Roughly 97% of the systems that were expected to exceed the standard are in this category, and most of these systems serve fewer than 500 people. For larger systems, projected water cost increases range from $0.86 to $32 per household. The estimated national, annualized cost of the rule is approximately $181 million. EPA's Science Advisory Board (SAB) had raised concerns about the rule's economic and engineering assessment, and concluded that several cost assumptions were likely to be unrealistic and other costs seemed to be excluded. The SAB also suggested that EPA give further thought to the concept of affordability as applied to this standard. Many municipalities and water system representatives also disagreed with the agency's cost estimates. The American Water Works Association (AWWA), while supporting a stricter standard, estimated that the new rule would cost $600 million annually and require $5 billion in capital outlays. AWWA attributed differences in cost estimates partly to the costs of handling arsenic-contaminated treatment residuals and the estimated number of wells affected. AWWA projected that the rule could cost individual households in the Southwest, Midwest, and New England as much as $2,000 per year. EPA issued the final rule on January 22, 2001. In March 2001, the Administrator delayed the rule for 60 days, citing concerns about the science supporting the rule and its estimated cost to communities. On May 22, 2001, EPA delayed the rule's effective date until February 22, 2002, but did not change the 2006 compliance date for water systems (66 FR 28342). At EPA's request, the NRC undertook an expedited review of EPA's arsenic risk analysis and the latest health effects research, the National Drinking Water Advisory Council (NDWAC) reassessed the rule's cost, and the SAB reviewed its benefits. EPA also requested public comment on whether the data and analyses for the rule support setting the standard at 3, 5, 10, or 20 ppb (66 FR 37617). The NRC determined that "recent studies and analyses enhance the confidence in risk estimates that suggest chronic arsenic exposure is associated with an increased incidence of bladder and lung cancer at arsenic levels in drinking water below the current MCL of 50 mg/L." The NDWAC concluded that EPA had produced a credible cost estimate, given constraints and uncertainties, and suggested ways to improve estimates. The SAB offered ways to improve the benefits analysis. In October 2001, EPA affirmed that 10 ppb was the appropriate standard and announced plans to provide $20 million for research on affordable treatment technologies to help small systems comply. Since the arsenic standard was revised, Congress repeatedly has expressed concern over the cost of this regulation, especially to small, rural communities. The 107 th Congress directed EPA to review its affordability criteria and how the small system variance and exemption programs should be implemented for arsenic ( P.L. 107-73 , H.Rept. 107-272 , p. 175). The conferees directed the agency to report on its affordability criteria, administrative actions, funding mechanisms for small system compliance, and possible legislative actions. In 2002, EPA submitted its report to Congress, Small Systems Arsenic Implementation Issues , on actions EPA was taking to address these directives. Major activities included developing and implementing a small community assistance plan to improve access to financial and technical assistance, improve compliance capacity, and simplify the use of exemptions. EPA also has sponsored research on low-cost arsenic treatment technologies and has issued guidance to help states grant exemptions. The 108 th Congress again expressed concern over the economic impact that the revised standard could have in many communities. In the conference report for the omnibus appropriations act for FY2005 ( P.L. 108-447 ), Congress provided $8.2 million for arsenic removal research. The conferees expressed concern that the new requirements could pose a "huge financial hardship" for many rural communities. Congress directed EPA to report on the extent to which communities were being affected by the rule and to propose compliance alternatives and make recommendations to minimize costs. This report is pending. In the 110 th Congress, as in the 109 th Congress, legislative efforts focused on helping economically struggling communities comply with the arsenic rule and other drinking water standards. Various bills were offered to promote small system compliance by providing technical assistance, financial assistance, and/or compliance flexibility. The Senate Environment and Public Works Committee reported several bills that would have authorized new funding for drinking water infrastructure. The Water Infrastructure Financing Act ( S. 3617 , S.Rept. 110-509 ), which paralleled the committee bill from the 109 th Congress, proposed to increase funding authority for EPA's Drinking Water State Revolving Fund (DWSRF) program and Clean Water State Revolving Fund (CWSRF) program and to create a grant program at EPA for small or economically disadvantaged communities for critical drinking water and water quality projects. S. 1933 ( S.Rept. 110-475 ) would have authorized a new grant program for small water systems, and S. 1429 ( S.Rept. 110-242 ) and H.R. 6313 would have reauthorized funding authority for small system technical assistance under SDWA. Other bills included S. 2509 , which proposed to require EPA to promote the use of affordable technologies (e.g., point-of-use technologies and bottled water), revise its affordability criteria, and provide more compliance assistance for high-priority rules including the arsenic rule. S. 2509 also would have required EPA or a state to ensure that funds have been made available to small systems before taking enforcement actions. H.R. 2141 would have required states to grant exemptions to eligible small systems for rules covering naturally occurring contaminants (such as arsenic and radium). None of these bills was enacted. Arsenic-specific legislation has again been offered in the 111 th Congress, although broader infrastructure bills have received wider attention. In July 2009, the Senate Committee on Environment and Public Works reported the Water Infrastructure Financing Act ( S. 1005 , S.Rept. 111-47 ), similar to the committee's bill from the 110 th Congress. This legislation would authorize appropriations for the DWSRF program in the amount of $14.7 billion over five years. It also would establish a drinking water infrastructure grant program with funding priority to be given to small and economically disadvantaged communities. In the House, the Water Protection and Reinvestment Act of 2009, H.R. 3202 , has been introduced to establish a water infrastructure trust fund and to provide a source of funding for drinking water and wastewater infrastructure projects based on the imposition of an excise tax on a wide range of beverages, pharmaceuticals, and other products. Additionally, H.R. 2206 would amend SDWA to reauthorize technical assistance to small public water systems to help them comply with federal drinking water standards generally. Bills that specifically address arsenic in drinking water include H.R. 4798 and S. 3038 . The House bill would amend the exemption provisions to require states to grant exemptions to small, nonprofit public water systems from naturally occurring contaminants, including arsenic and other specified contaminants, provided that the water system finds that compliance is not economically feasible. S. 3038 , which is similar to S. 2509 from the 110 th Congress, addresses several small system issues. This bill would require EPA to convene a work group to study barriers to using point-of-entry and other specified treatment technologies, to develop guidance to assist states in regulating and promoting these treatment options, and to revise affordability criteria for variance technologies to give extra weight to poorer households and communities. The bill also would require EPA or a state to ensure that funds have been made available to smaller systems before taking enforcement actions, and would establish a research pilot program. Safe Drinking Water Act compliance and, more broadly, drinking water safety and infrastructure issues, have long held a place on the congressional agenda. However, severe competition for federal resources and uncertainty in the policy agenda make the prospects for new funding legislation unclear. (For more information on SDWA issues, see CRS Report RL34201, Safe Drinking Water Act (SDWA): Selected Regulatory and Legislative Issues , by [author name scrubbed].)

The Safe Drinking Water Act Amendments of 1996 (P.L. 104-182) directed the Environmental Protection Agency (EPA) to update the standard for arsenic in drinking water. In 2001, EPA issued a new arsenic rule that set the legal limit for arsenic in tap water at 10 parts per billion (ppb), replacing a 50 ppb standard set in 1975, before arsenic was classified as a carcinogen. The arsenic rule was to enter into effect on March 23, 2001, and water systems were given until January 2006 to comply. EPA concluded that the rule would provide health benefits, but projected that compliance would be costly for some small systems. Many water utilities and communities expressed concern that EPA had underestimated the rule's costs significantly. Consequently, EPA postponed the rule's effective date to February 22, 2002, to review the science and cost and benefit analyses supporting the rule. After completing the review in October 2001, EPA affirmed the 10 ppb standard. The new standard became enforceable for water systems in January 2006. Since the rule was completed, Congress and EPA have focused on how to help communities comply with the new standard. In the past several Congresses, numerous bills have been offered to provide more financial and technical assistance and/or compliance flexibility to small systems; however, none of the bills has been enacted. Similar legislation again has been offered in the 111th Congress, while broader infrastructure financing bills have received greater congressional attention.

The Obama Administration has pursued the proposed 12-nation Trans-Pacific Partnership (TPP) free trade agreement (FTA) negotiations as the primary economic component of its "strategic rebalance" of U.S. foreign policy priorities to the Asia-Pacific region. The 12 participating countries announced the conclusion of negotiations and released the text of the agreement in late 2015, and signed the proposed FTA on February 4, 2016. The TPP aims to liberalize and establish rules and disciplines governing trade and investment among its 12 members, and has broad implications for U.S. relations in the region. Congress had an active role in the TPP negotiations through oversight, consultations with the Administration, and formal negotiating objectives established in Trade Promotion Authority (TPA) legislation. Ultimately, Congress would need to pass implementing legislation before the TPP could take effect in the United States. The potential impacts of the agreement may be an active area of debate during the second session of the 114 th Congress. According to TPP proponents, including U.S. Trade Representative Michael Froman, "the TPP's significance is not just economic, it's strategic." The term strategic has been used in the context of the TPP debate to capture a range of arguments encompassing both geo-political and geo-economic aspects of U.S. policy, making it difficult to define precisely. In broad terms, however, arguments about the TPP's strategic importance relate to the United States using the agreement as a tool to exert influence in the region and beyond, in both economic and broader political and security spheres, and creating conditions that facilitate other U.S. policy tools. Such arguments maintain that through the TPP, the United States can strengthen regional alliances and partnerships; maintain U.S. leadership and influence in the Asia-Pacific region; enhance U.S. national security; liberalize trade, encourage market-oriented reforms, and drive economic growth; strengthen regional and potentially global trade architecture; and establish and update regional trade rules and disciplines consistent with U.S. interests and modern commercial realities. China is not a TPP member, but features prominently in analysis of U.S. influence in the region. Beijing's economic rise and active trade and investment initiatives in the region form an important backdrop to the strategic aspects of the TPP negotiations. Now the world's second largest economy, China has grown much faster than the United States over the past decade as a trade partner for most Asian countries. Over the past several years, Beijing has initiated or supported a broad set of trade and investment initiatives to spur development in the region. Some analysts argue that through these initiatives China is attempting to create a regional order that seeks to minimize U.S. presence and power. (See " China's Regional "Vision" section below.) As a result, those championing the agreement, including the President, often cast TPP as a vehicle for maintaining U.S. leadership in Asia and establishing trade and investment rules and norms with an eye towards China. Others contend that casting the TPP as an effort to "counter" Chinese initiatives is unproductive, and could create negative perceptions of U.S. intentions, both in China and elsewhere in the region. Some also argue that in many ways U.S. and Chinese goals for trade liberalization and rules and norms in the region may be mutually reinforcing rather than competing. Trade agreements inevitably exist at the intersection of domestic and foreign policy and include both economic and political elements. This can create a tension in balancing various policy priorities, particularly for those policymakers who may support the TPP on some grounds but not others. Some opponents of the agreement argue that focusing on the strategic elements of the TPP distracts the debate from what they view should be its main criteria: the agreement's potential impact on the U.S. economy. While both TPP critics and supporters cite different estimates of economic outcomes to support their positions, the broader strategic implications tend to be highlighted by proponents, and can be difficult to quantify despite their potential significance. This report will examine selected strategic arguments presented by the Administration, as well as by TPP proponents and opponents. Other CRS reports address the specific trade negotiations and economic effects. This report focuses generally on the Asia-Pacific region, with particular emphasis on implications for Asia. The report also raises strategic issues Congress may consider as it examines a final TPP agreement and potentially debates future legislation to approve and implement it. Since the end of World War II, the United States has advanced trade agreements and institutions such as FTAs to promote its broader foreign policy goals. The United States signed its first FTA with Israel in 1985, and many observers argue that political solidarity with Israel weighed more heavily than its economic value at the time. In the 2000s, many observers saw U.S. FTAs with Bahrain, Morocco, and Oman as based not just on economic, but also on security and foreign policy objectives--primarily helping forge closer cooperation on efforts to combat terrorism. The first U.S. FTA in Asia entered into force in 2004 with Singapore, a close U.S. security partner with enormous strategic interests in liberalizing trade. Obama Administration officials and many of the TPP's proponents argue that U.S. trade policy initiatives in Asia, particularly the TPP, have considerable geostrategic importance. The Administration's 2015 National Security Strategy stated: Sustaining our leadership depends on shaping an emerging global economic order that continues to reflect our interests and values. Despite its success, our rules-based system is now competing against alternative, less-open models.... To meet this challenge, we must be strategic in the use of our economic strength to set new rules of the road, strengthen our partnerships, and promote inclusive development. To some observers, TPP is an important test of U.S. credibility as a regional leader. The proposed agreement is the Obama Administration's signature economic initiative in the Asia-Pacific region. Some observers have argued that if the agreement is not approved by Congress, the entire rebalancing strategy could be seen as relatively weak and the United States will be seen as divided on how important it considers its leadership role in Asia. Administration officials argue that the agreement is a key signal that the United States is actively integrated into Asia's economic and diplomatic structures. In a 2014 article in Foreign Affairs , U.S. Trade Representative Froman argued, "For many of the countries that would be party to the TPP, the economic benefits of the agreement are further sweetened by expectations that the United States will become more deeply embedded in the region." These arguments are echoed by many in the Asia-Pacific region, particularly among TPP negotiating partners. At a regional security conference in Singapore in May 2015, Singapore Prime Minister Lee Hsien Loong said, "... whatever the merits or demerits of individual line items of trade covered in the TPP, the agreement has a wider strategic significance. Getting the TPP done will deepen links on both sides of the Pacific. Failing to get the TPP done will hurt the credibility and standing of the U.S. not just in Asia, but worldwide." Some proponents also argue that concluding the TPP would be an important aspect of a broader U.S. strategy to develop and strengthen regional institutions in ways that foster cooperation and the peaceful resolution of differences through respect for rules and norms. In 2013, then National Security Advisor Tom Donilon wrote: "Just as our security alliances across two oceans have brought stability that extends far beyond our treaty partners, U.S. economic diplomacy today can advance global prosperity by strengthening the international rules and norms that make trade and growth possible." Linkages between the TPP and the promotion of broader diplomatic and security interests have become a strong part of the Administration's arguments for TPP. In an April 2015 speech providing a status report on the "rebalancing," Secretary of Defense Ashton Carter stated that "passing TPP is as important to me as another aircraft carrier." Other TPP proponents have said that the agreement will reinforce U.S. alliances and partnerships in East Asia. However, when elaborating on security rationales for supporting passage of TPP, many of the agreement's backers do not identify specific, concrete ways that a successful deal would invigorate U.S. security partnerships in the region. Some critics of TPP assert that the strength or weakness of broader bilateral political and security relationships depend more upon countries' assessment of their security interests than on whether they have a trade agreement with the United States. For instance, they contend, it arguably is difficult to pinpoint how, if at all, the South Korea-United States Free Trade Agreement (KORUS FTA), which went into effect in 2012, by itself has altered either South Korea's or the United States' fundamental interests on the Korean Peninsula or in Northeast Asia. Put another way, the short-term strength of the U.S.-South Korea alliance likely is determined by factors such as the two countries' perception of threats from China or North Korea, rather than by the presence of the KORUS FTA. Likewise, few observers believe the future of the U.S.-Japan alliance depends heavily on the TPP's success or failure. In recent years, Japan's own strategic and political calculations appear to have been the primary drivers behind its moves to deepen strategic cooperation with the United States. TPP may have a larger impact on countries with which the U.S. relationship is not as close. In Vietnam's case, for instance, some argue that a successful outcome in the TPP negotiations would support reform-oriented decisionmakers by requiring the government to enact deeper market-oriented institutional changes that may be required to implement their commitments under TPP provisions. In some cases, these same individuals may also support deepening relations with the United States. Many Vietnamese leaders would see TPP approval as a sign that the United States welcomes closer ties and more normal relations with the country. Failure to approve the agreement, some argue, could negatively affect Vietnam's perception of the United States as a reliable partner, at least in the economic realm. Some TPP proponents contend that the agreement will help the United States, as Defense Secretary Carter has said, "promote a global order that reflects both our interests and our values." Historically, U.S. interests have included the establishment of a rules-based trading system founded on principles of transparency, openness, and non-discrimination, but less clear, and less often specified by proponents is the link between the TPP's trade rules and the security realm. One indirect way that economically large trade agreements such as TPP may affect U.S. security relationships is by altering countries' perception of where their strategic interests lie. Each major agreement, the argument runs, signals that the participating countries are key partners, and merit treatment as such. By this line of reasoning, approving and implementing TPP would help to "lock-in" the United States' Pacific presence, keeping the United States closely connected to developments in the Pacific as countries in the region become wealthier and more powerful. Similarly, implementing the TPP could send the message to other countries that the Pacific Rim is a priority of U.S. policymakers. The flip side of this argument is that many Asian policymakers--correctly or not--could interpret a failure of TPP in the United States as a symbol of the United States' declining interest in the region and inability to assert leadership. A former U.S. ambassador to China was quoted in June 2015 saying: "Domestically we tend to view trade through a political prism by way of winners and losers ... In Asia, it's seen as directly tied to our leadership and commitment to the region. A failed TPP would create an influence vacuum that others, primarily China, would fill." Many argue that U.S. credibility in Asia currently is in question, during a time when China's rise and North Korea's growing nuclear and missile capabilities are testing the U.S.-based rules system and challenging U.S. influence. Some TPP backers take this a step further, arguing that relationships such as that between the United States and Japan "would suffer from a period of mutual recriminations and loss of trust and cooperation." In a scenario where a TPP agreement is rejected by Congress, thus negating any politically challenging concessions that others made through negotiation, the loss of trust and cooperation could be particularly pronounced. The TPP may also have implications for U.S. influence on regional and global efforts to shape trade and investment. Proponents argue that the rules established in the TPP will promote economic growth and advance U.S. interests by influencing trade regimes at several levels: encouraging market opening and economic reforms among TPP's current members, particularly in emerging markets such as Malaysia and Vietnam; creating incentives for other Asia-Pacific nations to follow suit, to match the preferential access that TPP member countries would gain in major markets such as the United States and Japan; and addressing new trade barriers through new trade rules and disciplines, laying groundwork to influence and potentially spur future multilateral or plurilateral negotiations at the WTO or future FTA negotiations, and update critical gaps in existing trade rules. Central to U.S. negotiating objectives in the TPP is the goal to update the rules-based trading system. Since World War II, the United States, primarily through multilateral fora, has sought to expand economic engagement through trade as a mechanism for generating broader economic growth and prosperity. Through "rounds" of trade liberalization negotiations under the General Agreement on Tariffs and Trade (GATT), the United States led in liberalizing tariff and non-tariff barriers, setting rules and norms based on transparency, non-discrimination, and most-favored nation treatment. This led eventually to the establishment of the international rules-based trade architecture of the World Trade Organization (WTO), the successor to the GATT. Launched in 2001, the current WTO multilateral trade negotiations--the WTO Doha Development Agenda (Doha Round)--has largely stalled due to persistent differences among its members . In the meantime, global commerce has adapted to rapid advances in technology, such that current multilateral trade rules do not address some critical aspects of today's trading environment, including issues related to digital trade and the role of state-owned enterprises. This has led some countries, including the United States, to pursue new or advanced trade rules and further liberalization through bilateral and regional agreements, such as the TPP. TPP proponents argue that the agreement's scale gives it considerable strategic heft, by creating an economically significant bloc of nations that has agreed to its broad disciplines. The 11 other TPP countries account for 37% of U.S. trade, and together the 12 economies account for 37% of global GDP. The TPP's economic significance could grow, as the TPP members have negotiated an agreement open to new countries willing to adhere to its provisions and make satisfactory market access commitments. In some emerging economies, the TPP could give domestic reformers the political cover necessary to push forward with their own reform agendas, citing such reforms as necessary to gain greater access to the U.S. market. Arguably, these incentives could also help promote U.S. goals such as respect for internationally recognized worker rights and practices aimed at protecting the environment, such as curbing trade in endangered species. Beyond these effects, proponents argue that an implemented TPP will draw interest from other countries, as those not party to the agreement may begin to face competitive disadvantages. Such competitive pressure, they argue, could expand the reach of the TPP's rules, driving further trade and investment liberalization in the region. One could look to Japan's involvement in the TPP negotiations--reportedly in part a response to the completion of the U.S. FTA with South Korea--as evidence of such a dynamic. Others, however, note that the TPP as presently constituted does not include some of Asia's largest economies, including China, India, and Indonesia, so even if it is ratified and implemented, they say it will not create a comprehensive set of "rules of the road" for trade and investment in the Asia-Pacific. Some experts argue that the influence of TPP's trade rules may depend on whether new members seek to join it in the future. Several large Asian countries, including Indonesia, the Philippines, South Korea, and Thailand, have publicly expressed interest in joining a "second round" of TPP members once the agreement is implemented, giving weight to the Administration's argument that the domain of TPP's influence may grow. Taiwan has also expressed interest in membership. Many Asian nations, however, face considerable current domestic opposition to joining TPP, as do some of the current TPP parties now debating ratification. Many analysts argue that U.S. FTA partners in Asia and Latin America, particularly South Korea and Colombia, may be among the most likely countries to seek entry in the TPP in the near future. Beyond regional implications, TPP proponents also argue that the size and economic significance of "mega-regionals," such as the TPP and the U.S.-EU Trans-Atlantic Trade and Investment Partnership (T-TIP), may help spur long-stalled negotiations at the multilateral level and influence their direction. They argue that the rules established in the TPP that go beyond existing WTO commitments and address new trade barriers could become the basis for future negotiations at the WTO, including on a plurilateral basis. Critics argue, however, that these bilateral and regional trade negotiations may draw resources and attention from and thereby impede multilateral initiatives. If the locus of trade negotiations shifts away from the WTO and the rules of the body no longer reflect global standards of trade policy, it could undermine the legitimacy of the organization in other aspects of its work, such as dispute settlement. The WTO's role as a force for future trade liberalization could be dampened. Mega-regionals could also add to the complexity of the trading system by creating overlapping and differing rules and commitments, instead of operating through multilateral rules established at the WTO that are applicable to nearly all world trading partners. TPP negotiations are one of a number of ongoing trade negotiations in the Asia-Pacific region, many of which do not include the United States and may differ in their structure and aims. Perhaps the most significant negotiation outside the TPP, particularly in terms of its membership, is the Regional Comprehensive Economic Partnership (RCEP), which would join the 10 ASEAN members and six nations with which ASEAN has trade agreements--Australia, China, India, Japan, New Zealand, and South Korea--in one collective FTA. The United States does not have an FTA with ASEAN and has not expressed an interest in joining the RCEP negotiations. Though RCEP's final provisions have yet to be determined, a comparison of the ASEAN trade agreements on which it is being built and the components of the finalized TPP provides some indication of potential differences. A 2013 examination of ASEAN trade agreements shows that they have been less comprehensive in terms of trade liberalization than the proposed TPP. In addition, the existing ASEAN FTAs often do not include or have less extensive intellectual property rights, investment, and labor and environmental provisions than the TPP. The TPP also includes disciplines on state-owned enterprises (SOEs), a topic unlikely to be addressed in RCEP. Due in part to these potential differences, some argue that RCEP presents an alternative, and possibly a challenge, to U.S. efforts to craft trade rules through the TPP. Others believe the proposed agreements can be complementary and both will lead to economic growth benefitting the region as a whole. Notably, seven countries are in both RCEP and the TPP, and presumably have an interest in ensuring some degree of compatibility and synergy between the two agreements ( Figure 1 ). At this point, it is unclear how these two regional undertakings may affect one another and how they would affect the existing trade architecture in the region. This will depend in part on their timing. With negotiations concluded, the TPP is at a more advanced stage than RCEP, whose members agreed in November 2015 that negotiations would continue into 2016. A delay in the ratification and implementation process for TPP, however, could alter that sequencing. All 12 TPP countries, and 11 RCEP countries are also members of the 21-member Asia-Pacific Economic Cooperation (APEC) forum, a body for dialogue on and establishing nonbinding commitments toward the goals of open and free trade and investment within the region. APEC members have discussed the possible creation of a broad Free Trade Area of the Asia-Pacific (FTAAP) since 2006--a goal that both China and the United States have supported. In the statement issued at APEC's annual Leaders Meeting in 2014, the group's leaders recognized both TPP and RCEP as "possible pathways" to the FTAAP. China has figured prominently in debates about the TPP and broader U.S. policy in Asia. As the world's second largest economy (on a nominal dollar basis) and largest trading economy, China's inclusion in, or exclusion from, the TPP in the future may have important implications for the United States, as well as the Asia-Pacific region. President Obama and other TPP proponents also argue that China's growing international influence increases the strategic importance of completing the proposed TPP. Some analysts go further, arguing that China is attempting to create a regional order that seeks to minimize U.S. presence and power and that TPP is a necessary means of countering this effort. Many analysts argue that decades of expanding Chinese trade and investment, as well as new Chinese trade and investment initiatives around the region, have created a vision of regional economic development that is different from that advocated by the United States, and potentially not in the U.S. interest. The proposed TPP, its proponents argue, would allow the United States to help shape a model in line with U.S. interests by creating rules and norms that other regional nations may ultimately opt to join. Due to the TPP's size and economic importance, the argument runs, it would help to influence China's economic--and potentially diplomatic--decisions in ways that are more favorable to U.S. economic, diplomatic, and security interests. As President Obama stated in a June 2015 interview: the fact is that if we have 11 of the leading economies in the Asia-Pacific region, who have agreed to enforceable labor standards, enforceable environmental standards, strong IP protections, non-discrimination against foreign firms that are operating, access to those markets, reduce tariffs, then China is going to have to at least take those international norms into account. A completed TPP could also encourage China to further liberalize its economic and trade regime in order to eventually join the agreement. It might also give some reformers in China a measure of political cover to press for deeper reform, beyond Beijing's WTO commitments. To others, such arguments unnecessarily cast Asia's largest economy as an outlier in regional economic development and may overstate the degree to which Chinese initiatives are likely to influence regional trade and investment rules. Such arguments stress several points. First, they note that if China's leaders perceive that TPP is being used as a tool to constrain Chinese interests, they could respond in ways that are inimical to U.S. interests. Second, they stress that China is proceeding with economic initiatives that others in Asia may see as helpful to their own economic development, given the region's extensive needs for infrastructure and other investment; they argue, therefore, that if countries in the region see the United States as opposing these initiatives, the United States may risk being seen as obstructionist, which could lead some in Asia to question U.S. commitments to regional development. Third, they stress that other Asian nations have their own trade policies and are unlikely to adopt policies they see as not in their interest--whether they are part of "models" that are American, Chinese or otherwise. China's leaders are striving to continue the transformation of their nation into a prosperous and respected major power, and the fulfillment of these goals they see as predicated on three conditions: 1) a strong economy; 2) a strong defense; and 3) a respected role on the global stage. The Chinese government is currently pursuing a number of policies designed to strengthen its economy and increase China's role in the overall global economic system. China's plans to construct a land-based Silk Road Economic Belt and the Maritime Silk Road (jointly known as the "One Belt, One Road") to create new linkages to Europe, the Middle East, central Asia, and Southeast Asia. In doing so, they seek to facilitate trade and foster greater economic development and integration. New financial institutions--such as the newly-created Asian Infrastructure Investment Bank (AIIB) and the Silk Road Fund--are aimed at providing the capital to finance the "One Belt, One Road" initiative and other major economic development projects. China's efforts to gradually increase the overseas use of its currency, the renminbi, are intended to simplify the transactions Chinese financial institutions use to support Chinese assistance programs, reduce the commercial risk for Chinese companies engaged in international trade and investment, and enhance China's global economic stature. Finally, Chinese leaders see the establishment of RCEP as laying the foundations for a broader FTAAP, which could be seen as a set of regional rules and norms inspired, at least in part, by Chinese leadership. China's leaders also seek to reform existing multilateral institutions to reflect what they see as the geopolitical situation of today, rather than that of the post-World War II era. China is taking an active role in promoting reforms of the United Nations, the International Monetary Fund, and the World Bank. The establishment of the AIIB in part is an attempt to offer an alternative model for the various multilateral development banks, such as the Asian Development Bank (ADB), to adopt. However, it is unclear at this early stage of its development whether the AIIB will be more distinct from or more in line with these international institutions. China's efforts to reshape or create new economic institutions are matched by its actions in the diplomatic and security spheres, where Beijing appears to be attempting to reduce or counter U.S. influence. For instance, according to many analysts, China has attempted to refashion the Conference on Interaction and Confidence Building Measures in Asia (CICA), a 26-member group that spans the Eurasian continent and does not include the United States, into a new Asian continental security system to counter the U.S. alliance network. China also has undertaken extensive reclamation and construction on several disputed reefs in the South China Sea, moves that many see as laying the groundwork for countering U.S. naval power in the Western Pacific. China's publicly-stated views of the TPP have varied and appear to have changed over time, especially as more countries have joined the TPP negotiations. After the United States joined the TPP talks in 2008, China's media portrayed the TPP as a U.S.-dominated process that was largely aimed at advancing U.S. economic interests over the rest of Asia and isolating China by excluding it from the talks. U.S. officials have countered such portrayals. In December 2014, for instance, President Obama said: "... there's been some suggestion that by doing TPP we're trying to contain or disadvantage China. We're actually not.... [W]e hope that ... China actually joins us in not necessarily formally being a member of TPP but in adopting some of the best practices that ensure fairness in operations." China's publicly-stated criticisms of the U.S. role in the TPP process appear to have softened somewhat shortly after Japan joined the TPP talks in April 2013. In October 2014, China's Vice Finance Minister Zhu Guangyao stated that a TPP agreement was "incomplete without China." In November 2014, Chinese Premier Li Keqiang in a speech before the East Asia Summit, stated: "China is open to negotiations on the TPP. In our view, various FTA arrangements can play a positive role in fostering a just and free international and regional trade order." U.S. officials have said China is welcome to join the TPP, although Chinese officials often state that many of the standards and provisions of the proposed agreement would be difficult for China to implement. President Obama said in June 2015 that China had "already started putting out feelers about the possibilities of them participating at some point" in the TPP. Several analysts contend that the ultimate aim of the United States is to integrate China more fully into deeper and greater commitments to further liberalize trade and establish new trade rules and disciplines addressing issues not currently, or inadequately, addressed in the WTO multilateral trading system. For example, one former Obama Administration official argues that "an agreement with high standards like the TPP could subject China to new, higher-standard rules, and discourage China from trying to weaken or soften the existing trade rules through other channels." In addition, the United States is currently negotiating a bilateral investment treaty (BIT) with China that could boost bilateral investment flows and facilitate its future potential participation in TPP. Since the United States joined the TPP in 2008, Congress has played a direct role in guiding and overseeing the negotiations. Congress approved legislation to renew U.S. Trade Promotion Authority (TPA) in 2015 to establish U.S. trade negotiating objectives and provide for the expedited consideration of legislation to implement U.S. trade agreements concluded by the President, among other provisions. Congress will have a direct role in considering TPP and implementing legislation. As Congress considers the TPP agreement and its strategic elements, it might consider examining a number of issues, including the following: Whether TPP Furthers a Broader Foreign Policy Strategy . TPP proponents argue that the proposed agreement is part of a broad foreign policy strategy to promote greater respect for international rules and norms in the Asia-Pacific region. If it is approved, they argue, the implications could further other U.S. diplomatic and security goals, beyond the trade realm. By encouraging a diverse group of nations to accept the rules and disciplines contained in the TPP, the argument holds, the United States will have reinforced U.S. leadership in the region, given space to Asia-Pacific leaders who seek greater economic and (perhaps) political reform, and encouraged a group of nations to adopt a more U.S.-supportive foreign policy outlook. Congress may wish to consider how deeply it accepts these arguments, and whether it sees the proposed agreement as part of a well-considered and broader foreign policy strategy. H ow Deeply to Weigh These Strategic Arguments . In considering an agreement as broad as the TPP, Congress may weigh trade-offs among the agreement's many potential implications. Are the TPP's strategic implications a critical consideration for Congress, or do they distract the debate from the TPP's more direct impact on the U.S. economy? How do these different arguments relate? Are the potential strategic benefits of the agreement contingent on its ability to drive economic growth and prosperity? For those who support the TPP on some grounds but not others, what rank should be given to various aspects of the agreement? Does the argument that the TPP is an important measure of U.S. leadership in Asia outweigh potential concerns arising from individual terms of the agreement? Membership Expansion. Some argue that the TPP's ultimate strategic impact will depend on whether a broader group of nations ultimately decides to join it. To other observers, the proposed TPP, established by like-minded countries, represents the best opportunity for the United States to pursue regional and broader multilateral trade policy goals currently unattainable in the WTO and other fora. Has the agreement struck the right balance between trade liberalization and establishing rules that are most beneficial for U.S. economic interests, while at the same time remaining attractive to a broader set of regional actors that could enhance the agreement's strategic value? Implications of Failed Ratif ication . From the standpoint of promoting greater U.S. leadership and influence in the region, Congress may wish to consider whether delays or failure to ratify and implement the agreement would set back these goals. The TPP took more than five years to conclude, and if rejected by Congress, it could take several years for an alternative, U.S.-led agreement, if any, to take shape. Meanwhile, other countries in the region continue to pursue their own trade arrangements. Would a failure to ratify the TPP impact foreign governments' views on U.S. leadership and credibility in the region, or do other foreign policies, including U.S. military presence, ultimately shape such views? Implications for Countries Outside the TPP . The TPP's 12 participating countries do not include several in the Asia-Pacific region that are strategically and economically important. Some observers urge the United States to enunciate strategies that reinforce U.S. economic engagement more broadly across the region, beyond the current TPP membership, in part so that countries that currently are not in the TPP do not conclude that Washington is neglecting or ignoring them. Congress may wish to consider whether existing U.S. economic initiatives in Asia are sufficient to achieve broad goals of furthering U.S. influence across the region, or whether other economic initiatives are advisable as an assurance of U.S. commitment to the region. If other initiatives are advisable, which nations or multilateral groups should be targeted? Congress also may wish to consider whether it is strategically important that TPP expand to include other countries outside the region. Implications for the Multilateral Trading System. Analysts hold mixed views as to how "mega-regional" negotiations may impact the multilateral trading system as represented by the WTO. While some see such agreements as an opportunity for the United States to advance new trade rules and disciplines that may eventually be incorporated in multilateral initiatives, others worry they may usurp legitimacy from the WTO and may negatively impact countries not involved in their negotiation. From a strategic standpoint, Congress may wish to consider whether the proposed TPP will further eventual WTO multilateral trade liberalization or lead to greater fragmentation of the global trading system. Congress also may wish to consider whether to seek new trade initiatives at the global level, either to assure that the TPP has the effect of spurring momentum at the global level or to address potential concerns that the TPP shifts the center of trade discussions away from the WTO.

On February 4, 2016, Ministers of the 12 countries participating in the Trans Pacific Partnership (TPP) negotiations signed the proposed free trade agreement (FTA). TPP is one of the Obama Administration's signature trade policy initiatives, an effort to reduce and eliminate trade and investment barriers and establish new rules and disciplines to govern trade and investment among the 12 countries. TPP proponents, including Administration officials, argue that the proposed TPP would have substantial strategic benefits for the United States in addition to its direct economic impact. They argue that the agreement would enhance overall U.S. influence in the economically dynamic Asia-Pacific region and advance U.S. leadership in setting and modernizing the rules of commerce in the region and potentially in the multilateral trading system under the World Trade Organization (WTO). Congress plays a key role in the TPP. Through U.S. trade negotiating objectives established in Trade Promotion Authority (TPA) legislation and informal consultations and oversight, Congress has guided the Administration's negotiations. Ultimately, Congress would need to pass implementing legislation if the concluded agreement is to take effect in the United States. The geo-political arguments surrounding TPP are widely debated, as are the arguments about its potential economic impact. To some, the TPP is an important litmus test of U.S. credibility in the Asia-Pacific region. As the leading economic component of the Administration's "strategic rebalancing" to the region, the TPP, proponents argue, would allow the United States to reaffirm existing alliances, expand U.S. soft power, spur countries to adopt a more U.S.-friendly foreign policy outlook, and enhance broader diplomatic and security relations. Many Asian policymakers--correctly or not--could interpret a failure of TPP in the United States as a symbol of the United States' declining interest in the region and inability to assert leadership. Some critics argue that TPP backers often do not identify specific, concrete ways that a successful deal would invigorate U.S. security partnerships in the region, and that an agreement should be considered solely for its economic impact. They maintain that past trade pacts have had a limited impact on broad foreign policy dynamics and that U.S. bilateral relations are based on each country's broader national interests. The Administration is also pursuing strategic economic goals in the TPP. Through the agreement, proponents argue, the United States can play a leading role in "writing the rules" for commerce with key trading partners, addressing gaps in current multilateral trade rules, and setting a precedent for future regional and bilateral FTA negotiations or multilateral trade talks at the World Trade Organization (WTO). The core of this argument is the assertion that the TPP's potential components--including tariff and non-tariff liberalization, strong intellectual property rights and investment protections, and labor and environmental provisions--would build upon the U.S.-led economic system that has expanded world trade and investment enormously since the end of World War II. Although most U.S. observers agree it is in the U.S. interest to lead in establishing global and regional trade rules, less consensus exists on what those rules should be, yielding some criticism on the strength and breadth of various TPP provisions. In addition, some argue that crafting new rules through "mega-regional" agreements rather than the WTO could undermine the multilateral trading system, create competing trading blocs, lead to trade diversion, and marginalize the countries not participating in regional initiatives. China is not a TPP member, but features prominently in discussion of the agreement's potential strategic effects. Some argue that China is attempting to create a regional order that seeks to minimize U.S. presence and power. In this line of reasoning, the TPP serves as a counter to growing Chinese economic and political influence, implying that failure to conclude TPP could, in effect, allow China to shape regional rules of commerce and diplomacy through its own trade and investment initiatives. Others, however, argue that TPP is complementary to other FTAs and trade agreements throughout the region, including those championed by China, and that new members--possibly including China--will be critical for the TPP to influence regional norms. Trade agreements occur at the intersection of foreign and domestic policy, which can create tensions in balancing competing policy priorities. Key issues Congress faces as it continues its role regarding TPP include (1) how strongly to weigh geo-political implications of TPP; (2) the potential impact of the TPP on the multilateral trading system and other trade and economic institutions; and (3) the possible expansion of the agreement to include additional members.

U.S. importers, usually manufacturers or representatives of industry associations, will sometimes ask Members to introduce legislation seeking to reduce, repeal, or temporarily suspend duties on certain imports. Since the early 1980s, the House Ways and Means and Senate Finance Committees, the primary committees of jurisdiction on trade matters, have tended to incorporate these duty suspension requests into omnibus legislation known as miscellaneous tariff and technical corrections bills (MTBs). MTBs may also include minor technical corrections to U.S. trade laws and specific instructions to U.S. Customs and Border Protection (CBP) regarding shipments of certain imported products. In order to be included in an MTB, duty suspensions must be noncontroversial (no domestic producer, federal agency, or Member objects), revenue-neutral (defined as revenue loss of no more than $500,000 in foregone tariffs per item), and able to be administered by CBP and other agencies. The previous process for assembling MTBs, which involved Members introducing individual duty suspension bills at the request of constituents, has been controversial in recent Congresses due to the assertions of some Members that the process violated House and Senate rules banning earmarks, or congressionally directed spending. Thus, the last MTB to be enacted was the United States Manufacturing Enhancement Act of 2010 ( P.L. 111-227 ), and efforts since then to pass subsequent MTB legislation have stalled. This report, first, discusses recent developments on new legislation proposing a revised process for vetting duty suspension bills. Second, the previous MTB process that involved Member introduction and vetting by House Ways and Means and Senate Finance Committee staff, the U.S. International Trade Commission (ITC), and other relevant agencies is described. Third, the report tracks MTB legislation introduced from the 109th to the 114th Congresses. Legislation and House and Senate rules covering "earmarks" and "limited tariff benefits" that may have impact on the current MTB debate are also highlighted. Finally, MTB legislation in Congress from 1983 to the present is summarized. This report will be updated as events warrant. Congress may presently consider a bill to legislatively establish a process to facilitate consideration of MTBs. On April 13, House Ways and Means Chairman Kevin Brady introduced H.R. 4923 , the American Manufacturing Competitiveness Act of 2016. The Ways and Means Trade Subcommittee held hearings on H.R. 4923 on April 14, and a full committee markup of the bill was held on April 20. The committee passed the bill, as amended, on the same date. During the markup, Chairman Brady asserted that "our bipartisan bill creates an open and transparent process that allows the American people to see every part of this process. Our bill upholds our earmark rules because Members of Congress will no longer introduce bills to begin the MTB process." The legislation could reportedly come to the House floor as early as the last week in April. The Trade Facilitation and Enforcement Act of 2015, P.L. 114-125 , enacted on February 24, 2016, included a sense of Congress that urged the House Ways and Means and Senate Finance Committees to "advance, as soon as possible, after consultation with the public and Members of the Senate and House of Representatives, a regular and predictable legislative process for the temporary suspension and reduction of duties that is consistent with the rules of the Senate and of the House." The MTB consideration process proposed by H.R. 4923 and S. 2794 is different than the previous process for vetting MTBs primarily because (1) an independent agency, the U.S. International Trade Commission (ITC), will directly receive duty suspension petitions from the public; and (2) the process would be subject to certain time and reporting requirements. As in the previous MTB process (1) the ITC--in consultation with the Department of Commerce, U.S. Customs and Border Protection, the U.S. Trade Representative, and other relevant agencies--would consider the duty suspension requests; (2) the conditions that applied to prior duty suspensions (i.e., they must be noncontroversial, revenue-neutral, administrable) would apply; and (3) the final MTB would be drafted through the committee, which would retain authority to exclude duty suspensions to which a Member objected or if there were domestic production. When considering previous MTB legislation, the process was begun by the House Ways and Means and Senate Finance Committee chairs (the committees of jurisdiction) sending out Dear Colleague letters inviting Members to introduce stand-alone legislation on proposed duty suspensions. Members were required to file disclosure forms affirming that neither the Member nor spouse had any financial interest in the entity supporting the duty suspension. The deadline for introduction was usually several months before an MTB was expected to be reported out of committee. The MTB, when introduced, included all committee-approved measures, including duty suspensions. The legislative goal of the committees was for an MTB to be "non-controversial"--meaning that the measure was able to pass both houses by unanimous consent or under suspension of the rules. In recent Congresses, due to the large number of bills submitted, the committees of jurisdiction have tended to request comments from interested parties at the subcommittee level, rather than holding hearings on these bills. The subcommittee considers duty suspensions for inclusion in the MTB only if the corresponding goods or materials are deemed "noncontroversial" or "noncompetitive," meaning that (1) there is no domestic producer objecting to the duty suspension, and (2) the suspension or reduction of the tariff is seen to be in the interest of U.S. "downstream" manufacturers and consumers. Furthermore, the volume of imports and corresponding revenue loss must be "revenue neutral" or generally not more than $500,000 per product per year. For example, the Congressional Budget Office estimated that all duty suspensions and extensions to suspensions in House-passed H.R. 4380 ( P.L. 111-227 ) would cost the government about $286 million in foregone revenue on about 650 products over 10 years, out of about approximately $29 billion collected in tariffs per year. In accordance with the Statutory Pay-As-You-Go Act of 2010, potential revenue loss was offset by an extension of customs user fees, as well as a small penalty increase for untimely filing of corporate estimated tax payments. After duty suspension bills were introduced and referred to the relevant committees, the bills were reviewed by trade subcommittee staff and several federal agencies, including the United States Trade Representative (USTR), CBP, the Department of Commerce, and the ITC. Committee staff may solicit comments from the public directly, but may also do so through Administration channels or the ITC. All bills, disclosure forms, ITC reports, and relevant information released by other federal agencies are also posted on committee websites for public comment. The ITC was the first agency that examined the duty suspensions and responded to the committees, and is the only agency expressly required to do so by statute. The ITC also contacted U.S. manufacturers or industry groups through its Office of Industries, especially looking for U.S. producers of similar goods as those targeted for duty suspensions. If domestic manufacturers existed, ITC staffers sought to determine their approval or disapproval of the duty suspension. If a U.S. manufacturer objected, the duty suspension proposal was dropped. The overall Administration response to an MTB was coordinated by the Department of Commerce (Commerce). Analysts at Commerce also researched the targeted products, either independently or in conjunction with the ITC, depending on the timeframe. With regard to comments on duty suspensions, Commerce generally did not object unless a U.S. producer was found. In most cases, intra-company transfers (instances in which a multinational with a subsidiary in the United States imports a product manufactured in a plant owned by the same company overseas) were also not opposed by Commerce, even if a like product was manufactured in the United States. CBP also commented on duty suspensions, largely by recommending reclassifications or changes in nomenclature for ease in administering the proposed tariff changes. CBP had a formal agreement to share this information with the ITC, and also provided information to other agencies. However, if certain measures affected CBP more directly (e.g., issues regarding duty drawback, legislative responses to CBP rulings, liquidations and reliquidations, or permanent duty suspensions), CBP also communicated directly to the committees on a confidential basis. The USTR also commented occasionally on individual duty suspension bills, but generally focused on larger issues in the legislation that could more permanently affect U.S. trade policy. USTR officials also indicated that the Administration usually prefers that the unilateral tariff modifications in MTBs are temporary, so that more permanent revisions/reductions of duties can continue to be used in trade negotiations to seek reciprocal tariff benefits for U.S. exports. From the 109 th to the 112 th Congresses, the number of individual duty suspension bills introduced increased significantly. For example, in the 109 th Congress, duty suspensions were granted for about 680 products, out of more than 1,000 proposed in bills introduced in the House and Senate. During the MTB process in the 112 th Congress, about 1,800 individual duty suspension bills were introduced. MTB legislation introduced in Congress since the 97 th Congress is listed in Table A-1 . Congress did not pass stand-alone MTB legislation during the 109 th Congress. Instead, almost 700 MTB provisions were attached to other legislation before the House Ways and Means and Senate Finance Committees. First, about 300 duty suspensions were attached to H.R. 4 , the "Pension Protection Act of 2006" ( P.L. 109-280 ), signed by the President on August 6, 2006. Second, On December 7, 2006, the House and Senate reached an agreement on trade legislation to be included in a larger legislative package of tax break extensions. As part of the House-Senate compromise, H.R. 6406 proposed to suspend or reduce tariffs on about 380 additional products. H.R. 6406 passed the House on December 8, 2006, by a vote of 212-184. H.R. 6406 was ultimately appended to a previously House-passed tax extension package ( H.R. 6111 ) that subsequently passed the Senate on December 9. The President signed H.R. 6111 on December 20, 2006 ( P.L. 109-432 ). Both P.L. 109-280 and P.L. 109-432 suspended tariffs until December 31, 2009. In the 110 th Congress, no MTB legislation was introduced in either house. Although a November 2007 Ways and Means advisory press release called for House Members to submit duty suspension bills for a proposed MTB by December 14, 2007, no omnibus bill was introduced. However, the bills introduced continued to be vetted by the trade subcommittee, agency input was submitted, and proposed duty suspensions were posted on the Ways and Means Committee website for public comment. Since most of the duty suspensions passed in 2006 would not expire until the end of 2009, many lawmakers reportedly regarded the end of 2009 as the "real deadline" for passage of MTB legislation--which they indicated would make consideration of MTB legislation in the 111 th Congress more likely. In the 110 th Congress, the House and Senate adopted procedures that were primarily aimed at increasing transparency in congressionally directed spending, also known as "earmarks." These procedures also extended to "limited tariff benefits," defined in House and Senate rules as "a provision modifying the Harmonized Tariff Schedule of the United States in a manner that benefits 10 or fewer entities." House rules (see House Rule XXI, clause 9) provide that in order to be considered on the House floor, a bill or joint resolution reported by a committee must include in the report a list of congressional earmarks, limited tax benefits, and limited tariff benefits in the bill or the report, along with the name of the Member, Delegate, or Resident Commissioner requesting them, or a statement certifying that the proposal does not contain them. Depending on the type of measure, the list or statement should be included in the measure's accompanying report, or published in the Congressional Record . House Rule XXIII, clause 17(a), requires any Member, Delegate, or Resident Commissioner requesting a limited tariff benefit to provide a written disclosure to the chairman and ranking minority Member of the committee of jurisdiction including (1) the name of the sponsor; (2) identification of the individual or entities "reasonably anticipated to benefit" from the measure; (3) the purpose of the limited tariff benefit; and (4) a certification that the sponsoring Member or spouse has no financial interest in the benefit. The committees of jurisdiction are directed to maintain the disclosures and make the statements regarding limited tariff benefits included in a committee-reported bill or conference report to regular appropriations bills "open for public inspection." Committees may also have their own administrative requirements beyond those required by House rules, such as requiring the posting of disclosure forms online. In the 110 th Congress, the Senate addressed rule changes through legislation. In Title I of S. 1 , the Legislative Transparency and Accountability Act of 2007, the Senate also included disclosure requirements for congressionally directed spending similar to those passed in the House. An amended version of S. 1 was considered in the House and passed on July 31, 2007. The Senate then passed an identical version on August 2, 2007. The President signed the legislation on September 14, 2007 ( P.L. 110-81 ). Section 521 (Senate Rule XLIV) amended the standing rules of the Senate to provide that it will not be in order to consider a bill or joint resolution reported by any committee, a bill or joint resolution not reported by a committee, or the adoption of a conference committee report, unless the chairman of the committee of jurisdiction, the majority leader, or his or her designee, certifies that any congressionally directed spending items, limited tariff benefits, or limited tax benefits (1) have been identified ("through lists, charts, or other similar means including the name of each Senator who submitted the request"); and (2) are searchable "on a publicly accessible congressional website" at least 48 hours (or "as soon as practicable" in the case of spending items proposed in floor amendments) prior to the vote. If the disclosure is not completed, the measure is subject to a point of order. Any Senator who requests a limited tariff benefit (or any directed spending item mentioned in the law) must now submit disclosure forms including (1) the name of the sponsor; (2) the name and location of the intended recipient; (3) any individual or entities reasonably anticipated to benefit; (4) the purpose of the benefit; and (5) a certification that neither the Senator nor their immediate families have a financial interest. House Ways and Means Trade Subcommittee Chairman Sander M. Levin and Ranking Member Kevin Brady introduced H.R. 4380 , the Miscellaneous Tariff and Technical Corrections Act of 2009, on December 15, 2009. The bill sought to renew many of the duty suspensions that were in place prior to January 1, 2009. The bill covered more than 600 products, most of which were manufacturing inputs for finished goods made in the United States. On October 1, 2009, the Senate Finance Committee announced that it would also move forward on an MTB, and laid out the process for Senators to introduce individual bills for consideration in a final omnibus package by October 30, 2009. This announcement came after a bipartisan agreement between the House and Senate was reached involving additional disclosure requirements for lobbyists. The agreement required lobbyists to register under a separate issue code ("TAR", an abbreviation for tariff) when engaging in lobbying activities associated with the MTB process. Senate Finance Committee Ranking Member Chuck Grassley sought this requirement so that the process "would benefit from improved transparency in the disclosure of lobbying activities associated with individual miscellaneous tariff bills." On June 7, 2010, House Ways and Means Committee Chairman Levin and Trade Subcommittee Chairman Tanner issued a "Dear Colleague" letter urging Members to support passage of the MTB legislation ( H.R. 4380 ) and attempting to differentiate MTB legislation from earmarks. The letter mentioned that "some have attempted to characterize MTB provisions as 'congressional earmarks,'" and enclosed a copy of the House Rules pointing out the definitions of "earmark" and "limited tariff benefit" as discussed in the previous section (see "Limited Tariff Benefit" Disclosure Rules ," above). The letter also mentioned the vetting process (discussed in more detail above) and suggested that the MTB legislation could generate an increase in U.S. production and support U.S. jobs. The House passed H.R. 4380 on July 21, 2010, under suspension of the rules by a vote of 378-43. The Senate subsequently passed the bill by unanimous consent on July 27, 2010, and it was signed by the President on August 11, 2010 ( P.L. 111-227 ). On November 24, 2010, the House Ways and Means Committee posted a discussion draft of a second MTB package, along with an updated matrix (listing bill sponsors, bill beneficiaries, and government agency comments, among other things) combining all bills introduced in the MTB process during the 111 th Congress. H.R. 6517 , the Omnibus Trade Act of 2010, was subsequently introduced on December 15. The bill sought, in part, duty suspensions for about 290 additional products. The House approved H.R. 6517 on the same date. On December 22, 2010, the Senate by unanimous consent passed an amendment in the nature of a substitute to H.R. 6517 that did not contain the duty suspension measures. The House also passed the amended version of H.R. 6517 without objection on December 22 ( P.L. 111-344 ). The MTB process in the 112 th Congress began on March 30, 2012. Chairman Camp and Ranking Member Levin of the House Ways and Means Committee and Chairman Brady and Ranking Member McDermott of the Ways and Means Trade Subcommittee announced the beginning of the MTB process in the House, and invited Members to submit duty suspension bills by April 30, 2012. Senate Finance Committee Chairman Baucus also announced on March 30 that duty suspension bills were due in the Senate on the same date. On January 1, 2012, H.R. 6727 , the U.S. Job Creation and Manufacturing Competitiveness Act of 2013, was introduced, but ultimately did not receive House or Senate floor consideration. In the 113 th Congress, the House Ways and Means Committee announced plans to move forward with the MTB legislation introduced in the previous Congress, pending re-submission of Members' disclosure forms. H.R. 2708 , the United States Job Creation and Manufacturing Competiveness Act of 2013, introduced on July 17, 2013, saw no floor action. Since the 111 th Congress, several Members have introduced legislation seeking to change the MTB process, primarily by authorizing the ITC to receive duty suspensions and develop draft MTB legislation to be submitted to Congress for additional action. Some Members assert that modifying the process by having an agency, rather than Members of Congress, receive duty suspension requests would ensure that the MTB package does not violate the earmark ban. Other Members contend that by changing the MTB process Congress is "giving away" or "surrendering" constitutional prerogatives and responsibilities over foreign trade and appropriations. MTB reform legislation has pointed to the ITC as a possible agency with a lead role, presumably because of its independent status, and because it already performs the initial task of researching and reporting on duty suspensions. In addition, one of the statutory roles of the ITC is to "put at the disposal of the President of the United States, the Committee on Ways and Means of the House of Representatives, and the Committee on Finance of the Senate, whenever requested, all information at its command, and ... make such investigations and reports as may be requested by the President or by either of said committees or by either branch of the Congress." Thus, if Congress were to reform the means by which duty suspensions are received, the ITC might be a good alternative. A primary issue of the MTB debate in Congress centers on whether or not duty suspensions are "limited tariff benefits" and thus fall under a moratorium on congressionally directed spending, including tariff- and tax-related benefits. Supporters of duty suspensions assert that since duty suspensions appear in the Harmonized Tariff Schedule, the tariff savings are freely available to any importer. They also argue that an MTB offers "broad benefits across our economy" because duty suspensions lower production costs for American manufacturers, and are job-creating. These lower production costs, in turn, may be passed on to American consumers. They also assert that rather than being congressionally directed spending, MTBs result in temporary suspensions of tariffs that are potentially "distortive taxes on consumption and production." Opponents argue that duty suspensions are limited tariff benefits because only the companies that request duty suspensions actually take advantage of them. In addition, some maintain that since businesses often hire lobbyists to petition their Members to introduce duty suspension legislation, the process provides some opportunity for undue influence. Opponents also assert that MTBs do not provide sufficient economic benefits because they are temporary, the qualifications for relief are too narrow, and they distract Congress from broader trade legislation that could permanently lower tariffs through multilateral negotiations. MTB supporters assert that, unlike most earmarks, MTB provisions go through an intensive and transparent vetting process that includes posting prospective duty suspensions on committee websites for public comment, review by the ITC and executive branch agencies, and scoring by the Congressional Budget Office. Disclosure forms are also required of Members that identify the origin of the request and certify that the Member does not financially benefit from the provision. Many MTB opponents assert that the current process is not transparent enough. Some in Congress, although critical of the current system, have suggested changing the process by having an outside agency review duty suspensions and present an MTB package to Congress prior to any congressional action. Legislation introduced in the 112 th ( S. 3292 ) and 113 th ( S. 790 ) Congresses would have authorized the ITC to oversee the MTB process, collect petitions from the private sector, vet the bills, and provide a completed MTB package to Congress for consideration. Supporters of the current process say that this approach would not eliminate lobbying for MTB legislation, but rather shift it to the ITC. They assert that this could make the MTB process less transparent than the current system because lobbyists would not be subject to the same disclosure rules when interacting with the ITC and other federal agencies as they are when dealing with Congress. Another argument made by supporters of the existing process is that shifting the duty suspension process diminishes the constitutional power of Congress as enumerated in Article I, Section 8 to levy tariffs, and by extension, suspend them. Despite the efforts of House and Senate committees to ensure the neutrality of MTB legislation, insertion of non-MTB measures has held up floor consideration of the legislation in the past, especially in the Senate. These measures largely dealt with broader trade policy issues rather than with duty suspensions. For example, the last omnibus MTB reported out of the Senate--first introduced in 2002--reportedly faced opposition from one Senator because it did not include a provision to roll back preferential access previously given to beneficiaries of the Caribbean Basin Trade Partnership Act in the Trade Act of 2002 ( P.L. 107-210 ). Other provisions, including one that would to grant normal trade relations status to Laos, and another providing a trust fund for U.S. wool producers, also met with objections. Ultimately, the bill passed in late 2004 ( P.L. 108-429 ).

U.S. importers often request that Members of Congress introduce bills seeking to temporarily suspend or reduce tariffs on certain imports. The rationale for these requests is that they cut costs for U.S manufacturers, thus enabling them to hire more workers, invest in research and development, and reduce costs for consumers. In recent congressional practice, the House Ways and Means and Senate Finance Committees, the committees of jurisdiction over tariffs, have combined individual duty suspension bills and other technical trade provisions into larger pieces of legislation known as miscellaneous tariff (or trade) bills (MTBs). When Members introduce bills, they must also file disclosure forms indicating that they have no economic interest in the entity requesting the suspension. Before inclusion in an MTB, the individual bills are reviewed by the trade subcommittee staff in each of the relevant committees, the U.S. International Trade Commission (ITC), and executive branch agencies to ensure that they are noncontroversial (generally, that no domestic producer, Member, or government agency objects), relatively revenue-neutral (revenue loss due to the duty suspension of no more than $500,000 per product), and are able to be administered by U.S. Customs and Border Protection (CBP). All bills, bill reports, and disclosure forms are also placed on committee websites for public comment. Duty suspensions in MTBs are only available for a limited time (generally, three years from the date of enactment), and if no subsequent MTB legislation is passed, the duty-free or reduced duty status of the products expires. Expired duty suspensions must be re-introduced to be included in new MTB legislation, and in most cases, the favorable duty status is not retroactively renewed. The last enacted MTB expired on December 31, 2012. This MTB, the United States Manufacturing Enhancement Act of 2010 (P.L. 111-227), suspended entirely or reduced duties on over 600 products. Since legislative attempts to pass an additional MTB extending the duty suspension on these products were not successful, currently, duties must be paid on these products, most of which are inputs in various U.S. manufactured products. Additional MTB legislation was introduced in the 112th Congress (H.R. 6727) and 113th Congress (H.R. 2708), but neither bill was taken up in either the House or the Senate, possibly due to controversy over whether MTB legislation violated House and Senate rules on congressionally directed spending. The Trade Facilitation and Enforcement Act of 2015, P.L. 114-125, enacted on February 24, 2016, included a sense of Congress that urged the House Ways and Means and Senate Finance Committees to "advance, as soon as possible, after consultation with the public and Members of the Senate and House of Representatives, a regular and predictable legislative process for the temporary suspension and reduction of duties that is consistent with the rules of the Senate and of the House." Some in Congress propose changing the MTB process by requiring an agency outside Congress, such as the ITC, to receive petitions and vet products for duty suspensions. Bills supporting this approach have been introduced in 114th Congress (S. 2794, H.R. 4923). Thus, Congress may discuss a procedure to change the MTB process in the second session of the 114th Congress. This report provides recent developments regarding the proposed MTB process, and compares this proposal for vetting MTBs with the existing review process. It also tracks the current proposal and provides information on MTB legislation introduced from the 109th to the 113th Congresses. Legislation and House and Senate rules covering "earmarks" and "limited tariff benefits" that may affect the current MTB debate are also discussed. The report also presents issues for Congress.

This report examines China's "economic assistance"--a term that encompasses a mix of development aid, loans, technical assistance, and state-sponsored investments--in Africa, Latin America, and Southeast Asia. In recent years, the People's Republic of China (PRC) has bolstered its diplomatic presence and economic influence, often referred to as "soft power," in the developing world. China has garnered considerable international goodwill through financing infrastructure and natural resource development projects, assisting in the execution of such projects, and backing PRC state enterprise ventures in many developing countries. Many observers have praised Chinese assistance and investment as filling unmet development needs, particularly in countries that have been relatively neglected by major bilateral and multilateral aid providers. Others have criticized China for not promoting democracy, equitable and sustainable development, and environmental preservation in these countries. Some U.S. policy-makers and others have expressed frustration that China's policy of providing economic assistance "without conditions" has undermined the ability of other aid donors to influence the behaviors of aid recipients in such areas as democracy, human rights, and economic reforms. Some observers have argued that Chinese financing has burdened some developing countries with too much debt. PRC officials have responded that they are contributing to basic development and suggest that they are taking a flexible, "long-term view" of recipient countries' abilities to repay loans. PRC foreign assistance is difficult to quantify. Still a developing country itself, China appears to administer foreign aid in an ad hoc fashion, without a centralized system, foreign aid agency and mission, or regularized funding schedule. Nor does Beijing publicly release foreign aid data. Some analysts surmise that the Chinese leadership is reluctant to be perceived as a major aid donor, since the PRC itself continues to be a recipient of foreign assistance and because the government fears that its citizens may object to lavish spending on economic projects abroad. Estimates of China's foreign aid vary widely due to the lack of official data and to disparate definitions of aid. Broad characterizations, such as the one adopted in this report and referred to as "economic assistance," often include low-interest loans and PRC government-backed investments as well as grant-based development aid. A relatively small portion of Chinese economic assistance includes what typically is characterized as "official development assistance" (ODA) as provided by the world's major aid donors, such as development grants, poverty-reduction programs, humanitarian assistance, and food aid. China also provides relatively little military and security-related assistance. Another important difference between China and major OECD aid donors is the level to which PRC economic assistance serves China's development needs, by facilitating the export of raw materials to China and often requiring that a significant portion of project materials and services are to be sourced in China. By contrast, the foreign aid programs of the United States and other OECD members, with some exceptions, involve fewer direct economic linkages. Beijing reportedly has taken some tentative steps toward making its foreign aid process more centralized and transparent, coordinating its programs with other aid providers, and offering more development-oriented assistance, while continuing to eschew the label of major ODA donor. The PRC has begun sending abroad "youth volunteers," similar to U.S. Peace Corps volunteers, engaged in teaching and training in such subjects as Chinese language and medicine, computer skills, agricultural technologies, and sports. Some analysts regard many of China's economic activities and investments abroad as "foreign aid" because they are sponsored, financed, or carried out by PRC government agencies or state enterprises on favorable terms and promote economic development in recipient countries. Other analysts do not consider such activities as foreign direct investment (FDI), because they are secured by diplomatic agreements, do not impose real financial risks upon the PRC companies involved, or do not result in Chinese ownership of foreign assets. (See Table 1 .) Some analysts suggest that many estimates of China's foreign aid, in both PRC official publications and the scholarly literature in the West, do not capture the full extent of PRC economic assistance and related activities. The China Statistical Yearbook 2003-06 released an annual aid figure of $970 million. According to other sources, annual PRC foreign aid ranges from $1.5 billion to $2 billion. These figures would place China's aid levels alongside those of Australia, Belgium, or Denmark. In terms of official development assistance as measured by the OECD, U.S. ODA is the largest among OECD member countries, followed by Japan, the United Kingdom, France, and Germany. The United States' foreign operations budget (bilateral development; economic, security, and military assistance; multilateral assistance; and food aid) was estimated at $24 billion in FY2008. However, other analysts, applying broader definitions of foreign aid, consider PRC economic assistance activities and their impact to be far greater than that suggested by conventional measurements. According to their measurements, PRC development financing, technical assistance, and state-sponsored investments in Africa, Latin America, and Southeast Asia exceed officially reported ODA and FDI totals combined, suggesting that much of Chinese foreign economic activity is not accounted for in either conventional measurements of ODA or foreign investment. In 2006 and 2007, according to various sources citing PRC official statistics, China's annual FDI outflows totaled roughly $21 billion annually, compared to $216 billion for the United States. The NYU Wagner School research team tabulated PRC economic assistance-- p romises of financing, assistance, and government-sponsored investment projects--that had been reported in 62 African, Latin American, and Southeast Asian countries between 2001 and 2008. In 2007, the last full year for which such activities were examined, the students found that 66% of Chinese economic assistance was provided in the form of loans (concessional loans or credit lines), 29% represented state-sponsored investment, and the remaining 5% included grants, debt cancellation or debt relief, and in-kind aid. Although the Wagner School findings strongly indicate that China has been providing significant and growing amounts of economic assistance, if not ODA, to developing countries, the estimated totals should be interpreted with caution. Some reported values may be inflated: some loans represent offers or pledges that may not have been fulfilled; some projects may have been cancelled, while others involving several parts or taking several years to complete may have been counted more than once. Furthermore, some PRC investments included in the study may also qualify as FDI. In other ways, however, the findings may underestimate the value of PRC economic assistance, such as when projects or data have not been reported or when Chinese materials and labor have not been included. In addition to their actual monetary value, Chinese assistance and related economic activities often garner appreciation disproportionate to their size, for several reasons, including loans and investments often are made available relatively quickly and easily--without the political, economic, social, and environmental conditions and safeguards and bureaucratic procedures that major OECD aid donors, multilateral financial institutions, and multinational corporations typically impose; China often promotes economic projects in countries, geographic areas, and sectors that developed-country governments and multinational corporations have avoided because they have determined them to be unfriendly, too arduous, or infeasible; many PRC-funded or -built public works in developing countries, such as national cultural centers, stadiums, and highways, are highly visible and provide tangible, short-term benefits; and Chinese economic and investment activities are often announced at bilateral summit meetings with great fanfare and are referred to by Chinese officials as "assistance," powerfully symbolizing the friendship between China and other countries. The NYU Wagner School findings that this report draws upon may serve as a basis for conducting further research and thinking about U.S. policy responses to China's growing foreign assistance and investment. They are not meant to be exhaustive; rather, they may suggest the broad contours and trajectory of Chinese economic assistance and related activities in Africa, Latin America, and Southeast Asia. The Wagner study suggests that: China's economic assistance and related investments are driven primarily by the PRC's need for natural resources and secondarily by diplomatic objectives, such as isolating Taiwan and garnering support in international organizations such as the United Nations. Beijing also aims to open up foreign markets for Chinese goods and help PRC companies invest, set up manufacturing plants, and develop markets overseas. Unlike major OECD aid donors, China lacks a centralized aid agency affiliated with its foreign affairs ministry. PRC economic assistance consists largely of concessional loans administered by the Ministry of Commerce through its Department of Aid to Foreign Countries. To lesser extents, the Export-Import Bank of China (Eximbank), the Ministry of Finance, and the Ministry of Foreign Affairs also play roles. Although Chinese economic assistance to all three regions grew significantly during the 2002-2007 period, Africa received the largest year-on-year increases and showed the clearest growth trend. (See Figure 1 and Table 2 .) In terms of financing, PRC government-backed investments made up 53% of reported economic assistance activity, concessional loans constituted 42%, and grants and debt cancellations accounted for the remaining 5% during the 2002-2007 period. (See Figure 2 and Table 3 .) Of the loans, infrastructure projects, and other economic assistance provided by China to the three regions between 2002 and 2007, 44% was allocated to Africa, 36% to Latin America, and 20% to Southeast Asia. (See Table 4 .) During the same period (2002-2007), 44.5% of economic assistance and investment was directed at the natural resources and agricultural sectors, while 43% supported infrastructure development. (See Table 5 .) In the past several years, China's economic assistance to countries in Africa has grown dramatically. During the 1970s and 1980s, China provided aid to the region in the form of infrastructure projects, public works, technical and public health assistance, and scholarships to study in China. Its motivations were largely diplomatic: to forge friendships among "non-aligned" nations and to compete with Taiwan (the Republic of China) for recognition. Only four of 48 Sub-Saharan African countries (Burkina Faso, Sao Tome, Gambia, and Swaziland) still maintain official relations with Taiwan. In 2007, China reportedly offered Malawi "aid and investment" worth $6 billion in major economic sectors. In January 2008, Malawi switched diplomatic relations to the PRC. However, in 2008, China reportedly promised Malawi only $287 million. While traditional types of PRC foreign assistance remain staples of Chinese engagement in the region, many of them now complement much larger development projects that directly serve China's economic interests. Estimates of China's foreign aid, development financing, and other economic activities in Africa give rise to varying sums. Some reports of China's annual aid to the continent suggest a range of $1-2.7 billion. The World Bank referred to PRC "infrastructure financing" in Africa (funding for roads, railways, and power projects) worth $7 billion in 2006. In 2007, the China Exim Bank stated that it had extended concessional loans to Africa with a total outstanding balance of approximately $8-9 billion, while the China Development Bank reportedly set up a $5 billion China-Africa Development Fund to finance infrastructure, industrial, and agricultural projects. The Wagner School research team found that PRC economic assistance and state-sponsored investment projects in Africa reported during the 2002-2007 period amounted to several billion dollars annually ($6.6 billion on average). These activities included financing, debt cancellations, grants, technical assistance, and state-sponsored investments. However, as previously stated, these totals may be inflated or represent the high end of a possible range of estimates. The following totals from OECD countries provide an indication of ODA levels to Africa. They are not meant to be directly compared to estimates of Chinese assistance to the region, which are based upon different definitions. U.S. assistance to Sub-Saharan Africa, the second-largest regional recipient of U.S. foreign assistance after the Near East and the largest recipient of U.S. development assistance, totaled an estimated $5.2 billion in 2008 and $4.7 billion in 2007. The United States, the United Kingdom, and France are the largest bilateral donors of ODA to Africa, having provided $5.8 billion, $5.4 billion, and $5.1 billion, respectively, in assistance in 2006. OECD countries reportedly pledged a total of $5 billion in ODA for infrastructure projects in Sub-Saharan Africa in 2006. Estimates of PRC direct investment in Africa range from under $500 million to roughly $1 billion annually. Historically, Europe (United Kingdom, France, and Germany), Japan, and the United States have been the principal sources of FDI on the continent. In 2006, the United States reportedly invested $1.5 billion in Africa out of a total of $36 billion in global FDI received by the region that year. Some studies indicate that India has more cumulative investment in Africa ($1.8 billion in 2004) than China ($1.3 billion in 2005) and is a major source of infrastructure financing. According to some estimates, in 2005, Chinese FDI flows to Africa totaled $392 million or 3% of PRC global outward investment. Other studies report that China had $2.6 billion in cumulative FDI and over $0.5 billion in annual investment in Africa in 2006. Higher estimates include figures of nearly $1 billion in PRC annual direct investment in Africa from 2000 to 2006. China has exerted growing influence as a trading partner. As part of its integrated approach, China's diplomatic outreach to the region is accompanied by aid, investment, and trade. China is Africa's third largest trading partner after the European Union (EU) and the United States. PRC-Africa trade reportedly was worth $106.6 billion in 2008, compared to U.S.-Africa trade of $142 billion. China's economic assistance and related investments in Africa are largely driven by its objective of securing access to oil and minerals for its growing economy. African oil reportedly accounts for 80% of China's trade in the region and about one-third of its oil imports. Nearly 70% of PRC infrastructure financing on the continent reportedly is concentrated in Angola, Nigeria, Ethiopia, and Sudan, all of which have major oil fields. Angola, the Democratic Republic of Congo (DRC), and Sudan pay for much of their assistance or loans from China with oil. However, Europe and the United States remain the largest buyers of African petroleum (33% and 36% of African oil exports, respectively). Estimates of China's share of the African oil market range from 10%-16%, although the PRC reportedly plays a larger role in the continent's minerals markets. (See Table 6 .) China's economic assistance to Africa is dominated by concessional loans and export credits provided through the Ministry of Commerce and Eximbank. PRC loans to Africa, which reportedly grew by 35% annually between 2001 and 2005, have been used chiefly to finance infrastructure projects in over 35 African countries (mainly hydropower and transportation). (See Table 7 .) The Wagner team compiled a list of PRC economic assistance and related investment projects or offers in Africa reported during the 2002-2007 period. The combined values amounted to $33 billion. In dollar terms, 54% was related to infrastructure and other public works projects, 28.5% to the extraction or production of natural resources, and 2.5% to humanitarian activities, technical assistance, and military assistance (15% was unspecified). In many cases, especially when the recipient country has poor credit, loans are to be repaid in kind (oil or commodities). In the case of an investment agreement between Congo and China purportedly worth $9 billion, PRC companies would invest in mining projects and aid in the construction of infrastructure and educational facilities in exchange for rights over copper and cobalt deposits. Examples of PRC development and humanitarian aid in Africa include the construction of schools and hospitals, medical training and equipment, agricultural technical assistance, food aid, and disaster assistance. China's growing engagement with Latin America and the Caribbean (the Western Hemisphere) lacks the deep historical ties of its relations with Southeast Asia and legacy of its cold war friendships in Africa. China's growing interest in the region appears to be principally linked to its objective of gaining broader access to natural resources and agricultural commodities, such as oil, ores, and soybeans. Beijing also aims to fully isolate Taiwan--12 Latin American and Caribbean nations still maintain diplomatic relations with Taiwan--and bolster China's diplomatic presence in the region. China's offers to Costa Rica reportedly were directly linked to the Central American country's establishment of diplomatic relations with the PRC (and termination of relations with Taiwan) in 2007. Other goals include opening up alternative markets and opportunities for Chinese goods and investment. According to many analysts, however, Beijing acknowledges that the United States remains the dominant economic and political influence in the Western Hemisphere. The PRC is not a major foreign investor in the region. The EU is the largest source of FDI in Latin America, with $620 billion invested in the region in 2006, followed by the United States with $350 billion. According to PRC official data, Latin America had received $22 billion in cumulative PRC investment at the end of 2006, about 25% of PRC total overseas investment. However, the vast majority of PRC FDI in the region reportedly goes to off-shore financial havens such as the Cayman Islands and the Virgin Islands, to be reinvested in China (thereby taking advantage of tax breaks for "foreign companies"). When these destinations are excluded, only about $1.9 billion remains. According to some sources, in 2006, PRC direct investment flows to the Western Hemisphere totaled roughly $100 million, less than its outbound investment to Africa ($500 million). Conversely, Latin American companies have made sizable investments in China with $20 billion in cumulative FDI. China's trade with Latin America grew tenfold between 2000 and 2007 and reached $142 billion in 2008. China's total trade with the region is only about one-fifth that of the United States ($664 billion in 2008), but is growing at a faster rate. The United States reportedly imports 12 times more oil from Venezuela than does China. Nonetheless, China has become an important trading partner to major countries in the region, and is second only to the United States as an importer of commodities and goods from Latin America. China's largest trading partners in the region are Brazil, Mexico, Chile, Argentina, and Peru. The Wagner students compiled a list of PRC economic assistance and related investment projects or offers in the Western Hemisphere reported during the 2002-2007 period. The combined values amounted to $26.7 billion. Over two-thirds of these activities were in natural resource sectors, while 28% were related to infrastructure and public works, 1% involved humanitarian activities and technical assistance, and 2% was unspecified. In the past several years, Chinese humanitarian assistance has included infrastructure repair in Costa Rica, hospitals in Cuba, funding to the Bolivian Red Cross for mudslide victims, and help to people affected by an earthquake in Peru and flood in Uruguay. In 2008, China joined the Inter American Development Bank and committed $350 million for public and private sector projects. The emphasis on natural resources implies a strongly commercial nature to China's economic activities in Latin America, less oriented toward infrastructure development than China's involvement in Africa and Southeast Asia. (See Table 8 and Table 9 .) In terms of official development assistance as measured by the OECD, the EU, the United States, and Japan are the largest providers in the region. U.S. foreign assistance to the Western Hemisphere totaled an estimated $1.46 billion in 2008 and $1.55 billion in 2007. China has become an important source of infrastructure financing in Southeast Asia. While China is not counted as a major regional provider of ODA as measured by the OECD, some reports and observations suggest that the PRC is one of the largest sources of economic assistance in Southeast Asia. Although access to natural resources plays a prominent role in China's engagement in the region, strategic objectives likely influence China's activities in Southeast Asia to a greater extent than they do in Africa and Latin America. Many of China's economic activities in the region appear to provide relatively greater long-term diplomatic benefits and comparatively few short-term economic benefits. China has a large economic presence in Southeast Asia, owing in part to its proximity and historical ties to the region. Southeast Asia's largest sources of FDI in 2006 (net inflow) were the EU ($13.3 billion), Japan ($10.8 billion), the United States ($3.8 billion), South Korea ($1 billion), and China ($900 million). Japan, the EU, China, and the United States are the largest trading partners in the region. In 2008, China's trade with the Association of Southeast Asian Nations (ASEAN) countries, at $230 billion, was larger than its trade with Africa ($106 billion) and Latin America ($142 billion). China and the least developed countries of mainland Southeast Asia are becoming increasingly integrated economically, although each of these countries has also sought to hedge against the PRC's rising influence. China is considered the "primary supplier of economic and military assistance" to Burma (Myanmar), Cambodia, and Laos and provides them with an "implicit security guarantee," according to some analysts. In recent years, PRC government entities have financed many infrastructure, energy-related (especially hydropower), agricultural, and other high profile development projects in these countries, which also rely upon Chinese construction materials, equipment, technical expertise, and labor. There are some indications that Chinese assistance in this part of the region is diversifying, including support for counter-trafficking in persons and counter-narcotics efforts, programs involving Chinese youth volunteers (Laos), elections (Cambodia), and historical preservation (Cambodia). The PRC also has financed railway construction, hydropower development, and ship building facilities in Vietnam. In the past few years, China has become a major financer and investor in infrastructure, energy, agriculture, and mining in the Philippines and supplier of preferential loans to Indonesia. According to one source, in 2006, China was the third largest source of bilateral development assistance to the Philippines after Japan and the United Kingdom. The Philippines reportedly is the largest recipient of PRC loans in Southeast Asia, which totaled $2 billion in 2007, of which about half has been disbursed. One of the largest PRC-funded projects in the country is the $1 billion North Rail line. In January 2008, the Indonesian state electricity company signed an agreement with China's Eximbank to borrow $615 million to build coal-fired plants. The Wagner School team compiled a list of PRC economic assistance and related investment projects or offers in Southeast Asia reported during the 2002-2007 period. The combined values amounted to $14.8 billion, largely consisting of PRC loans for and investments in infrastructure and natural resource development projects. (See Table 10 and Table 11 .) Of this amount, 43% was channeled toward infrastructure and public works projects; 32% to natural resource extraction or development; 3% to military, humanitarian, and technical assistance activities; and 22% for purposes not specified. In terms of official development assistance as measured by the OECD, Japan remains the largest bilateral aid donor in Southeast Asia, providing $2 billion in 2006. The United States funded an estimated $517 million in aid programs in Southeast Asian countries in 2008. U.S. foreign aid for several countries in the region increased significantly after 2001, including security assistance for the Philippines, health activities in Cambodia, and HIV/AIDS programs in Vietnam.

In recent years, the People's Republic of China (PRC) has bolstered its diplomatic presence and garnered international goodwill in the developing world through financing infrastructure and natural resource development projects, assisting in the execution of such projects, and backing PRC state enterprises in many developing countries. This report examines China's foreign assistance and government-supported, often-preferential investment ventures in three regions: Africa, Latin America (Western Hemisphere), and Southeast Asia. These activities often are collectively referred to as "economic assistance" by some analysts and in this report. Much of China's "economic assistance" does not constitute "official development assistance" (ODA) as measured by the Organization for Economic Co-operation and Development (OECD) and as generally provided by members of the OECD. However, many activities have an aid component--they are secured through official bilateral agreements, promote development, and provide economic benefits to recipient countries that otherwise might not be made possible. Furthermore, they are not strictly commercial or do not result in foreign ownership of productive assets, and thus they do not qualify as foreign direct investment (FDI). In terms of development grants, the primary form of assistance provided by major aid donors, China is a relatively small source of global aid. However, when China's commercial and concessional loans, technical assistance, and state-sponsored or subsidized investments are included, the PRC becomes a major source of economic assistance. This report is largely based upon research conducted in 2007-2008 by graduate students at the New York University Robert F. Wagner Graduate School of Public Service under the supervision of Wagner School faculty and CRS specialists. The students' findings, while not comprehensive, suggest a dramatic increase in PRC economic assistance and state-sponsored investment from 2002 through 2007. The numbers provided in this report are not meant to be interpreted as reliable foreign aid totals. Furthermore, some PRC loans or aid pledges may not have been fulfilled and some aid pledges that include multiple projects or that span several years may have been counted more than once. According to the Wagner School research, during the 2002-2007 period, Africa received the greatest amount of loans and other economic assistance, followed by Latin America and Southeast Asia. The findings suggest that China's aid activities in Africa and Latin America serve the PRC's immediate economic interests, while those in Southeast Asia relate to longer term diplomatic or strategic objectives. In Africa and Southeast Asia, PRC-sponsored infrastructure and public works projects constitute the most common form of activity, while in Latin America, where some countries are more developed, Chinese natural resource development projects are more prominent. China is fast becoming a top trading partner with Africa and Southeast Asia, and it is second to the United States as a market for Latin American commodities and goods. Although the PRC's economic assistance activities are a highly visible reminder of China's growing diplomatic and economic influence, or "soft power," the European Union, the United States, and Japan continue to dominate foreign investment in Africa, Latin America, and Southeast Asia. This report will not be updated.

Terrorists, drug traffickers, mafia members, and corrupt corporate executives have one thing in common: most are conspirators subject to federal prosecution. Federal conspiracy laws rest on the belief that criminal schemes are equally or more reprehensible than are the substantive offenses to which they are devoted. The Supreme Court has explained that a "collective criminal agreement--[a] partnership in crime--presents a greater potential threat to the public than individual delicts. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality." Moreover, observed the Court, "[g]roup association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked." Finally, "[c]ombination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed." In sum, "the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise." Congress and the courts have fashioned federal conspiracy law accordingly. The United States Code contains dozens of criminal conspiracy statutes. One, 18 U.S.C. 371, outlaws conspiracy to commit any other federal crime. The others outlaw conspiracy to commit some specific form of misconduct, ranging from civil rights violations to drug trafficking. Conspiracy is a separate offense under most of these statutes, regardless of whether conspiracy accomplishes its objective. The various conspiracy statutes, however, differ in several other respects. Section 371 and a few others require at least one conspirator to take some affirmative step in furtherance of the scheme. Most have no such explicit overt act requirement. Section 371 has two prongs. One outlaws conspiracy to commit a federal offense; a second, conspiracy to defraud the United States. Section 371 conspiracy to commit a federal crime requires that the underlying misconduct be a federal crime. Section 371 conspiracy to defraud the United States and a few others have no such prerequisite. Section 371 conspiracies are punishable by imprisonment for not more than five years. Elsewhere, conspirators often face more severe penalties. These differences aside, federal conspiracy statutes share much common ground because Congress decided they should. As the Court observed in Salinas , "When Congress uses well-settled terminology of criminal law, its words are presumed to have their ordinary meaning and definition. [When] [t]he relevant statutory phrase is 'to conspire,' [w]e presume Congress intended to use the term in its conventional sense, and certain well-established principles follow." These principles include the fact that regardless of its statutory setting, every conspiracy has at least two elements: (1) an agreement (2) between two or more persons. Members of the conspiracy are also liable for the foreseeable crimes of their fellows committed in furtherance of the common plot. Moreover, statements by one conspirator are admissible evidence against all. Conspiracies are considered continuing offenses for purposes of the statute of limitations and venue. They are also considered separate offenses for purposes of sentencing and of challenges under the Constitution's ex post facto and double jeopardy clauses. This is a brief discussion of the common features of federal conspiracy law that evolved over the years, with passing references to some of the distinctive features of some of the statutory provisions. There are no one-man conspiracies. At common law where husband and wife were considered one, this meant that the two could not be guilty of conspiracy without the participation of some third person. This is no longer the case. In like manner at common law, corporations could not be charged with a crime. This too is no longer the case. A corporation is criminally liable for the crimes, including conspiracy, committed at least in part for its benefit, by its officers, employees and agents. Moreover, a corporation may be criminally liable for intra-corporate conspiracies, as long as at least two of its officers, employees, or agents are parties to the plot. Notwithstanding the two-party requirement, no co-conspirator need have been tried or even identified, as long as the government produces evidence from which the conspiracy might be inferred. Even the acquittal of a co-conspirator is no defense, although no conviction is possible if all but one alleged conspirator are acquitted. Moreover, a person may conspire for the commission of a crime by a third person though he himself is legally incapable of committing the underlying offense. It is not enough, however, to show that the defendant agreed only with an undercover officer to commit the underlying offense, for there is no agreement on a common purpose in such cases. As has been said, the essence of conspiracy is an agreement, an agreement to commit some act condemned by law either as a separate federal offense or for purposes of the conspiracy statute. The agreement may be evidenced by word or action; that is, the government may prove the existence of the agreement either by direct evidence or by circumstantial evidence from which the agreement may be inferred. The task of sifting agreement from mere association becomes more difficult and more important with the suggestion of overlapping conspiracies. Criminal enterprises may involve one or many conspiracies. Some time ago, the Supreme Court noted that "[t]hieves who dispose of their loot to a single receiver--a single 'fence'--do not by that fact alone become confederates: They may, but it takes more than knowledge that he is a 'fence' to make them such." Whether it is a fence, or a drug dealer, or a money launderer, when several seemingly independent criminal groups share a common point of contact, the question becomes whether they present one overarching conspiracy or several separate conspiracies with a coincidental overlap. In the analogy suggested by the Court, spokes with a common hub need an encompassing rim to function as a wheel. When several criminal enterprises overlap, they are one overarching conspiracy or several overlapping conspiracies depending upon whether they share a single unifying purpose and understanding--one common agreement. In determining whether they are faced with a single conspiracy or a rimless collection of overlapping schemes, the courts will look for "the existence of a common purpose ... (2) interdependence of various elements of the overall play; and (3) overlap among the participants." "Interdependence is present if the activities of a defendant charged with conspiracy facilitated the endeavors of other alleged co-conspirators or facilitated the venture as a whole." If this common agreement exists, it is of no consequence that a particular conspirator joined the plot after its inception as long as he joined it knowingly and voluntarily. Nor does it matter that a defendant does not know all of the details of a scheme or all of its participants, or that his role is relatively minor. Conviction under 18 U.S.C. 371 for conspiracy to commit a substantive offense requires proof that one of the conspirators committed an overt act in furtherance of the conspiracy. More than a few federal statutes, however, have a conspiracy component that does not include an explicit overt act requirement. Whether these statutes have an implicit overt act requirement can be determined only on a statute-by-statute basis. Even there, however, the courts have sometimes reached different conclusions. In the case of prosecution under other federal conspiracy statutes that have no such requirement, the existence of an overt act may be important for evidentiary and procedural reasons. The overt act need not be the substantive crime which is the object of the conspiracy, an element of that offense, or even a crime in its own right. Moreover, a single overt act by any of the conspirators in furtherance of plot will suffice. Federal law contains several statutes that outlaw defrauding the United States. Two of the most commonly prosecuted are 18 U.S.C. 286, which outlaws conspiracy to defraud the United States through the submission of a false claim, and 18 U.S.C. 371, which in addition to conspiracies to violate federal law, outlaws conspiracies to defraud the United States of property or by obstructing the performance of its agencies. Section 371 has an overt act requirement. Section 286 does not. The general principles of federal conspiracy law apply to both. The elements of conspiracy to defraud the United States under 18 U.S.C. 371 are (1) an agreement of two or more persons; (2) to defraud the United States; and (3) an overt act in furtherance of the conspiracy committed by one of the conspirators. The "fraud covered by the statute reaches any conspiracy for the purpose of impairing, obstructing or defeating the lawful functions of any department of the Government" by "deceit, craft or trickery, or at least by means that are dishonest." The plot must be directed against the United States or some federal entity; a scheme to defraud the recipient of federal funds is not sufficient. The scheme may be designed to deprive the United States of money or property, but it need not be so; a plot calculated to frustrate the functions of an entity of the United States will suffice. In contrast, a second federal statute, 18 U.S.C. 286, condemns conspiracies to defraud the United States of money or property through submission of a false claim. The elements of a Section 286 violation are that "the defendant entered into a conspiracy to obtain payment or allowance of a claim against a department or agency of the United States; (2) the claim was false, fictitious, or fraudulent; (3) the defendant knew or was deliberately ignorant of the claim's falsity, fictitiousness, or fraudulence; (4) the defendant knew of the conspiracy and intended to join it; and (5) the defendant voluntarily participated in the conspiracy." Conviction does not require proof of an overt act in furtherance of the conspiracy. Conspiracy is a crime which begins with a scheme and may continue on until its objective is achieved or abandoned. A conspiracy is thought to continue as long as overt acts continue to be committed in furtherance. This will ordinarily include distribution of the conspiracy's spoils. As a general rule, however, overt acts of concealment do not extend the life of the conspiracy beyond the date of the accomplishment of its main objectives. The rule does not apply when concealment is one of the main objectives of the conspiracy. The liability of individual conspirators continues on from the time they joined the plot until it ends or until they withdraw. The want of an individual's continued active participation is no defense as long as the underlying conspiracy lives and he has not withdrawn. An individual who claims to have withdrawn must show either that he took some action to make his departure clear to his co-conspirators or that he disclosed the scheme to the authorities. The burden that he has withdrawn rests with the defendant. "Withdrawal terminates the defendant's liability for post withdrawal acts of his co-conspirators, but he remains guilty of conspiracy." Section 371 felony conspiracies are punishable by imprisonment for not more than five years and a fine of not more than $250,000 (not more than $500,000 for organizations). Most drug trafficking, terrorism, racketeering, and many white collar conspirators face the same penalties as those who committed the underlying substantive offense. A conspiracy conviction may result in a restitution order in a number of ways: as part of a plea bargain; as a condition of probation or supervised release; or by operation of a restitution statute. The federal criminal code features two general restitution statutes and a handful of others for restitution for specific offenses. Section 3663A calls for mandatory restitution following conviction for a federal crime of violence, fraud, or other crime against property. Section 3663 authorizes discretionary restitution following conviction for other offenses in federal criminal code or drug trafficking offenses. The individual restitution statutes sometimes make mandatory restitution that might otherwise be discretionary and sometimes make procedural adjustments that deviate from the norm. Section 3663A specifically requires restitution for any person directly harmed by a crime that involves "a scheme, conspiracy, or pattern of criminal activity." Whether property confiscation flows as a natural consequence of a conspiracy depends on the underlying substantive offense. The general civil forfeiture statute, 18 U.S.C. 981, lists a series of substantive offenses for which forfeiture is authorized. Some of the offenses bring conspiracy with them; others do not. The general criminal forfeiture statute, 18 U.S.C. 982, takes the same approach. Several criminal statutes feature their own forfeiture provisions; the Controlled Substances Act (CSA) and RICO are perhaps the most notable of these. Forfeiture follows as a consequence of conspiracy to violate either of these statutes. Other free-standing, conspiracy- enveloping statutes apply to human trafficking offenses, theft of trade secrets, child pornography, and interstate transportation of a child for unlawful sexual purposes, to name a few. Conspiracy is a completed crime upon agreement, or upon agreement and the commission of an overt act under statutes with an overt act requirement. Conviction does not require commission of the crime that is the object of the conspiracy. On the other hand, conspirators may be prosecuted for conspiracy, for any completed offense which is the object of the conspiracy, as well as for any foreseeable offense committed in furtherance of the conspiracy. Anyone who "aids, abets, counsels, commands, induces, or procures" the commission of a federal crime by another is punishable as a principal, that is, as though he had committed the offense himself. On the other hand, if the other agrees and an overt act is committed, they are conspirators, each liable for conspiracy and any criminal act committed to accomplish it. If the other commits the offense, they are equally punishable for the basic offense. "Typically, the same evidence will support both a conspiracy and an aiding and abetting conviction." Conspiracy and attempt are both inchoate offenses, unfinished crimes in a sense. They are forms of introductory misconduct that the law condemns lest they result in some completed form of misconduct. Federal law has no general attempt statute. Congress, however, has outlawed attempt to commit a number of specific federal offenses. Like conspiracy, a conviction for attempt does not require the commission of the underlying offense. Both require an intent to commit the contemplated substantive offense. Like conspiracy, the fact that it may be impossible to commit the target offense is no defense to a charge of attempt to commit it. Unlike conspiracy, attempt can be committed by a single individual. Attempt only becomes a crime when it closely approaches a substantive offense. Conspiracy becomes a crime far sooner. Mere acts of preparation will satisfy the most demanding conspiracy statute, not so with attempt. Conspiracy requires, at most, no more than an overt act in furtherance; attempt, a substantial step to completion. Moreover, unlike a conspirator, an accused may not be convicted of both attempt and the underlying substantive offense. An individual may be guilty of both conspiring with others to commit an offense and of attempting to commit the same offense, either himself or through his confederates. In some circumstances, he may be guilty of attempted conspiracy. Congress has outlawed at least one example of an attempt to conspire in the statute which prohibits certain invitations to conspire, that is, solicitation to commit a federal crime of violence, 18 U.S.C. 373. Section 373 prohibits efforts to induce another to commit a crime of violence "under circumstances strongly corroborative" of intent to see the crime committed. Section 373's crimes of violence are federal "felon[ies] that [have] as an element the use, attempted use, or threatened use of physical force against property or against the person of another." Examples of "strongly corroborative" circumstances include "the defendant offering or promising payment or another benefit in exchange for committing the offense; threatening harm or other detriment for refusing to commit the offense; repeatedly soliciting or discussing at length in soliciting the commission of the offense, or making explicit that the solicitation is serious; believing or knowing that the persons solicited had previously committed similar offenses; and acquiring weapons, tools, or information for use in committing the offense, or making other apparent preparations for its commission." As is the case of attempt, "[a]n individual cannot be guilty of both the solicitation of a crime and the substantive crime." Although the crime of solicitation is complete upon communication with the requisite intent, renunciation prior to commission of the substantive offense is a defense. The offender's legal incapacity to commit the solicited offense himself, however, is not a defense. The statute of limitations for most federal crimes is five years. The five-year limitation applies to the general conspiracy statute, 18 U.S.C. 371, and to the false claims conspiracy statute, 18 U.S.C. 286. Section 371 requires proof of an overt act; Section 286 does not. For conspiracy offenses with an overt act requirement, the statute of limitations begins with completion of the last overt act in furtherance of the conspiracy. For conspiracy offenses with no such requirement, the statute of limitations for an individual conspirator begins when he effectively withdraws from the scheme or when the conspiracy accomplishes the last of its objectives or is abandoned. The presence or absence of an overt act requirement makes a difference for statute of limitations purposes. For venue purposes, it does not. The Supreme Court has observed in passing that "this Court has long held that venue is proper in any district in which an overt act in furtherance of the conspiracy was committed, even where an overt act is not a required element of the conspiracy offense." The lower federal appellate courts are seemingly of the same view, for they have found venue proper for a conspiracy prosecution wherever an overt act occurs--under overt act statutes and non-overt act statutes alike. Three rules of the Federal Rules of Criminal Procedure govern joinder and severance for federal criminal trials. Rule 8 permits the joinder of common criminal charges and defendants. Rule 12 insists that a motion for severance be filed prior to trial. Rule 14 authorizes the court to grant severance for separate trials as a remedy for prejudicial joinder. The Supreme Court has pointed out that "[t]here is a preference in the federal system for joint trials of defendants who are indicted together. Joint trials play a vital role in the criminal justice system. They promote efficiency and serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts." In conspiracy cases, a "conspiracy charge combined with substantive counts arising out of that conspiracy is a proper basis for joinder under Rule 8(b)." Moreover, "the preference in a conspiracy trial is that persons charged together should be tried together." In fact, "it will be the rare case, if ever, where a district court should sever the trial of alleged co-conspirators." The Supreme Court has reminded the lower courts that "a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." The Court noted that the risk may be more substantial in complex cases with multiple defendants, but that "less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice." Subsequently lower federal appellate court opinions have emphasized the curative effect of appropriate jury instructions. Because conspiracy is a continuing offense, it stands as an exception to the usual ex post facto principles. Because it is a separate crime, it also stands as an exception to the usual double jeopardy principles. The ex post facto clauses of the Constitution forbid the application of criminal laws which punish conduct that was innocent when it was committed or punish more severely criminal conduct than when it was committed. Increasing the penalty for an ongoing conspiracy, however, does not offend ex post facto constraints as long as the conspiracy straddles the date of the legislative penalty enhancement. The double jeopardy clause of the Fifth Amendment declares that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." This prohibition condemns successive prosecutions, successive punishments, and successive use of charges rejected in acquittal. For successive prosecution or punishment, the critical factor is the presence or absence of the same offense. Offenses may overlap, but they are not the same crime as long as each requires proof of an element that the other does not. Since conspiracy and its attendant substantive offense are ordinarily separate crimes--one alone requiring agreement and the other alone requiring completion of the substantive offense--the double jeopardy clause poses no impediment to successive prosecution or to successive punishment of the two. Double jeopardy issues arise most often in a conspiracy context when a case presents the question of whether the activities of the accused conspirators constitute a single conspiracy or several sequential, overlapping conspiracies. Multiple conspiracies may be prosecuted sequentially and punished with multiple sanctions; single conspiracies must be tried and punished once. Asked to determine whether they are faced with one or more than one conspiracy, the courts have said they inquire whether: [1] the locus criminis [place] of the two alleged conspiracies is the same; [2] there is a significant degree of temporal overlap between the two conspiracies charged; [3] there is an overlap of personnel between the two conspiracies (including unindicted as well as indicted co-conspirators); [4] the overt acts charged [are related]; [5] the role played by the defendant [relates to both]; [6] there was a common goal among the conspirators; [7] whether the agreement contemplated bringing to pass a continuous result that will not continue without the continuous cooperation of the conspirators; and [8] the extent to which the participants overlap[ped] in [their] various dealings. At trial, the law favors the testimony of live witnesses--under oath, subject to cross examination, and in the presence of the accused and the jury--over the presentation of their evidence in writing or through the mouths of others. The hearsay rule is a product of this preference. Exceptions and definitions narrow the rule's reach. For example, hearsay is usually defined to include only those out-of-court statements which are offered in evidence "to prove the truth of the matter asserted." Although often referred to as the exception for co-conspirator declarations, the Federal Rules of Evidence treats the matter within its definition of hearsay. Thus, Rule 801(d)(2)(E) of the Federal Rules provides that an out-of-court "statement is not hearsay if ... (2) The statement is offered against a party and is ... (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." To admit a co-conspirator declaration into evidence under the Rule, a "court must find: (1) the conspiracy existed; (2) the defendant was a member of the conspiracy; and (3) the co-conspirator made the proffered statements in furtherance of the conspiracy." The court, however, may receive the statement preliminarily subject to the prosecution's subsequent demonstration of its admissibility by a preponderance of the evidence. As to the first two elements, a co-conspirator's statement without more is insufficient; there must be "some extrinsic evidence sufficient to delineate the conspiracy and corroborate the declarant's and the defendant's roles in it." As to the third element, "[a] statement is in furtherance of a conspiracy if it is intended to promote the objectives of the conspiracy." A statement is in furtherance, for instance, if it describes for the benefit of a co-conspirator the status of the scheme, its participants, or its methods. Bragging, or "mere idle chatter or casual conversation about past events," however, is not considered a statement in furtherance of a conspiracy. Under some circumstances, evidence admissible under the hearsay rule may nevertheless be inadmissible because of Sixth Amendment restrictions. The Sixth Amendment provides, among other things, that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." The provision was inspired in part by reactions to the trial of Sir Walter Raleigh, who argued in vain that he should be allowed to confront the alleged co-conspirator who had accused him of treason. Given its broadest possible construction, the confrontation clause would eliminate any hearsay exceptions or limitations. The Supreme Court in Crawford v. Washington explained, however, that the clause has a more precise reach. The clause uses the word "witnesses" to bring within its scope only those who testify or whose accusations are made in a testimonial context. In a testimonial context, the confrontation clause permits use at trial of prior testimonial accusations only if the witness is unavailable and only if the accused had the opportunity to cross examine him when the testimony was taken. The Court elected to "leave for another day any effort to spell out a comprehensive definition of 'testimonial,'" but has suggested that the term includes "affidavits, depositions, prior testimony, or confessions [, and other] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Since Crawford , the lower federal courts have generally held that the confrontation clause poses no obstacle to the admissibility of the co-conspirator statements at issue in the cases before them, either because the statements were not testimonial; were not offered to establish the truth of the asserted statement; or because the clause does not bar co-conspirator declarations generally.

Zacarias Moussaoui, members of the Colombian drug cartels, members of organized crime, and some of the former Enron executives have at least one thing in common: they all have federal conspiracy convictions. The essence of conspiracy is an agreement of two or more persons to engage in some form of prohibited conduct. The crime is complete upon agreement, although some statutes require prosecutors to show that at least one of the conspirators has taken some concrete step or committed some overt act in furtherance of the scheme. There are dozens of federal conspiracy statutes. One, 18 U.S.C. 371, outlaws conspiracy to commit some other federal crime. The others outlaw conspiracy to engage in various specific forms of proscribed conduct. General Section 371 conspiracies are punishable by imprisonment for not more than five years; drug trafficking, terrorist, and racketeering conspiracies all carry the same penalties as their underlying substantive offenses, and thus are punished more severely than are Section 371 conspiracies. All are subject to fines of not more than $250,000 (not more than $500,000 for organizations); most may serve as the basis for a restitution order, and some for a forfeiture order. The law makes several exceptions for conspiracy because of its unusual nature. Because many united in crime pose a greater danger than the isolated offender, conspirators may be punished for the conspiracy, any completed substantive offense which is the object of the plot, and any foreseeable other offenses which one of the conspirators commits in furtherance of the scheme. Since conspiracy is an omnipresent crime, it may be prosecuted wherever an overt act is committed in its furtherance. Because conspiracy is a continuing crime, its statute of limitations does not begin to run until the last overt act committed for its benefit. Since conspiracy is a separate crime, it may be prosecuted following conviction for the underlying substantive offense, without offending constitutional double jeopardy principles; because conspiracy is a continuing offense, it may be punished when it straddles enactment of the prohibiting statute, without offending constitutional ex post facto principles. Accused conspirators are likely to be tried together, and the statements of one may often be admitted in evidence against all. In some respects, conspiracy is similar to attempt, to solicitation, and to aiding and abetting. Unlike aiding and abetting, however, it does not require commission of the underlying offense. Unlike attempt and solicitation, conspiracy does not merge with the substantive offense; a conspirator may be punished for both. This is an abridged version of a longer report, without the footnotes and citations to authority found there, CRS Report R41223, Federal Conspiracy Law: A Brief Overview, by [author name scrubbed].

On June 11, 2009, in response to the global spread of a new strain of influenza, the World Health Organization (WHO) raised the level of influenza pandemic alert to phase 6, which indicates the start of an actual pandemic. This change reflects the spread of the new influenza A(H1N1) virus, not its severity. Although currently the pandemic is of moderate severity with the majority of patients experiencing mild symptoms and making a rapid and full recovery, this experience could change. The Americans with Disabilities Act (ADA) has often been described as the most sweeping nondiscrimination legislation since the Civil Rights Act of 1964. It provides broad nondiscrimination protection in employment, public services, public accommodation and services operated by private entities, transportation, and telecommunications for individuals with disabilities. As stated in the act, the ADA's purpose is "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." The application of the ADA to an influenza pandemic is uncharted territory since the most recent previous influenza pandemic was in 1969, before the 1990 enactment of the ADA, and before the 1973 enactment of Section 504 of the Rehabilitation Act of 1973, which was the model for the ADA. The starting point for an analysis of rights provided by the ADA is whether an individual is an individual with a disability. The term "disability," with respect to an individual, is defined as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment (as described in paragraph(3))." The ADA was amended by the ADA Amendments Act of 2008, P.L. 110-325 , to expand the interpretation of the definition of disability from that of several Supreme Court decisions. Although the statutory language is essentially the same as it was in the original ADA, P.L. 110-325 contains new rules of construction regarding the definition of disability, which provide that the definition of disability shall be construed in favor of broad coverage to the maximum extent permitted by the terms of the act; the term "substantially limits" shall be interpreted consistently with the findings and purposes of the ADA Amendments Act; an impairment that substantially limits one major life activity need not limit other major life activities to be considered a disability; an impairment that is episodic or in remission is a disability if it would have substantially limited a major life activity when active; the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures, except that the ameliorative effects of ordinary eyeglasses or contact lenses shall be considered. The findings of the ADA Amendments Act include statements indicating that the Supreme Court decisions in Sutton v. United Airlines and Toyota Motor Manufacturing v. Williams , as well as lower court cases, have narrowed and limited the ADA from what was intended by Congress. P.L. 110-325 specifically states that the current Equal Employment Opportunity Commission (EEOC) regulations defining the term "substantially limits" as "significantly restricted" are "inconsistent with congressional intent, by expressing too high a standard." The codified findings in the original ADA are also amended to delete the finding that "43,000,000 Americans have one or more physical or mental disabilities." This finding was used in Sutton to support limiting the reach of the definition of disability. The ADA Amendments Act states that the purposes of the legislation are to carry out the ADA's objectives of the elimination of discrimination and the provision of "'clear, strong, consistent, enforceable standards addressing discrimination' by reinstating a broad scope of protection available under the ADA." P.L. 110-325 rejected the Supreme Court's holdings that mitigating measures are to be used in making a determination of whether an impairment substantially limits a major life activity as well as holdings defining the "substantially limits" requirements. The substantially limits requirements of Toyota as well as the EEOC regulations defining substantially limits as "significantly restricted" are specifically rejected in the new law. The statutory definition of disability does not discuss pandemic influenza. How, then, would this definition apply in the context of an influenza pandemic? Specifically, are individuals infected with a pandemic influenza virus considered to be individuals with disabilities? There is not a clear-cut answer to these questions, but the EEOC has indicated that currently individuals infected with the H1N1 virus would not be individuals with disabilities. However, if the disease were to become more severe, an infected individual might be considered to be an individual with a disability under the ADA. On September 23, 2009, the EEOC issued proposed regulations under the ADA Amendments Act. The proposed regulations do not specifically discuss whether influenza is a disability; however, the comments to the proposed regulations state that certain types of impairments are usually not disabilities. These include "broken limbs that heal normally, sprained joints, appendicitis, and seasonal or common influenza." Pandemic influenza is not discussed. The appendix to the existing regulations contains similar language, but simply refers to "influenza," not "seasonal or common influenza." Thus, both current and proposed ADA regulations leave unanswered the application of the definition of disability to pandemic influenza. However, on October 5, 2009, EEOC issued a technical assistance document regarding workplace pandemic preparedness and the ADA that contains a fact-based analysis. The document indicates that EEOC believes that an individual infected with the H1N1 virus would not be an individual with a disability if the illness is similar to seasonal influenza, or the 2009 spring/summer H1N1 virus. However, if the illnesses were more serious, they might be considered disabilities under the ADA. Despite the fact that currently an individual infected with the H1N1 virus would not be considered an individual with a disability, the EEOC states that "employers should allow employees who experience flu-like symptoms to stay at home." Although the EEOC guidance indicates that the current situation with the H1N1 virus would not make an infected individual an individual with a disability under the ADA, the possibility of such coverage for a more serious illness is raised. However, the EEOC guidance does not delineate when the illness would be serious enough to be encompassed by the ADA. Generally, individuals with long-term contagious diseases would be considered individuals with disabilities. In Bragdon v. Abbott, the Supreme Court held that HIV infection was a physical impairment that was a substantial limitation on the major life activity of reproduction. It might be argued that an individual who is infected with a pandemic influenza virus and who manifests long-term symptoms would have a substantial limitation on a major life activity. Whether an individual infected with serious pandemic influenza is an individual with a disability is dependent on an individualized determination. This may turn on the severity of the particular infection and whether an individual had any long-lasting residual effects from the infection. In addition, the enactment of P.L. 110-325 , with its requirement that the definition of disability be construed broadly, makes it more likely that a disability will fall within the purview of the ADA. It should also be noted that the third prong of the definition of disability protects individuals who are "regarded as" having a disability and would appear to be the most applicable in situations such as quarantines, since individuals who are quarantined may not be infected. P.L. 110-325 amended the ADA definition of "regarded as" providing that an individual meets the requirement of being "regarded as" having a disability "if the individual establishes that he or she has been subjected to an action prohibited under this act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity." The "regarded as" prong does not apply to transitory and minor impairment. A transitory impairment is defined as an impairment with an actual or expected duration of six months or less. Therefore, it would appear to be difficult to find that an individual who has been quarantined is an individual with a disability under the "regarded as" prong. Title I of the ADA prohibits employment discrimination, and specifically provides that no covered entity shall discriminate against a qualified individual with a disability on the basis of disability in regard to job application procedures; the hiring, advancement, or discharge of employees; employee compensation; job training; and other terms, conditions, and privileges of employment. The term employer is defined as a person engaged in an industry affecting commerce who has 15 or more employees. The ADA limits an employer's ability to make disability-related inquiries or to require medical examinations. Prior to an offer of employment, all disability-related inquiries and medical examinations are prohibited. After a conditional job offer, but prior to the commencement of employment, an employer may make disability-related inquiries and conduct medical examinations as long as this is done for all entering employees in the same job category. After an employee begins work, an employer may make disability-related inquiries and conduct medical examinations only if they are job-related and consistent with business necessity. Any medical information an employer obtains as a result of these actions must be treated as a confidential medical record. If an inquiry is not about a disability or likely to elicit information about a disability, the ADA's prohibition on disability-related inquiries does not apply. The EEOC technical assistance document regarding workplace pandemic preparedness and the ADA discusses disability-related inquiries in the context of a pandemic, noting that "asking an individual about symptoms of a cold or the seasonal flu is not likely to elicit information about a disability." An inquiry that seeks to determine if an individual would be in a high-risk group for pandemic influenza due to a chronic health condition like asthma would not be permitted prior to a pandemic. Similarly, such an inquiry would not be permitted during a pandemic where the illness, as is currently the case, is generally moderate or mild. However, such inquiries may be made if public health officials find that the illness caused by the pandemic is generally severe. Any disclosures of medical information by an employee must be kept confidential. For an ADA employment-related issue, if the threshold issues of meeting the definition of an individual with a disability and involving an employer employing over 15 individuals are met, the next step is to determine whether the individual is a qualified individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the job. Title I defines a "qualified individual with a disability." Such an individual is "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such person holds or desires." The EEOC states that a function may be essential because (1) the position exists to perform the duty, (2) there are a limited number of employees available who could perform the function, or (3) the function is highly specialized. It is a defense to a charge of discrimination that an alleged application of a qualification standard has been shown to be job-related and consistent with business necessity. A qualification standard may include a requirement that an individual not pose a direct threat to the health or safety of other individuals. "Direct threat" is defined as meaning "a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation." EEOC states that the severity of the illness is the determinate of whether pandemic influenza rises to the level of a direct threat, and that this determination is to be based on assessments by CDC or public health authorities. Currently, the H1N1 influenza virus is not seen as posing such a threat. The ADA requires the provision of reasonable accommodation unless the accommodation would pose an undue hardship on the operation of the business. "Reasonable accommodation" is defined in the ADA as including making existing facilities readily accessible to and usable by individuals with disabilities, job restructuring, part-time or modified work schedules, reassignment to vacant positions, acquisition or modification of equipment or devices, adjustment of examinations or training materials or policies, provision of qualified readers or interpreters, and other similar accommodations. The EEOC interprets reasonable accommodation as including work at home and the use of paid or unpaid leave. During a pandemic, reasonable accommodations must continue to be provided unless these constitute an undue hardship. For example, if employees are asked to telework to reduce the spread of the virus, an employee with a disability who needs an accommodation at work, such as a screen-reader, must be provided that same accommodation during telework, barring undue hardship. "Undue hardship" is defined as "an action requiring significant difficulty or expense." Factors to be considered in determining whether an action would create an undue hardship include the nature and cost of the accommodation, the overall financial resources of the facility, the overall financial resources of the covered entity, and the type of operation or operations of the covered entity. The EEOC has provided detailed guidance on reasonable accommodation and undue hardship, which, in part, discusses the use of paid or unpaid leave as a form of reasonable accommodation. It is important to note that the third prong of the ADA's definition of disability, being "regarded as" having a disability, does not require the provision of reasonable accommodation. As a practical matter, this would mean that the provision of telework for individuals who are quarantined or subject to a "snow day" would not be required under the ADA, even if an individual were to meet the requirements of the third prong of the definition.

On June 11, 2009, in response to the global spread of a new strain of influenza, the World Health Organization (WHO) raised the level of influenza pandemic alert to phase 6, which indicates the start of an actual pandemic. This change reflects the spread of the new influenza A(H1N1) virus, not its severity. Although currently the pandemic is of moderate severity with the majority of patients experiencing mild symptoms and making a rapid and full recovery, this experience could change. The Americans with Disabilities Act (ADA) prohibits discrimination against individuals with disabilities and protects applicants and employees from discrimination based on disability. The application of the ADA's nondiscrimination mandates during an influenza pandemic is uncharted territory since the most recent previous influenza pandemic was in 1969, before the 1990 enactment of the ADA. Currently, an individual infected with the H1N1 virus would most likely not be considered an individual with a disability; however, if the H1N1 virus were to mutate to cause more severe illness, such an infection may be considered a disability. The ADA prohibits employers from making certain disability-related inquiries and, currently, this prohibition might be interpreted to apply to inquiries about whether an employee would be in a high-risk group for pandemic influenza. The ADA also requires that employers provide reasonable accommodation for individuals with disabilities, and during a pandemic these accommodations would continue to be applicable unless they constitute an undue hardship.

The idea of using the tax code to achieve energy policy goals and other national objectives is not new but, historically, U.S. federal energy tax policy promoted the exploration and development--the supply of--oil and gas. The 1970s witnessed (1) a significant cutback in the oil and gas industry's tax preferences, (2) the imposition of new excise taxes on oil (some of which were subsequently repealed or expired), and (3) the introduction of numerous tax preferences for energy conservation, the development of alternative fuels, and the commercialization of the technologies for producing these fuels (renewables such as solar, wind, and biomass, and nonconventional fossil fuels such as shale oil and coalbed methane). Comprehensive energy policy legislation containing numerous tax incentives, and some tax increases on the oil industry, was signed on August 8, 2005 ( P.L. 109-58 ). The law, the Energy Policy Act of 2005, contained about $15 billion in energy tax incentives over 11 years, including numerous tax incentives for the supply of conventional fuels, as well as for energy efficiency, and for several types of alternative and renewable resources, such as solar and geothermal. The Tax Relief and Health Care Act of 2006 ( P.L. 109-432 ), enacted in December 2006, provided for one-year extensions of some of these provisions. But some of these energy tax incentives expired on January 1, 2008, while others are about to expire at the end of 2008. In early December 2007, it appeared that congressional conferees had reached agreement on another comprehensive energy bill, the Energy Independence and Security Act ( H.R. 6 ), and particularly on the controversial energy tax provisions. The Democratic leadership in the 110 th Congress proposed to eliminate or reduce tax subsidies for oil and gas and use the additional revenues to increase funding for their energy policy priorities: energy efficiency and alternative and renewable fuels, that is, reducing fossil fuel demand rather than increasing energy (oil and gas) supply. In addition, congressional leaders wanted to extend many of the energy efficiency and renewable fuels tax incentives that either had expired or were about to expire. The compromise on the energy tax title in H.R. 6 proposed to raise taxes by about $21 billion to fund extensions and liberalization of existing energy tax incentives. However, the Senate on December 13, 2007, stripped the controversial tax title from its version of the comprehensive energy bill ( H.R. 6 ) and then passed the bill, 86-8, leading to the President's signing of the Energy Independence and Security Act of 2007 ( P.L. 110-140 ), on December 19, 2007. The only tax-related provisions that survived were (1) an extension of the Federal Unemployment Tax Act surtax for one year, raising about $1.5 billion; (2) higher penalties for failure to file partnership returns, increasing revenues by $655 million; and (3) an extension of the amortization period for geological and geophysical expenditures from five to seven years, raising $103 million in revenues. The latter provision was the only tax increase on the oil and gas industry in the final bill. Those three provisions would offset the $2.1 billion in lost excise tax revenues going into the federal Highway Trust Fund as a result of the implementation of the revised Corporate Average Fuel Economy standards. The decision to strip the much larger $21 billion tax title stemmed from a White House veto threat and the Senate's inability to get the votes required to end debate on the bill earlier in the day. Senate Majority Leader Harry Reid's (D-Nev.) effort to invoke cloture fell short by one vote, in a 59-40 tally. Since then, the Congress has tried several times to pass energy tax legislation, and thus avoid the impending expiration of several popular energy tax incentives, such as the "wind" energy tax credit under Internal Revenue Code (IRC) SS45, which, since its enactment in 1992, has lapsed three times only to be reinstated. Several energy tax bills have passed the House but not the Senate, where on several occasions, the failure to invoke cloture failed to bring up the legislation for consideration. Senate Republicans objected to the idea of raising taxes to offset extension of expiring energy tax provisions, which they consider to be an extension of current tax policy rather than new tax policy. In addition, Senate Republicans objected to raising taxes on the oil and gas industry, such as by repealing the (IRC) SS199 deduction, and by streamlining the foreign tax credit for oil companies. The Bush Administration repeatedly threatened to veto these types of energy tax bills, in part because of their proposed increased taxes on the oil and gas industry. Frustrated with the lack of action on energy tax legislation over the last two years, House Democrats introduced and approved several such bills, such as H.R. 5351 , which was approved by the House on February 27, 2008. House Speaker Pelosi and other Democrats sent President Bush a letter February 28, 2008, urging him to reconsider his opposition to the Democratic renewable energy plan, arguing that their energy tax plan would "correct an imbalance in the tax code." At this writing, a renewed legislative effort is being made to enact energy tax legislation, although the two chambers were moving in different directions on how to bring the legislation to the floor. In the House, energy tax provisions are part of H.R. 6899 , House Democratic leadership's latest draft of broad-based energy policy legislation, the Comprehensive American Energy Security and Consumer Protection Act. Passed on September 16, 2008, the bill would expand oil and gas drilling offshore by allowing oil and gas exploration and production in areas of the outer continental shelf that are currently off limits, except for waters in the Gulf of Mexico off the Florida coast. Under the bill, states could allow such drilling between 50 and 100 miles offshore, while the federal government could permit drilling from 100 to 200 miles offshore. Revenue from the new offshore leases would be used to assist the development of alternative energy, and would not be shared by the adjacent coastal states. The bill would also repeal the current ban on leasing federal lands for oil shale production if states enact laws providing for such leases and production. H.R. 6899 also would enact a renewable portfolio standard, a requirement that power companies generate 15% of their energy from renewable sources by 2020. The energy tax provisions in H.R. 6899 (Title XIII, the Energy Tax Incentives Act of 2008) are largely the same as those in H.R. 5351 , an approximately $18 billion energy tax package that was approved by the House on February 27, 2008. They also include some of the measures in H.R. 6049 , another energy tax bill that was also approved by the House. H.R. 5351 is, in turn, a smaller version of the energy tax title that was dropped from H.R. 3221 in December 2007, but larger than the $16 billion bill approved by the Ways and Means Committee in 2007 ( H.R. 2776 ). However, because H.R. 6899 incorporates some of the incentives of H.R. 6049 , its total cost is higher than the cost of H.R. 5351 : about $19 billion over 10 years, instead of $18 billion. H.R. 6899 includes several tax incentives for renewable energy that would reduce revenue by an estimated $19 billion over 10 years. At a cost of $6.9 billion over 10 years, it extends a renewable energy production tax credit, covering wind facilities for one additional year, through 2009, and certain other renewable energy production for three years, through 2011, while capping credits for facilities that come into service after 2009. The bill extends for eight years, through 2016, a credit for investing in solar energy and fuel cells, at a cost of $1.8 billion. It also extends the energy-efficient commercial building deduction for five years, the credit for efficiency improvements to existing homes for one year, and a credit for energy-efficient appliances for three years. The measure provides for the allocation of $2.625 billion in energy conservation bonds, $1.75 billion in clean renewable energy bonds, and $1.75 billion in energy security bonds to finance the installation of natural gas pumps at gas stations; all would be tax-credit bonds, which provide a tax credit in lieu of interest, and projects financed through the bonds would have to comply with Davis-Bacon requirements. It also creates a new tax credit for plug-in electric vehicles, an accelerated recovery period for smart electric meters and grid systems, and provides $1.1 billion in tax credits for carbon capture and sequestration projects. The tax title also includes one non-energy tax subsidy: a $1.1 billion provision to restructure the New York Liberty Zone tax incentives to allow for new transportation projects. H.R. 6899 is fully offset, raising $19 billion in taxes, including many of the same energy tax increases on oil companies also previously approved by the House. The energy tax provisions in H.R. 6899 are entirely offset, mainly by denying the IRC SS199 manufacturing deduction to certain major integrated oil companies (including oil companies controlled by foreign governments--including CITGO ) and freezing the deduction for all other oil and gas producers at the current rate of 6%. Earlier SS199 repeal proposals had been criticized for seeking to end the deduction only for U.S.-based major companies, while exempting Venezuelan-controlled CITGO because, not being a crude oil producer, it does not meet the definition of a "major integrated oil and gas producer." The entire provision would raise $13.9 billion over 10 years. Additional revenue--about $4.0 billion over 10 years--would come from a provision to streamline the tax treatment of foreign oil-related income so it is treated the same as foreign oil and gas extraction income. In addition to the H.R. 6899 , the Republican leadership in the House has introduced its own energy tax bill, H.R. 6566 , which also extends and expands some of the energy tax incentives and contains no tax increases (offsets). The energy tax provisions in this bill are, however, smaller and somewhat narrower than those in H.R. 6899 . In the Senate, legislative efforts on energy tax incentives and energy tax extenders center around S. 3478 , the Energy Independence and Investment Act of 2008, a $40 billion energy tax bill offered by Finance Committee Chairman Max Baucus and ranking Republican Charles Grassley. Senate Majority Leader Harry Reid said on September 12 that S. 3478 is "must-pass" legislation. Reid told reporters the energy tax package, which includes extensions of tax incentives for renewable energy, should be prioritized even ahead of the broader energy policy bills being considered, and the rest of the non-energy tax extenders package. Reid said he hopes to bring the bill to the floor during the week of September 15, but noted that the schedule depends on whether Senate Republicans will agree to move to the legislation. While most of the tax incentives in the bill are extensions of existing policy and are not controversial, the legislation would need to be paid for through new sources of revenue. One proposed offset--which has been previously blocked by Republicans--would repeal the IRC SS199 manufacturing deduction for the five major oil and gas producers, raising $13.9 billion over 10 years. The bill also would be paid for through a new 13% excise tax on oil and natural gas pumped from the Outer Continental Shelf, a proposal to eliminate the distinction between foreign oil and gas extraction income and foreign oil-related income, and an extension and increase in the oil spill tax through the end of 2017. In total, tax increases on the oil and gas industry would account for $31 billion of the $40 billion total cost of the legislation. The final major offset would come from a requirement on securities brokers to report on the cost basis for transactions they handle to the Internal Revenue Service, a provision expected to raise about $8 billion in new revenues over 10 years. The tax offsets, or tax increases in S. 3478 are not without controversy, however, particularly the repeal of the IRC SS199 manufacturing deduction for the five major oil and gas producers, as discussed previously. Several times the House has approved energy tax legislation, and several times in the Senate such legislation failed a cloture vote and thus could not be brought to the floor for debate. As noted above, Republicans have in the past objected to the idea of raising taxes to offset extension of expiring energy tax provisions, which they consider to be an extension of current tax policy rather than new tax policy. In addition, some Senate Republicans have objected to raising taxes on the oil and gas industry, particularly by repealing the IRC SS199 deduction. The Bush Administration threatened to also veto any energy tax bill that would increase taxes on the oil and gas industry. At this writing, it appears that inclusion of the SS199 deduction repeal as an offset might preclude the energy tax bill from coming to the Senate floor--some believe that it would fail another cloture vote--so this provision might not survive the process. Finally, the debate in the Senate over energy tax incentives and energy tax extenders is seen as potentially involving three other separate proposals: (1) The Gang of 20 proposal or "New Energy Reform Act of 2008"(this has not yet been introduced); (2) A Bingaman/Baucus bill (also not formally introduced); and (3) the Republican "Gas Price Reduction Act" (introduced by Senator McConnell as Senate Amendment 5108). A side-by-side comparison of H.R. 6899 and S. 3478 is in Table 1 . Revenue estimates were generated by the Joint Committee on Taxation.

The Comprehensive American Energy Security and Consumer Protection Act, H.R. 6899, was introduced on September 15, 2008, and approved by the House on September 16, 2008. This plan allows oil and gas drilling in the Outer Continental Shelf (OCS), and it incorporates most of the energy tax provisions from an energy tax bill, H.R. 5351, and some of H.R. 6049, both of which were previously approved by the House of Representatives but failed to be taken up by the Senate. In the Senate, legislative efforts on energy tax incentives and energy tax extenders center around S. 3478, the $40 billion energy tax bill offered by Finance Committee Chairman Max Baucus and ranking Republican Charles Grassley, and supported by Senate Democratic leadership. In the Senate, controversy over tax increases on the oil and gas industry, particularly over proposed repeal of the tax code's SS199 deduction for the major integrated oil companies, continues; it remains unclear whether an energy tax bill with this provision will pass a cloture vote to limit debate, and thus be taken up. This report is a side-by-side comparison of energy tax bills H.R. 6899 and S. 3478.

On January 28, 2010, President Obama announced the first round of grants from the $8 billion for intercity passenger rail and high speed rail. Among the awards was $112 million for improvements to the Northeast Corridor. Other grants will fund projects that include improvements to Amtrak stations and routes that are used, but not owned, by Amtrak. In December 2009 Congress passed the FY2010 transportation appropriations act (Division A of the Consolidated Appropriations Act, 2010, P.L. 111-117 ), which provided Amtrak $1.565 billion for FY2010. The Administration had requested $1.502 billion for Amtrak; Amtrak itself requested $1.840 billion. The legislation also provided $2.5 billion for grants for high-speed rail and intercity passenger rail projects and rail network congestion mitigation projects, funding for which Amtrak is among the eligible recipients. The legislation also requires Amtrak to implement procedures to allow passengers to transport firearms in checked baggage by December 2010. In December 2009 the Amtrak Board extended interim CEO Joseph Boardman's one-year appointment to "indefinite." Boardman, the former administrator of the Federal Railroad Administration (FRA), was chosen to succeed Alexander Kummant, who resigned in November 2008. In March 2009 Congress passed the FY2009 transportation appropriation act (Division I of the Omnibus Appropriations Act of 2009, P.L. 111-8 ), which provided $1.490 billion for Amtrak for FY2009, $165 million more than in FY2008. In February 2009 Congress appropriated $1.3 billion for capital grants to Amtrak, and $8 billion for intercity passenger rail infrastructure grants (for which Amtrak is among the eligible recipients) in the American Recovery and Reinvestment Act of 2009 ( P.L. 111-5 ). In October 2008, the 110 th Congress passed an Amtrak reauthorization bill, the Passenger Rail Investment and Improvement Act of 2008 (Division B of P.L. 110-432 ). This bill authorizes nearly $10 billion over the five-year life of the bill (FY2009-FY2013) specifically for Amtrak, including $5.3 billion in capital grants, nearly $3 billion in operating grants, and $1.4 billion for debt service. In addition, Congress authorized a total of $1.9 billion over these five fiscal years in intercity passenger rail capital grants to the states on an 80-20 federal/state matching basis. Congress also authorized $1.5 billion in capital grants to states and/or Amtrak for the development of 11 authorized high-speed rail corridors, and $325 million in rail network congestion mitigation grants. In all, Congress authorized an annual average of $2.7 billion for intercity passenger rail, roughly twice the amount Congress has appropriated for that purpose in recent years (around $1.3 billion). The act established a procedure for interested public or private entities to submit proposals for the financing, design, construction, and operation of high-speed rail in the 11 authorized corridors. However, putting a proposal into action would require further legislation from Congress. The act established a role for the Surface Transportation Board, a railroad economic regulatory body, in enforcing Amtrak priority over freight trains on track over which both types of trains operate and in facilitating negotiations between commuter rail operators and freight railroads concerning access to freight-owned rights-of-way. Amtrak--officially, the National Railroad Passenger Corporation--is the nation's only provider of intercity passenger rail service. Amtrak is structured as a private company, but virtually all its shares are held by the United States Department of Transportation (DOT). Amtrak was created by Congress in 1970 to maintain a minimum level of intercity passenger rail service, while relieving the railroad companies of the financial burden of providing that money-losing service. Although created as a for-profit corporation, Amtrak, like intercity passenger rail operators in other countries, has not been able to make a profit. During the 35 years from 1971-2006, federal assistance to Amtrak amounted to approximately $30 billion. From FY2007-FY2010, Amtrak has received $7.0 billion in federal assistance. Amtrak's approximately 19,000 employees operate trains and maintain its infrastructure. The company operates approximately 44 routes over 21,000 miles of track. Most of that track is owned by freight rail companies; Amtrak owns about 625 route miles of track. The section it owns--the Northeast Corridor (NEC)--includes some of the most heavily used segments of track in the nation. Amtrak "is distinctly a minority user on certain portions of the NEC. By far, the greatest volume of NEC traffic is represented by" commuter and freight trains. Amtrak operates corridor routes (covering distances under 400 miles) and long-distance routes (over 400 miles in length). Some of Amtrak's corridor routes are supported in part by assistance from the states they serve. Amtrak also operates commuter service under contract with state and local commuter authorities in various parts of the country. Amtrak's FY2005-FY2009 Strategic Plan called for more than $8 billion in federal assistance over five years. The Administration consistently requested significantly less funding than that for Amtrak; in FY2006, no funding was requested for Amtrak. But Congress split the difference, providing an average of around $1.3 billion annually--enough to keep Amtrak operating, but not enough to prevent the deferral of some significant maintenance projects--until midway through FY2009, when, with a new Administration that was more supportive of Amtrak, Congress appropriated a total of $2.8 billion, bringing Amtrak's five-year total to $7.9 billion, very nearly the amount called for in the Strategic Plan. Amtrak has not yet issued a Strategic Plan for the period FY2010-FY2014; its FY2010-FY2014 Financial Plan is based on the funding levels in its current authorization. According to the Department of Transportation Inspector General (DOT IG), Amtrak needs about $2 billion a year to restore the system to a state-of-good-repair and develop corridor service, or $1.4 billion simply to keep the system from falling into further disrepair. More fundamentally, the DOT IG has stated that a new federal intercity passenger rail strategy is needed: The current model for providing intercity passenger service continues to produce financial instability and poor service quality. Despite multiple efforts over the years to change Amtrak's structure and funding, we have a system that limps along, is never in a state-of-good-repair, awash in debt, and perpetually on the edge of collapse. In the end, Amtrak has been tasked to be all things to all people, but the model under which it operates leaves many unsatisfied. On November 3, 2005, the GAO released a report that was highly critical of Amtrak's management and performance. On November 9, 2005, Amtrak's President and CEO, David Gunn, was fired by Amtrak's Board of Directors. Gunn was opposed to some of the more far reaching restructuring proposals sought by the Administration and the Amtrak Board, such as splitting the infrastructure component and the operating component on the Northeast Corridor (NEC) into two separate entities. On September 28, 2006, Amtrak's new CEO, Alexander Kummant, testified before the House Railroads Subcommittee that he was committed to operating a national system of trains and that he believed long-distance trains were an important part of the nation's transportation network. He also testified that the fastest growing service was in rail corridors between city pairs of 300-500 miles and that developing these corridors was going to be the driving force of Amtrak's future. Amtrak has demonstrated that rail can play a significant role in intercity passenger travel in certain corridors. Slightly more people travel by train than fly between New York City and Washington, DC, while slightly fewer people travel by train than fly between New York City and Boston. Congress has included provisions in Amtrak's recent appropriations, beginning in FY2003 ( P.L. 108-7 ; 117 STAT 11), intended to bring greater transparency to Amtrak's finances and to increase DOT's control over Amtrak's use of its appropriation. Amtrak is required to submit a Strategic Plan to Congress, updated annually, and is prohibited from making expenditures not programmed in the Strategic Plan without advance notice to Congress. Amtrak is also required to submit a monthly financial statement to Congress. Also, Congress changed the way Amtrak receives its funding; the funding no longer goes directly to Amtrak, but is allocated to the Secretary of Transportation, who makes quarterly grants to Amtrak. Amtrak is required to submit grant applications to DOT for each route to receive this funding. Additional requirements were imposed in the reauthorization legislation in 2008 ( P.L. 110-432 ). These include a requirement for performance improvement plans for Amtrak's long-distance routes, periodic reviews of Amtrak's compliance with accessibility requirements, reports on service delays on certain Amtrak routes, and an assessment of Amtrak management's implementation of the provisions of the reauthorization act. Amtrak runs a deficit of over a billion dollars each year. Virtually all of Amtrak's 44 or so routes lose money but the long-distance routes lose the most. According to the DOT IG, "in 2004, long-distance trains cumulatively incurred operating losses of more than $600 million (excluding interest and depreciation)." However, by his calculation, even eliminating long-distance service entirely would only have reduced Amtrak's operating losses by about $300 million, far too little to make Amtrak profitable. In congressional testimony, the DOT IG stated that long distance trains accounted for only 15% of total intercity rail ridership and that 77% of long-distance train passengers traveled along only portions of the routes, not end-to-end trips. Trips mostly ranged from 500-700 miles, slightly longer than corridor trips. The IG estimated that Amtrak could realize "annual operating savings of between $75 million and $158 million, and an additional $79 million in planned annual capital expenditures that could be avoided" by eliminating the highly subsidized sleeper class service from its long-distance trains. Sleeper class service includes a sleeping room and prepaid meals in the train's dining car; coach class passengers on long-distance trains sleep in their seats on overnight trips, and usually buy food in the train's lounge car. On October 10, 2006, the DOT IG reported that Amtrak had begun restructuring sleeper class service and expected to save up to $20 million in FY2007 from this restructuring. In addition to its annual deficit, Amtrak has major liabilities due to deferred maintenance and accumulated debt. Lacking money to complete all its capital repair and maintenance projects, Amtrak has deferred many maintenance projects. This has led the DOT IG to observe that Amtrak's continued deferral of maintenance increases the risk of a major failure on its system. Amtrak has an estimated $6 billion in backlogged capital maintenance needs, of which about $4 billion is needed on the NEC. These include replacement of aging bridges, signal equipment, and catenary (the power source for the Northeast Corridor trains), improvements to tunnels and track, repair of wrecked equipment, and overhaul of aging equipment. The IG has criticized some of the capital spending choices Amtrak has made, such as refurbishing sleeper cars instead of replacing aging bridges. The Amtrak Reform Council and the DOT IG both estimated that Amtrak requires around $1.5 billion to $2 billion in federal operating and capital support annually. This is a higher level of federal funding than Amtrak has ever consistently received, though Amtrak's current authorization authorizes funding in this range. In recent years Amtrak has stopped borrowing, trimmed its workforce, and cut its expenses, while at the same time achieving increases in ridership. However, the cuts in expenses have been small relative to Amtrak's annual deficit, and increases in ridership have been relatively modest as well. In this context, the DOT IG has observed that "it is difficult to see how Amtrak can achieve further reductions within its Federal operating subsidy without addressing state-supported routes, route restructuring, and labor contracts." Amtrak did not gain any flexibility in work rules in its latest labor agreement. While Amtrak competes with freight and commuter railroads to retain its workforce, it competes with the airlines (on its corridor routes) in terms of labor productivity. Amtrak's internal options for significantly reducing its annual deficit in the short term are limited. Its two major cost categories are the operating losses of the long-distance trains and maintenance costs of the Northeast Corridor. Reducing the size of its system could, in the long run, significantly reduce Amtrak's deficit and the long-run cost to the Federal Government, although Amtrak would still run a short-term deficit even if it eliminated all its long-distance trains, because of severance payments to employees. Additionally, the costs of maintaining the Northeast Corridor would remain, whatever the fate of long-distance service. Amtrak interprets 49 U.S.C. 24701 to require it to provide service nationwide, which it takes to mean service that spans the nation, rather than service in different parts of the nation. Thus, Amtrak is unlikely to eliminate or restructure long-distance routes without explicit direction from Congress. Many Members of Congress continue to support a nationwide Amtrak network. Amtrak's same-route ridership has grown since FY2004. However, it appears unlikely that Amtrak could increase its revenues enough to eliminate its deficits. Total revenues in FY2008 were $588 million more than in FY2004, but total expenses also increased. Amtrak has narrowed its overall annual loss by $128 million, from $1.331 billion in FY2004 to $1.160 billion in FY2008. Amtrak appropriations are provided as part of the Department of Transportation funding. A summary of its recent appropriations is provided in Table 1 . President Bush requested $900 million for Amtrak for FY2008. Congress provided $1.325 billion for Amtrak (in the Consolidated Appropriations Act, 2008, P.L. 110-161 ), plus $30 million to the states in a new matching grant program for passenger rail-related capital improvements. Of the $1.325 billion total, $475 million was provided for operating grants, and $850 million was provided in capital and debt service grants. President Bush again requested $900 million for Amtrak. Amtrak requested $1.671 billion. To justify its request, Amtrak noted increasing fuel costs, increasing health care costs, and increases in wage costs as a result of a recent bargaining agreement reached with some of Amtrak's unions. Regarding this labor agreement, Amtrak noted that its budget request did not include $114 million in "back pay" to employees that was recommended by the President Emergency Board. Amtrak's budget request noted a continuing problem with cracking of concrete ties on the Northeast Corridor, and noted that while the contractor is contractually obligated to replace many of the defective ties, the contract does not cover substantial labor costs associated with replacement. The request also noted that the average age of Amtrak's coach fleet is 24 years and the average age of its locomotive fleet is more than 15 years, and thus replacing rolling stock is a high priority for the railroad. Congress provided $1.490 billion for Amtrak (in Division I of the Omnibus Appropriations Act, 2009, P.L. 111-8 ), $165 million more than the FY2008 level, and also appropriated $90 million for grants to states in a newly authorized matching grant program for passenger rail-related capital improvements (Amtrak can become eligible to receive a grant under that program if it signs a cooperative agreement with a state to carry out a project for that state). Congress noted that the additional costs of Amtrak's "back pay" agreement were included in the $550 million provided for operating grants. Congress provided Amtrak with additional funding in the emergency economic stimulus bill passed in February 2009, the American Recovery and Reinvestment Act of 2009 (ARRA, P.L. 111-5 ). Amtrak received $1.3 billion for capital grants (of which $450 million was specifically for capital security grants). Also, Congress provided $8 billion for grants for high-speed rail projects, intercity passenger rail projects, and rail congestion relief grants. Amtrak is among the eligible recipients for grants from that funding. On January 28, 2010, President Obama announced the first round of grants from the $8 billion for intercity passenger rail and high speed rail. Among the awards was $112 million for improvements to the Northeast Corridor. Other grants will fund projects that include improvements to Amtrak stations and routes that are used, but not owned, by Amtrak. The Obama Administration requested $1.502 billion for Amtrak for FY2010: $572.3 million for operating grants (of which not less than $21 million is for the Amtrak Inspector General's Office) and $929.6 million for capital grants (of which up to $264 million is for debt service). The Administration also requested $1.0 billion for grants for high-speed rail projects, intercity passenger rail projects, and rail network congestion mitigation projects. Amtrak's own FY2010 budget request totaled $1.84 billion: $601 million for operating grants (including $21 million for the Inspector General's Office), $975 million for capital grants, and $264 million for debt service. Congress provided $1.584 billion for Amtrak (in the Consolidated Appropriations Act, 2010, P.L. 111-117 ). Also, Congress provided $2.5 billion for grants for intercity passenger rail and high speed rail service. Amtrak is among the eligible recipients for grants from that program. In June 2009, Amtrak's Inspector General, who had served as Amtrak's IG since the creation of the office in 1989, resigned. Soon afterward, the House Committee on Oversight and Government Reform announced that it was launching an investigation into the circumstances surrounding the departure of the IG. To promote the independence of the Office of the Inspector General, the Senate Committee on Appropriations recommended that Amtrak's OIG be funded as an independent agency, not as part of Amtrak's appropriation under FRA, and accordingly placed the funding for the OIG in Title III of the appropriation bill, "Independent Agencies." Conferees confirmed this shift. During Senate floor consideration of the Transportation, Housing and Urban Development, and Related Agencies Appropriations (THUD) bill, an amendment was added which required that Amtrak allow passengers to transport firearms in checked baggage as of March 31, 2010, or lose its federal funding. Amtrak began prohibiting the transport of firearms even in checked baggage after 9/11. In the enacted legislation, this requirement was altered to give Amtrak one year to implement procedures to allow passengers to carry firearms in checked baggage (section 159). Amtrak's previous authorization expired in December 2002. The Amtrak Reform and Accountability Act of 1997 ( P.L. 105-134 ; 111 Stat. 2570) authorized Amtrak for the period December 1997 through December 2002. It required that Amtrak operate without federal operating assistance after 2002; this was not accomplished. Between 2002 and 2008, reauthorization of Amtrak was stalled by disagreement over the future of U.S. passenger rail policy. Although numerous bills were introduced and various approaches were advanced, Congress was unwilling to decide what kind of passenger rail policy it would be willing to fund. During that period, Congress neither provided Amtrak with the level of funding that Amtrak requested nor required an Amtrak restructuring that would be consistent with the level of funding that Congress provided. As Congress considered reauthorization of Amtrak, the range of options for passenger rail included (1) providing higher levels of funding to support an expanded passenger rail system; (2) providing funding for operating and maintaining the current system; (3) focusing available resources on providing service only to those corridors that can be justified on economic grounds; (4) reducing Amtrak funding and eliminating much of the present passenger rail network; (5) eliminating funding for Amtrak and reorganizing passenger rail service in the United States. Although various combinations of those options were possible, the DOT IG stated that the "status quo" option was unsustainable and that federal funding for Amtrak of between $1.4 billion and $1.5 billion would be necessary to prevent cuts in service, but would not be enough to restore the system to a state-of-good-repair nor permit investment in new corridor development. In regard to Amtrak reauthorization, the DOT IG urged Congress to consider three points: (1) without competition, Amtrak has few incentives, other than the threat of budget cuts or elimination, for cost control; (2) states, rather than Amtrak, should decide where and how intercity passenger rail service is provided; and (3) the federal government must be willing to provide adequate funding (but not directly to Amtrak) to bring the infrastructure into a state-of-good-repair. In the 110 th Congress, Senator Frank R. Lautenberg and then Senator Trent Lott introduced an Amtrak reauthorization bill, the Passenger Rail Investment and Improvement Act of 2007 ( S. 294 ), on January 16, 2007. This bill would have authorized a total of $3.3 billion in operating grants and $6.3 billion in capital grants for fiscal years 2007 through 2012 to be administered by the DOT to Amtrak. Of the $6.3 billion in capital grants, a certain percentage of that amount, ranging from 3% in FY2007 to 33% in FY2012, would be directed to states rather than to Amtrak. The bill would also allow states to use operators other than Amtrak to provide rail service on particular routes, thus potentially opening up competition for Amtrak. The bill created a capital match program for a state or group of states for the purpose of providing new or improved intercity rail service. The federal share of this program would be 80%. While the bill would have repealed the requirement that Amtrak become financially self-sufficient, it would have required Amtrak to reduce operating subsidies by 40% over the life of the bill. The bill would have expanded Amtrak's board of directors to 10 members, including the Secretary of Transportation, the President of Amtrak, and eight members selected by the Administration with no more than five of these from the same political party and representing the geographic regions that Amtrak currently serves, to the extent possible. S. 294 was approved (with amendments) by the Committee on Commerce, Science, and Transportation on April 25, 2007, and was passed (with amendments) by the full Senate on October 20, 2007. During Senate floor debate, among the amendments rejected was an amendment to limit the per-passenger subsidy amount on Amtrak routes and an amendment to increase the number of routes to be made available for competitive bid. Amendments accepted included an amendment to require Amtrak to publish annual revenue and cost amounts for each route, an amendment giving additional consideration to states with limited Amtrak service when considering new routes, and an amendment expressing the sense of Congress of the need to maintain Amtrak as a national passenger rail system. The House version of an Amtrak reauthorization bill ( H.R. 6003 ) was introduced on May 8, 2008, and ordered to be reported by the House Committee on Transportation and Infrastructure on May 22, 2008. It was passed by the House with amendments on June 11, 2008, by a vote of 311 to 104. For FY2009-FY2013, H.R. 6003 would have authorized a total of $6.7 billion in capital grants to Amtrak, of which $2.5 billion would have been provided to states in a capital matching program; $3.0 billion in operating grants; $1.7 billion for debt service; and $1.1 billion for ADA compliance. The House bill also would have provided $1.8 billion over the life of the bill ($350 million per fiscal year) for the development of up to two high-speed rail corridors, one of which would be between Washington, DC, and New York City. In this instance, high-speed rail was defined as at least 110 mph, and in the case of the Washington, DC, and New York City corridor, travel time for express trains between those two cities would have to be under two hours. Under this provision, private companies would bid for the financing, design, construction, and operation of these high-speed rail corridors. DOT and a commission would evaluate and rank the proposals and report their findings to Congress. The House bill also required Amtrak to submit a plan for restoring service between New Orleans and Sanford, Florida. The House bill would have restructured Amtrak's board of directors in the same way as the Senate bill. Both the House and Senate bills would have involved the Surface Transportation Board (STB) in resolving disputes between freight railroads and passenger train interests, but for different purposes. The Senate bill (Section 209) would allow Amtrak or states subsidizing Amtrak service to petition the STB to investigate when Amtrak's on-time performance falls below a certain level. If the STB finds that the host freight railroad is at fault, it may award damages or provide some other relief. The provision would also allow freight railroads to petition the STB if they believe passenger trains are negatively affecting their business on a certain route. The House bill (section 401) would require the STB to conduct non-binding mediation between freight railroads and public transit authorities seeking access to freight railroad right-of-ways for passenger service, in circumstances where the two parties cannot reach agreement. Congress reauthorized Amtrak in the Passenger Rail Investment and Improvement Act of 2008, enacted on October 16, 2008. For the period FY2009-FY2013, the act authorized a total of $9.8 billion in funding for Amtrak, divided as follows: Operating grants: $2.9 billion. Capital grants: $5.3 billion. Grants for repayment of long-term debts and capital leases: $1.4 billion. Funding for Amtrak's Inspector General: $108 million. Total authorized Amtrak funding averages $1.955 billion annually, a significant increase over the $1.3 billion Amtrak was appropriated in FY2007 and FY2008. The act also authorizes three new federal intercity passenger rail grant programs for which Amtrak is eligible: Intercity Passenger Rail Service Corridor Capital Assistance Program (SS301) : authorizes DOT to make grants to states, public agencies, or Amtrak (in cooperation with a state) for the capital costs of facilities, infrastructure, and equipment to provide or improve intercity passenger rail transportation; federal share not to exceed 80%; total authorized funding $1.9 billion over FY2009-FY2013. High-Speed Rail Corridor Development: authorizes DOT to make grants to states, public agencies, or Amtrak for capital projects (e.g., acquiring, constructing, or improving rail structures and equipment) on designated high-speed lines that would result in train operating speeds of 110 mph or more; federal share not to exceed 80%; total authorized funding $1.5 billion over FY2009-FY2013. Congestion Relief (SS302): authorizes DOT to make grants to states, public agencies, or Amtrak to reduce congestion or facilitate ridership growth in heavily traveled intercity rail passenger corridors; federal share not to exceed 80%; total authorized funding $325 billion over FY2010-FY2013. The act directs FRA and Amtrak to jointly develop measurement criteria, and minimum standards, to measure Amtrak's performance and service quality; directs FRA to develop objective methodologies for Amtrak to use in making decisions regarding adding, altering, or eliminating routes and service levels; and directs FRA to establish a standard methodology for allocating costs between Amtrak and states for state-supported routes. It allows Amtrak or states subsidizing Amtrak service to petition the STB to investigate when Amtrak's on-time performance falls below a certain level. If the STB finds that the host freight railroad is at fault, it may award damages or provide some other relief. Freight railroads may petition the STB if they believe passenger trains are negatively affecting their business on a route. And it requires the STB to conduct non-binding mediation between freight railroads and public transit authorities seeking access to freight railroad right-of-ways for passenger service, in circumstances where the two parties cannot reach agreement. The act also increased the size of Amtrak's Board of Directors from 7 to 9 persons, including the Secretary of Transportation, the President of Amtrak, and 7 persons appointed by the President, not more than 5 of whom may be members of the same political party. The act also removed the prohibition on having board members who were representatives of rail labor or rail management.

Amtrak was created by Congress in 1970 to provide intercity passenger railroad service. It operates approximately 44 routes over 22,000 miles of track, 97% of which is owned by freight rail companies. It runs a deficit each year, and requires federal assistance to cover operating losses and capital investment. Without a yearly federal grant to cover operating losses, Amtrak would not survive as presently configured. The crux of the public policy issue facing Congress has been succinctly stated by the Department of Transportation Inspector General (DOT IG): "To create a new model for intercity passenger rail, a comprehensive reauthorization that provides new direction and adequate funding is needed. The problem with the current model extends beyond funding--there are inadequate incentives for Amtrak to provide cost-effective service; state-of-good-repair needs are not being adequately addressed; and states have insufficient leverage in determining service quality options, in part because Amtrak receives Federal rail funds, not the states." Amtrak was reauthorized in 2008. Its previous authorization had lapsed in 2002 because of a policy stalemate involving the Bush Administration and Congress. The Bush Administration advocated significant changes to federal passenger rail policy, involving a reduction of Amtrak's role. Those changes were supported by some in Congress, while others supported increased funding for Amtrak, in line with Amtrak's strategy of maintaining its full current network while restoring its infrastructure to a state of good repair. Interest in alternatives to, and complements to, auto and air transportation, spurred by concerns over gasoline supplies and global warming, as well as the Obama Administration's interest in high-speed rail, suggest that Amtrak policy may receive additional attention in the 111th Congress. Appropriations. For FY2010, the Obama Administration requested $1.502 billion for Amtrak, which is $600 million more than the previous Administration requested for FY2009. Amtrak itself requested $1.840 billion, which is $350 million more than Congress appropriated last year. Congress provided $1.584 billion for Amtrak FY2010. Congress also appropriated $2.5 billion for intercity and high speed rail grants, for which Amtrak is among the eligible recipients. Congress provided $1.490 billion for Amtrak in the FY2009 transportation appropriations act (Division I of P.L. 111-8), $165 million more than the $1.325 billion provided in FY2008. In addition, Congress appropriated $1.3 billion for capital grants to Amtrak, and appropriated another $8 billion for intercity rail infrastructure projects (for which Amtrak is among the eligible recipients) in the American Recovery and Reinvestment Act of 2009 (ARRA, P.L. 111-5). Reauthorization. Amtrak's previous authorization expired in December 2002. In October 2008, the 110th Congress passed an Amtrak reauthorization bill, the Passenger Rail Investment and Improvement Act of 2008 (Division B of P.L. 110-432). This bill authorized nearly $10 billion over the five-year life of the bill (FY2009-FY2013) specifically for Amtrak, including $5.3 billion in capital grants, nearly $3 billion in operating grants, and $1.4 billion for debt service. In addition, Congress authorized a total of $1.9 billion over these five fiscal years in intercity passenger rail capital grants to the states on an 80-20 federal/state matching basis. Congress also authorized $1.5 billion in capital grants to states and/or Amtrak for the development of 11 authorized high-speed rail corridors. The act established a procedure for interested public or private entities to submit proposals for the financing, design, construction, and operation of high-speed rail on these 11 corridors. However, putting a proposal into action would require further legislation from Congress.

The public health and environmental requirements of two federal laws are primarily driving projects in rural, as well as non-rural, areas for drinking water and wastewater treatment. The Environmental Protection Agency (EPA) administers both laws. For the quality of drinking water supply , requirements of the Safe Drinking Water Act (SDWA) apply to public water supply systems, whether government-owned or privately owned. Under this law, EPA regulates the quality of drinking water provided by community water supply systems, which are defined as those having at least 15 service connections. Community water supply systems serve approximately 300 million persons; 19 million persons also get their drinking water from non-community systems (such as wells that serve individual homes, schools, factories, or campgrounds), which are not subject to the act. Regulated water systems provide drinking water to 97% of Americans. The vast majority of systems are small and privately owned, although most people (70% of those served by community water systems) are customers of large, publicly owned systems. The smallest water systems (serving fewer than 3,300 persons, many serving small clusters of homes) account for 77% of all systems and a similarly high percentage of systems in significant noncompliance with drinking water regulations. Most very small systems have no credit history and have never raised capital in financial markets. Small to medium systems (serving 3,301 to 50,000 persons) are institutionally more capable than smaller systems, yet they also face financing challenges. The smallest of these have limited access to financial markets and creditworthiness more sensitive to local economic conditions than larger systems. Community water supply systems currently are subject to a number of drinking water regulations issued by EPA under the SDWA. Federal regulations limiting levels of contaminants in treated water are implemented by local water suppliers. These require, for example, system monitoring, treatment to remove certain contaminants, and reporting. New regulations are being developed that are likely to impose additional compliance burdens on these systems within the next few years, and costs of meeting these requirements are a growing concern to water suppliers and policy makers. EPA estimates that compliance with the regulations already promulgated will provide millions of people protection from numerous industrial chemicals, microbes, and other contaminants in public water supplies. However, to comply, many cities and towns must invest in capital equipment, operation and maintenance, and increased staff technical capacity. Recent regulations with particularly costly implications for small towns include water filtration, lead control, arsenic control, and inorganic and organic contaminant control. According to EPA, small community water systems (serving up to 3,300 persons) have funding needs of $64.5 billion (17% of the total national need) to provide safe drinking water--accounting for a disproportionate percentage of community water system need. Although small systems account for only 8% of the population served, nearly 83% of all systems with reported funding needs are small communities, EPA said. For wastewater treatment , requirements of the Clean Water Act (CWA) apply to all communities that discharge municipal sewage waste into the nation's waters. About 80% of wastewater treatment and collection facilities serve small communities (defined as those with a population of 10,000 or less), yet those facilities serve only 7% of the U.S. population . Under the CWA, all municipalities were to achieve secondary treatment of municipal sewage (equivalent to removing approximately 85% of wastes from the municipal wastestream), or more stringent, where that is required to meet local water quality standards, by 1988. Much like the Safe Drinking Water Act, small community wastewater systems have higher rates of noncompliance than larger systems. Unlike the SDWA, however, regulatory requirements under the CWA have been fixed for some time. The CWA issue for many cities of all size is continuing efforts to finance improvements that have largely been known for several years. EPA reported in 2016 that as of 2012, cities throughout the country (of all sizes) would require nearly $271 billion for wastewater facilities to meet water quality standards. EPA estimated that documented funding needs for rural communities totaled $68 billion. Needs for projects in small communities (populations less than 10,000) were $33 billion, or about 12% of the total U.S. funding needs. The largest needs in small communities are for improved wastewater treatment and correction of combined sewer overflows. Five states accounted for 30% of the small community needs (Pennsylvania, New York, Kentucky, Texas, and Alabama). With few exceptions, small community facilities are a large majority of the total number of publicly owned facilities in each state, and in four states (Iowa, Montana, Nebraska, and North Dakota), small community facilities constitute more than 95% of publicly owned facilities. In 19 other states, small community facilities constitute 80% to 95% of the publicly owned facilities. As with meeting drinking water needs, EPA has estimated that, because small systems lack economies of scale, their customers face a particularly heavy financial burden to meet needs for clean water investments. The smallest cities are likely to experience the largest overall percentage increases in user charges and fees as a result, EPA has said. The federal government administers a number of programs that assist rural communities in developing water and waste disposal systems. The most prominent are programs of the Department of Housing and Urban Development (HUD); the Appalachian Regional Commission (ARC); the Economic Development Administration (EDA); EPA; and the U.S. Department of Agriculture (USDA). HUD administers assistance primarily under the Community Development Block Grant (CDBG) program, in Title I of the Housing and Community Development Act of 1974, as amended. FY2016 appropriations are $3.0 billion, of which approximately $900 million is available for smaller communities. CDBG funds are used by localities for a broad range of activities intended to result in decent housing in a suitable living environment. Water and waste disposal needs compete with many other public activities for this assistance and are estimated to account for 10% to 20% of CDBG obligations. Program policy requires that at least 70% of funds must benefit low/moderate-income persons. According to data from HUD, in recent years, water and sewer improvement projects have accounted for 9%-10% of all CDBG funds nationally. Thirty percent of CDBG funds are allocated by formula to the states for distribution to small communities and may be available for rural community projects. The larger portion of total CDBG funds, 70%, is allocated by formula to metropolitan areas and cities with populations of 50,000 or more and statutorily defined urban counties and thus does not assist rural areas directly. The ARC assists with programs and projects to provide basic facilities essential to economic growth in the Appalachian regions of 13 states. Investments are concentrated in areas with significant potential for future growth as well as in areas that suffer the greatest distress. States recommend projects for assistance. In FY2016, the ARC is funded at a level of $146 million, budgeted primarily for area development assistance, covering a range of community-based projects including basic infrastructure, business, and human development. Historically, environmental projects have received about 5% of ARC economic and human development funds. EDA provides project grants for construction of public facilities, including water and sewer systems, to alleviate unemployment and underemployment in economically distressed areas. Development grants provide for infrastructure projects that foster industries and commercial businesses that provide long-term employment and are part of approved overall economic development programs in areas of lagging economic growth. Economic development grants can be used for a wide range of purposes and frequently have a sewer or water supply element. In FY2016, EDA's public works grants are funded at $100 million. In historic terms, the largest federal program for wastewater treatment assistance is administered by EPA under the Clean Water Act. Since 1973 Congress has appropriated $94 billion in assistance under this act. FY2016 funding is $1.39 billion. Funds are distributed to states under a statutory allocation formula and are used to assist qualified projects on a priority list that is determined by individual states. Prior to 1989, states used their allotments to make grants to cities and other localities. Now, however, federal funds are used to capitalize state loan programs (State Revolving Funds, or SRFs), and project loans are made according to criteria in the CWA. Over the long term, the loan programs are intended to be sustained through repayment of loans to states, thus creating a continuing source of assistance for other communities. Rural and non-rural communities compete for funding; rural areas have no special priority, nor are states required to reserve any specific percentage for projects in rural areas. Some small communities and states with large rural populations have had problems with the CWA loan program. Many small towns did not participate in the previous grants program and are more likely to require major projects to achieve compliance with the law. Yet many have limited financial, technical, and legal resources and have encountered difficulties in qualifying for and repaying loans. They often lack an industrial tax base or opportunities for economies of scale and thus face the prospect of very high per capita user fees to repay a loan for the full cost of sewage treatment projects. Still, small communities have been participating in the clean water SRF program: an estimated 23% of the $42 billion in SRF assistance since 1989 (representing 67% of loans made by states) has gone to communities with less than 10,000 in population. In 1996, Congress enacted Safe Drinking Water Act (SDWA) amendments which authorize federal capitalization of state loan programs to help public water systems finance improvements needed to comply with federal drinking water regulations ( P.L. 104-182 ). Since then, Congress has provided $20 billion in appropriations for the drinking water SRF program (DWSRF), which is similar in structure to the CWA SRF program. Elements that differ under the DWSRF include authority for states to make both loans and grants and to assist both privately and publicly owned community water systems. To give states flexibility in meeting infrastructure needs, the law allows a governor to transfer as much as 33% of the annual DWSRF allotment to the CWA SRF, or an equivalent amount from the CWA SRF to the DWSRF. For FY2016, Congress appropriated $863 million for SDWA SRF assistance. According to EPA, 38% of total assistance since 1996 (representing 71% of all assistance agreements) has gone to systems serving fewer than 10,000 persons. Grants and loans (direct and guaranteed) for water and wastewater projects are available through rural development programs of the U.S. Department of Agriculture (USDA). Funds are limited to communities with population of 10,000 or less. Communities must be denied credit through normal commercial channels to be eligible for assistance. USDA prefers making loans; grants are made only when necessary to reduce average annual user charges to a reasonable level. The split between loans and grants is about 70-30. In recent years, approximately 65% of loan funds and 57% of grant funds have been obligated to drinking water projects; the remainder have been obligated to waste disposal projects. USDA also makes grants to nonprofit organizations to provide technical assistance and training to assist rural communities with their drinking water, wastewater, and solid waste disposal problems. Prior to the 1996 farm bill (the Federal Agriculture Improvement and Reform Act of 1996, P.L. 104-127 ), these USDA grants and loans, as well as other USDA rural development assistance to businesses, industries, and communities, were authorized as separate programs. In P.L. 104-127 , Congress endorsed an Administration proposal to consolidate 14 existing rural development grant and loan programs into three categories for better coordination and greater local involvement. The program is called the Rural Community Advancement Program (RCAP). The three components are the Rural Utilities Service (RUS, providing assistance for water and wastewater disposal, solid waste management, and emergency community water programs), Rural Community Facilities, and Rural Business and Cooperative Development. Under RCAP, USDA state offices work with state and local governments, Indian tribes, and private and community organizations to prepare a strategic plan for delivering RCAP assistance to each state. The key concept in RCAP is to involve state and local stakeholders in strategic planning, so that federal assistance will address local priorities more effectively. The 1996 farm bill did not alter the basic features or statutory requirements of the water and waste disposal grant and loan programs, which are administered through a network of state and local offices. USDA headquarters allocates program funds to the Rural Economic and Community Development state offices through an allocation formula based on rural population, poverty, and unemployment. District RECD offices actually administer the programs. Since 2001 USDA has provided more than $10 billion to more than 7,500 rural water and wastewater systems, benefitting more than 6.5 million people. Subsequent farm bills in 2002 ( P.L. 107-171 ), 2008 ( P.L. 110-246 ), and 2014 ( P.L. 113-79 ) have not significantly modified USDA's rural water and waste disposal assistance programs. The 2014 law extended authorizations for grants and loans through FY2018. Grants for the development costs of water supply and waste disposal projects in rural areas are authorized under the Consolidated Farm and Rural Development Act. An eligible project must serve a rural area which is not likely to decline in population below that for which the project was designed, and it must be designed and constructed so that adequate capacity will or can be made available to serve the reasonably foreseeable growth needs of the area. Grants may not exceed 75% of the development cost of a project and should only be used to reduce user costs to a reasonable level. Grants are only made after a determination of the maximum amount of loan that a community can afford and still have reasonable user rates. Grants, which typically provide 35%-45% of project costs, may be used to supplement other funds borrowed or furnished by applicants for project costs and may be combined with loans when the applicant is able to repay part, but not all, of the project costs. Eligible applicants may include municipalities, authorities, districts, certain Indian tribes, and similar organizations. Priority is given to projects serving populations of fewer than 5,500 persons. RUS also is authorized to help rural residents where a significant decline in quantity or quality of drinking water exists or is imminent and funds are needed to obtain adequate quantities of water that meet standards of the Safe Drinking Water Act or the Clean Water Act. Grants, ranging from $10,000 to a maximum of $500,000, are provided for projects to serve a rural area with a population of 10,000 or less that has a median household income not in excess of the statewide nonmetropolitan median household income. Grants for repairs, partial replacement, or significant maintenance of an established system cannot exceed $150,000. Communities use the funds for new systems, waterline extensions, construction of water source and treatment facilities, and repairs or renovation of existing systems and may be awarded for 100% of project cost. Applicants compete on a national basis for available funding. The 2014 farm bill authorized $30 million per year through FY2018 for this program, subject to appropriations. Funding for it is provided through reservation of 3% to 5% of appropriated water and waste disposal grant funds. Amounts actually provided through this program have been quite variable over time, depending on need. In FY2014, $14.7 million was distributed in 14 states; in FY2015, $2.5 million was distributed in 14 states. The Rural Development Act of 1972 authorized the Rural Development Insurance Fund under the Consolidated Farm and Rural Development Act. Among other activities, this fund is used for loans to develop storage, treatment, purification, or distribution of water or collection, treatment, or disposal of waste in low-income rural areas. Loans are made to public bodies, not-for-profit organizations, Indian tribes on federal and state reservations, and other federally recognized tribes for projects needed to meet health or sanitary standards, including clean water standards and SDWA requirements. Loans are repayable in not more than 40 years or the useful life of the facility, whichever is less. USDA makes either direct loans to applicants or guarantees up to 90% of loans made by third-party lenders. Borrowers are required to refinance (graduate) to other credit when they can obtain the needed funds from commercial sources at reasonable rates and terms. Loan interest rates are based on the community's economic and health environment and are designated poverty, market, or intermediate. Poverty interest rate loans are made in areas where the median household income (MHI) falls below the higher of 80% of the statewide nonurban MHI, or the poverty level, and the project is needed to meet health or sanitary standards; by law, this rate is set at 60% of the market rate. The market rate is adjusted quarterly and is set using the average of a specified 11-bond index. It applies to loans to applicants where the MHI of the service area exceeds the statewide nonurban MHI. The intermediate rate applies to loans that do not meet the criteria for the poverty rate and which do not have to pay the market rate; by law, this rate is set at 80% of the market rate. Interest rates on guaranteed loans are negotiated between the borrower and the lender. The 2014 farm bill amended the water and waste disposal direct and guaranteed loan programs to encourage financing by private or cooperative lenders to the maximum extent possible, use of loan guarantees where the population exceeds 5,500, and use of direct loans where the impact of a guaranteed loan on rate payers would be significant. Beginning with USDA's FY1996 appropriation, Congress consolidated the water and waste disposal grant and loan appropriations in a single Rural Utilities Assistance Program, consistent with the approach taken in the 1996 farm bill to consolidate delivery of rural development assistance. Funds available through appropriations for USDA's water and waste disposal programs provide $508 million in total for FY2016, including $385 million in grants and subsidy to support direct and guaranteed loans. USDA estimated that, counting both appropriations and repaid loan monies still available, those funds would support more than $1.73 billion in program activity. In dollar terms, the largest federal programs that solely assist water and waste disposal needs are administered by EPA. Funds available in FY2016 for EPA's clean water and safe drinking water SRF programs total $2.3 billion. They do not focus solely on rural areas, however. USDA's grant and loan programs also support significant financial activity and are directed entirely at rural areas. Still, funding needs in rural areas are high (more than $130 billion, according to state surveys summarized in EPA reports), and there is heavy demand for funds. At the end of FY2007, USDA reported a $2.4 billion backlog of requests for 928 water and wastewater projects for its grant and loan programs. Among policy makers, interest has grown in identifying or developing alternative financing tools beyond federal grants or SRFs to help communities meet their water infrastructure needs. Finding consensus on an approach and the revenues to support such needed investments are significant challenges. In 2014, Congress enacted legislation that authorizes a five-year pilot program to provide federal loan assistance for water infrastructure projects, called the Water Infrastructure Finance and Innovation Act (WIFIA) program. However, some analysts are concerned that alternative financing approaches--such as the WIFIA pilot program--are more focused on large communities than rural areas, which could have more difficulty making needed infrastructure investments in the future. Meeting the infrastructure funding needs of rural areas efficiently and effectively is likely to remain an issue of considerable congressional interest.

The Safe Drinking Water Act and the Clean Water Act impose requirements regarding drinking water quality and wastewater treatment in rural as well as urban areas of the United States. Approximately 19% of the U.S. population lives in areas defined by the Census Bureau as rural. Many rural communities need to complete water and waste disposal projects to improve the public health and environmental conditions of their citizens. Small water infrastructure systems often have higher rates of noncompliance than larger systems. In addition, because small systems generally lack economies of scale, their customers face a particularly heavy financial burden to meet needs for clean water investments. Funding needs are high (more than $130 billion, according to state surveys). Several federal programs assist rural communities in meeting these requirements. In dollar terms, the largest are administered by the Environmental Protection Agency, but they do not focus solely on rural areas. The Department of Agriculture's grant and loan programs support significant financial activity and are directed solely at rural areas. Meeting infrastructure funding needs of rural areas efficiently and effectively is likely to remain an issue of considerable congressional interest.

The U.S. Dept. of Agriculture (USDA) forecasts that U.S. agricultural exports for FY2008 will reach a record high of $91 billion, and forecasts that imports will reach $75.5 billion, also a record ( Figure 1 ). If these forecasts hold, the U.S. agricultural trade balance in FY2008 would be $15.5 billion. Since FY1991, high value exports (intermediate products such as wheat flour, feedstuffs, and vegetable oils or consumer-ready products such as fruits, nuts, meats, and processed foods) have outpaced such bulk commodity exports as grains, oilseeds, and cotton. In FY2008, high value agricultural exports are forecast to account for 60% of the value of total agricultural exports. Much of the growth in U.S. agricultural exports in 2007 and 2008 is expected to come from strong demand for bulk commodities such as wheat, feed grains, oilseeds, and cotton. Agricultural exports are important both to farmers and to the U.S. economy. Production from almost a third of U.S. cropland moves into export channels, according to USDA. USDA estimates that from 21% to 23% of U.S. agricultural production (crops and livestock) is exported. Exports account for almost half of wheat production, more than one-third of soybeans, and a fifth of corn. The share of exports of specialty crops such as almonds is 70%, while for other specialty crops such as walnuts or grapefruit, the export share is as high as 40%. Export share of livestock products is lower than for crops, as most meat and dairy products are consumed domestically. U.S. agricultural exports generate employment, income, and purchasing power in both the farm and nonfarm sectors. According to USDA, each $1 received from agricultural exports stimulates another $1.64 in supporting activities to produce those exports. Recent data show that agricultural exports generate an estimated 806,000 full-time civilian jobs, including 455,000 jobs in the non-farm sector. Many variables interact to determine the level of U.S. agricultural exports: income, population growth, and tastes and preferences in foreign markets; U.S. and foreign supply and prices; and foreign import barriers and exchange rates. U.S. domestic farm policies that affect price and supply, and trade agreements with other countries, also influence the level of U.S. agricultural exports. While many of these factors are beyond the scope of congressional action, farm bills have typically included a trade title (Title III in the 2002 farm bill, the Farm Security and Rural Investment Act of 2002) that authorizes programs that guarantee the private financing of U.S. agricultural exports, subsidize agricultural exports, promote U.S. farm products in overseas markets, or address foreign trade barriers. All of the agricultural export programs authorized in the farm bill are administered by the Foreign Agricultural Service (FAS) of the U.S. Department of Agriculture (USDA). Title III of the House-passed ( H.R. 2419 ) and the Senate Committee-reported farm bills reauthorize and extend these programs from 2008 through 2012, with increased funding for some of USDA's export promotion programs. The bills include new legislative authority for discretionary appropriations for initiatives aimed at strengthening U.S. participation in international food standard-setting organizations and enabling individuals and groups to challenge unfair trade barriers in international trade dispute settlement. On December 14, 2007, the Senate passed its version of the 2007 farm bill. The House of Representatives had passed its version on July 27, 2007. The bills, which would establish U.S. farm policy for 2008 through 2012, each contain a trade title (Title III) that authorizes and amends USDA agricultural export programs and U.S. international food aid programs. The bills incorporate many of the recommendations made by the Administration in its farm bill trade proposals, especially changes in USDA's export credit guarantee programs to make them consistent with World Trade Organization (WTO) rules limiting export subsidies. The trade title in each bill also incorporates Administration proposals for increased funding for export market promotion and for addressing sanitary and phytosanitary barriers to U.S. agricultural exports. Both bills also reflect provisions of farm legislation introduced earlier in the 110 th Congress, notably legislation introduced by Members representing the interests of fruit, vegetable, and tree nut (specialty crop) producers who advocate increased federal support for their production and marketing activities, including export market promotion. Export credit guarantee programs, administered by USDA's Foreign Agricultural Service (FAS), in association with the Farm Service Agency (FSA), guarantee payments for commercial financing of U.S. agricultural exports. U.S. financial institutions providing loans to foreign buyers for the purchase of U.S. agricultural commodities can obtain, for a fee, guarantees from USDA's Commodity Credit Corporation (CCC). If a foreign buyer defaults on the loan, the U.S. financial institution files a claim with the CCC for reimbursement, and the CCC assumes the debt. The aim of these programs is to facilitate exports to buyers in countries where official credit guarantees will help to maintain or increase U.S. export sales. The GSM-102 program guarantees repayment of short-term financing (six months to three years) extended to eligible countries that purchase U.S. farm products. The GSM-103 program guarantees repayment of commercial financing up to 10 years to buyers in eligible countries to purchase U.S. farm products. The Supplier Credit Guarantee Program (SCGP) guarantees payment by foreign buyers of U.S. commodities and products that are sold by U.S. suppliers on a short-term deferred payment basis. The duration of the credit is short, generally up to 180 days, although the 2002 farm bill permits guarantees of up to 360 days. The Facility Guarantee Program (FGP) guarantees financing of goods and services exported from the United States to improve or establish agriculture-related facilities in emerging markets that will improve the handling, marketing, storage, or distribution of imported U.S. agricultural commodities and products. The 2002 farm bill authorizes export credit guarantees of $5.5 billion worth of agricultural exports annually through FY2007, while giving FAS the flexibility to determine the allocation between short- and intermediate-term programs. The actual level of guarantees depends on market conditions and the demand for financing by eligible countries. In FY2006, financing for $1.4 billion of U.S. agricultural exports was guaranteed under the program ( Table 1 ). Export credit guarantee programs have become an issue in WTO dispute settlement as a result of a dispute raised by Brazil against certain aspects of the U.S. cotton program. The WTO dispute panel in the cotton case ruled in 2005 that three U.S. export credit guarantee programs (GSM-102, GSM-103, and SCGP) were prohibited subsidies because the financial benefits returned to the government by these programs did not cover their long-run operating costs. This ruling by the dispute settlement panel applied not only to cotton but to other commodities as well. The panel recommended that the United States take steps to remove the adverse effects of these subsidies or to withdraw them entirely. The Administration suspended operation of GSM-103 in 2006 and asked Congress to repeal the legislative authorization for the program and make other changes in the President's FY2007 and FY2008 budget requests. The effectiveness of the credit guarantee programs also has been an issue. The Office of Management and Budget (OMB) reviewed the programs and found that export credit guarantees were only moderately effective in meeting program goals. OMB noted also that there were substantial defaults, particularly in the SGCP program, a situation that led USDA to suspend operations of SCGP in 2006. The Administration, in its farm bill trade proposals, recommended changes in CCC export credit guarantee programs that would bring them into compliance with the findings of the WTO dispute resolution panel in the Brazil cotton case. To accomplish this, the Administration asked Congress to remove the 1% cap on fees that can be collected under the Short-Term Credit Guarantee Program (GSM-102) and to eliminate specific legislative authority for the Intermediate Export Credit Guarantee Program (GSM-103) and the SGCP. USDA also proposed repeal of the SGCP because of approximately $227 million in defaults and evidence of fraudulent activity. The Administration proposed to change the Facility Guarantee Program (FGP) to attract users who commit to purchasing U.S. agricultural products. No FGP funds have been allocated under the current farm bill. Both versions of the f arm bill make the changes in USDA's export credit guarantee programs recommended by the Administration: repeal of GSM-103 and the SGCP and removal of the 1% cap on origination fees for GSM guarantees. The GSM-102 program is extended through FY2012. The current farm bill authorizes direct export subsidies of agricultural products through the Export Enhancement Program (EEP) and the Dairy Export Incentive Program (DEIP). The last year of substantial EEP activity was 1995, and there has been no EEP spending under the current farm bill. DEIP spending, which has varied considerably, averaged $18 million per year under the 2002 farm bill ( Table 2 ). EEP was established in 1985, first by the Secretary of Agriculture under authority granted in the Commodity Credit Corporation Charter Act, and then under the Food Security Act of 1985 ( P.L. 99-198 ). EEP's main stated rationale, at its inception, was to combat "unfair" trading practices of competitors (other subsidizing countries such as the European Union) in world agricultural markets. The General Sales Manager administers EEP. Most EEP subsidies have been used to assist sales of wheat. Many exporters have received subsidies, but from 1985 to 1995, three exporting firms received almost half the total of all EEP subsidies, which totaled more than $7 billion. The United States agreed to reduce its agricultural export subsidies under the 1994 WTO Uruguay Round Agreement on Agriculture and, in ongoing multilateral trade negotiations, advocates that all agricultural export subsidies be eliminated. DEIP, most recently reauthorized in the commodity program title, not the trade title, of the 2002 farm bill, was established under the 1985 farm act to assist exports of U.S. dairy products. Its purpose was to counter the adverse effects of foreign dairy export subsidies, primarily those of the European Union. WTO export subsidy reduction commitments apply also to DEIP. EEP has been controversial since its inception. Many oppose the program outright on grounds of economic efficiency. EEP, they argue, like all export subsidies, interferes with the operations of markets and distorts trade. Others, noting that the Uruguay Round Agreement on Agriculture restricts but does not prohibit agricultural export subsidies, point out that as long as competitors, such as the European Union, use export subsidies, the United States should also be prepared to use them. The effectiveness of EEP also has been an issue. Several studies of the use of EEP found that wheat exports would have declined if EEP were eliminated, suggesting that the EEP program increased wheat exports. Other analysts, however, found that subsidizing wheat exports under EEP resulted in displacing exports of unsubsidized grains. While many oppose subsidizing dairy products for reasons similar to those held by EEP opponents, DEIP has strong support in Congress. OMB also has evaluated the effectiveness of EEP and DEIP. OMB found that the export subsidy programs were only moderately effective in meeting program goals of countering export subsidies or unfair trade practices of other countries. In OMB's judgment, the export subsidy programs have not been able to demonstrate an ability to permanently expand exports or build U.S. market share in targeted countries. The agency does note that DEIP was successful in offsetting EU export subsidies for dairy products to Mexico, which permitted the United States to develop and maintain a market for dairy product exports to that country. The Administration proposed the repeal of EEP because, it argued, EEP is not a useful tool for U.S. agricultural exports, it has been inactive for many years, and eliminating it would not materially affect U.S. agricultural exports. The Administration notes also that using EEP would be inconsistent with the U.S. goal of eliminating export subsidies in the WTO Doha Round of multilateral trade negotiations. The Administration made no proposals for either eliminating or reauthorizing DEIP, however. The Senate version of the farm bill calls for the repeal of EEP, while the House bill extends authority for EEP through FY2012. Both the Senate and House farm bills also extend the authorization for DEIP in Title I, the commodity title, through FY2012. The 2002 farm bill authorizes mandatory funding for four programs to promote U.S. agricultural products in overseas markets: the Market Access Program (MAP), the Foreign Market Development Program (FMDP), the Emerging Markets Program (EMP), and the Technical Assistance for Specialty Crops Program (TASC). (See Table 3 for spending activity for export market development under the 2002 farm bill.) MAP promotes primarily value-added products. The types of activities undertaken through MAP are advertising and other consumer promotions, market research, technical assistance, and trade servicing. Nonprofit industry organizations and private firms are eligible to participate in MAP promotions on a cost-share basis. No foreign for-profit company may receive MAP funds for the promotion of a foreign-made product. About 60% of MAP funds typically support generic promotion (i.e., non-brand name commodities or products), and about 40% support brand-name promotion (i.e., a specific company product). Only firms classified as small businesses by the Small Business Administration may receive direct MAP assistance for branded promotions. MAP is exempt from WTO export subsidy reduction commitments. The 2002 farm bill authorizes MAP through FY2007. The funding level for the program (previously capped at $90 million annually) gradually increases to $200 million for FY2006 and FY2007. The 2002 farm bill also reauthorizes CCC funding for FMDP through FY2007 at an annual level of $34.5 million. The program, which began in 1955, is similar to MAP in most major respects. Its purpose is to promote U.S. agricultural exports by undertaking activities such as consumer promotions, technical assistance, trade servicing, and market research. In contrast to MAP, FMDP mainly promotes generic or bulk commodities. As with MAP, projects under FMDP are jointly funded by the government and industry groups, and the government reimburses the industry organization for its part of the cost after the project is finished. Like MAP, FMDP is exempt from WTO export subsidy reduction commitments. EMP provides funding for technical assistance activities intended to promote exports of U.S. agricultural commodities and products to emerging markets in all geographic regions, consistent with U.S. foreign policy. An emerging market is defined in the authorizing legislation as any country that is taking steps toward a market-oriented economy through food, agricultural, or rural business sectors of the economy of the country. Additionally, an emerging market country must have the potential to provide a viable and significant market for U.S. agricultural commodities or products. Eligible countries must have per capita incomes of less than $10,065 in 2005-2006 and a population greater than 1 million. Funding for the EMP is set at $10 million each fiscal year through FY2007 in the 2002 farm bill. TASC aims to assist U.S. organizations by providing funds for projects that address sanitary, phytosanitary (SPS), and technical barriers that prohibit or threaten U.S. specialty crop exporters. The 2002 farm bill defines specialty crops as all cultivated plants, and the products thereof, produced in the United States, except wheat, feed grains, oilseeds, cotton, rice, peanuts, sugar, and tobacco. The types of activities covered include seminars and workshops, study tours, field surveys, pest and disease research, and pre-clearance programs. The 2002 farm bill authorizes $2 million of CCC funds each fiscal year through FY2007 for the TASC program. A basic issue raised by MAP and FMDP, and in some cases all the export programs, is whether the federal government should have an active role in helping agricultural producers and agribusinesses market their products overseas. Some argue that MAP and FMDP are forms of corporate welfare in that they fund activities that private firms would and could fund for themselves. Others argue that the principal beneficiaries are foreign consumers and that funds could be better spent, for example, to educate U.S. firms on how to export. Program supporters counter that foreign competitors, especially EU member countries, also spend money on market promotion, and that U.S. marketing programs help keep U.S. products competitive in third-country markets. OMB's reviews of the effectiveness of the market development efforts determined that the programs were moderately effective, but that the programs did not necessarily serve a clear need. Many of the groups that receive market development funds, it reported, receive at least some corporate funding and could afford to support their own export promotion efforts. OMB did note that the TASC program has helped to reduce barriers to U.S. agricultural exports, citing the example of TASC-funded efforts to open Taiwan's apple market to U.S. apples. The Administration proposed an increase in mandatory funding for MAP by $250 million over 10 years. The additional funds would be used to address perceived inequities between farm bill program crops (grains, oilseeds, and cotton) and non-program crops (especially specialty crops). Organic agriculture would be allowed to compete for MAP funding to help develop the export of organic products. In addition, the Administration proposed to increase mandatory funding for TASC to $68 million over 10 years and to increase the maximum allowable project award to $500,000. To address SPS issues generally, the Administration called for the establishment of a new grant program of $20 million over 10 years to further focus resources on international SPS barriers for all agricultural commodities. To enhance USDA participation in international standard-setting bodies, such as the Codex Alimentarius, the International Plant Protection Convention, and the World Animal Health Organization, the Administration requested the authorization of long-term mandatory funding of $15 million over 10 years. Both the Senate bill and the House bill reauthorize USDA's agricultural export promotion programs through FY2012. The Senate bill increases MAP funding by $100 million over the five fiscal years FY2008-FY2012, while the House bill increases MAP funding by $125 million. Both bills specifically authorize MAP to promote exports of organically produced commodities. The House bill authorizes CCC funding for FMDP through FY2012 with no change in the funding levels authorized in the 2002 farm bill (i.e., $34.5 million). The Senate bill reauthorizes FMDP through FY2012 but increases its funding by $22 million over five fiscal years. H.R. 2419 also increases funding for TASC, which the 2002 farm bill authorizes at $2 million of CCC funds per fiscal year. Total funding for TASC in H.R. 2419 over five years would amount to $38 million. The Senate bill provides a total of $29.2 million for TASC over five years. Both bills authorize discretionary appropriations ("such sums as necessary") to assist limited resource persons and organizations associated with agricultural trade to address unfair trade practice of foreign countries and to reduce trade barriers. Included among trade title proposals from the Administration, this measure would help smaller groups and industries who want to challenge trade practices of other countries but lack the technical and analytical expertise to successfully mount a challenge. The House-passed bill also authorizes discretionary appropriations to enhance U.S. participation in international standard-setting organizations, such as the Codex Alimentarius Commission or the World Organization for Animal Health. The intent of this measure, also proposed by the Administration, is to help bring U.S. interests to bear in standard-setting organizations when sanitary, phytosanitary, or technical trade are on the agenda.

On December 14, 2007, the Senate passed its version of the 2007 farm bill. The House of Representatives passed its version of the 2007 farm bill (H.R. 2419) on July 27, 2007. Both bills, which would establish U.S. farm policy for 2008 through 2012, contain a trade title (Title III) that authorizes and amends U.S. Department of Agriculture (USDA) agricultural export programs and U.S. international food aid programs. This report assesses 2007 farm bill trade title provisions for U.S. agricultural export programs. (See CRS Report RL33553, Agricultural Export and Food Aid Programs, by [author name scrubbed], for additional detail. For an analysis of food aid issues and the farm bill, see CRS Report RL34145, International Food Aid and the 2007 Farm Bill, by [author name scrubbed].) The bills incorporate a number of the recommendations made by the Administration in its farm bill trade proposals, especially changes to USDA's export credit guarantee programs and export market development programs. Both bills modify the export credit guarantee programs to make them compatible with World Trade Organization (WTO) rules limiting export subsidies. Both bills also provide increased funding for export market promotion and for addressing sanitary and phytosanitary (food safety) barriers to U.S. agricultural exports. The bills also reflect provisions of farm legislation introduced earlier in the 110th Congress, notably legislation introduced by Members representing the interests of fruit, vegetable, and tree nut (specialty crop) producers to increase federal support for their production and marketing activities, including export market promotion. U.S. agricultural exports for FY2008 are forecast by USDA to be a record high $91 billion, while imports will reach $75.5 billion, also a record. If this forecast holds, the U.S. agricultural trade balance in FY2008 would be $15.5 billion. Many variables interact to determine the level of U.S. agricultural exports--income, population growth, and tastes and preferences in foreign markets; U.S. and foreign supply and prices; foreign import barriers and exchange rates; and domestic farm policy and trade agreements. While many of these factors are beyond the scope of congressional action, farm bills have typically included programs that help to finance, subsidize, and promote U.S. commercial agricultural exports, or to address foreign trade barriers.

Recent high-profile military-related cases involving sexual assaults by U.S. servicemembers have resulted in increased public and congressional interest in military discipline and the military justice system. Questions have been raised regarding how allegations of sexual assault are addressed by the chain of command, the authority and process to convene a court-martial, and the ability of the convening authority to provide clemency to a servicemember convicted of an offense. Additionally, some military-related cases, including those of Major Nidal Hasan, the alleged shooter at Fort Hood, and Private first class Bradley Manning, the alleged source of leaked classified material through the organization WikiLeaks, have raised questions regarding the mental capacity of the accused and how the military justice system addresses this concern. The U.S. Constitution imposes on the government a system of restraints to provide that no unfair law is enforced and that no law is enforced unfairly. What is fundamentally fair in a given situation depends in part on the objectives of a given system of law weighed alongside the possible infringement of individual liberties that the system might impose. In the criminal law system, some basic objectives are to discover the truth, punish the guilty proportionately with their crimes, acquit the innocent without unnecessary delay or expense, and prevent and deter further crime, thereby providing for the public order. Military justice shares these objectives in part, but also serves to enhance discipline throughout the Armed Forces, serving the overall objective of providing an effective national defense. The Fifth Amendment to the Constitution provides that "no person shall be ... deprived of life, liberty, or property, without due process of law." Due process includes the opportunity to be heard whenever the government places any of these fundamental liberties at stake. The Constitution contains other explicit rights applicable to various stages of a criminal prosecution. Criminal proceedings provide both the opportunity to contest guilt and to challenge the government's conduct that may have violated the rights of the accused. The system of procedural rules used to conduct a criminal hearing, therefore, serves as a safeguard against violations of constitutional rights that take place outside the courtroom. The Constitution, in order to provide for the common defense, gives Congress the power to raise, support, and regulate the Armed Forces, but makes the President Commander-in-Chief of the Armed Forces. Article III, which governs the federal judiciary, does not give it any explicit role in the military, and the Supreme Court has taken the view that Congress's power "To make Rules for the Government and Regulation of the land and naval Forces" is entirely separate from Article III. Therefore, courts-martial are not considered to be Article III courts and are not subject to all of the rules that apply in federal courts. Members of the Armed Forces are subjected to rules, orders, proceedings, and consequences different from the rights and obligations of their civilian counterparts. As such, it might be said that discipline is as important as liberty interests in the military justice system. The Constitution specifically exempts military members accused of a crime from the Fifth Amendment right to a grand jury indictment, from which the Supreme Court has inferred there is no right to a civil jury in courts-martial. However, in part because of the different standards provided in courts-martial, their jurisdiction is limited to those persons and offenses the military has a legitimate interest in regulating. Courts-martial jurisdiction extends mainly to servicemembers on active duty, prisoners of war, and persons accompanying the Armed Forces in time of declared war, as well as certain violators of the law of war. Under Article I, Section 8 of the U.S. Constitution, Congress has the power to raise and support armies; provide and maintain a navy; and provide for organizing and disciplining them. Under this authority, Congress has enacted the Uniform Code of Military Justice (UCMJ), which is the code of military criminal laws applicable to all U.S. military members worldwide. The President implemented the UCMJ through the Manual for Courts-Martial (MCM), which was initially prescribed by Executive Order 12473 (April 13, 1984). The MCM contains the Rules for Courts-Martial (RCM), the Military Rules of Evidence (MRE), and the UCMJ. The MCM covers almost all aspects of military law. Military courts are not considered Article III courts but instead are established pursuant to Article I of the Constitution, and as a result are of limited jurisdiction. The UCMJ gives courts-martial jurisdiction over servicemembers as well as several other categories of individuals, including retired members of a regular component of the Armed Forces entitled to pay; retired members of a reserve component who are hospitalized in a military hospital; persons in custody of the military serving a sentence imposed by a court-martial; members of the National Oceanic and Atmospheric Administration and Public Health Service and other organizations, when assigned to serve with the military; enemy prisoners of war in custody of the military; and persons with or accompanying the military in the field during "times of war," limited to declared wars. Jurisdiction of a court-martial does not depend on where the offense was committed; it depends solely on the status of the accused. Courts-martial try "military offenses," which are listed in the punitive articles of the UCMJ and are codified in 10 U.S.C. 877 et seq. Some "military offenses" have a civilian analog, but some are exclusive to the military. The President is authorized to prescribe the punishments which a court-martial may impose within the limits established by Congress. In addition, a servicemember may be tried at a court-martial for offenses not specifically covered through the use of the General Article--UCMJ Article 134, which states that all "crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court martial, according to the nature and degree of the offense." The Armed Forces have used Article 134 to assimilate state and federal offenses for which there is no analogous crime in the UCMJ in order to impose court-martial jurisdiction. The potential punishments for violations generally match those applicable to the corresponding civilian offense. When a servicemember has reportedly committed an offense, the accused's immediate commander will conduct an inquiry. This inquiry may range from an examination of the charges and an investigative report or summary of expected evidence to a more extensive investigation, depending on the offense(s) alleged and the complexity of the case. The investigation may be conducted by members of the command or, in more complex cases, military and civilian law enforcement officials. Once evidence has been gathered and the inquiry is complete, the commander can choose to dispose of the charges by (1) taking no action, (2) initiating administrative action, (3) imposing non-judicial punishment, (4) preferring charges, or (5) forwarding to a higher authority for preferral of charges. The first formal step in a court-martial, preferral of charges, consists of drafting a charge sheet containing the charges and specifications against the accused. The charge sheet must be signed by the accuser under oath before a commissioned officer authorized to administer oaths. Once charges have been preferred they may be referred to one of three types of courts-martial: summary, special, or general. The seriousness of the offenses alleged generally determines the type of court-martial. The court-martial must be convened by an officer with sufficient legal authority, that is, the "convening authority," who will generally be the commander of the unit to which the accused is assigned. Many recent military justice cases have raised the question of the mental capacity of the accused. An individual may not be tried by court-martial if he is suffering from a mental disease or defect such that he is unable to understand the nature of the proceedings or is unable to conduct or cooperate intelligently in the defense. In the event the mental capacity or mental responsibility, or both, of the accused is questioned, an examination may be ordered by the convening authority and/or the military judge. The examination, often referred to as an RCM 706 board, must answer the following four questions: (1) at the time of the alleged criminal conduct, did the accused have a severe mental disease or defect; (2) what is the clinical psychiatric diagnosis; (3) was the accused, at the time of the alleged criminal conduct and as a result of such severe mental disease or defect, unable to appreciate the nature or wrongfulness of his conduct; and (4) is the accused presently suffering from a mental disease or defect to the point that he is unable to understand the nature of the proceedings or to conduct or cooperate intelligently in the defense? The report of the RCM 706 board may lead to the case being suspended, charges being dismissed by the convening authority, administrative separation of the accused from military service, or the charges being tried by court-martial. Although an accused may be found competent to be tried by court-martial, that determination does not prohibit the accused from claiming the defense of lack of mental responsibility. In order to prevail on a defense of lack of mental responsibility, the accused must prove by clear and convincing evidence that at the time of the commission of the acts constituting the offense, as a result of a severe mental disease or defect, he was unable to appreciate the nature and quality or wrongfulness of his acts. Regardless of an initial competency determination, additional examinations may be ordered at any stage of the proceedings if the accused's mental capacity is questioned. The federal judiciary is established by Article III of the Constitution and consists of the Supreme Court and "inferior tribunals" established by Congress. It is a separate and co-equal branch of the federal government, independent of the executive and legislative branches, designed to be insulated from the public passions. Its function is not to make law but to interpret law and decide disputes arising under it. Federal criminal law and procedures are enacted by Congress and housed primarily in Title 18 of the U.S. Code . The Supreme Court promulgates procedural rules for criminal trials at the federal district courts, subject to Congress's approval. These rules, namely the Federal Rules of Criminal Procedure (Fed. R. Crim. P.) and the Federal Rules of Evidence (Fed. R. Evid.), incorporate procedural rights that the Constitution and various statutes demand. Unlike with the federal courts, the Supreme Court does not promulgate procedural rules for military courts-martial. As discussed above, Congress regulates the Armed Forces largely through Title 10 of the U.S. Code . The military courts-martial system is specifically addressed in the Uniform Code of Military Justice (UCMJ), Chapter 47 of Title 10. Article 36 of the UCMJ authorizes the President to prescribe rules for "pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial." Such rules are to "apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts" insofar as the President "considers practicable" but that "may not be contrary to or inconsistent" with the UCMJ. Pursuant to that delegation, the President created the Rules for Courts-Martial (RCM) and the Military Rules of Evidence (MRE). Congress, in creating the military justice system, established three types of courts-martial: (1) summary court-martial, (2) special court-martial, and (3) general court-martial. While the promulgated RCM and the MRE are applicable to all courts-martial, the jurisdiction and authorized punishments vary among the different courts-martial types. The function of the summary court-martial is to "promptly adjudicate minor offenses under a simple procedure" and "thoroughly and impartially inquire into both sides of the matter" ensuring that the "interests of both the Government and the accused are safeguarded and that justice is done." However, special and general courts-martial function to adjudicate more serious offenses with more severe punishments and thus the procedures are more complex. Although a discussion of the RCM and MRE is beyond the scope of this report, the procedures employed in courts-martial are intended to afford servicemembers basic constitutional rights. Appended as Table 1 is an excerpt from CRS Report RL31262, Selected Procedural Safeguards in Federal, Military, and International Courts , by [author name scrubbed], which compares selected constitutionally based trial procedures in federal courts and general courts-martial. The summary court-martial can adjudicate minor offenses allegedly committed by enlisted servicemembers. It can adjudge maximum punishments of 30 days' confinement; hard labor without confinement for 45 days; restriction to specified limits for 45 days; forfeiture of two-thirds' pay per month for one month; and reduction to the lowest pay grade. In the case of enlisted members above pay grade E-4, the summary court-martial may not adjudge confinement or hard labor without confinement and can only reduce them to the next lower pay grade. Summary courts-martial are composed of one commissioned officer who need not be a lawyer. The accused must consent to the proceedings and normally is not entitled to a lawyer. If an accused refuses to consent to a trial by summary court-martial, a trial may be ordered by special or general court-martial as may be appropriate, at the discretion of the convening authority. The special court-martial can try any servicemember for any noncapital offense or, under presidential regulation, capital offenses. Special courts-martial generally try offenses that are considered misdemeanors. A special court-martial can be composed of a military judge alone, not less than three members, or a military judge and not less than three members. Contrary to civilian criminal trials, the agreement of only two-thirds of the members of a court-martial is needed to find the accused guilty. Otherwise, the accused is acquitted. There are no "hung juries" in courts-martial. Regardless of the offenses tried, the maximum punishment allowed at a special court-martial is confinement for one year; hard labor without confinement for up to three months; forfeiture of two-thirds' pay per month for up to one year; reduction in pay grade; and a bad-conduct discharge. The accused is entitled to an appointed military attorney, a military counsel of his or her selection, or he or she can hire a civilian counsel at no expense to the government. A general court-martial is the highest trial level in military law and is usually used for the most serious offenses. It is composed of a military judge sitting alone, or not less than five members and a military judge. It can adjudge, within the limits prescribed for each offense, a wide range of punishments to include confinement; reprimand; forfeitures of up to all pay and allowances; reduction to the lowest enlisted pay grade; punitive discharge (bad conduct discharge, dishonorable discharge, or dismissal); restriction; fines; and, for certain offenses, death. The accused is entitled to an appointed military attorney or a military counsel of his or her selection, or the accused can hire civilian counsel at no expense to the government. Prior to convening a general court-martial, a pretrial investigation must be conducted. This investigation, known as an Article 32 hearing, is meant to ensure that there is a basis for prosecution. An investigating officer, who must be a commissioned officer, presides, and the accused has the same entitlements to counsel as in special courts-martial. However, unlike in a civilian grand jury investigation, where the accused has no access to the proceedings, the accused is afforded the opportunity to examine the evidence presented against him, cross-examine witnesses, and present his own arguments. If the investigation uncovers evidence that the accused has committed an offense not charged, the investigating officer can recommend that new charges be added. Likewise, if the investigating officer believes that evidence is insufficient to support a charge, he can recommend that it be dismissed. Once the Article 32 investigation is complete, the investigating officer makes recommendations to the convening authority (CA) via the CA's legal advisor. The legal advisor, in turn, provides the CA with a formal written recommendation, known as the Article 34, UCMJ advice, as to the disposition of the charges. The CA then determines whether to convene a court-martial or dismiss the charges. Convictions at a general or special court-martial that include a punitive (bad conduct or dishonorable) discharge are subject to an automatic post-trial review by the CA. The process starts with a review of the trial record by the staff judge advocate (SJA), who makes a recommendation to the CA as to what action to take. This review is recognized as the accused's best hope for relief, as the CA has broad powers to act on the case. Upon review of the record of trial and the SJA's recommendation, the CA may, among other remedies, suspend all or part of the sentence, disapprove a finding or conviction, or lower the sentence. The CA may not increase the sentence. Once the CA takes action on the case, the conviction is ripe for an appeal. However, a recent Air Force case has attracted considerable congressional focus on the CA's ability to grant clemency. In the specific case, the CA dismissed the conviction of an Air Force officer who had been tried, convicted, and sentenced to prison at a court-martial for the sexual assault of a civilian. The authority of the CA to modify the findings and sentence of the court-martial is a matter of command prerogative involving the sole discretion of the convening authority. Additionally, action by the CA to disapprove, commute, or suspend a sentence, or to set aside a finding of guilty, is not appealable by the United States. As a matter of command prerogative, the decision by the CA is final upon issuance. All court-martial convictions not reviewable by the service appellate courts are reviewed by a judge advocate to determine if the findings and sentence, as approved by the CA, are correct in law and fact. If those criteria are met, the conviction is final. If not, the judge advocate forwards the case to the officer exercising general court-martial convening authority at the time the court-martial was convened for corrective action. If the CA declines to take corrective action, the case is referred to the Judge Advocate General for review. Convictions by a special or general court-martial are subject to an automatic appeal to a service Court of Criminal Appeals if the sentence includes confinement for one year or more, a bad-conduct or dishonorable discharge, death, or a dismissal in the case of a commissioned officer, cadet, or midshipman. Appeal is mandatory and cannot be waived when the sentence includes death. If the conviction is affirmed by the service court, the appellant may request review by the Court of Appeals for the Armed Forces (CAAF) and ultimately the U.S. Supreme Court. Review by these courts is discretionary. Supreme Court review by writ of certiorari is limited to cases where the CAAF has conducted a review, whether mandatory or discretionary, or has granted a petition for extraordinary relief. The Court does not have jurisdiction to review a denial of discretionary review by the CAAF, nor does it have jurisdiction to consider denials of petitions for extraordinary relief. Servicemembers whose petitions for review or for extraordinary relief are denied by the CAAF may seek additional review only through collateral means, for example, petitioning for habeas corpus to an Article III court, which could provide an alternate avenue for Supreme Court review. The following table cites relevant federal rules and/or court decisions, as well as provisions of the UCMJ and applicable rules, but makes no effort to provide an exhaustive list of all procedural authorities.

Recent high-profile military-related cases involving sexual assaults by U.S. servicemembers have resulted in increased public and congressional interest in military discipline and the military justice system. Questions have been raised regarding how allegations of sexual assault are addressed by the chain of command, the authority and process to convene a court-martial, and the ability of the convening authority to provide clemency to a servicemember convicted of an offense. Additionally, some military-related cases, including those of Major Nidal Hasan, the alleged shooter at Fort Hood, and Private first class Bradley Manning, the alleged source of leaked classified material through the organization WikiLeaks, have raised questions regarding the mental capacity of the accused and how the military justice system addresses this concern. In the criminal law system, some basic objectives are to discover the truth, acquit the innocent without unnecessary delay or expense, punish the guilty proportionately with their crimes, and prevent and deter further crime, thereby providing for the public order. Military justice shares these objectives in part, but also serves to enhance discipline throughout the Armed Forces, serving the overall objective of providing an effective national defense. Under Article I, Section 8 of the U.S. Constitution, Congress has the power to raise and support armies; provide and maintain a navy; and provide for organizing and disciplining them. Under this authority, Congress has enacted the Uniform Code of Military Justice (UCMJ), which is the code of military criminal laws applicable to all U.S. military members worldwide. The President implemented the UCMJ through the Manual for Courts-Martial (MCM). The Manual for Courts-Martial contains the Rules for Courts-Martial (RCM), the Military Rules of Evidence (MRE), and the UCMJ. Members of the Armed Forces are subjected to rules, orders, proceedings, and consequences different from the rights and obligations of their civilian counterparts, and the UCMJ establishes this unique legal framework. The UCMJ authorizes three types of courts-martial: (1) summary court-martial; (2) special court-martial; and (3) general court-martial. Depending on the severity of the alleged offense, the accused's commanding officer enjoys great discretion with respect to the type of court-martial to convene. Generally, each of the courts-martial provides fundamental constitutional and procedural rights to the accused, including, but not limited to, the right to a personal representative or counsel, the opportunity to confront evidence and witnesses, and the right to have a decision reviewed by a lawyer or a court of appeals. The table that concludes this report compares selected procedural safeguards employed in criminal trials in federal criminal court with parallel protective measures in military general courts-martial.

Foreign nationals may be admitted to the United States temporarily or may come to livepermanently. Those admitted on a permanent basis are known as immigrants or legal permanentresidents (LPRs), while those admitted on a temporary basis are known as nonimmigrants. (1) Nonimmigrants include awide range of people, such as tourists, foreign students, diplomats, temporary agricultural workers,exchange visitors, internationally known entertainers, foreign media representatives, businesspersonnel, and crew members on foreign vessels. Most of these nonimmigrant visa categories aredefined in SS101(a)(15) of the Immigration and Nationality Act (INA). These visa categories arecommonly referred to by the letter and numeral that denotes their subsection in SS101(a)(15), forexample, B-2 tourists, E-2 treaty investors, F-1 foreign students, and H-1B temporary professionalworkers. Intracompany transferees who work for an international firm or corporation in executiveand managerial positions or have specialized product knowledge are admitted on the L-1 visas. Their immediate family (spouse and minor children) are admitted on L-2 visas. Congress established the L visa in 1970 largely in response to unintended consequences ofthe Immigration Amendments of 1965 that made multinational corporations unable to transfertop-level personnel to offices in the United States as easily as they had prior to the implementationof the 1965 Immigration Amendments. Because many of the employees that firms sought to bringinto the United States were not intending to stay in the United States and were likely to be transferredabroad in a few years, Congress opted to create a nonimmigrant (i.e., temporary) category for alienswho performed in managerial/executive capacity or who had specialized knowledge. These alienshad to have been employed in that capacity by that firm for at least one year prior to seeking the Lvisa. (2) As part of the Immigration Amendments of 1990, Congress made several changes to the Lvisa category, most notably clarifying that specialized knowledge meant specialized knowledge ofthe firm's product. Congress placed time limits on the L visas, allowing managers and executivesholding L visas to stay for up to seven years and those having specialized product knowledge to stayfor up to five years. Congress also amended the INA to permit aliens with L visas to petition tobecome LPRs, allowing for what is known as "dual intent" in immigration policy. (3) In the 1990 Act, Congressfurther added managers and executives to the priority worker (also known as first preference)category of employment-based LPR admissions, facilitating the adjustment of L nonimmigrants toLPR status. (4) The 107th Congress enacted a change to the INA that reduced the length of time an L-1 wouldhave to work for certain multinational firms abroad from one year to six months prior to transferringto a U.S. location. This legislation also amended the INA to permit the spouses of L-1nonimmigrants (i.e., L-2 nonimmigrants) to work while they are in the United States. (5) During the 108th Congress, Title IV of P.L. 108-447 , the Consolidated Appropriations Actfor FY2005, included a provision that renders ineligible for L visa status those aliens who serve ina capacity involving specialized knowledge at the worksite of an employer other than the petitioningemployer or its affiliate if (1) the alien will be controlled principally by the unaffiliated employer;or (2) the placement with the unaffiliated employer is part of an arrangement merely to provide laborrather than to use the alien's specialized knowledge. It also added a provision that requires theSecretary of Homeland Security to impose a fraud prevention and detection fee of $500 on H-1B(foreign temporary professional workers) and L (intracompany business personnel) petitioners. (6) The number of L visas issued has increased by 363.5% over the past 25 years. The U.S.Department of State (DOS) issued only 26,535 L visas in FY1980. L visa issuances began increasingin the mid-1990s and peaked at 122,981 in FY2005, as Figure 1 depicts. Typically, over half of theL visas issued any given year are L-1 visas to the individual qualifying as an intracompany transfer,and the remainder are immediate family coming on L-2 visas. Of the 122,981 L visas issued inFY2005, a total of 65,458 are L-1 visas for the qualifying (principal) nonimmigrant. Figure 1. Intracompany L Visas Issued, FY1980 to FY2005 The country sending the most intracompany transfers in FY2005 was India, as Figure 2 illustrates. Almost two-thirds (39,849 or 32.4%) of the 122,981 L visas were issued to aliens fromIndia in FY2005. Great Britain (including Northern Ireland) and Japan followed with 12,869 (10.5%)and 11,998 (9.8%) respectively of all L visas issued. Figure 2 depicts the top 10 countries that arethe source country for L nonimmigrants in FY2005, and these 10 countries comprise 74.9% of allL visas issued in FY2005. Canadians coming as intracompany transfers are not required to have Lvisas to enter the United States, according to longstanding agreements with Canada. Data on the number of L nonimmigrants who enter the United States, according to statisticalreports of the Department of Homeland Security (DHS) Office of Immigration Statistics, evidencea growth pattern steeper than the number of visas issued by DOS. The admission of Lnonimmigrants grew sixfold over the past 24 years, from 65,044 in FY1981 to 102,555 in FY1990to 456,583 in FY2004. When the analysis is limited to L-1 visa holders, the number of admissionshas grown from 63,180 in FY1990 to 314,484 in FY2004, an increase of almost 400% in 14 years. These admissions data, however, include multiple entries by the same person over the course of afiscal year. Given the purpose of their visas, L nonimmigrants may travel back and forth from theUnited States more than once a year for business. A comparison of the admission data with the visaissuance data suggest that not only have the number of L visa holders increased, but these L visaholders travel abroad more frequently now than a decade ago. Figure 2. Top Ten Source Countries for L Visas in FY2005 A firm or corporation that seeks to have an L-1 nonimmigrant enter the United States mustfile an I-129 petition with the United States Citizenship and Immigration Services (USCIS) in theDHS, and may file blanket petitions under specified circumstances. (7) Once the employer's petitionis approved, the alien residing abroad applies for a visa with the DOS Bureau of ConsularAffairs. (8) The DOSconsular officer, at the time of application for a visa, as well as the DHS immigration inspectors, atthe time of application for admission, must be satisfied that the alien is entitled to a nonimmigrantstatus. (9) The prospective L nonimmigrant must demonstrate that he or she meets the qualificationsfor the particular job as well as the visa category. The alien must have been employed by the firmfor at least six months in the preceding three years in the capacity for which the transfer is sought. The alien must be employed in an executive capacity, a managerial capacity, or have specializedknowledge of the firm's product to be eligible for the L visa. (10) The INA does not requirefirms who wish to bring L intracompany transfers into the United States to meet any labor markettests (e.g., demonstrate that U.S. employees are not being displaced or that working conditions arenot being lowered) in order to obtain a visa for the transferring employee. (11) For employers to sponsor LPRs who are members of the professions holding advanceddegrees, persons of exceptional ability, skilled workers with at least two years training, professionalswith baccalaureate degrees, and unskilled workers or to hire H nonimmigrants as temporary workers,they must demonstrate that U.S. workers are not adversely affected by the hiring of these foreignworkers. To do so, the employer who seeks to hire a prospective foreign worker petitions with theUSCIS and the Employment and Training Administration (ETA) in Department of Labor(DOL). (12) While working in the United States, L visa holders are generally required to pay federalincome taxes, provided they meet the "substantial presence test" that determines whether the foreignnational is considered a resident alien for tax purposes. (13) Moreover, L visa holders are not exempt from the requirementsto pay Social Security and Medicare (often referred to as FICA) taxes on compensation from workwithin the United States. (14) Tax treaties, however, may override the resident alien tax rulesin limited instances, especially with respect to double taxation of earnings. If a nonimmigrant isdefined as a resident of a foreign country under a tax treaty, then he or she is a nonresident alienregardless of whether the substantial presence test is met. (15) Some are arguing that foreign managers and specialized personnel should not be brought intothe United States if there are qualified U.S. managers and specialized personnel currently in thatposition or in that local labor market. Some of those advocating reform maintain that L-1 visasshould be limited to only top-level executives of multinational firms and that mid-level managersand specialized personnel should be admitted only after a determination that comparable U.S.personnel are not adversely affected. Some argue that the L-1 visa currently gives multinationalfirms an unfair advantage over U.S.-owned businesses by enabling multinational corporations tobring in lower-cost foreign personnel. Supporters of current law argue that it is essential for multinational firms to be able to assigntop personnel to facilities in the United States on an "as needed basis" and that it iscounterproductive to have government bureaucrats delay these transfers to perform labor markettests. They warn these multinational firms will find it too burdensome and unprofitable to dobusiness in the United States. Some point out that U.S. corporations who do business abroad mightwell lose the reciprocal benefit of transferring top U.S. personnel overseas if restrictions are addedto the L visa. There have been a series of media reports that firms are opting to bring in foreignprofessional workers on L-1 visas rather than the H-1B visa for professional specialty workers. (16) Critics cite the law onH-1B visas in which employers seeking to hire H-1B nonimmigrants must attest to the DOL that theyare paying the foreign workers the same wages as similarly employed U.S. workers and that havenot laid off U.S. workers 90 days before or after hiring the H-1B. (17) Some are asserting thatcertain employers are "end running" the labor attestation requirements of the H-1B visa byexaggerating the specialized product knowledge of their professional workers so that they qualifyfor an L visa and that some firms are bringing in L-1 nonimmigrants expressly to "outsource" themto other firms. Advocates of reforming current law warn that the L visa is replacing the H-1B visafor information technology positions and that L admissions will soar in numbers because H-1Badmissions are numerically limited. (18) Supporters of current law assert that intracompany transfers are essential personnel that donot need to be subjected to the labor market tests designed for foreign workers filling "rank and file"positions. They maintain that corporate flexibility and control on issues of staffing top-levelmanagement are essential to success. They warn that labor attestation for L visas would make itmore costly and time-consuming to do business in the United States, reducing investment in theUnited States and ultimately resulting in multinational firms moving jobs off shore. Some observethat L-1 employees do not technically constitute new hires who could displace U.S. workers; theymaintain instead that the L-1 employee is being transferred temporarily within the firm to add valueor provide expertise based on their international experience with the firm. (19) Critics of current law on L visas are concerned that free trade agreements retain the currentlanguage on L visas and would bar the United States from statutory changes to L visas as well asother temporary business and worker nonimmigrant categories. For example, the U.S.-SingaporeFree Trade Agreement states that the United States shall not require labor certification or othersimilar procedures as a condition of entry and shall not impose any numerical limits on intracompanytransfers from Singapore. (20) Similar language is also in the U.S.-Chile Free TradeAgreement. (21) Proponents of these trade agreements point out that they are merely reflecting current law andpolicy and that such agreements on the flow of business people and workers are essential to U.S.economic growth and business vitality. The House passed H.R. 2738 and H.R. 2739 , legislation that respectively would implement the Chile and SingaporeFTAs, on July 24, 2003. The Senate followed, passing the implementing language for both FTAson July 31, 2003. The North American Free Trade Agreement (NAFTA) has immigration provisionsconcerning intracompany transferees similar to the Chile and Singapore FTAs. NAFTA requires thethree signatory countries -- Canada, Mexico, and the United States -- to grant temporary entry tobusiness persons employed by a foreign enterprise who seek to render services to that enterprise orits affiliate or subsidiary, in a capacity that is managerial, executive or that involves specialknowledge. These intracompany transferees must have worked continuously for one year out of thepast three in a foreign country for the same firm that they are seeking to serve in the United States. No party to NAFTA may impose numerical limits or labor market tests as a condition of entry forintracompany transferees. (22) Negotiators for the Uruguay Round Agreements of the General Agreement on Trade andTariffs (GATT), completed in 1994 and known as the General Agreement on Trade in Services(GATS), included very specific language on "intra-corporate transfers." (23) This language is similarbut not identical to the definitions of intracompany transferee found in the regulations governing theL visa. (24) Given the issues being raised about the L visa, some are concerned that these tradeagreements constrain Congress as it considers revisions of immigration law and policy on the L visa. Since the GATS and FTAs provide specific definitions of intracompany transferees, prohibit laborcertification or similar labor condition tests for intracompany transferees, and prohibit numericallimits on intracompany transferees, some of the options being considered in legislation discussedbelow, if enacted, may violate GATS or the FTAs. (25) The DHS Office of the Inspector General (OIG) examined the potential vulnerabilities andabuses in the L-1 visa at the request of Congress. (26) The DHS OIG issued a report in January 2006 that reached thefollowing conclusions about the L visa: The visa allows for the transfer of managers and executives, but adjudicatorsoften find it difficult to be confident that a firm truly intends to use an imported worker in such acapacity. The visa allows for the transfer of workers with "specialized knowledge," butthe term is so broadly defined that adjudicators believe they have little choice but to approve almostall petitions. The transfer of L-1 workers requires that the petitioning firm is doing businessabroad, but adjudicators in the United States have little ability to evaluate the substantiality of theforeign operation. The visa encompasses petitioners who do not yet have, but are merely in theprocess of establishing, their first U.S. office. The visa permits petitioners to transfer themselves to the UnitedStates. The DHS OIG also found that "though the L-1 visa program is not specifically tailored for thecomputer or information technology (IT) industries, the positions L-1 applicants are filling are mostoften related to computers and IT. From 1999 to 2004, nine of the ten firms that petitioned for themost L-1 workers were computer and IT related outsourcing service firms that specialize in laborfrom India." (27) In this 2006 report, the DHS OIG made three recommendations: (1) establish a procedure toobtain overseas verification of pending H and L petitions; (2) explore whether ICE Visa SecurityOfficers abroad could assist in checking L petitions in the countries where the ICE officers areassigned; and (3) seek legislative clarification on the concepts of manager and executive and the term"specialized knowledge." (28) On May 19, 2003, Representative John Mica introduced H.R. 2154 , whichwould have amended the INA to prevent an employer from placing a nonimmigrant who is anintracompany transfer with another firm. H.R. 2154 would have required the employer tofile with DOL an application stating that the employer will not place the L-1 nonimmigrant withanother firm where the nonimmigrant performs duties (in whole or in part) at one or more work sitesowned, operated, or controlled by the other firm. H.R. 2154 is aimed at prohibiting theoutsourcing of L-1 visa holders. Representative Rosa DeLauro introduced the L-1 Nonimmigrant Reform Act( H.R. 2702 ) on July 10, 2003, which would have amended the INA to require employersof L-1 visa holders to submit labor condition applications attesting that the employer is offeringcomparable wages, that the conditions of other workers will not be adversely affected, that there isno strike or lockout, and that U.S. workers were not laid off 180 days prior and would not be laid off180 days after the hiring of the L visa holder. H.R. 2702 also would have prohibited theemployer from outsourcing, leasing, or otherwise contracting for the placement of the L visa holderwith another firm. The bill further would have given DOL authority to investigate complaints madeagainst a firm hiring L visa holders, and would establish fines and penalties for violators. Many ofthese attestation requirements were comparable to the requirements for the H-1B visa. On July 24, 2003, Senator Christopher Dodd and Representative Nancy Johnson introducedthe USA Jobs Protection Act of 2003 ( S. 1452 / H.R. 2849 ), which wouldhave made several changes to current law on L visas. Foremost, S. 1452/H.R.2849 would have added labor attestation requirements to the L visa, would have hadlay-off protections for U.S. workers employed by firms using L visas, would have restricted theoutsourcing of L-1 visa holders to other firms, would have given DOL authority to investigatecomplaints, and would have authorized DOL to assess a fee to process the application. Morespecifically, S. 1452/H.R. 2849 would also have required -- only in the case ofthe specialized knowledge provision of the L-1 visa -- that the employer, prior to filing the petition,file with DOL an application stating that the employer has taken good faith steps to recruit (usingprocedures that meet industry-wide standards) U.S. workers for the jobs for which the L-1nonimmigrants are sought. Among other provisions, S. 1452/H.R. 2849 wouldhave reduced by two years the total time an L visa holder could remain in the United States. S.1452/H.R. 2849 also would have revised the law on H-1B visas. Senator Saxby Chambliss, then-chair of the Senate Judiciary Subcommittee on Immigration,Border Security, and Citizenship, introduced legislation entitled the L-1 Visa (IntracompanyTransferee) Reform Act of 2003 ( S. 1635 ), on September 17, 2003. This bill wouldhave amended the INA so that L-1 visa holders entering through the specialized knowledge provisionmust be controlled and supervised by petitioning employer, or its affiliate, subsidiary or parentcompany. It also would have made the placement of a prospective L-1 nonimmigrant enteringthrough the specialized knowledge provision ineligible for the visa if the placement of the alien ata work site that was unaffiliated with the petitioning employers was merely to provide labor for thatunaffiliated employer. S. 1635 would have reinstated the one-year period of continuousemployment abroad that had been reduced to six months by P.L. 107-125 . The Save American Jobs Through L Visa Reform Act of 2004 ( H.R. 4415 )would have eliminated "specialized knowledge" as a basis for obtaining an L (intracompanytransferee) nonimmigrant visa and would have imposed an annual numerical limitation of 35,000on the number of L visas that may be issued to principal aliens. As introduced by RepresentativeHenry Hyde, H.R. 4415 also would have removed L nonimmigrants from those classes ofaliens that are not presumed to be immigrants under SS214(b). Representative Lamar Smith introduced H.R. 4166 , the American WorkforceImprovement and Jobs Protection Act, which would have required the Secretary of HomelandSecurity to impose a fraud prevention and detection fee on H-1B or L (intracompany businesspersonnel) petitioners for use in combating fraud and carrying out labor attestation enforcementactivities. It also would have rendered ineligible for L visa status those aliens who serve in a capacityinvolving specialized knowledge at the worksite of an employer other than the petitioning employeror its affiliate if (1) the alien will be controlled principally by the unaffiliated employer; or (2) theplacement with the unaffiliated employer is part of an arrangement merely to provide labor ratherthan to use the alien's specialized knowledge. Additionally, it would have eliminated the currentreduction in the continuous employment requirement for aliens seeking L visa status pursuant to anemployer's blanket petition. H.R. 4166 was introduced on April 2, 2004. On July 29, 2003, the Senate Committee on the Judiciary Subcommittee on Immigration helda hearing titled "The L1 Visa and American Interests in the 21st Century Global Economy." (29) The House Committee onInternational Relations held a hearing on "L Visas: Losing Jobs Through Laissez-Faire Policies?"on February 4, 2004. (30) L Visa Reform and Fraud Prevention. Provisionsof H.R. 4166 were incorporated into Title IV of P.L. 108-447 , the ConsolidatedAppropriations Act for FY2005. Specifically, it states that an alien is ineligible for an L visa if (i) the alien will be controlled and supervised principally by such unaffiliated employer; or (ii) the placement of the alien at the worksite of the unaffiliatedemployer is essentially an arrangement to provide labor for hire for the unaffiliated employer, ratherthan a placement in connection with the provision of a product or service for which specializedknowledge specific to the petitioning employer is necessary. (31) The act also requires the Secretary of Homeland Security to impose a fraud prevention anddetection fee of $500 on H-1B (foreign temporary professional workers) and L (intracompanybusiness personnel) petitioners. The act requires that the H-1B and L fraud prevention and detectionfee be divided equally among DHS, the DOS and DOL for use in combating fraud in H-1B and Lvisa applications with DOS, investigating H-1B and L petitions with USCIS, and carrying out DOLlabor attestation activities. (32) L Visa Reform. The Comprehensive ImmigrationReform Act ( S. 2611 / S. 2612 ) includes a substantial revision of the lawon L visas. Most importantly, SS411 of S. 2611/S. 2612 would add certainrequirements for L visa applicants seeking to come to the United States to work in new or unopenedfacilities and would expand the staffing resources of DHS, DOS, and DOL to investigate abuses andenforce violations of the L visa. The identical language was introduced by Senator Specter (S.2611) and Senator Hagel (S. 2612) and is expected to be debated on the Senatefloor before the Memorial Day recess. (33) Representative Nancy Johnson has introduced the USA Jobs Protection Act of 2005( H.R. 3322 ), which would do the following: add labor attestation requirements to theL visa, enact lay-off protections for U.S. workers employed by firms using L visas, restrict theoutsourcing of L-1 visa holders to other firms, give DOL authority to investigate complaints, andauthorize DOL to assess a fee to process the application. More specifically, H.R. 3322would require -- only in the case of the specialized knowledge provision of the L-1 visa -- that theemployer, prior to filing the petition, file with DOL an application stating that the employer hastaken good faith steps to recruit (using procedures that meet industry-wide standards) U.S. workersfor the jobs for which the L-1 nonimmigrants are sought. Representative Rosa DeLauro has introduced the L-1 Nonimmigrant Reform Act( H.R. 3381 ), which would amend the INA to require employers of L-1 visa holders tosubmit labor condition applications attesting that the employer is offering comparable wages, thatthe conditions of other workers will not be adversely affected, that there is no strike or lockout, andthat U.S. workers were not laid off 180 days prior and would not be laid off 180 days after the hiringof the L visa holder. H.R. 3381 also would prohibit the employer from outsourcing,leasing, or otherwise contracting for the placement of the L visa holder with another firm. The billfurther would give DOL authority to investigate complaints made against a firm hiring L visaholders, and would establish fines and penalties for violators. Additionally, H.R. 3381would establish an annual 35,000 L-1 visa limit, eliminate L-1 blanket visa authority, and require(1) an L-1 worker to have a bachelor's degree or higher in his or her area of special knowledge; and(2) verification by the Secretary of State. L Visa Fees. The House Committee on theJudiciary Chairman James Sensenbrenner has introduced H.R. 3648 , which wouldimpose additional fees with respect to immigration services for L visa intracompany transferees. More specifically, H.R. 3648 would require the Secretaries of State and Homeland Securityto each charge additional fees of $1,500 to employers filing for visa applications and nonimmigrantpetitions for L visas. The House Committee on the Judiciary ordered H.R. 3648 reportedon September 29, 2005. These provisions were included in Title V of H.R. 4241 , theDeficit Reduction Act of 2005, which the House passed on November 18, 2005. On October 20, 2005, the Senate Committee on the Judiciary approved compromise languagethat would raise the minimum fee for L-1 visas by $750, to a total of $1,440. This language wasforwarded to the Senate Budget Committee for inclusion in the budget reconciliation legislation. On November 18, 2005, the Senate passed S. 1932 , the Deficit Reduction OmnibusReconciliation Act of 2005, with these provisions as Title VIII. The conference report ( H.Rept. 109-362 ) on S. 1932 , which was renamed theDeficit Reduction Act of 2005, was reported on December 19 (during the legislative day ofDecember 18). It did not include the Senate provisions that would recapture H-1B visas unused inprior years. On December 19, the House agreed to the conference report by a vote of 212-206. OnDecember 21, the Senate removed extraneous matter from the legislation pursuant to a point of orderraised under the "Byrd rule," and then, by a vote of 51-50 (with Vice President Cheney breaking atie vote), returned the amended measure to the House for further action.

Concerns are growing that the visa category that allows executives and managers ofmultinational corporations to work temporarily in the United States is being misused. This visacategory, commonly referred to as the L visa, permits multinational firms to transfer top-levelpersonnel to their locations in the United States for five to seven years. The number of L visasissued has increased by 363.5% over the past 25 years. The U.S. Department of State (DOS) issuedonly 26,535 L visas in FY1980. L visa issuances began increasing in the mid-1990s and peaked at122,981 in FY2005. Some are now charging that firms are using the L visa to transfer "rank and file" professionalemployees rather than limiting these transfers to top-level personnel, thus circumventing immigrationlaws aimed at protecting U.S. employees from the potential adverse employment effects associatedwith an increase in the number of foreign workers. Proponents of current law maintain that anyrestrictions on L visas would prompt many multinational firms to leave the United States, as wellas undermine reciprocal agreements that currently permit U.S. corporations to transfer theiremployees abroad. Title IV of P.L. 108-447 , the Consolidated Appropriations Act for FY2005, renders ineligiblefor L visa status those aliens who serve in a capacity involving specialized knowledge at the worksiteof an employer other than the petitioning employer or its affiliate if (1) the alien will be controlledprincipally by the unaffiliated employer; or (2) the placement with the unaffiliated employer is partof an arrangement merely to provide labor rather than to use the alien's specialized knowledge. Italso requires the Secretary of Homeland Security to impose a fraud prevention and detection fee of$500 on H-1B (foreign temporary professional workers) and L (intracompany business personnel)petitioners. In the 109th Congress, the Comprehensive Immigration Reform Act ( S. 2611 / S. 2612 ) would add certain requirements for L visa applicants seeking to cometo the United States to work in new or unopened facilities and would expand the staffing resourcesof DHS, DOS, and DOL to investigate abuses and enforce violations of the L visa. Other bills thatwould reform the L visa include H.R. 3322 and H.R. 3381 . Earlier, the House Committee on the Judiciary reported H.R. 3648 , which wouldimpose additional fees with respect to immigration services for L visa intracompany transferees. Thebill would require the Secretaries of State and Homeland Security to each charge fees of $1,500 toemployers filing certain visa applications and nonimmigrant petitions for L visas. These provisionswere included in Title V of H.R. 4241 , the Deficit Reduction Act of 2005, which theHouse passed on November 18, 2005. The Senate version ( S. 1932 ) would raise theminimum fee for L-1 visas by $750. The conference report on S. 1932 did not includethese L visa provisions. This report tracks legislative activity and will be updated as action warrants.

Congress is currently questioning whether existing policies are leading to the expanded use of domestic advanced biofuels--including algae-based biofuels (ABB), among other options. In the Energy Independence and Security Act of 2007 (EISA, P.L. 110-140 ), Congress expanded the Renewable Fuel Standard (RFS2) by mandating that increasing volumes of renewable biofuels be used in the nation's transportation fuel supply. The RFS2 identified four specific biofuel categories and established time-specific mandates for quantities of fuels, the fastest-growing and largest of which is the cellulosic biofuels category. Algae is not identified as a cellulosic biofuel feedstock type to meet the RFS2. According to RFS compliance data monitored by the U.S. Environmental Protection Agency (EPA), a steady production of small amounts of cellulosic biofuel began in mid-2013. As a result of the small amounts produced, EPA was compelled to lower the cellulosic biofuel mandate for the fourth successive year and has proposed to do so for a fifth year in 2014. Moreover, the long-term certainty of the tax incentives for which ABB is eligible is debatable. There is considerable concern about how the U.S. cellulosic biofuels industry will develop to meet the mandates in the absence of federal support and which, if any, other types of biomass could be used as a primary feedstock to meet the mandate. Thus far, legislation pertaining to algae-based biofuels has not been introduced in the 113 th Congress. Congress held hearings and Members introduced legislation during the 112 th Congress that supported the use of multiple biomass feedstocks as energy sources to meet transportation needs. Of particular interest are feedstocks that are sustainable and domestic in origin, could spur job creation, and would have few adverse environmental impacts. Some argue that algae--generally defined as simple photosynthetic organisms that live in water--is one biomass feedstock that could meet these criteria. Algae can be used to produce a variety of biofuels, but most production to date has focused on biodiesel and jet fuel, and it is unclear whether production of other biofuels would be feasible given resource requirements and other concerns. If successfully commercialized, ABB would have potential advantages and disadvantages compared to other biofuels. Among its advantages, algae has higher biomass yields per acre of cultivation than other feedstocks, leading to larger oil yields. It also may use water that is undesirable for other uses (e.g., wastewater or saline sources). In addition, ABB production could potentially use carbon dioxide from the flue gas of stationary sources (e.g., power plants), if ABB facilities are co-located with such facilities. Some ABB drawbacks concern the cost of running a commercial-scale facility, the volume and availability of resource inputs (e.g., water, land, and nutrients), the immaturity of technology to convert algae into biofuels, and the sensitivity of algae to minor changes in its environment. Substantial ABB research and development (R&D) has taken place since the 1950s, but for various reasons ABB has yet to gain a foothold in the transportation fuel market. The main reason is that ABB is not currently economical to produce at commercial scale. Also, it is not a major component of energy and agricultural statutes; as a result there is likely more inherent investment risk. The relevance of ABB to the U.S. transportation sector could potentially rise if technological advances are achieved, if oil prices rise, if certain fuels (e.g., cellulosic biofuels) prove incapable of meeting annual RFS2 mandates, or as federal agencies and corporations announce ventures involving ABB for both vehicle and aircraft use. This report discusses the status of ABB research and development, federal funding, and legislative concerns. While this report focuses on the use of algae as a biomass feedstock for transportation fuel, there are other applications for algae (e.g., nutraceuticals, cosmetics). However, congressional and public interest are currently focused on algae use for transportation. Many ABB discussions involve its limited eligibility for the RFS2--a mandate requiring that the national fuel supply contain a minimum amount of fuel produced from renewable biomass--compared to other biomass feedstocks. Although ABB is eligible to participate in the RFS2, it does not qualify as an eligible feedstock under the cellulosic biofuel subcategory because it is not defined as cellulosic in the RFS2 regulations. The RFS2 is composed of two biofuel categories: unspecified biofuel and advanced biofuels (or non-corn starch ethanol; see Figure 1 ). The advanced biofuel portion includes three subcategories: cellulosic and agricultural waste-based biofuels, biomass-based diesel, and "other" (see Figure 2 ). Each advanced biofuel subcategory has a specific volume mandate for each year of the RFS2 (currently 2006-2022) and must meet lifecycle greenhouse gas (GHG) emissions reduction thresholds. The cellulosic biofuels subcategory is ultimately the largest component of the RFS2. Its carve-out is set at 0.5 billion gallons for 2012 (roughly 3% of the RFS2) and ramps up to 16 billion gallons in 2022 (roughly 44% of the RFS2). The biomass-based diesel carve-out of the advanced biofuel category (the portion that algae-based biofuels do qualify for) had a 2013 mandate of 1.28 billion gallons, and EPA proposes a 2014 and 2015 mandate for the same amount. The biomass-based diesel volume for 2016 to 2022 has not been set and will be determined by the Environmental Protection Agency (EPA) in future rulemaking, but is to be no less than 1 billion gallons. In February 2013, EPA clarified that the RFS biomass-based diesel subcategory includes jet fuel. Assuming algae is converted to a diesel/jet fuel substitute, ABB would qualify for the biomass-based diesel subcategory, but to date it cannot compete cost-effectively with soy biodiesel in this subcategory. One study reports that the production of algae biodiesel could cost from $9.84 to $20.53 per gallon, compared to $2.60 per gallon for petroleum diesel production. In 2011, the U.S. Navy and the U.S. Department of Agriculture (USDA) announced the $12 million purchase of 450,000 gallons of advanced drop-in biofuel, from a blend of non-food waste and algae, to be mixed with aviation fuel or marine diesel fuel. It is unclear what impact ABB may have on the RFS biomass-based diesel carveout if it proves to be cost-effective to produce ABB as a jet fuel. Even with an RFS2 mandate and tax credits, cellulosic biofuels have yet to meet the required mandate. EPA reports that very few facilities are consistently producing cellulosic biofuels for commercial sale. As a result, the EPA lowered the 2010, 2011, 2012, and 2013 cellulosic biofuel mandates and proposes to lower the 2014 mandate. Congress may consider whether other biomass feedstock types, including algae, should play a larger role in meeting the overall RFS2 mandate. Some suggest that broadening the RFS2 to include algae as a cellulosic biofuel feedstock would boost production opportunities. Others contend that ABB will never be cost-competitive. Others could argue that the potential for higher prices of crude oil would be an incentive to produce fuels that may eventually be lower in cost. Technology exists to convert algae (like any organic matter) into multiple forms of energy, including liquid fuels (e.g., diesel or jet fuel), electric power, and biogas. However, there is no current technology to convert this biomass feedstock into a transportation biofuel economically and at commercial scale. While no technology is currently available to make this conversion commercially viable, microalgae, macroalgae, and cyanobacteria are each being considered for ABB production. Microalgae are microscopic photosynthetic organisms. Macroalgae, commonly referred to as seaweed, are fast-growing marine and freshwater plants that can grow to be quite large. Cyanobacteria are not technically algae, but bacteria that live in water and collect energy via photosynthesis. All three require light, nutrients, water, land, and carbon dioxide (CO2) or sugar to be successfully cultivated. Three primary components of algae--lipids, carbohydrates, and proteins--can be used to make energy. Different algae strains produce these components in different proportions. Depending on the biofuel to be produced, all or only one of these components may be used. Algae undergoes four major processes in its conversion to biofuel: cultivation, harvest, processing, and biofuel/bioproduct conversion (see Figure 3 ). Algae cultivation may be photoautotrophic (algae requiring light to grow) or heterotrophic (algae grown without light and requiring a carbon source such as sugar to grow). Photoautotrophic cultivation can occur in an open pond or in a closed system (e.g., a photobioreactor; see Figure 4 ). Each has advantages and challenges. Open pond cultivation is generally less expensive and simpler to build, but is subject to weather conditions, contamination, and more water consumption. Cultivation conditions may be better controlled in a closed system, but there are scalability concerns, and closed systems historically have been more expensive than open ponds. Heterotrophic cultivation occurs in a fermentation tank and can use inexpensive lignocellulosic sugars for algae growth, which could lead to competition for feedstocks with other biofuel technologies. After cultivation, a variety of methods can be used to harvest the algae, including flocculation, filtration, and centrifugation. While algae harvest cycles vary based on the strain, in general algae can be harvested numerous times throughout the year, compared to once a year for many conventional crops. The next step is to process the algae, usually by dewatering or drying, which separates the algae into the various components necessary for biofuel conversion. Afterward, certain components of the algae, such as lipids and oils, are extracted for biofuel conversion. The algal biomass is converted into biofuel through a chemical, biochemical, or thermochemical conversion process, or through a combination of these processes (see Figure 5 ). The primary challenge for ABB is that it has not yet been demonstrated to be economical at commercial scale. If economic production can be achieved, the potential impact on the national transportation fuel network would need to be assessed. Also, as mentioned above, algae cultivation requires significant amounts of CO 2 , and there are questions about where this CO 2 would come from. While the CO 2 could come from existing stationary sources, it may be incorrect to assume that all algae processing facilities would be located near existing sources of CO 2 or that enough CO 2 from existing sources would be available to meet demand for commercial levels of ABB production. It is likely that siting and permitting of these facilities would require involvement of local, state, and federal government agencies. It is unclear how use of CO 2 from a power plant for the production of algae would be treated under the Clean Air Act. There may be supply and demand concerns for ABB. The use of some feedstocks for biofuels has been controversial, as some report that rising demand for biofuels shifts biomass feedstocks and arable land away from use for other purposes (e.g., food). Some assert that significant quantities of resources (e.g., land, water, and CO 2 ) exist to support algae-based biodiesel production; however, it is not clear if existing resources can support biodiesel and bio-jet fuel, bioethanol, and more from algal feedstock. The National Research Council (NRC) reports that the quantity of water necessary for algae cultivation is a concern of high importance, among others, that has to be addressed for sustainable development of ABB. In general, biofuels derived from open-pond algae production consume more water for feedstock production and fuel processing than petroleum-derived fuels, although the water quality may not be comparable, since some algae is able to use waste- or brackish water. One reported possible technique to drastically curb water use is to site ABB facilities at optimized locations--locations where land with the lowest water use per liter of biofuel produced is available--but algae would still use significantly more water than petroleum. Another technique is to use water unsuitable for other purposes. Algae requires both water and nutrients (e.g., phosphorus) to grow, which may inadvertently put it in competition with other areas of agriculture, depending on water sources and land types selected for algae cultivation should ABB be produced at a large scale. Also, large-scale ABB production may involve the use of genetically modified algae, which some may oppose because of concerns that genetically modified algae may escape into the environment and become invasive, as algae that are non-native to that location. ABB could have some potential benefits relative to other biomass feedstocks used for biofuel production, primarily its ability to produce large oil yields using considerably less land than other biomass feedstocks (see Table 1 ). The DOE identified nearly 4 million acres of suitable land--mostly in the Southwest and Gulf Coast--for algae cultivation that minimizes water use and could support approximately 5 billion gallons per year of algal oil production. A further advantage is that algae cultivation does not have to compete for land or water traditionally used for food, feed, and fiber production, because algae may be cultivated using non-freshwater (e.g., saline, wastewater) and can be cultivated on non-productive, non-arable land. Certain ABB types also have the potential to be a "drop-in" fuel that could be used without having to modify existing vehicles or build new transportation and distribution networks. Algae cultivation requires CO 2 , a greenhouse gas that has been targeted for emission reductions. As a result, algae could potentially reuse CO 2 emitted as a waste product from stationary sources. Last, ABB companies could control their own feedstock, meaning they could grow the algae needed for conversion to biofuel and would not be dependent on external forces that could potentially affect feedstock supply and price, such as drought or an economic incentive to grow a traditional row crop as opposed to switchgrass for cellulosic ethanol. Since at least the late 1970s, Congress has appropriated funds for ABB, some of which were targeted for general agency programs and some for specific projects. Federal research and development funding for ABB has fluctuated over time. The Department of Energy (DOE) and the Department of Defense (DOD) are the two agencies that have spent the most money on ABB. ABB has been a minor component of the DOE biofuels program relative to other biofuels. DOE has funded algae through its Office of Biomass Program (OBP), the Advanced Research Projects Agency (ARPA-E), Office of Science, the Fossil Energy Program, the Bioenergy Technologies Office, and the Small Business Innovation Research Program (SBIR). DOE reports it spent approximately $43.0 million on ABB in 2012, and $52.8 million on ABB in 2013. As of December 2010, DOE cumulatively had invested about $236 million in algae R&D. The DOE OBP spent roughly $183 million on algae R&D from FY2009 to FY2011, of which roughly $146 million was from the American Recovery and Reinvestment Act of 2009 (ARRA; P.L. 111-5 ) and roughly $37 million was program funding. The ARRA funding was spent on three algae-related integrated biorefinery (IBR) projects cost-shared with industry, two of which are at pilot scale (Algenol, with DOE's cost-share of $25 million and nearly $34 million in non-federal funding to construct an integrated pilot-scale biorefinery with the capacity to produce more than 100,000 gallons of fuel ethanol per year; and Solazyme, with $22 million in DOE cost-share and close to $4 million in non-federal funding to build, operate, and optimize a pilot-scale integrated biorefinery with the capacity to produce 300,000 gallons of purified algal oil per year) and one at demo scale (Sapphire, with $50 million in DOE cost-share and roughly $85 million in non-federal funding to construct an integrated algal biorefinery with the capacity to produce 1,000,000 gallons of jet fuel and diesel per year). Additionally, $49 million from ARRA was spent on the National Alliance for Advanced Biofuels and Bio-products (NAABB) algae biofuels R&D consortium project, a cost-shared effort with industry, university, and national lab partners. OBP program funds were spent to support three other cost-shared algae R&D consortium projects and a number of additional algae-related projects with industry, universities, national labs, and the National Academy of Sciences. DOE also supported algae R&D through a nearly 20-year Aquatic Species Program (ASP) at a total cost of roughly $25 million from 1978 to 1996. The major focus of the ASP was to produce biodiesel from high lipid-content algae grown in ponds, using waste CO 2 from coal-fired power plants. Both the DOD Defense Advanced Research Projects Agency (DARPA) and the Defense Logistics Agency (DLA) have funded algae-related efforts. DLA is interested in algae oil-derived fuel for Navy ship engine testing. DARPA is interested in cost-effective, large-scale production of algae oil to be processed into a JP-8 jet fuel surrogate. In 2009, DARPA stated that algae research was in its early stages. DARPA provided funding for two algal fuel projects, run by Science Applications International Corporation (SAIC) and General Atomics. Reports indicate that in 2009 DARPA awarded SAIC $25 million to develop jet fuel from agricultural and aquacultural feedstock materials. General Atomics received a $43 million contract from DARPA in 2009 to develop a scalable process for cost-effective, large-scale production of algae oil and an algae-derived JP-8 jet fuel surrogate. DOD reports that the $12 million purchase of 450,000 gallons of cooking oil and algal fuel was the only algae-based biofuel expenditure for FY2012. With regard to specific congressionally directed projects, roughly $11 million was appropriated between FY2008 to FY2010, with the vast majority in 2010, for at least 13 projects. A CRS analysis of conference reports for appropriations bills suggests that one project was funded in FY2008 at a total cost of $0.98 million, three projects in FY2009 at $2.4 million, and nine projects in FY2010 at $7.7 million. In 2010, DOE issued an algal biofuels technology roadmap that detailed the challenges and opportunities associated with ABB production. The roadmap acknowledged that "many years of both basic and applied science and engineering will likely be needed to achieve affordable, scalable, and sustainable algal-based fuels." Furthermore, DOE noted that "[c]ost-effective methods of harvesting and dewatering algal biomass and lipid extraction, purification, and conversion to fuel are critical to successful commercialization of the technology." On the other hand, in 2011, industry sources indicated that the following two years could perhaps tell whether ABB production could be commercially viable, as various pilot projects were expected to come online. The Algal Biomass Organization reported that in 2011 algae projects were underway in research labs and pilot plants in 44 U.S. states. Some research and development challenges must be addressed before large-scale ABB production can take place. The largest challenge appears to be that there is no long-term history of comprehensive published algae research. For example, it has not yet been determined which algae species will be most cost-effective and produce the highest biomass yields. Furthermore, multiple processing techniques exist, using various components of the algae. It may be that no one algal species or processing method is identified as optimal. In addition, scaling up the algae cultivation process from small-scale research to commercial size has proven challenging, both technically and economically, and the current research has not yielded new solutions. Comprehensive studies of ABB's energy balance, life-cycle emissions, environmental impact, and water demand would also be needed for policymakers to understand the implications of policies that promote ABB commercialization. Certain ABB production steps, such as mixing the water during algae cultivation and dewatering algae to prepare it for biofuel processing, are energy-intensive and therefore costly. Research into processes that reduce the amount of energy needed and lower the cost could make ABB production more economical. Additionally, standards would need to be developed for ABB production to ensure uniformity and assist with potential regulatory compliance measures. If ABB is to be used nationwide, in addition to solving production problems, additional research would need to be conducted on major points of distribution and utilization, and availability of inputs including water sources and CO 2 sources (see Table 2 ). More analysis would be needed on the best locations to site ABB facilities. Some might consider locating ABB facilities in the Southwest, where there is plenty of sunlight and less agriculture than in other parts of the country, but this region faces water supply concerns. Some might consider locating ABB facilities in the Rice Belt (e.g., Louisiana, Mississippi), where there might be fewer water supply concerns. Consideration of stationary CO 2 sources will also likely have to be taken into account when siting an ABB facility. It is difficult to predict what ABB type might be most promising, and when it might be commercial. Federally funded research efforts are at a significantly lower level for algae than for other biofuels. While private companies periodically report their financial investment in ABB, for proprietary reasons they rarely report scientific or technological breakthroughs. This limits the ability of policymakers and analysts to assess and predict future ABB developments. Congress has debated whether algae-based biofuel could help diversify the U.S. transportation fuel portfolio. While Congress has created a policy that mandates the use of alternative fuels for transportation (e.g., RFS2) and set up tax credits that support alternative fuel production, much of the legislation and tax provisions for alternative transportation fuel is constrained to a set of feedstock types (e.g., cellulosic) and fuel types as defined in the statute (e.g., ethanol, biodiesel). Going forward, Congress may choose to reevaluate how it supports alternative fuels by possibly expanding the feedstock and fuel types that qualify for transportation and energy mandates. For example, in the past the American Taxpayer Relief Act of 2012 (ATRA; P.L. 112-240 ) amended both the cellulosic biofuel production tax credit and the cellulosic biofuel depreciation allowance to include algae-based biofuels. Both tax incentives expired at the end of 2013 and it is not known if the incentives will be extended. Additionally, algae is eligible for one part of the Biomass Crop Assistance Program (BCAP). Some in Congress have expressed interest in ABB because it could have significantly lower greenhouse gas emissions on a life-cycle basis than conventional fuels. If ABB is to become an alternative to help reduce U.S. dependence on petroleum and reduce greenhouse gas emissions, some stakeholders contend that consistent, comprehensive, long-term (for the duration of multiple congressional sessions) policy support, as well as further research and development, would be required. Options that have been proposed for policies to encourage ABB include modifying the RFS2, creating a federal low-carbon fuel standard, or placing a tax on carbon. ABB advocates also assert that Congress could encourage the growth of the U.S. algae industry by providing tax parity with other biofuels, appropriating additional federal funds for algae-related programs, and modifying the RFS2 to be feedstock-neutral so that algae-based biofuels can be more broadly included. Tax incentives may accelerate ABB research, development, and demonstration testing, thus possibly shortening the timeline for commercial ABB production. However, some might argue that it is premature to issue tax breaks to an industry that has very few commercial production facilities. Furthermore, it may be that tax breaks for renewable energy in general will phase out under the emerging policy environment of fiscal discipline and budget restraint. Opponents of such support argue that Congress should not be involved in selecting biomass feedstock types for biofuels before commercial success has been proven, or more broadly, that Congress should not be selecting the technology at any point. Congress did select certain feedstock types for biofuel production under the RFS2. At the time, industry assertions and government data supported the argument that certain levels of cellulosic biofuel production capacity would be achievable within the given time frame, although these have not come to pass. Given the federal budget situation, Congress could decide to expand the cellulosic biofuel definition for the RFS to include algae and let industry take the research funding lead. This could give the ABB industry a long-term goal and guaranteed market as part of the RFS2 (for roughly 10 years). At a later time, perhaps after the ABB pilot projects that have come online yield data on the feasibility of ABB production, Congress could have a legislative discussion about what federal funding or other types of support, if any, would be appropriate. Legislation introduced in the 112 th Congress would have incorporated some of these ideas. In general, proposed legislation either would have expanded the cellulosic biofuels definition for the RFS2 to include algae by amending the Clean Air Act (codified as 42 U.S.C. 7401 et seq . ), and/or would have expanded the definition in the tax code for select tax incentives to incorporate algae--which Congress did with ATRA. H.R. 1149 (112 th Congress) also would have amended the Clean Air Act to include algae-based biofuel in the renewable fuel standard program. Algae-based biofuel is a potential domestic transportation fuel option that could help to smooth fluctuations in petroleum supply, and it could potentially diversify the biomass feedstock supply needed to meet renewable liquid transportation fuel mandates. The potential benefits of ABB include per-acre yields reported to be significantly larger than those for other biofuel feedstocks (e.g., soybean, jatropha), and the potential for algae to grow in water not traditionally used for other purposes. The potential concerns of ABB include limited information about the costs of large-scale ABB production, the amount of energy required, and life-cycle emissions analysis. The need for large amounts of the greenhouse gas CO 2 to grow algae may be a benefit or a concern: algae cultivation could potentially contribute to emissions neutrality by reusing CO 2 from stationary sources, but there are concerns about whether enough CO 2 from existing sources is available to support commercial levels of ABB production. The use of genetically engineered algae could also be a benefit or concern: genetically engineered algae could lead to higher yields, but also could have unintended consequences such as threatening aquatic ecosystems. While the DOE has studied algae for at least 35 years, much of that research has focused on using algae to produce biodiesel. Current research efforts examine the use of algae for jet fuel, power, bioproducts, and more. Federal support for ABB has occurred through general agency programs and specific projects. Currently, there are no commercial-scale ABB plants, although a commercial demonstration facility was completed in 2012 and ABB was offered for sale at retail pumps in late 2012 in California for a limited time. ABB pilot facilities that came online over the last year may give a better indication of ABB's productivity potential and cost effectiveness. Even if ABB is demonstrated to work at a commercial level at one or two facilities, it may not produce a significant portion of the U.S. transportation fuel supply in the near term. Multiple commercial-scale facilities that could possibly produce ABB in significant quantities will require financing, a labor force, and distribution and supply infrastructure that may take some time to devise. Because no ABB facilities are operating at commercial scale, it is not yet known what regulatory issues might arise. As with many new technologies, regulatory issues and perception by the general public are likely to be a concern. ABB currently faces many of the same questions as were posed about biofuel industries that preceded it (e.g., corn-starch ethanol). ABB is less developed than established biofuels industries such as corn-starch ethanol. However, its development and deployment at commercial scale may be informed by lessons learned from these industries. For instance, mastering the technology to convert a certain feedstock to a biofuel may not happen in the timeframe predicted, regardless of the amount of financial and technical assistance granted. Additionally, the development of corn-based ethanol showed that long-term contracts for feedstock supply and associated resource requirements are vital to gauging the economic standing of biofuel production. Last, uncertainties about policy support (e.g., inclusion in the RFS2, lowering RFS2 mandates, and expiring tax provisions) and unforeseen competition from other fuels internal and external to the biofuel industry could all have an impact on the bottom line and the aggressiveness put toward ABB production.

Congress continues to debate the federal role in biofuel research, biofuel tax incentives, and renewable fuel mandates. The debate touches on topics such as fuel imports and security, job creation, and environmental benefits, and is particularly significant for advanced biofuels, such as those produced by algae. Congress established the Renewable Fuel Standard (RFS2), a mandate requiring that the national fuel supply contain a minimum amount of fuel produced from renewable biomass. The RFS2 is essentially composed of two biofuel mandates--one for unspecified biofuel, which is being met largely with corn-starch ethanol, and one for advanced biofuels (or non-corn starch ethanol), which may not be met in coming years due to a lack of production. Within the advanced biofuels category, the RFS2 requirements for the cellulosic biofuels subcategory (e.g., ethanol from switchgrass) have not been met for the last few years, which could cause alarm among those required to purchase fuel or credits to satisfy the mandate, as this subcategory is slated to ramp up from roughly 3% of the requirement in the standard in 2012 to roughly 44% of the standard in 2022. Limited cellulosic biofuel production has occurred to date. As a result, as allowed under the RFS2, the Environmental Protection Agency (EPA) has lowered the required cellulosic biofuels volume for 2010, 2011, 2012, and 2013 and has proposed to do the same for 2014. Currently, algae-based biofuel qualifies as an advanced biofuel under the RFS2, but not as a cellulosic biofuel. If algae were added as an eligible feedstock type under the RFS2 cellulosic biofuels mandate, and if an increase in production resulted, then a larger portion of the requirement might be achieved, although current production is minimal. Algae does qualify as a feedstock for the biomass-based diesel subcategory of the RFS2 advanced biofuel mandate. The RFS2 does not mandate rapid growth of biomass-based diesel, as it does for cellulosic biofuels. Algae can be converted into various types of energy for transportation, including biodiesel, jet fuel, electric power, and ethanol. The potential advantages of algae-based biofuel over other biofuel pathways include higher biomass yields per acre of cultivation, little to no competition for arable land, use of a wide variety of water sources, the opportunity to use carbon dioxide from stationary sources, and the potential to produce "drop-in" ready-to-use fuels. Potential drawbacks include the anticipated cost of production, the amount of resources (e.g., water and land) required to produce the biofuel, and the lack of commercial-scale production facilities. Algae-based biofuel research and development are in their infancy, although work has been conducted in this area for decades. At present, published research efforts offer policymakers little guidance on what algae types or conversion methods could be the front-runner for commercial production, or on when and for which biofuel. Congressional support for algae-based biofuel has consisted of congressionally directed projects and funding of programs and studies by the Departments of Energy (DOE) and Defense (DOD). Some algae industry advocates contend that Congress should encourage advances in algae-based biofuel production by extending the expiration date for eligible tax credits, appropriating additional federal funds for algae-related programs, and modifying the RFS2 to include algae in the cellulosic biofuels mandate, as was done recently for the cellulosic biofuels production tax credit. In contrast, some argue that Congress should reconsider its investment in biofuels because of the current federal budget crisis and the lack of any measurable progress in cellulosic biofuels production. Thus far in the 113th Congress, legislation pertaining to algae-based biofuels has not been introduced. Proposed legislation in the 112th Congress would have either expanded the cellulosic biofuels definition for the RFS2 to include algae by amending the Clean Air Act, and/or expanded the definition in the tax code for select tax credits to incorporate algae (e.g., H.R. 1149, S. 1185). The American Taxpayer Relief Act of 2012 (ATRA; P.L. 112-240) amended both the cellulosic biofuel production tax credit and the cellulosic biofuel depreciation allowance to include algae-based biofuels. Both tax incentives expired at the end of 2013, and it is not known if they will be extended.

Since 1971, the U.S. Postal Service (USPS) has been a self-supporting, wholly governmental entity. Prior to that time, the federal government provided postal services via the U.S. Post Office Department (USPOD), a government agency that received annual appropriations from Congress. Members of Congress were involved in many aspects of the USPOD's operations, including the selection of managers (e.g., postmasters) and the pricing of postal services. In 1971, Congress enacted the Postal Reorganization Act (PRA; P.L. 91-375; 84 Stat. 725), which replaced USPOD with the USPS, an "independent establishment of the executive branch" (39 U.S.C. 201). The USPS is a marketized government agency that was designed to cover its operating costs with revenues generated through the sales of postage and related products and services. Although the USPS does receive an annual appropriation, the agency does not rely on appropriations. Its appropriation is about $100 million per year, about 0.1% of the USPS's $75 billion operating budget. Congress provides this appropriation to compensate the USPS for the revenue it forgoes in providing, at congressional direction, free mailing privileges to blind persons and overseas voters. The Postal Service Fund, which the USPS uses for most of its financial transactions, is off-budget, and therefore not subject to the congressional controls of the Congressional Budget and Impoundment Control Act of 1974 ( P.L. 93-344 ; 88 Stat. 297; 2 U.S.C. 621). However, the Postal Service Retiree Health Benefits Fund (RHBF), which was established by the Postal Accountability and Enhancement Act of 2006 (PAEA; P.L. 109-435 , SS803; 120 Stat. 3251), is on-budget. (The RHBF is addressed further below.) The USPS can and does borrow money from the U.S. Treasury via the Federal Financing Bank. Federal statute limits the USPS's annual debt increases to $3 billion, and the USPS's total debt to $15 billion (39 U.S.C. 2005(a)). After running modest profits from FY2004 through FY2006, the USPS lost $25.4 billion between FY2007 and FY2011. Were it not for congressional action to reduce a statutorily required payment to the RHBF, the USPS would have lost an additional $9.5 billion. (On congressional actions to reduce and delay RHBF payments, see below.) As the USPS's finances have deteriorated, its ability to absorb operating losses has been diminished. Between FY2005 and FY2011, the USPS's debt rose from $0 to $13 billion. (The agency's statutory debt limit is $15 billion (39 U.S.C. 2005(a)(2)(C)).) In July 2009, the GAO added the USPS's financial condition "to the list of high-risk areas needing attention by the Congress and the executive branch." Many media headlines have characterized the USPS's recent deficits as the result of a drop in mail volume and attendant postage purchase revenue. This is not entirely accurate. Mail volumes slid from a peak of 213.1 billion mail pieces in FY2006 to 212.2 billion in FY2007, and dropped to 202.7 billion in FY2008. Despite the drop in mail pieces, the USPS's revenues actually held steady during those years--$72.7 billion, $74.8 billion, and $74.9 billion--largely due to postage increases. However, between FY2009 and FY2011 mail volume declined further. Since FY2008, mail volume has fallen 17.7%, from 202.7 billion to 167.9 billion mail pieces ( Figure 1 ), and operating revenues have declined 12.3%, from $74.9 billion to $65.7 billion ( Figure 2 ). During this same period, the USPS has significantly increased operating expenses. A great deal of the rise in costs is attributable in part to the Postal Accountability and Enhancement Act (PAEA). The PAEA established the RHBF and requires the USPS to prefund its future retirees' health benefits at a cost of approximately $5.6 billion per year ( Table 1 ) for 10 years. (Any remaining obligation is to be amortized over the subsequent 40-year period.) In doing this, the PAEA moved the USPS from funding its retirees' health care costs out-of-pocket annually to prefunding these obligations. Using the Office of Personnel Management's (OPM's) valuation methodology, the USPS reported that the unfunded obligation was $46.2 billion as of the end of FY2011. (As noted later in this report, there has been disagreement as to the size of the USPS's unfunded obligation.) As Figure 3 shows, the USPS's operating expenses spiked after the USPS began paying into the RHBF in FY2007. Initially, the effects of the PAEA's mandatory payments to the Postal Service Health Benefits Fund on the USPS's profitability were considerable. This may be illustrated with a hypothetical--if the USPS did not have to pay into this fund each year, it would have experienced no operating losses until FY2009. Figure 4 reproduces Figure 3 with the annual PAEA payments subtracted from the annual operating expenses. However, despite Congress's reduction of the RHBF payment owed in FY2009 and its delay of the RHBF payment owed in FY2011, the USPS's expenses exceeded its revenues these years. At the conclusion of FY2011, the USPS had $1.5 billion in cash, which is a low level for an agency with an average weekly operating expense of nearly $1.4 billion. To conserve cash, the USPS suspended its biweekly $114 million contribution to the Federal Employee Retirement System (FERS) on June 24, 2011. After seeking an opinion from the Department of Justice on the legality of this action, the USPS reported on November 15, 2011, that it "expected" to resume paying the bi-weekly FERS payment, and that it owed $911 million as of September 30, 2011. One positive development was that the USPS was able to make its $1.3 billion payment to the Department of Labor for worker's compensation in October 2011. In its FY2011, third quarter financial statement, the USPS had expressed concern that it might not be able to do so, a default that would have had significant negative impact on the worker's compensation fund. In the first three quarters of FY2012, the USPS had an operating loss of $11.5 billion, which included an $11.1 billion charge for payments due to the RHBF in FY2012. The agency had $12.6 billion in debt, and a relatively weak cash position of $893 million. By law, the USPS's total debt may not exceed $15 billion--so, the USPS may borrow only $2.0 billion more from the Federal Financing Bank (FFB). The USPS did not have sufficient cash to make a $5.5 billion payment to its Retiree Health Benefits Fund (RHBF) that was due on August 1, 2012. The USPS is unlikely to have sufficient liquidity to make a $5.6 billion RHBF payment due on September 30, 2012. The USPS reports that current projections indicate that the Postal Service will have a low level of cash and liquidity at September 30, 2012. This position will worsen in October of 2012, when the Postal Service is required to make its annual reimbursement payment of approximately $1.4 billion to the Department of Labor ... for worker's compensation, in addition to paying its normal operating expenses. The USPS may suffer a liquidity shortfall in October, meaning it temporarily would not have sufficient cash in hand to cover its operating costs. However, the USPS has not suggested that a short-term, zero-cash scenario would produce a suspension of operations this autumn. Postmaster General Patrick Donahoe stated in an interview that the USPS could preserve sufficient cash to maintain operations until "late next year," although he did not clarify whether he was referring to calendar or fiscal year 2013. The USPS will report its FY2012 year-end financial results in early November 2012. On September 30, 2009, the last day of FY2009, Congress alleviated the USPS's cash shortage when it enacted H.R. 2918 , the Legislative Branch Appropriations Act [of] 2010. President Barack Obama signed the bill into law the next day ( P.L. 111-68 ). Section 164 of the law provided the USPS with an immediate reduction of $4 billion in operating expenses by reducing the USPS's FY2009 payment to the Postal Retiree Health Benefits Fund from $5.4 billion to $1.4 billion. The legislation did not relieve the USPS of this $4 billion obligation; rather, it deferred the USPS's payment. Come FY2017, the $4 billion will be added to whatever remaining outstanding health care obligation may exist, and amortized over a 40-year period. In autumn 2011, Congress again aided the USPS. Congress delayed the due date of the FY2011 payment ($5.5 billion) to October 4, 2011 ( P.L. 112-33 , SS124), November 18, 2011 ( P.L. 112-36 , SS124), to December 16, 2011 ( P.L. 112-55 , SS101), and then August 1, 2012 ( H.Rept. 112-331 ). The USPS's financial challenges raise difficult questions: Did the USPS simply suffer from a "perfect storm" of high retiree health benefits payments and declining revenue? Or is the USPS, as currently constituted, incapable of responding to a shifting, and possibly declining, market for its products and services? Answering these questions goes beyond the scope of this report. Nevertheless, a number of ideas for incremental reforms have been put forth that would improve the USPS's financial condition so that it might continue as a self-funding, government agency. In its annual study of the USPS's compliance with federal laws, the Postal Regulatory Commission (PRC) reported that USPS carries 10 types of mail at postage rates that are below their costs. For example, the USPS's costs for processing and delivering periodicals exceeded the postage it received by $609 million in FY2011. Currently, federal law forbids the USPS from increasing postage rates annually higher than the Consumer Price Index (39 U.S.C. 3622(d)(1)(A)) absent "exceptional or extraordinary circumstances." Congress may wish to further examine these disparities and provide the USPS with additional pricing flexibilities that would enable it to recover more revenue. In a July 6, 2010, filing with the PRC, the USPS stated that a recent sharp decline in mail volume constituted an exceptional or extraordinary circumstance. It asked the PRC to permit it to increase postage rates 5.6%, an amount much higher than the CPI. The PRC denied the USPS's request on September 30, 2010, essentially arguing that the USPS failed to demonstrate that its professed need to raise rates was produced by "an exceptional or extraordinary circumstance." Instead, the PRC stated "Postal Service's cash flow problem is not a result of the recession and would have occurred whether or not the recession took place. It is the result of other, unrelated structural problems and the proposed exigent rate adjustments would neither solve nor delay those problems." After the USPS filed suit, a federal court of appeals remanded the matter to the PRC in July 2011, asking the PRC to clarify a technical matter related to the size of permissible exigent rate increases. The USPS has said it will again pursue an exigent rate increase, and it raised its prices an amount within the rate cap on January 22, 2012. Federal postal law limits the USPS to selling postage stamps, stamped paper, cards, envelopes, philatelic services, and ancillary items (39 U.S.C. 102(5); 39 U.S.C. 404(a)(4-5)). The USPS has said that it would like to increase its revenues by offering a broader range of nonpostal products and services, although it has not specified which ones. Congress may wish to consider whether the USPS ought to enter into nonpostal business lines, and whether it could be expected to reap immediate financial gains from doing so. At the end of FY2011, the USPS's Retiree Health Benefits Fund had a balance of $44.1 billion, and an unfunded obligation of $46.2 billion. The USPS has to make six more PAEA-mandated future retiree health benefits payments for the years of FY2011 through FY2016. These remaining payments average more than $5.6 billion per year and amount to $33.9 billion. These payments will make up a significant portion (more than 7%) of the USPS's approximately $75 billion annual operating expenses. The U.S. Postal Service Office Inspector General (USPSOIG) and the PRC have disagreed on the size of the USPS's future retiree health benefits obligation. The USPSOIG argued that the current PAEA-mandated payment schedule was too aggressive, and that the USPS should pay $1.6 billion per year through 2016 to fund its obligations. The OPM questioned the assumptions used by the USPSOIG. The PRC reviewed both the USPSOIG's and the OPM's assessments, and found merit in both approaches. The PRC suggested that the USPSOIG understated the USPS's liability because it underestimated the inflation rate for health care. The PRC argued that the OPM significantly overstated the USPS's liability because it overestimated both the inflation rate for health care and the future USPS workforce size. The PRC said that the USPS could pay $3.4 billion per year and fully fund the RHBF by FY2016. To a degree, these disputes over the amount the USPS should pay each year into the RHBF have been eclipsed by the question of what the USPS can pay. As noted above, the Postal Service is due to pay $11.1 billion in RHBF payments by September 30, 2012, and the agency does not have sufficient funds to do so. Congress may wish to reassess the PAEA's payment schedule and the differing calculations of the USPS's obligation. It also may wish to consider reducing the USPS's annual payment to levels that the agency may reasonably be expected to be capable of paying. Like other federal employees, most current USPS employees participate in the Federal Employee Retirement System. The OPM Inspector General (OPMIG) explains: [The] FERS is designed to be fully funded by employee and agency contributions. Each year, as required by law, the OPM calculates the Federal Government's and the USPS's liabilities under [the] FERS to see if there is a surplus or a supplemental liability. If there is a supplemental liability, the OPM establishes an amortization schedule so that the liability is paid off completely in 30 years. The statute does not contemplate what would happen should a surplus exist. The USPS has contended that it has paid at least $10.9 billion more into its FERS pensions than is required. It has asked for the funds to be returned to it. The USPS also justified its temporary decision to suspend FERS contributions in 2010 on the basis that it had overpaid and needed to conserve cash. The OPMIG has found merit in the USPS's contention but noted that a statute would need to be enacted to authorize the OPM the refund the money. Congress could either temporarily reduce the USPS's current payment schedule, or it could direct the OPM to refund any overpayment. On January 20, 2010, the U.S. Postal Service Office of Inspector General published a report on the USPS's funding of pension costs for postal workers who were employed by both the U.S. Post Office Department (prior to 1971) and its successor, the U.S. Postal Service. The report criticized the allocation of the pension costs between the USPS and the federal government for employees who had service both as employees of the Post Office Department and later as employees of the Postal Service. The USPSOIG report noted that the Postal Service is currently responsible for meeting all pension costs under the Civil Service Retirement System (CSRS) for employees hired after 1971. For employees with service both before and after 1971, the federal government and the Postal Service share responsibility for CSRS pensions. The federal government pays for service through 1971, and the USPS pays for service after 1971. The USPSOIG report contended that the allocation of CSRS costs between the USPS and the federal government is unfair because the Postal Service is fully responsible for increases in pension costs that result from pay raises granted after 1971. Because CSRS pensions are based on both an employee's years of service and the average of an employee's highest three consecutive years of pay, pension costs rise as employee pay rises. As a consequence, the percentage of CSRS pension costs allocated to the USPS for an employee who worked for both the Post Office Department and the USPS is greater than the proportion of the worker's career that he or she spent as an employee of the USPS. The USPSOIG report notes, for example, that for a person who worked for the Post Office Department for 20 years prior to 1971 and for the USPS for 10 years thereafter, the USPS is obliged to fund about half of this person's pension costs. (The other half is paid for by the U.S. government.) The USPSOIG report suggested that the USPS's share of CSRS pension costs should be proportional to employees' length of service as USPS employees relative to their total length of service with the Post Office Department and the USPS. If an employee had spent 15 years as an employee of the Post Office Department and 15 years as an employee of the USPS, for example, the federal government and the USPS each would be responsible for half of the cost of that individual's CSRS pension. The USPSOIG's report estimated that under the current method of allocating the costs of CSRS pensions, the Postal Service has paid $75 billion more into the Civil Service Retirement and Disability Trust Fund than it would have paid if costs were allocated between the federal government and the USPS strictly in proportion to length of service. In 2004, the Postal Service requested that the OPM, which administers the Civil Service Retirement System, reconsider the method by which it allocates CSRS pension expenses between the Postal Service and the U.S. Treasury. The OPM denied the request on the ground that the allocation method it had developed was consistent with federal law. The OPM cited P.L. 93-349 (July 12, 1974), which required the USPS to finance all increases in retirement liabilities that are attributable to salary increases granted by the USPS. The House committee report accompanying the bill that was enacted as P.L. 93-349 ( H.R. 29 , 93 rd Congress) states that the "purpose of this legislation is to clearly establish the responsibility of the U.S. Postal Service to finance increases in the liability of the Civil Service Retirement and Disability Fund, caused by administrative action of the Postal Service, as apart from increases in unfunded liabilities which are incurred by act of Congress." The committee report further states that with respect to any increase in CSRS pension expense that results from future pay raises received by USPS employees, "the cost of this liability should properly and equitably be borne by the Postal Service." A reduction in the proportion of CSRS pension expenses allocated to the Postal Service would increase the unfunded liability of the Civil Service Retirement and Disability Fund. Absent a reduction in the cost of financing CSRS pensions, changing the allocation of CSRS pension expenses between the Postal Service and general fund of the U.S. Treasury is a zero-sum game. A reduction in the amount of CSRS pension expenses allocated to the USPS would result in an equal increase in CSRS pension expenses borne by the U.S. Treasury. In March 2010, the PRC said that it would examine the USPS's pension liability in response to the USPS's request. The agency hired a private auditor, the Segal Group Inc., to produce a report, which the PRC released publicly on June 30, 2010. The report largely agreed with the conclusion of USPSOIG's January 2010 report; and the PRC has stated that "an adjustment of $50-$55 billion in favor of the Postal Service would be equitable." The OPMIG has contested the USPSOIG's claims. It has said that the current apportionment of the CSRS pension costs is in line with both congressional intent and federal law. Additionally, the OPMIG warned that allowing the USPS to draw back any CSRS pension funds would "create a dangerous precedent" by permitting pension funds to be used for purposes other than the payment of benefits owed. Similarly, the GAO has stated the USPS has not "overpaid" its CSRS obligation, finding, "The current methodology used by OPM for allocating responsibility for CSRS benefits between USPS and the federal government is consistent with applicable law." In his initial FY2010 budget, President Barack Obama proposed requiring USPS employees to pay the same percentage towards their health premiums and life insurance as other federal workers. (USPS employees pay approximately 21% of their health care premium costs and 0% of their life insurance premiums, while other federal employees pay 28% and 67%, respectively.) The Administration estimated this new policy would save the USPS $752 million in FY2010 and $9.5 billion in the period of FY2010 to FY2019. A study released by the USPSOIG in September 2010 suggested the USPS could save $700 million per year were its employees required to contribute at the same rate as other federal employees. In recent years, the USPS has moved to close some of its facilities: between 2006 and 2011, the USPS reduced the number of its area and district offices from 89 to 74; in late July 2011 USPS began an initiative to consider the closure of 3,652 retail postal facilities; and, in May 2012, the USPS announced it would close 48 mail processing facilities before September, and an additional 98 facilities between January and February 2013. The agency has said it will not close any mail processing facilities during the autumn due to "the volume of high-priority mail predicted for the election and holiday mailing seasons." GAO repeatedly has contended that the USPS has not reduced its number of retail postal facilities (post offices) and mail processing plants sufficiently: Approximately 80 percent of its retail facilities do not generate sufficient revenue to cover their costs. Moreover, the number of USPS-operated retail facilities, about 32,000, has remained largely unchanged over the past 5 years even as visits to, and transactions at, postal retail facilities have decreased by about 16 percent and 18 percent, respectively. The USPS processing and transportation networks were developed during a time of growing mail volume, largely to achieve service standards for First-Class Mail and Periodicals, particularly the overnight service standards.... [The] USPS and other stakeholders have long recognized the need for USPS to reduce excess capacity in its mail processing network. Over the past five years, the USPS has reduced its facility footprint a modest 3.1%, from 34,318 to 33,260 ( Figure 5 ). One factor affecting the pace of USPS closures is stakeholder resistance. In response to criticism, the USPS has slowed or scaled back both its plans for proposed post office and mail processing facility closures. Congress may wish to consider providing the USPS with additional authority to reduce its facilities. As a related matter, both houses of Congress also may wish to consider enacting rules to prevent congressional intervention in proposed mail facility closures. Alternatively, Congress might enact a law to authorize appropriations to reimburse the USPS for cost-savings lost because of congressionally imposed delays in facilities closures. GAO has suggested that Congress consider permitting the USPS to reduce its delivery schedule from six to five days, a policy with which the USPS concurs. Nothing in Title 39 of the U.S. Code (which holds most federal postal law) requires the USPS to deliver mail six days per week. However, since 1984 Congress has included a provision in its annual appropriation to the USPS stating that "6-day delivery and rural delivery of mail shall continue at not less than the 1983 level" (e.g., P.L. 111-117 ; 123 Stat. 3200). The PRC has observed that the precise meaning of this mandate "could be subject to a number of interpretations, including requiring 6-day delivery in all areas which had it in 1983, or requiring the same percentage of recipients of 6-day delivery as in 1983." To date, the USPS has treated the language to mean that it lacks the authority to move to five-day mail until Congress ceases including the six-day mail provision in annual appropriations. Since 2008, four studies (two by the USPS and two by the PRC) have examined the possible financial effects of a switch from six-day to five-day delivery. The studies all estimate that the USPS would save money by reducing the days of delivery from six to five, as the cost savings (largely due to reduced labor expenses) will exceed any decline in revenues due to lower demand for mail prompted by a reduced delivery schedule. The studies suggest an annual improvement to the USPS's financial condition that would be between $1.7 billion to $3.5 billion. (No studies have argued the contrary--that moving to five-day delivery would increase costs.) The USPS's five-day delivery plan does not say how long it would take to implement five-day delivery and begin reaping any savings. The USPS did note that it would provide at least six months' notice prior to switching to five-day delivery. On March 30, 2010, the USPS asked the PRC for an advisory opinion on reducing delivery to five days. By law, the USPS must ask the PRC for an opinion when the USPS "determines that there should be a change in the nature of postal services which will generally affect service on a nationwide or substantially nationwide basis ... within a reasonable time prior to the effective date of such proposal" (39 U.S.C. 3661). Under PRC rules, a "reasonable time" is defined at "not less than 90 days" (39 CFR 3001.72). PRC Chairman Ruth Goldway suggested in a March 2010 hearing that the PRC may require six to nine months to issue its opinion. The PRC issued its advisory opinion in March 2011, which suggested cutting Saturday delivery would reduce the USPS's annual operating costs $1.7 billion. Critics have long argued that the USPS is required to be self-supporting but that federal law provides it with very few authorities to control its employment costs--which make up approximately 80% of its total operating costs. For example, in 2003 the President's Commission on the United States Postal Service noted that "postal workers enjoy special status within the federal workforce. They are granted the right to negotiate wages, hours, and workplace conditions through collective bargaining." By law, the USPS is required to "maintain compensation and benefits for all officers and employees on a standard of comparability to the compensation and benefits paid for comparable levels of work in the private sector" (39 U.S.C. 1003(a)). The commission further argued that the current statutory process for resolving disputes between management and labor frequently results in arbitrators being empowered to make binding decisions that favor employees (e.g., postal workers pay lower premiums for their health insurance and are protected from layoffs). The USPS utilized attrition to reduce its workforce from 696,138 to about 544,000 since FY2006. The USPS also has used early retirement incentives and buy-outs to lower its employment cohort. For example, approximately 21,000 postmasters recently were offered incentives to retire. Nevertheless, the USPS also has asked Congress to enact a statute to authorize it to override collective bargaining prohibitions on layoffs so as to enable the USPS to eliminate an additional 120,000 positions by FY2015. According to the USPSOIG, "over 189,000 Postal Service employees will meet the age and service eligibility requirements for retiring with an immediate annuity" in 2012. Congress may wish to consider measures that would provide the USPS with increased means to control its long-term labor costs, perhaps by encouraging retirement-eligible employees to conclude their employment.

This report provides an overview of the U.S. Postal Service's (USPS's) financial condition, legislation enacted to alleviate the USPS's financial challenges, and possible issues for the 112th Congress. Since 1971, the USPS has been a self-supporting government agency that covers its operating costs with revenues generated through the sales of postage and related products and services. In recent years, the USPS has experienced significant financial challenges. After running modest profits from FY2004 through FY2006, the USPS lost $25.4 billion between FY2007 and FY2011. Were it not for congressional action, the USPS would have lost an additional $9.5 billion. In the first three quarters of FY2012, the USPS had an $11.5 billion operational loss. The USPS did not have sufficient cash to make a $5.5 billion payment to its Retiree Health Benefits Fund (RHBF) that was due on August 1, 2012. The USPS is unlikely to have sufficient liquidity to make a $5.6 billion RHBF payment due on September 30, 2012. A number of ideas have been advanced that would attempt to improve the USPS's financial condition in the short term so that it might continue as a self-funding government agency. All of these reforms would require Congress to amend current postal law. The ideas include (1) increasing the USPS's revenues by altering postage rates and increasing its offering of nonpostal rates and services; and (2) reducing the USPS's expenses by a number of means, such as recalculating the USPS's retiree health care and pension obligations and payments, closing postal facilities, and reducing mail delivery to less than six days per week. This report will be updated after the USPS releases its quarterly financial results in early November 2012, and in the interim should there be any significant developments.

Over the past several years, the number of aliens who unlawfully reside in the United States has grown significantly, from an estimated 3.2 million in 1986 to more than 11 million in 2005. Although the federal government is responsible for regulating the entry and removal of aliens from the United States, the impact of unauthorized immigration has arguably been felt most directly in the communities where aliens settle. The response of states and localities to the influx of illegal immigrants has varied. On one end of the spectrum, some jurisdictions have actively sought to deter the presence of illegal immigrants within their territory. Some jurisdictions have assisted federal authorities in apprehending and detaining unauthorized aliens, including pursuant to agreements (287(g) agreements) with federal immigration authorities enabling respective state or local law enforcement agencies to carry out various immigration enforcement functions. More controversially, some jurisdictions have sought to deter illegal immigration by imposing their own restrictions upon unauthorized aliens' access to housing, employment, or municipal services. Moving toward the middle of the spectrum, some states and localities communicate with federal immigration enforcement officers under limited circumstances (e.g., after arresting an unauthorized alien for a criminal offense), but for various reasons do not take a more active role in deterring illegal immigration. At the other end of the spectrum, some jurisdictions have been unwilling to assist the federal government in enforcing measures that distinguish between legal and non-legal residents of the community. Some of these jurisdictions have adopted formal or informal policies limiting cooperation with federal immigration authorities. This latter category of jurisdictions is sometimes referred to as "sanctuary cities." Although this term is not defined by federal statute or regulation, it has been used by some in reference to "jurisdictions that may have state laws, local ordinances, or departmental policies limiting the role of local law enforcement agencies and officers in the enforcement of immigration laws." The very existence of "sanctuary cities" has been the subject of considerable controversy. Supporters argue that immigration enforcement is the responsibility of the federal government, and that local efforts to deter the presence of unauthorized aliens would undermine community relations, disrupt municipal services, interfere with local enforcement, or violate humanitarian principles. Opponents of sanctuary policies argue that they encourage illegal immigration and undermine federal enforcement efforts. The primary federal restrictions on state and local sanctuary policies are SS 434 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA, P.L. 104 - 193 ) and SS 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA, P.L. 104 - 208 ). PRWORA SS 434 proscribes any prohibition or restriction placed on state or local governments to send or receive information regarding immigration status of an individual to or from federal immigration authorities. IIRIRA SS 642 is broader in scope. It bars any prohibition on a federal, state, or local governmental entity or official's ability to send or receive information regarding immigration or citizenship status to or from federal immigration authorities. The statute also provides that no person or agency may prohibit a federal, state, or local government entity from (1) sending information regarding immigration status to, or requesting information from, federal immigration authorities; (2) maintaining information regarding immigration status; or (3) exchanging such information with any other federal, state, or local government entity. The constitutionality of the foregoing provisions was challenged by the City of New York. The mayor of the City of New York had issued an Executive Order prohibiting any city officer or employee, in most circumstances, from transmitting information regarding immigration status to federal immigration authorities. This Executive Order was in direct conflict with both PRWORA SS 434 and IIRIRA SS 642. The United States Court of Appeals for the Second Circuit held in New York v. United States ( City of New York ) that PRWORA SS 434 and IIRIRA SS 642, on their face, do not violate the anti-commandeering doctrine under the Tenth Amendment. The anti-commandeering doctrine prohibits the federal government from commandeering either a state's legislature (e.g., by requiring that a state enact particular regulatory standards ) or its executive officers (e.g., by requiring that state officers directly participate in enforcing federal law ) to achieve federal goals. While this might mean that Congress cannot directly compel states to collect and share information regarding immigration status with federal immigration authorities, merely prohibiting states and localities from blocking their agents from sharing with the federal government information already in their possession may be permissible, according to the Second Circuit, absent specific proof of greater interference with state and local functions. Although several localities reportedly have adopted formal or informal policies limiting cooperation with federal immigration authorities, the precise number is unclear. In 2006, Congress required the Office of the Inspector General (OIG) for the Department of Justice to study and report on whether states and localities receiving federal compensation for incarcerating criminal aliens were cooperating with federal immigration enforcement efforts. Among other things, the OIG was required to determine whether any states or localities receiving compensation were in violation of the information-sharing requirements of IIRIRA SS 642. In a January 2007 report, the OIG stated that auditors were able to locate an official "sanctuary" policy for only two jurisdictions that received at least $1 million in SCAAP [State Criminal Alien Assistance Program] funding, the State of Oregon, which received $3.4 million, and the City and County of San Francisco, which received $1.1 million and has designated itself as a "City and County of Refuge." We also located an Executive Order issued by the Mayor of the City of New York limiting the activities of local law enforcement agencies and officers in the enforcement of immigration law. However, in each instance the local policy either did not preclude cooperation with ICE [Immigration and Customs Enforcement] or else included a statement to the effect that those agencies and officers will assist ICE or share information with ICE as required by federal law. The OIG report identified two jurisdictions receiving at least $1 million in SCAAP funding that had official sanctuary policies, but it concluded that neither violated federal law. The OIG estimate of jurisdictions with policies in direct violation of IIRIRA SS 642, however, is not comprehensive. While the OIG report indicated that few, if any, jurisdictions that received at least $1 million in SCAAP funding during FY2005 had formal policies violating IIRIRA SS 642, the report did not identify, for example, whether any jurisdictions receiving less the $1 million were in violation of federal law. Although IIRIRA SS 642 prohibits states and localities from barring the transfer or maintenance of information regarding immigration status, it does not require entities to collect such information in the first place. Reportedly, some states and localities seeking to limit assistance to federal immigration authorities have barred agencies or officers from inquiring about persons' immigration status, a practice sometimes described as a "don't ask, don't tell" approach. Though this method does not directly conflict with federal requirements that states and localities permit the free exchange of information regarding persons' immigration status, it results in specified agencies or officers lacking any information about persons' immigration status that they could share with federal authorities. In the 110 th Congress, several bills were introduced that attempted to limit formal or informal sanctuary policies and induce greater sharing of immigration information by state and local authorities. Some proposals would have mandated that directors of state and local law enforcement agencies report any immigration information collected in the course of the directors' normal duties to the Secretary of Homeland Security, and would have made compliance with this requirement a condition for continued funding under the State Criminal Alien Assistance Program (SCAAP). Other proposals would have required state and local law enforcement officers to provide information to the Secretary of Homeland Security concerning apprehended aliens who are believed to have committed a violation of U.S. immigration laws, and would have provided grants to those agencies that had policies for assisting in the enforcement of U.S. immigration laws. Some proposals would have made compliance with IIRIRA SS 642 a requisite for a state or locality to receive specified federal grants or funding. These proposals were not enacted into law. Bills have been introduced in the 111 th Congress to modify requirements on states and localities concerning the sharing of immigration-related information with the federal government. H.R. 150 , the Illegal Alien Crime Reporting Act of 2009, introduced by Representative Walter B. Jones, would bar any state or subdivision thereof from receiving funds under any program or activity administered by the Department of Homeland Security, unless the state reports to the Federal Bureau of Investigation certain immigration-related information regarding persons who have been arrested, charged with, or convicted of a crime by the state. S. 95 , introduced by Senator David Vitter, would prohibit any funds appropriated for the Community Oriented Policing Services Program from being used in contravention of IIRIRA SS 642. H.R. 264 , the Save America Comprehensive Immigration Act of 2009, introduced by Representative Sheila Jackson-Lee, would repeal IIRIRA SS 642 and PRWORA SS 434, thereby permitting states and localities to restrict the sharing of immigration-related information with federal authorities.

Controversy has arisen over the existence of so-called "sanctuary cities." The term "sanctuary city" is not defined by federal law, but it is often used to refer to those localities which, as a result of a state or local act, ordinance, policy, or fiscal constraints, place limits on their assistance to federal immigration authorities seeking to apprehend and remove unauthorized aliens. Supporters of such policies argue that many cities have higher priorities, and that local efforts to deter the presence of unauthorized aliens would undermine community relations, disrupt municipal services, interfere with local law enforcement, or violate humanitarian principles. Opponents argue that sanctuary policies encourage illegal immigration and undermine federal enforcement efforts. Pursuant to SS 434 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA, P.L. 104-193) and SS 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA, P.L. 104-208), states and localities may not limit their governmental entities or officers from maintaining records regarding a person's immigration status, or bar the exchange of such information with any federal, state, or local entity. Reportedly, some jurisdictions with sanctuary policies take a "don't ask, don't tell" approach, where officials are barred from inquiring about a person's immigration status in certain circumstances. Though this method does not directly conflict with federal requirements that states and localities permit the free exchange of information regarding persons' immigration status, it results in specified agencies or officers lacking information that they could potentially share with federal immigration authorities. In the 110th Congress, several bills were introduced that attempted to limit formal or informal sanctuary policies and induce greater sharing of immigration information by state and local authorities. Bills have also been introduced in the 111th Congress to restrict or expand states and localities' information-sharing requirements.

Current popular attention being paid to the threat of chemical and biological weapons (CBW)use by terrorists may give the impression that this is a new phenomenon, but it is not. Most chemicaland biological weapons themselves have a long history: the first chemical weapons were used inancient Greece; biological weapons have been used in a wartime context since at least the MiddleAges. (1) Employed extensively in the first World War,notably in the use of mustard gas, chemicalweapons have evolved very little in their technology since the mid-twentieth century. Althoughrecent technological advances in biological weapons have been made, the vaccines and treatmentsavailable to deal with some of them have also advanced. Historically, most terrorist groups haveavoided using CBW, in part because they do not want to alienate their own constituencies, and inpart because they have not had the technical expertise to turn them into effective weapons. (2) ThoseCBW attacks that have occurred represent a small proportion of the total number of internationalterrorist incidents. (3) CBW weapons have rarely beenused by subnational groups. But there is growing concern that past patterns of use could be about to change. Many experts worry about the increasing availability of CBW in the last decade or so, combined with the serious psychological impact that their use would have. This concern was heightened after 1995, when theJapanese terrorist organization Aum Shinrikyo used the chemical nerve agent sarin on the Tokyosubway, killing 12 people and injuring up to 6,000. The group's efforts, which fell far short of itsgoals, attracted widespread attention and helped increase focus on the so-called weapons of massdestruction (WMD) terrorist threat. While there is considerable information about state acquisition and/or use of CBW, evidence regarding nonstate acquisition and/or use is contradictory and often sketchy. (4) Although hardevidence is limited, a sampling of terrorist groups or individuals that are reported to have shown aninterest in or used chem-bio agents (usually in very limited ways) includes the PKK (KurdistanWorker's Party), believed to have weaponized the nerve gas sarin; HAMAS (Islamic ResistanceMovement), which has reportedly coated shrapnel with poisons and pesticides; numerous U.S.domestic individuals and groups without foreign connections (including the Minnesota PatriotsCouncil, the so-called "Alphabet Bomber," R.I.S.E., Larry Wayne Harris, and others) who have usedor intended to use ricin, plague, anthrax, hydrogen cyanide, sarin, and other agents; and of courseAl Qaeda and its associated groups. (5) But the effortsof Aum Shinrikyo represented a watershed, withits bizarre and seemingly irrational agenda, its systematic pursuit of technical competency, and itsrepeated attempts to kill a large number of Japanese civilians. Even with its multiple technicalfailures, Aum Shinrikyo led to heightened anxiety about the attractiveness and feasibility of futuremass casualty terrorist use of CBW. Still, numerical trends for CBW attacks have not increased. According to the Monterey Institute of International Studies' terrorism chronology, between 2000 and 2001 (the last year forwhich published data are available), the number of hoaxes went up (from 25 to 603) but the numberof CBW incidents actually decreased (from 48 to 25). (6) Thus it would appear that the fall 2001anthrax attacks in the United States resulted in numerous copy-cat hoaxes, but they did not reflectan overall increase in bioterrorism events. However, terrorism experts continue to worry about theuse of chemical and biological agents. The reasons for increased potential use can be grouped into four major categories: the growthof militant religious groups with political agendas as a percentage of all terrorist groups, theincreasing global availability of CBW information and stockpiles, the internationalization of thethreat of terrorism, and the clear evidence of terrorist interest and capabilities. First, there has been a sharp increase in militant religious groups internationally as a percentage of all terrorist groups. Over the last years of the twentieth century, such groups went from being justover three percent of all identified terrorist groups in 1980 to forty-three percent by 1995. (7) Militantreligious terrorists, experts note, may label their victims as heretics or infidels and thus unfit to live. The incentives for such groups to kill large numbers of people may thus be unconstrained by thescruples of earthly constituencies. In combination with this worrisome development, the lethality per terrorist attack went up over the course of the past decade. While there were fewer attacks overall in the 1990s, the number ofpeople killed and maimed per attack increased. This confirmed the fear of many experts thatterrorism based on extreme religious beliefs, in association with other developments discussedbelow, might be even more dangerous than were the left wing, right wing, andethnonationalist/separatist groups that predominated in earlier years. (8) A larger proportion of theattacks that did occur were executed by persons with religion-based animus. The tragedies ofSeptember 11th seemed to bear out both of these trends. Second, there is a growing concern about the increasing availability of information and resources for the building of weapons by subnational groups that in former years had been feasibleonly with the resources of a state. Like the rest of the world, terrorist groups have access to the vastamount of technical data disseminated through the Internet. More and more information that mightpreviously have been difficult to collect is becoming easily accessible. Among the groups that havereportedly demonstrated interest in acquiring unconventional weapons (besides Al Qaeda) are thePLO, the Red Army Faction, Hezbollah, the Kurdistan Workers' Party, German neo-Nazis, and theChechens. (9) At the same time, the breakup of theSoviet Union increased potential access to a vast,highly advanced arsenal of not only nuclear but also chemical and biological weapons and expertise. The combination of greater movement of people, knowledge and products across borders in aglobalized world, and greater availability of materials and expertise in the post-Soviet era, havetogether led to a potentially serious erosion in state control over chemical and biological weapons(or their ingredients). (10) Third, the nature of international terrorism has evolved in dangerous ways in recent years. Although many traditional groups carry on in their struggles, the growth of religiously-orientedgroups has led to an increased commonality of interests between populations in disparategeographical areas. In part in reaction to American global policies and cultural as well as politicalglobal reach, groups are developing ties across formerly divisive ideological, ethnic, and nationallines. The area of potential recruits is thus broader than it might have been for a traditionalethnonationalist/separatist group supported only by its local constituency, for example. Also, thisinternationalization of the threat has often led to a greater distance between groups and targets. Theresult is not only a removal of moral constraints but also political constraints, with less worry aboutpotentially sullying a homeland or killing potential constituents. Thus, the internationalization ofterrorism may unfortunately imply an increase in just the sorts of incentives that lead groups toconsider unconventional weapons. Fourth, and perhaps most important, there are clear indications of interest in CBW on the part of contemporary terrorist groups, as well as some evidence of actual capabilities. With along-standing expressed desire to acquire them and a demonstrated willingness to kill Americans,Al Qaeda (and its associates) is the group that most worries U.S. experts. Osama bin Laden hasreportedly pursued the development of chemical and biological weapons since the early 1990s. (11) In1998, he spoke of acquiring weapons of mass destruction being a "religious duty," and the eleventhvolume of Al Qaeda's 5,000-page "Encyclopedia of Jihad" is devoted to explaining how to constructCBW. (12) There are many substantiated examples in the open press of efforts by Al Qaeda and its allies to develop these weapons. During operations in Afghanistan, coalition forces found trace amountsof ricin and anthrax at five or six sites, as well as evidence of an interest in plague, cyanide, andbotulinum toxin. (13) In December 2001, CNNobtained a cache of 64 Al Qaeda video tapescontaining gruesome evidence of experiments using an apparent nerve gas against dogs. (14) Furtherafield, in 2002 a reported plot by nine Moroccans to use a cyanide compound to poison the watersupply of the U.S. Embassy in Rome was disrupted; several of the men involved had ties to AlQaeda. (15) In January 2003, a reported plot by sixAlgerians to use ricin was uncovered in a Londonapartment. One of the six arrested had attended Al Qaeda training camps, whereas the others hadreceived training in Chechnya and the Pankisi Gorge region of Georgia. (16) Most recently, evidenceseized in March 2003 with the arrest of operations chief Khalid Shaikh Mohammed demonstratedsurprising technical sophistication, with production timetables and manufacturing specifications forbio-chemical agents, especially weaponized anthrax. (17) In addition to these highly publicizedexamples, there are many other press reports of varying reliability. It is hard to know with confidence what the logic of this apparently growing interest in CBW is. If high casualties are the intended end, these agents are not the most effective means: chem-bioagents are generally more useful for increasing anxiety and panic than causing high numbers ofcasualties. Projections of tens of thousands of casualties are theoretically possible, (18) but many suchestimates are worst-case scenarios likely to occur in hard-to-achieve circumstances, with idealweather conditions, temperature controls, dispersion rates, concentrations of agent, and so on. (19) Still,terrorism is a psychological weapon, intended for political effect. The goal might instead be to causeeconomic damage, or to show strength and increase political support or leverage, or to copy otherterrorist groups, or to emulate the technological capabilities of states-or some combination of these. While this is a fine line to draw, there is a danger that Western governments might overstate andhype the threat, leading to some of the same outcomes by heightening anxieties. There are a largenumber of practical obstacles to terrorists using these weapons, and these will be discussed next. There are at least four reasons why terrorist groups like Al Qaeda might avoid using chem-bioagents in attacks against the United States and its interests. First and most important, the technicaldifficulties in carrying out such attacks continue to be significant. Aum Shinrikyo is a good exampleof a group that had unusually favorable circumstances for producing chemical and biologicalweapons, including money, facilities, time and expertise, yet they were unable to do so effectively. Some experts argue that Aum Shinrikyo's experience, which included problems ranging fromobtaining biological seed cultures to effectively disseminating them to chemical leaks and accidents,is as easily a warning of the technical challenges involved as it is an example for future groups. (20) For most nonstate actors, difficulties with acquiring materials, maintaining them, transforming theminto weapons, and disseminating them effectively are numerous. While many technical advanceshave occurred in recent years, arguably reducing the barriers somewhat, there are still considerableobstacles to terrorist development of chemical and biological weapons. (21) Second, as mentioned above, there are far easier and potentially more "effective" (at least in terms of casualty numbers) alternatives to chemical and biological weapons. On the rare occasionswhen they have been used, CBW have not resulted in large death tolls, especially compared toconventional weapons such as truck bombs and individual explosive devices. (22) It is worth bearingin mind that the attacks of September 11th accomplished mass destruction without anyunconventional weaponry. If measured strictly in terms of their proven capacity to kill people or thefrequency of terrorist use in the past, CBW weapons are not the most worrisome threat. Third, the incentives and disincentives for individual terrorists to use chemical and biological weapons are complex and may not be exactly the same as those that guide the use of moreconventional weapons. Recent suicide attacks indicate, among other things, an apparently growingwillingness on the part of terrorist organizations to plan and condone the death of their ownoperatives in the service of the cause. It is difficult to handle many chemical and biological agentswithout putting the handler at risk, especially in the absence of the kind of top-quality equipment thatis more commonly available to states. But instantaneous death in a dramatic explosion is a far cryfrom the agony of a slow death from smallpox or exposure to a nerve agent. Of course, there aremany unknowns; but from an individual perspective, the incentives and disincentives for dying ina CBW attack should not be assumed to be the same as those that factor into other types of attacks. Indeed, the existence of larger numbers of religious terrorists could actually imply a decreased likelihood of the use of chemical and biological weapons. Although this point should not beoverstated, violence whose primary aim is to kill as many perceived enemies as possible may not belikely to employ these agents. It is difficult in most scenarios to execute an attack with chem-bioweapons that kills a large number of people. Finally, groups tend to mimic previous successes. Although terrorists do innovate in various ways, (23) groups have most often preferred to useweapons that have a proven track record. There areno guarantees, but going strictly on the odds and the historical patterns of terrorist behavior, mostexperts posit that there is a higher likelihood that the next major attack will use conventional notunconventional means. But, again, the caveat is that terrorism seeks to shock. If a chemical or biological terrorist attack were to occur, it is most likely that the event wouldbe on a small scale physically, with much larger effects on the population psychologically. For thisreason, targets of terrorism are forced to seek a fine balance: On one hand, it is important to preparethe public for the possibility of an attack. Among other things, since one of the incentives for usingthese weapons is to induce panic, preparations lower the likelihood of their occurrence in the firstplace. On the other hand, hyping and publicizing the threat potentially distorts its probablemagnitude and likelihood. This could arguably add to the incentives for a terrorist organization toattempt an attack. Additional measures to counter both state and especially non-state means of proliferation of chemical and biological weapons are crucial to reducing the threat in the future, both domesticallyand internationally. This is a difficult technical challenge in an age of globalization, when theexpertise and means to carry out attacks are becoming much harder to control through traditionalstate measures like border controls, export controls, treaties and sanctions. Defensive measures andconsequence management to reduce both the effects of an attack and the incentives to carry one outwill be increasingly important. Within the United States, some measures enhancing the security oflaboratories/facilities have already been enacted. (24) Some believe that existing measures are adequate,and others disagree. With respect to the increasing global availability of information and materials related to chemical and biological weapons, an important issue could be the fate of the people who haveworked in the Iraqi weapons programs. At this writing, the full nature of those programs is notpublicly known; however, as the United States forcibly disarms Iraq, it could become critical toensure that CBW materials and expertise are not disseminated during and after military operations. This is a potential danger not only with respect to keeping track of the whereabouts and behavior ofthe scientists who have been in charge (and may have already been identified by UNMOVIC and/orU.S. intelligence) but also the production-level technicians and others who may have access or somedegree of knowledge. At least in the short term, the nightmarish scenario of loss of control of Iraqi CBW, including potential sale or transfer to terrorist organizations, could arguably be more likely in an atmosphereof political or economic instability. There might be incentives for new links to develop betweenIraqis who might have benefitted from the previous regime, and well-heeled groups like Al Qaeda(and its associates). Osama bin Laden's expression of support for the Iraqi people (if not theBa'athist regime), as well as evidence of Al Qaeda's existing interest and capabilities, argue forscrupulous caution along these lines. There have been extensive measures under the Nunn-LugarComprehensive Threat Reduction program oriented toward the arsenal of the former Soviet Union,but a post-conflict Iraq could present important new proliferation risks. Existing legislation,including the Iraq Sanctions Act of 1990 and existing provisions under the Chemical WeaponsConvention and the Biological and Toxin Weapons Convention, may not adequately address thisnew concern, (25) and additional measures targetingthis emerging danger may be worth considering.

There is widespread belief that the likelihood of terrorist use of chemical and biological weapons (CBW) is increasing, in part as a result of publicized new evidence of terrorist interest andcapabilities, as well as the political fall-out from the war in Iraq. This is a serious present concernthat deserves examination in the broader framework provided by the patterns, motivations andhistorical context for the current terrorist threat. Although it can have a powerful psychologicalimpact, past CBW use by terrorists has been rare and has not caused a large number of casualties,especially compared to other weapons. Terrorist attacks are deliberately designed to surprise, so notrend analysis will ever perfectly predict them, especially in the contemporary international climate. This report presents the arguments for and against future nonstate terrorist acquisition and/or use ofCBW weapons against the United States, as well as a brief discussion of issues for congressconcerning how best to counter the threat. It will not be updated.

Recognizing the risk that a standing army could pose to individual civil liberties and the sovereignty retained by the several states, but also cognizant of the need to provide for the defense of the nation against foreign and domestic threats, the framers of the Constitution incorporated a system of checks and balances to divide the control of the military between the President and Congress and to share the control of the militia with the states. This report summarizes the constitutional and statutory authorities and limitations relevant to the employment of the armed forces to provide disaster relief and law enforcement assistance. Congress has the constitutional power to raise, support, organize and regulate the armed forces, art. I, SS8, cls. 11-14. These clauses do not expressly limit Congress as to how, when, or where it might employ the armed forces, although presumably such use must be in furtherance of other constitutional powers. Congress is also empowered to provide for calling forth the militia to execute federal law and to suppress insurrections, SS8, cl. 15, and to provide for organizing, arming, and disciplining the militia and to govern them when they are employed in the service of the United States, SS8, cl. 16. Once the army is raised or the militia called forth, the President serves as their Commander-in-Chief, art. II, SS2, cl. 1. And of course, the President is vested with the responsibility to "take Care that the Laws be faithfully executed," art. II, SS2, cl. 3. Congress has delegated to the President the authority to use the armed forces to respond to a variety of domestic crises, and Presidents have asserted some inherent authority to use the military even without express statutory authorization. Under the Constitution, states retain the primary responsibility and authority to provide for civil order and the protection of their citizens' lives and property. However, the Constitution provides that the federal government is responsible for protecting the states against invasion and insurrection, and, if the state legislature (or the governor, if the legislature cannot be convened) requests it, protection against "domestic Violence," art. IV, SS4. States may not keep their own standing armies, art. I, SS10, cl. 3, but they retain the authority to call forth their militias to suppress insurrections or quell civil disturbances, subject to any restraints imposed by the Constitution or by Congress, in the exercise of its constitutional powers. Congress has complete authority over federal lands, military installations, and similar areas, art. I, SS8, cl. 17. The Constitution does not explicitly bar the use of military forces in civilian situations or in matters of law enforcement, but the United States has traditionally refrained from employing troops to enforce the law except in cases of necessity. The Posse Comitatus Act (PCA), 18 U.S.C. SS1385, punishes those who, "except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully use[] any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws.... " The act does not apply to the Navy or Marines and does not prohibit activities conducted for a military purpose (base security or enforcement of military discipline) that incidentally benefit civilian law enforcement bodies. The act does not apply to the National Guard unless it is employed in federal service. Questions arise most often in the context of assistance to civilian police. At least in this context, the courts have held that, absent a recognized exception, the PCA is violated (1) when civilian law enforcement officials make "direct active use" of military investigators, (2) when the use of the military "pervades the activities" of the civilian officials, or (3) when the military is used so as to subject citizens to the exercise of military power that is "regulatory, prescriptive, or compulsory in nature." Congress has provided for a number of statutory exceptions to the PCA by explicitly vesting law enforcement authority either directly in a military branch (e.g, the Coast Guard) or indirectly by authorizing the President or another government agency to call for assistance in enforcing certain laws. Congress has delegated authority to the President to call forth the military during an insurrection or civil disturbance, 10 U.S.C. SSSS331-335. Section 331 authorizes the President to use the military to suppress an insurrection at the request of a state government, which is meant to fulfill the federal government's responsibility to protect states against "domestic violence" (although the term "insurrection" is arguably much narrower than the phrase "domestic violence"). Section 332 delegates Congress's power under the Constitution, art. I, SS8, cl. 14, to the President, authorizing him to determine that "unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States make it impracticable to enforce the laws of the United States" and to use the armed forces as he considers necessary to enforce the law or to suppress the rebellion. Section 333 permits the President to use the armed forces to suppress any "insurrection, domestic violence, unlawful combination, or conspiracy" if law enforcement is hindered within a state, and local law enforcement is unable to protect individuals, or if the unlawful action "obstructs the execution of the laws of the United States or impedes the course of justice under those laws." This section was enacted to implement the Fourteenth Amendment and does not require the request or even the permission of the governor of the affected state. The Insurrection Act has been used to send the armed forces to quell civil disturbances a number of times during U.S. history, most recently during the 1992 Los Angeles riots and during Hurricane Hugo in 1989, during which widespread looting was reported in St. Croix, Virgin Islands. If the President decides to respond to such a situation, generally upon the recommendation of the Attorney General and, if necessary, the request of the governor, he must first issue a proclamation ordering the insurgents to disperse within a limited time, 10 U.S.C. SS334. If the situation does not resolve itself, the President may issue an executive order to send in troops. Congress has also authorized the armed forces to share information and equipment with civilian law enforcement agencies, 10 U.S.C. SSSS371-382, although prohibiting the use of armed forces personnel to make arrests or conduct searches and seizures. Department of Defense (DOD) regulations assert another exception that does not rest on statutory authority, but is available in very limited circumstances and covers "Actions that are taken under the inherent right of the U.S. Government ... to ensure the preservation of public order and to carry out governmental operations within its territorial limits, or otherwise in accordance with applicable law, by force, if necessary." The emergency power, according to DOD directives, is available to protect federal property and functions, and to authorize prompt and vigorous Federal action, including use of military forces, to prevent loss of life or wanton destruction of property and to restore governmental functioning and public order when sudden and unexpected civil disturbances, disaster, or calamities seriously endanger life and property and disrupt normal governmental functions to such an extent that duly constituted local authorities are unable to control the situation. Ordinarily, the implementation of such operations must be authorized by executive order, but DOD officials and military commanders may take emergency action without prior authorization in cases where "sudden and unexpected civil disturbances (including civil disturbances incident to earthquake, fire, flood, or other such calamity endangering life) occur, if duly constituted local authorities are unable to control the situation and circumstances preclude obtaining prior authorization by the President." The Robert T. Stafford Disaster Relief and Emergency Assistance Act (the Stafford Act, 42 U.S.C. SSSS5121, et seq.) authorizes the President to make a wide range of federal aid available to states that are stricken by a natural or man-made disaster. It provides statutory authority for employing the U.S. armed forces for domestic disaster relief. Permitted operations include debris removal and road clearance, search and rescue, emergency medical care and shelter, provision of food, water, and other essential needs, dissemination of public information and assistance regarding health and safety measures, and the provision of technical advice to state and local governments on disaster management and control. The authority does not constitute an exception to the PCA. In the event of a disaster that results in the wide-scale deterioration of civil law and order, the authority to employ active duty troops to perform law enforcement functions must be found elsewhere. The Stafford Act does not authorize the use of federal military forces to maintain law and order. Federal forces would have no authority, for example, to act as traffic controllers or provide security for facilities used in the relief efforts, unless such activities serve a valid military purpose. Patrolling in civilian neighborhoods for the purpose of providing security from looting and other activities, would not be permissible, although patrolling for humanitarian relief missions, such as rescue operations and food delivery (which may have the incidental benefit of deterring crime) would not violate the PCA. Military resources may be employed in the following situations. Upon the request of the governor, the President may task DOD to provide any emergency work the President deems essential for the preservation of life and property in the immediate aftermath of an incident that may ultimately qualify for assistance under a declaration. Such assistance is available for up to ten days prior to a presidential declaration of an emergency or a major disaster, 42 U.S.C. SS5170b(c). Emergency work can include the clearance and removal of debris and wreckage and the restoration of essential public facilities and services, 42 U.S.C. SS5170(c)(6)(B). The provision is designed for instances where communications problems impede the ability to meet the prerequisites for declaring an emergency or major disaster or the ability to coordinate the work through FEMA. Unless the President determines that a disaster implicates preeminently federal interests, the declaration of an emergency under the Stafford Act requires that the governor of the affected state first make a determination that the situation is of such severity and magnitude that the state is unable to respond effectively without federal assistance, which determination must include a detailed definition of the type and amount of federal aid required, 42 U.S.C. SS5191. The governor must also implement the state's emergency response plan, for example, by activating the state's National Guard units under state control (in which case the PCA does not apply to them), and provide information regarding the resources that have been committed. The prerequisites for a major disaster declaration are similar to those for an emergency, 42 U.S.C. SS5170. The governor must first execute the state's emergency plan and make a determination that state capabilities are insufficient to deal with the circumstances. However, the governor need not specify which forms of assistance are needed. The governor must provide information regarding the resources that have been committed and certify that the state will comply with cost sharing provisions under the Stafford Act. There is no provision for the declaration of a major disaster without the governor's request. If the governor activates Guard units and keeps them under state control, those units are not restricted by the PCA. If the state's National Guard units are called into federal service to respond to an emergency or a major disaster, their role is restricted to the disaster relief operations authorized under the Stafford Act. DOD doctrine allows commanders to provide resources and assistance to civil authorities without or prior to a declaration under the Stafford Act when a disaster overwhelms the capabilities of local authorities and necessitates immediate action "to save lives, prevent human suffering, or mitigate great property damage." Immediate response actions can include the types of activities authorized under the Stafford Act, including, at the request of civil authorities, rescue, evacuation, and emergency medical treatment, restoration of essential public services, debris removal, controlling contaminated areas, safeguarding and distributing food and essential supplies, and supplying interim emergency communications. The controlling directive does not require a request from state or local officials, but states that "DoD Components shall not perform any function of civil government unless absolutely necessary on a temporary basis under conditions of Immediate Response. Any commander who is directed, or undertakes, to perform such functions shall facilitate the reestablishment of civil responsibility at the earliest time possible." The immediate response authority is not provided for in any statute, but is said to have deep historical roots. While the immediate response authority does not constitute an exception to the PCA, in some cases it may appear so. The potential exists for a disaster relief situation, under which DOD invokes the immediate response authority, to rapidly deteriorate into a civil disturbance. Law enforcement activities in connection with a civil disturbance are an exception to the PCA. Therefore, DOD would be able to assist civil authorities with both disaster relief and law enforcement, simultaneously, under separate authorities. The 1906 San Francisco earthquake is a noted example of a simultaneous natural disaster/civil disturbance. The commanding general of the Pacific Division, on his own initiative, deployed troops to assist civil authorities to stop looting and protect federal buildings, while also assisting firefighters in battling the raging fire.

Natural disasters, such as Hurricane Sandy, raise questions concerning the President's legal authority to send active duty military forces into a disaster area and the permissible functions the military can perform to protect life and property and maintain order. The Stafford Act authorizes the use of the military for disaster relief operations at the request of the state governor, but it does not authorize the use of the military to perform law enforcement functions, which is ordinarily prohibited by the Posse Comitatus Act. However, the President may invoke other authorities to use federal troops to aid in the execution of the law, including the Insurrection Act. This report summarizes the possible constitutional and statutory authorities and constraints relevant to the use of armed forces, including National Guard units in federal service, to provide assistance to states when a natural disaster impedes the operation of state and local police.

Like other manufacturing industries, the worldwide recession is weighing heavily on aerospace manufacturing. This is especially true for commercial aerospace companies and their suppliers, which are being buffeted by the significant decline in global air travel, resulting in a sharp drop in new orders for aircraft and parts. The aerospace industry's commercial side anticipates difficult business conditions for the near and medium term, but long-term projections by Boeing, for instance, are positive, with airlines expected to need 29,000 new planes valued at $3.2 trillion between 2009 and 2028. For now, the defense segment of the aerospace sector has offset the downward trend because it still benefits from continuing government expenditures for military aircraft. Aerospace industry analysts nonetheless predict that there could be tough times ahead for producers of military aircraft. The international market for aerospace manufacturing is also rapidly changing, and it raises the question of what impact nascent competitors in countries such as China and Russia will possibly have on the future competitiveness of U.S. aircraft manufacturers. As an industry, aerospace manufacturing in 2008 directly supported over 500,000 high-skilled and relatively well-paid private sector manufacturing jobs nationwide. The private sector aerospace manufacturing workforce in 2008 earned an average wage of $79,700, or about 47% more than the annual average manufacturing wage of $54,400. Many jobs in aerospace manufacturing require at least a bachelor's degree in a specialized technical field such as engineering, which largely explains the significant wage differential. As a result of collective bargaining agreements negotiated by major aerospace unions, including the International Association of Machinists and Aerospace Workers and the Society of Professional Engineering Employees in Aerospace, 21% of aerospace workers were union members or covered by union contracts in 2006, compared with 13% of all workers throughout private industry. The U.S. aircraft manufacturing industry is composed of major firms such as Boeing, United Technologies, Northrop Grumman, Gulfstream Aerospace, and Textron, among others. Established aerospace manufacturing centers are located in Washington state, California, Texas, Kansas, Connecticut, and Arizona (with a combined workforce of more than 305,000 in 2008, comprising over 60% of the aerospace workforce nationwide). Aerospace manufacturing clusters are also present in Florida, Georgia, Ohio, Missouri, and Alabama. Other states, such as South Carolina, are also seeking to increase their aircraft manufacturing production base. In October 2009, Boeing announced it would locate a second final production assembly line in North Charleston, South Carolina, to produce its new 787 mid-sized aircraft, dubbed the Dreamliner. Ground was broken on the Boeing Charleston plant in November 2009, with the production line expected to be operational in July 2011 and delivery of the first plane scheduled for the first quarter of 2012. Boeing anticipates the South Carolina facility will add over 3,800 new jobs within seven years. This would be a significant jump for the state's aerospace manufacturing industry, which currently accounts for less than 1% of South Carolina's manufacturing workforce. For the most part, the ongoing contraction in aerospace manufacturing does not appear in the 2008 data used predominately in this report since the full impact of the economic downturn did not hit the U.S. economy until late 2008. However, the effects have been felt strongly on the commercial side of the industry, and the end of production of key aircraft platforms such as the F-22 and C-17 bodes ill for defense aircraft manufacturing. The aerospace industry by its very nature is cyclical--with industry-specific cycles seemingly occurring approximately every 10 years--and highly susceptible to changing international situations and market forces that are often beyond its control. Commercial aircraft manufacturing sales are directly tied to the health of the airline industry, and a host of factors can influence demand for air travel, including increased economic activity, regional conflicts, terrorism, and disease outbreaks. Full-year 2009 aerospace industry sales statistics are presently unavailable from the aerospace industry trade group, the Aerospace Industries Association (AIA), or from government sources, but many believe considerable evidence indicates a weakening aircraft market, which most likely will reverse the strong market upturn and the lucrative period for aerospace manufacturing that extended back to 2003. Aerospace manufacturing, unlike other industries, entered the current recessionary period from a strong starting position, with limited debt and a strong backlog of orders, according to AIA. AIA in its 2008 Year End Review and 2009 Forecast reported an increase in industry-wide estimated sales of $204.4 billion in 2008, compared to $200.3 billion in 2007 (in current U.S. dollars). As of 2008, aerospace manufacturing by sales accounted for 1.4% of U.S. gross domestic product (GDP). This was down from 1.5% in 2000 and 1.7% in the late 1990s. The commercial market and defense market are the two major industry segments that comprise aerospace manufacturing. Commercial aircraft and parts shipments totaled $96.6 billion in 2008, comprising 63% of total industry shipments, down 4% over 2007, which was a change in direction from the positive growth recorded in commercial aerospace manufacturing shipments dating back to 2003. At the same time, new orders in 2008 for civil aircraft and parts fell for the first time since 2003, dropping from $184.5 billion to $124.1 billion between 2007 and 2008, down by 33%. Defense is the smaller of the two, and this segment depends on the U.S. government for a significant share of its sales. Government agencies including the Department of Defense (DOD) and the National Aerospace and Space Administration (NASA) are the aerospace industry's single largest customers. Defense aircraft and parts accounted for 37% of total aircraft and parts shipments of $152.4 billion in 2008. These shipments were up 40% year-over-year between 2007 and 2008, rising from $39.7 billion to $55.8 billion. The strength of this segment is an important offset during downturns because aerospace companies can often rely upon government business to buoy the commercial sector through its cyclical highs and lows. Aerospace products and parts, including aircraft engines made by firms such as General Electric and United Technologies, are manufactured at large production facilities and hundreds of smaller, but not necessarily small, manufacturers, which are suppliers of parts and components to U.S. and overseas aerospace manufacturers. Main suppliers include the privately held Vought Aircraft Industries, a major subcontracting partner on many commercial and military aircraft programs. Other supplier firms would include Spirit AeroSystems, a major supplier of commercial assemblies and components, and Crane Corporation, a designer and manufacturer of critical systems and components to the aerospace and defense markets. For many decades, the U.S. large commercial jet manufacturing industry was dominant worldwide. Today, the world market has evolved into the highly competitive duopoly of Airbus and Boeing. At the same time, the U.S. aircraft industry now depends on many non-U.S. firms for contributions to their own products. Parts of Boeing's newest aircraft, the 787 Dreamliner, have been outsourced to a global supplier network including firms in Australia, Canada, China, Italy, and Japan. Of concern to many lawmakers in the large commercial aircraft market segment is the current dispute pending before the World Trade Organization (WTO) between Airbus and Boeing. The unfair subsidization case, which dates back to a May 30, 2005, WTO filing by the United States, alleges that member states of the European Union (EU) provided Airbus with illegal subsidies from 1970 to 2004, thus giving the European aircraft manufacturer an unfair advantage in the large commercial aircraft market. The counterclaim by the EU is that Boeing received billions of dollars in industrial subsidies by way of research and development programs dating back to the 1980s through U.S. military and space programs, along with state-level tax breaks. Aerospace manufacturers like Boeing depend heavily on the international market for sales. For example, about 70% of Boeing's commercial airplane sales (by value) are sold to customers outside the United States. Industry-wide exports (including defense and space products) by U.S. manufacturers of aerospace vehicles and equipment increased for five consecutive years, from $53 billion in 2003 to $97.4 billion in 2007. This growth was followed by a slight decrease in aerospace exports in 2008, dropping 2%, according to data compiled by the U.S. Department of Commerce. Japan, France, the United Kingdom, Canada, and Germany were the top five export markets for U.S. aerospace products in 2008, accounting for 36.2% of total aerospace exports worldwide. Outside of these major markets, the United States increased its aerospace vehicle and equipment exports to emerging markets such as Brazil and China. U.S. aerospace exports to China more than doubled between 2003 and 2008, growing from $2.7 billion to $5.5 billion. U.S. aerospace exports to Brazil rose 320% during the same time period, to $5.8 billion. France, Canada, the United Kingdom, Germany, and Japan were the leading aerospace suppliers to the United States in 2008, accounting for almost 75% of all aerospace imports, for a total of $27.9 billion. U.S. aerospace exports made a contribution to reducing the U.S. merchandise trade deficit by offsetting deficits in other areas of trade. The U.S. aerospace industry trade balance stood at over $57 billion in 2008. Boeing and Airbus entered the ongoing recessionary period with a considerable backlog of undelivered aircraft on their books (Airbus recorded a backlog of 3,715 and Boeing 3,714). Both firms have continued to deliver significant numbers of new aircraft to their airline and/or leasing firm customers, and both are profitable. Boeing posted revenues of $60.9 billion and Airbus recorded revenues of $38.7 billion in 2008. Nonetheless, the recession is affecting both producers. In 2008, net orders fell for both Boeing and Airbus (see Table 1 ). For the first three quarters of 2008, Airbus and Boeing received total new orders of 785 airplanes and 625 airplanes, respectively. For the same period in 2009, these numbers have dropped to 149 and 181. There are expectations both firms will have to significantly reduce their aircraft production rates at some point to correspond with this decrease in new orders. By one view, there is a growing supply of surplus aircraft in this market sector and it will take years for this surplus to be absorbed by a global airline industry currently operating at reduced capacity. Another possible sign of trouble for commercial jet manufacturers could be the evolving economic and financial crisis in Dubai. Boeing and Airbus rely on the Middle Eastern market for sales of their aircraft, particularly to the region's large airlines such as Fly Emirates, the national airline of Dubai. Emirates is one of the largest customers for the Airbus A380, with 58 orders. Less exposed is Boeing, but nonetheless it has 23 unfilled orders on its books with Emirates through October 2009 for its 777 aircraft. It is too early to predict what the economic turmoil in Dubai could mean for the orders of these aircraft or for future orders. Boeing and Airbus both have substantial backlogs of orders on their books built up beginning in 2003. Industry analysts say that Boeing is working on a seven-year backlog and Airbus on a six-year backlog. Both have slowed production lines for 2009, and the trend may continue through 2010 or 2011, but many analysts expect this hiatus to be temporary. Boeing's market projections indicate an average annual fleet growth of 3.2% and cargo growth rates of 5.4% from 2009 through 2028. The long-term trajectory for all aircraft manufacturers appears to be strong, with the global market absorbing 29,000 new commercial passenger and freight airplanes valued at $3.2 trillion by 2028 due to such factors as volatile fuel prices, aging fleets, and environmental concerns. For the near and medium term, however, both manufacturers have other issues that will affect their financial performance. The Boeing 787 program is now over two years behind its delivery schedule, originally slated for rollout on July 8, 2007. In part, the delay is viewed by many as being related to problems associated with the highly advanced composite technology that Boeing is incorporating into the aircraft. But many observers also believe the delays are due to the heightened level of outsourcing and concomitant international risk-sharing that Boeing built into the 787. Boeing has a large undelivered backorder of 840 of these planes valued at $140 billion, but until it starts delivering these aircraft in significant numbers the program will remain a drain on its profitability. Airbus had a similar experience with its A380 aircraft program earlier in this decade. Although now in production (19 had been delivered as of October 2009), the world's largest commercial aircraft was delayed for years and it is unlikely that deliveries to date have come anywhere close to recouping the costs of developing that aircraft. Airbus is also in the process of developing a competitor aircraft for the 787 and 777, the A350 XWB, a long-range, mid-size, extra-wide-body airplane. Airbus is taking orders for the aircraft (reporting that it has more than 500 orders from 32 customers), but deliveries are still well off, with the expectation that the first planes will be delivered in 2013, meaning that the A350 XWB program will also be a negative draw on the firm's finances for some years to come. Just like the large commercial aircraft market, the regional jet (RJ) market--typically considered to be commercial jet aircraft with up to 100 seats--depends on the recovery of the airline industry, and it is in a period of prolonged downturn. No U.S.-based firm produces RJs. Canada's Bombardier and Brazil's Embraer are the two major manufacturers of these aircraft, and they now control the market. More recently, deliveries of RJs have slowed. Save for one large order for the as-yet-to-be-built 100- to 130-seat Bombardier C Series aircraft (50 units), with an anticipated entry into service date of 2013, neither manufacturer would have had more than 20 new orders for the first three quarters of 2009. This is a major drop from the 2008 level for the same period of over 200 new orders. Some industry analysts believe the natural annual market for RJs is around 200 aircraft. Regardless of the non-U.S. manufacture of these airframes, RJs represent an important market for the U.S. aerospace manufacturing sector, which provides these manufacturers with engines, landing gear, avionics, and a wide range of other components. One research group, Forecast International, projects that between 2009 and 2018 a total of 3,754 regional aircraft will be produced at an estimated cost of $115 billion. Bombardier projects deliveries of 12,400 aircraft in the 20- to 149-seat segment over the next 20 years. Forecast International also points to increased potential competition from three new entrants into the regional jet market: the Chinese state-owned company, the Commercial Aircraft Corporation of China, Ltd. (COMAC), with its ARJ21; the Japanese firm Mitsubishi Heavy Industries, with the Mitsubishi Regional Jet (MRJ); and the Russian firm Sukhoi, with its Superjet 100. Much of the world's air traffic falls in the general aviation, or GA, category. This sector of aircraft manufacturing covers all aircraft that are not for military use or used for scheduled flights (private and commercial aircraft available for charter or cargo). A wide variety of aircraft types are included in the GA market, ranging from single engine piston aircraft to corporate jets. The General Aviation Manufacturers Association (GAMA) reports that through the end of 2008, the general aviation market was booming. In 2007, deliveries of business jets exceeded 1,000 for the first time, and shipments of new business jets in 2008 reached 1,315 planes, up 15.6% over 2007. Before 2009, production of all but piston aircraft had been increasing steadily on an annualized basis. U.S. production in the business jet classification segment reached 955 aircraft in 2008 (out of total world production of 1,315 units). Since the ongoing recession hit hardest in the fall of 2008, orders for new GA aircraft and especially business jets have fallen dramatically, with the use of corporate jets viewed unfavorably by some in the current economic climate. U.S. business jet production was off by almost 46.8% in the first nine months of 2009. Industry analysts project a significant decline in orders for 2009. Overall, worldwide shipments of general aviation aircraft, including airplanes that are not business jets, fell 7.1% in 2008, to 3,969. Kansas is one state, in particular, that is directly affected by the downturn in the general aviation market. Business jet producers Cessna, Hawker Beechcraft, and Bombardier's Learjet each have production facilities in Wichita, often referred to as the "Air Capital of the World." Kansas's aerospace and parts manufacturing industry employed 43,290 workers, representing 23% of the state's manufacturing workforce. Already, Hawker Beechcraft has reduced production and shed jobs. In February 2009, the company announced that it would lay off 2,300 workers this year, and most recently Hawker made public the closure of its factory in Salina, KS. Additionally, Cessna Aircraft, the largest manufacturer of corporate jets in the United States, said earlier this year that it would lay off at least 4,600 in 2009, 4,000 of which will come from Wichita. One possible issue of interest to Members of Congress is increased competition to the domestic industry from low-cost competitors, including the emergence of possibly strong aerospace manufacturing centers in China and Russia. As the above discussion indicates, non-U.S. firms dominate the RJ market and participate in the GA market. The large commercial jet aircraft manufacturing sector is a Boeing and Airbus duopoly. Over the years, aerospace firms from several non-traditional aircraft manufacturing nations have attempted to enter various parts of the international commercial aircraft sector. With the exception of some GA products, these attempts have largely been commercial failures. As mentioned earlier, a number of new initiatives appear to be under way. While aerospace firms in Europe and Japan have long driven competition with the United States, Russia and China have not, until recently, been strong competitors in the international market. Nowadays, both nations appear to have plans to dominate a much larger share of their own domestic markets and, in turn, perhaps the global market. Most notable is a new Chinese initiative to build an aircraft to compete in the same markets as the A320 series and the B737 series. COMAC was launched by the Chinese government in May 2008 for the express purpose of overseeing the development and production of large civil aircraft. The Comac C919, an approximately 156-seat aircraft with dimensions similar to the A320, is in development, though a production date has not yet been announced. Slated for certification no later than 2016, that model would compete directly with Boeing and Airbus. Though still in early design, Chinese officials have said the C919 should have operating costs 10% below those of comparable Western jetliners. Another competitor could be Russia's United Aircraft Corporation (UAC), a Russian government-owned joint stock company. UAC has stated it plans to become the third-largest aircraft manufacturer worldwide by 2015. Both Chinese and Russian aircraft manufacturers face significant hurdles in building commercial aircraft, since neither has ever built such airplanes for the commercial market, which requires planes to be reliable, have low operating costs, and be easily maintained. Another outstanding barrier to their market entry is certification by U.S. and EU aviation authorities. Congress has been discussing broad issues affecting the competitiveness of the nation's aerospace manufacturing industry for most of this decade. In the early 2000s, the Presidential Commission on the Future of the U.S. Aerospace Industry released its recommendations on how to maintain the competitiveness of the aerospace sector. The Aerospace Commission called for a national aerospace policy along with a government-wide framework to implement this policy, as well as the removal of prohibitive legal and regulatory barriers that impede the ability of the industry to grow. The Commission also advanced policies to maintain U.S. global aerospace leadership by proposing investments in America's industrial base, workforce, and research and development infrastructure. Many industry analysts argue that globalization helps the United States achieve its business objectives and enhances the competitiveness and vitality of aerospace exporters. But U.S. export licensing laws can negatively impact a customer's ability to acquire aerospace products and parts from the United Sates. While larger firms have learned to manage export control requirements, they remain a heavy burden for smaller companies, which in some cases inhibits the ability of second- and third-tier suppliers to compete in the international marketplace. The response by some overseas competitors to U.S. export control policies has been to develop products that do not contain any U.S. components. Like all other sectors of the U.S. economy, environmental concerns impact the aerospace industry. As the world debates the possible implications of climate change, it appears that the aerospace industry will have to contribute to reduction of carbon emissions. How to limit the environmental impact of aviation is a hotly debated topic in the United States and many foreign countries. Concerns include the possibility that some countries could establish unilateral measures to limit greenhouse gas emissions (GHG) for aviation. For instance, the EU's Emissions Trading Scheme (ETS) --a cap-and-trade system--wants the aviation industry to take responsibility for the emissions it contributes to the atmosphere, and all intra-EU and international flights are set to be included under the ETS beginning on January 1, 2012. The aerospace industry confronts a considerable workforce challenge, which is part of an overall problem in the U.S. science and technology workforce. The industry claims that the United States is not producing enough qualified workers to meet the needs of aerospace companies, and not enough students are opting for science and engineering careers. The number of students receiving engineering bachelor's degrees dropped by 11% between 1986 and 2006, but more recent data indicate a change in this trend, with engineering degrees conferred to undergraduates up 14% since 2000. In addition, the current aerospace industry workforce is aging, with an increase in retirements projected in coming years. According to Aviation Week's 2009 Workforce Study, the average age of the broad U.S. aerospace and defense industry workforce is 45, with an average age of 43 among engineers. Boeing reports the average age of today's aerospace engineer at 54 years, which is even older. A 2008 report by the American Institute of Aeronautics and Astronautics found that 26% of aerospace professionals will be eligible to retire this year, and potential additional retirements of "baby-boom" personnel will create a virtual "silver tsunami" of skilled workforce reduction. As a consequence, there is concern among aerospace companies that they are rapidly losing their institutional knowledge base. At the same time, the industry is finding it difficult to replenish its workforce with a younger engineering base. Significant competition for the small pool of technically trained aerospace talent comes from other industries, such as information technology and financial services, and increasingly other countries.

Aircraft and automobile manufacturing are considered by many to be the technological backbones of the U.S. manufacturing base. As the Obama Administration and Congress debate how to strengthen American manufacturing, aerospace is likely to receive considerable attention. Like other manufacturing industries, the worldwide recession has affected aerospace manufacturing, with both the defense and commercial sides of the industry facing difficult business conditions for the near and medium term. This report primarily provides a snapshot of the U.S. commercial (non-defense, non-space) aerospace manufacturing industry and a discussion of major trends affecting the future of this industry. The large commercial jet aviation market is a duopoly shared by the U.S. aircraft manufacturer Boeing and the European aircraft maker Airbus, with fierce competition between these two companies. The regional jet market is dominated by two non-U.S. headquartered manufacturers, Brazil's Embraer and Canada's Bombardier, both of which utilize a high level of U.S.-produced content in their products. The general aviation market includes companies such as Cessna and Gulfstream. Aerospace manufacturing is an important part of the U.S. manufacturing base. It comprised 2.8% of the nation's manufacturing workforce in 2008 and employed over 500,000 Americans in high-skilled and high-wage jobs. More than half (61%) of the nation's aerospace industry jobs are located in six states: Washington state, California, Texas, Kansas, Connecticut, and Arizona. Several smaller aerospace manufacturing clusters are found in states such as Florida, Georgia, Ohio, Missouri, and Alabama. Other aerospace centers are beginning to emerge in southern states, such as South Carolina, where Boeing is now building a second production line to produce the 787 Dreamliner. Aerospace manufacturing contributes significantly to the U.S. economy, with total sales by aerospace manufacturers (including defense and space) comprising 1.4% of the U.S. gross domestic product in 2008. U.S. aircraft manufacturers depend heavily on the international market for their sales. The aerospace industry sold more than $95 billion in aerospace vehicles and equipment (including defense and space) to overseas customers in markets such as Japan, France, Germany, and the United Kingdom, and imported over $37 billion in aerospace products from abroad, providing a significant positive contribution of $57.7 billion to the U.S. trade balance in 2008. Increasingly, other markets are becoming important as an opportunity to increase U.S. sales, but also because of the potential for future competitors to challenge the U.S. aerospace industry's competitive position. U.S. aerospace exports to China have increased since 2003, totaling $5.5 billion in 2008. At the same time, some analysts maintain that China could become a global competitor in the commercial aerospace market. Already, China is working to develop airplanes that could become globally competitive in both the regional jet and large commercial jet aviation market. Russia has stated that it wants to become the world's third-largest aircraft manufacturer by 2015. Congress has been discussing issues affecting the competitiveness of the U.S. aerospace manufacturing industry for most of this decade. Among the concerns and issues affecting the future of the commercial sector of the industry are export control policies, environmental concerns, and an aging aerospace workforce. Additionally, the United States and the European Union are engaged in a long-running trade dispute over subsidies, with each side claiming the other subsidizes its domestic companies.

A generic drug is a lower-cost copy of a brand-name chemical drug. Marketing of the generic drug becomes possible only when the brand-name--also called innovator--drug is no longer protected from market competition by patent and other protections, called regulatory exclusivity. Food and Drug Administration (FDA) approved generic drugs "have the same high quality, strength, purity and stability as brand-name drugs," and have met the same FDA standards regarding manufacturing, packaging, and testing as brand-name drugs. Generic drugs are required to have the same active pharmaceutical ingredient (API) as the brand-name product, but need not have the same inactive ingredients. Prior to marketing, the sponsor of a brand-name drug must submit to FDA clinical data in a new drug application (NDA) to support the claim that the drug is safe and effective for its intended use. The FDA uses the information in the NDA as a basis for approving or denying the sponsor's application. The Drug Price Competition and Patent Term Restoration Act of 1984 ( P.L. 98-417 )--also called the Hatch-Waxman Act--amended the Federal Food, Drug, and Cosmetic Act (FFDCA) allowing a generic drug manufacturer to submit an abbreviated NDA (ANDA) to the FDA for premarket review. In the ANDA, the generic company establishes that its drug product is chemically the same as the already approved drug and thereby relies on the FDA's previous finding of safety and effectiveness for the approved drug. The generic drug must also be bioequivalent to the brand-name drug, meaning it delivers "the same amount of active ingredients in the same amount of time as the brand-name drug." Because the generic sponsor does not perform costly animal and clinical research --and usually does not pay for expensive advertising, marketing, and promotion--the generic drug company is able to sell its generic drug product at a lower price compared with the brand drug product. FDA states that on average, "the cost of a generic drug is 80 to 85 percent lower than the brand name product." According to a 2016 report sponsored by the Generic Pharmaceutical Association (GPhA, now called the Association for Accessible Medicines), "generics are 89% of prescriptions dispensed but only 27% of total drug costs. Put another way, brand drugs are only 11% of prescriptions but are responsible for 73% of drug spending." The 2016 GPhA report estimates the 10-year (2006-2015) savings from the use of generic drugs at $1.46 trillion. Once a drug is approved, the brand-name manufacturer sets the drug price based on a number of factors. Patent and regulatory exclusivity allow the company to recoup its research and development expenses, allow further R&D investment, and provide a profit to stockholders. The branded drug is protected from market competition by (1) patents issued by the U.S. Patent Office and (2) regulatory exclusivity granted by the FDA following enactment of the Hatch-Waxman Act. These incentives allow the brand-name company to charge a much higher price for the drug product than the cost of manufacture. For example, the cancer drug Gleevec (imatinib) "can be sustainably and profitably produced at a price between $128 and $216 per person-year, which are far lower than the current prices of around $30,000 in EU and $107,799 per person-year in the USA." The price of a drug is strongly correlated with the number of different manufacturers marketing the drug. According to an FDA analysis, "the first generic competitor prices its product only slightly lower than the brand-name manufacturer. However, the appearance of a second generic manufacturer reduces the average generic price to nearly half the brand-name price. As additional generic manufacturers market the product, the prices continue to fall, but more slowly. For products that attract a large number of generic manufacturers, the average generic price falls to 20% of the branded price and lower." The 2016 GPhA report provides the following two illustrative examples: Zocor (simvastatin) treats high cholesterol and reduces risk of heart attacks and related health problems. The brand price pre-patent expiry for this medicine was $2.62 per pill. The generic version currently sells for three cents per pill--a 99% savings. In 2015, more than 65 million prescriptions for this medicine were dispensed. Depression affects 19 million Americans across age, race, and gender. Generic versions of the popular brand-name drug Zoloft became available in 2006. Last year [2015] there were 45 million prescriptions dispensed for generic versions of Zoloft (sertraline) at a price of six cents per pill. This is a 97% price reduction from the brand pre-expiry price of $2.18 per pill. Recently media attention has focused on price increases for certain generic drugs. For example, between July 1, 2013, and June 30, 2014, the cost of the antibiotic tetracycline increased 17,714% and the heart drug digoxin increased 828%. However, a review of the generic drug market by the Department of Health and Human Services, Office of the Assistant Secretary for Planning and Evaluation (ASPE), found that "about two-thirds of generic products appear to have experienced price declines in 2014." For the segments of the generic drug market that have experienced large price increases, ASPE provides the following explanations: "small markets with limited entry; the impact of mergers, acquisitions, and market exits; the ability to obtain new market exclusivities; and distribution activities." ASPE states that "these problems apply to relatively small segments of the market and, while they lead to increased costs in certain therapeutic areas, they have little influence on overall spending increases." Funding for the premarket review of ANDAs submitted to FDA by generic drug sponsors is provided by direct appropriations from Congress and user fees paid by the generic drug industry. The following section of this report discusses the anticipated reauthorization by Congress of the Generic Drug User Fee Amendments of 2012 (GDUFA). FDA first gained the authority to collect user fees from the manufacturers of brand-name prescription drugs and biological products in 1992, when Congress passed the Prescription Drug User Fee Act (PDUFA). With PDUFA, FDA, industry, and Congress reached an agreement on two concepts: 1. performance goals--FDA would negotiate with industry on target completion times for various review processes; and 2. use of fees--the revenue from prescription drug user fees would be used for activities to support the review of new product applications and would supplement--rather than supplant--congressional appropriations to FDA. The added resources from user fees allowed FDA to increase staff available to review applications and to reduce the median review time for standard applications. Over the years, Congress has added similar user fee authority regarding medical devices, animal drugs, and biosimilars. User fees constitute 41% of the FY2017 FDA budget. According to FDA, the Hatch-Waxman Act led to "a significant regulatory challenge" for the agency. That is because FDA's resources did not keep pace with the increasing number of ANDAs and other submissions related to generic drugs. This resulted in delayed approvals of generic drugs, "a major concern for the generics industry, FDA, consumers, and payers alike." In March 2012, median review time for generic drug applications was approximately 31 months and FDA had a backlog of over 2,500 ANDAs. At that time, FDA was receiving about 100 NDAs and 800-900 ANDAs each year. In addition, FDA had to conduct more inspections as the number of manufacturing facilities grew, "with the greatest increase coming from foreign facilities." In March 2012, the number of foreign Finished Dosage Form (FDF) manufacturers exceeded the number found in the United States. Moreover, the generic industry was experiencing "significant growth in India and China," a trend that was expected to continue. According to FDA, foreign inspections "represent a significant challenge and require significant resources." The agency's website states: Prior to GDUFA, FDA was required to inspect domestic human generic drug manufacturers every 2 years, but no such requirement existed for foreign manufacturers. This disparity between domestic and foreign manufacturing facilities, combined with insufficient resources, created significant vulnerabilities in the global prescription drug supply chain. Approximately 80% of active ingredients used in human generic medicines and marketed in the United States are manufactured in foreign countries, and more than half of finished products are manufactured overseas. In order to expedite ANDA reviews and bring parity to domestic and foreign inspection schedules, FDA had proposed generic drug user fees in each annual budget request to Congress beginning with the FY2008 request. Such fees became possible when the Food and Drug Administration Safety and Innovation Act (FDASIA, P.L. 112-144 ) became law in July 2012. Title III of FDASIA, the Generic Drug User Fee Amendments (GDUFA), authorized FDA to collect fees from industry for agency activities associated with generic drugs. Under what is now called GDUFA I, such fees are allowed to be collected from October 2012 through September 2017. GDUFA I set the total amount of generic drug fees collected for FY2013 at $299 million. It established the types of fees to be paid by the manufacturer. The first two fees listed below are paid at the time of filing or application submission; the facility fees are annual fees for each establishment: application fee for an ANDA, application fee for a prior approval supplement (PAS) to an ANDA, Drug Master File fee, facility fee for the facility making the API, and facility fee for the facility producing the FDF. The law also specified the proportion that each type of fee contributes to the total collected and provided a methodology for the calculation of an annual inflation adjustment for the remaining four fiscal years under GDUFA I, FY2014 through FY2017. Like PDUFA, the first GDUFA agreement included limitations, often referred to as triggers, designed to ensure that user fees supplement, rather than replace, congressional appropriations. The limitations require that budget authority (appropriations minus fees) go no lower than the FY2009 amounts, adjusted for inflation, for (1) FDA salaries and expenses overall and (2) human generic drug activities. Again similar to PDUFA, but different from the narrower medical device (MDUFA) and biosimilar (BsUFA) definitions, GDUFA defined human generic drug activities to include the review of submissions and drug master files, approval letters and complete response letters, letters regarding deficiencies, inspections, monitoring or research, postmarket safety activities, and regulatory science. Other provisions under the original GDUFA agreement include risk-based biennial inspections, parity of domestic and foreign inspection schedules by FY2017, a $15,000-$30,000 higher inspection fee for a foreign facility than for a domestic facility to reflect cost differences, streamlined hiring authority, and required annual performance and financial reports. The FY2017 fee rates under GDUFA are shown in Table 1 . The FDA provides information on the amount of GDUFA fees collected each fiscal year and how the fees are spent in the annual financial reports. Annual performance reports provide data on FDA's progress in meeting GDUFA performance goals and commitments. FDA has made a number of changes to its generic drug program following the enactment of GDUFA I, according to a May 2017 analysis by the Government Accountability Office (GAO). In December 2013, FDA reorganized the Office of Generic Drugs (OGD) within the Center for Drug Evaluation and Research (CDER), creating four subordinate offices within OGD. In January 2015, FDA also established a new Office of Pharmaceutical Quality "to provide better alignment among all drug quality review functions, including application reviews, inspections and research." In addition, FDA surpassed its GDUFA goal of hiring 923 new staff by the end of FY2015: the agency hired 1,176 staff over the first three fiscal years (FY2013 through FY2015) and 346 new staff in FY2016. In the area of information technology, FDA established a new informatics platform to track the applications review process as well as facility inspection decisions. FDA changed how it communicated with generic drug applicants by "consolidating all application deficiencies in one letter to the applicant, called a complete response letter." The agency also issued 31 new and revised guidance documents about the generic drug application review process, and "issued almost 600 new or revised product-specific recommendations to assist the applicants with identifying the most appropriate methodology for developing generic drugs and generating evidence needed to support application approval." In response to generic drug applicant concerns over these and other program changes, FDA has made additional refinements to its generic drug application review program. The May 2017 GAO analysis found that "the average time for FDA to complete the first review cycle decreased from 26 months for ANDAs submitted in fiscal year 2013 to about 14 months for those submitted in fiscal year 2015.... As of December 31, 2016, FDA had also acted on 89 percent of all ANDAs submitted in fiscal year 2015 within 15 months of receipt, exceeding its GDUFA goal of acting on 60 percent of ANDAs received in fiscal year 2015 within 15 months." For the first year of the GDUFA program, Congress had specified that $50 million of the $299 million would come from a one-time backlog fee to be paid by sponsors of generic drug applications that were pending at the time of enactment. Under GDUFA I, FDA committed to reviewing and taking regulatory action on 90% of the ANDA backlog by September 30, 2017. The May 2017 GAO report stated that "as of December 31, 2016, FDA had acted on 92 percent of the 4,743 applications in the backlog pending review as of October 1, 2012, exceeding its GDUFA goal of acting on 90 percent of such applications before the end of fiscal year 2017. Fifty-eight percent of these applications were approved; approximately 20 percent were withdrawn by the applicant; and the applicants for the remaining 12 percent received a complete response letter." A complete response letter (CRL) describes all of the deficiencies that FDA has identified in an ANDA that must be satisfactorily addressed before the ANDA can be evaluated for approval. According to FDA OGD Director Kathleen Uhl, "these are not on the agency clock, we have no idea when they're coming back or if they're coming back to the FDA for another review cycle." If the ANDA submitted by the generic drug sponsor lacks "crucial information--about their research, when the original drug will lose patent protection, or relevant court cases," then the review process can slow down. As is the case with several other FDA user fee authorities, the five-year generic drug user fee authority is scheduled to sunset on September 30, 2017. The reauthorization process is outlined in the FFDCA as amended by GDUFA. The process began on June 15, 2015, when FDA held a public meeting on the reauthorization of the GDUFA program. From October 2015 through August 2016, the agency held negotiation sessions with the generic drug industry on the reauthorization agreement; minutes of these meetings are posted on the FDA website. In addition, the law directs FDA to hold monthly discussions with representatives of patient and consumer advocacy groups; minutes of these stakeholder meetings are also found on the FDA website. In October 2016, the agency posted on its website the draft GDUFA agreement--GDUFA II--setting FDA performance goals and procedures for FY2018 through FY2022. Another public meeting was held on October 21, 2016, followed by a 30-day comment period. After receiving the GDUFA II recommendations (both statutory and the agreement), Senate and House committees favorably reported bills for floor consideration ( S. 934 , H.R. 2430 ). FDA and industry agreed that under GDUFA II user fees should total $493.6 million annually, adjusted each year for inflation, in order to maintain current productivity and implement proposed GDUFA II improvements. According to FDA, ANDA reviews are the primary workload driver of the GDUFA program. Under GDUFA I, the agency projected that it would receive approximately 750 ANDAs per year and planned and budgeted according to that projection. However, FDA actually received approximately 1,000 ANDAs per year. To address the increased workload, FDA hired additional staff and is projected to spend about $430 million in user fee funds in the fifth year of GDUFA I. Under the GDUFA II performance goal agreement between FDA and industry, the agency, as proposed, would review and act on 90% of standard original ANDAs within 10 months of the date of ANDA submission. This would continue the goal that GDUFA I set for the year 5 cohort in FY2017, the final year of the GDUFA I agreement. By way of comparison, under GDUFA I the goal was for FDA to review and act on 60% of ANDAs within 15 months of submission date for the year 3 cohort, and 75% of original ANDA submissions within 15 months of submission date for the year 4 cohort. Similarly, GDUFA II would continue another goal from the final year of GDUFA I (FY2017): FDA would review and act on 90% of standard PASs within 6 months of the date of PAS submission if preapproval inspection is not required and within 10 months of the date of PAS submission if preapproval inspection is required. Under GDUFA I, for PASs not requiring inspection, the goal was for FDA to review and act on 60% of PASs within six months from the date of submission for receipts in FY2015 and 75% of PASs within six months from the date of submission for receipts in FY2016. For PASs requiring inspection, the goal under GDUFA I was for FDA to review and act on each of the three cohorts within 10 months. GDUFA II would add two new features: a priority ANDA and a priority PAS. FDA would review and act on 90% of priority ANDAs within eight months of the date of ANDA submission, if the sponsor has submitted a complete and accurate facilities data package, called a Pre-Facility Communication (PFC), two months prior to the date of ANDA submission. For the priority PAS, FDA would review and act on 90% of priority PASs within four months of the date of PAS submission if preapproval inspection is not required. If preapproval inspection is required, FDA would review and act on 90% of priority PASs within eight months of the date of PAS submission, provided the applicant submits a complete and accurate PFC two months prior to the date of PAS submission. FDA representatives at an October 2016 GPhA conference indicated that in total the agency has approved more than 16,000 ANDAs. "However, that number drops down to approximately 10,000 when you look at currently approved ANDAs that have not been withdrawn. Of the 10,000 currently approved ANDAs, more than 20% have been approved since GDUFA" was implemented but "many of those ANDAs don't even go to market.... Innovator drugs for which there are no approved competitors, but for which ANDAs are pending, account for less than 2% of all drugs." Therefore, "if there's a lack of generic competition to branded products for off patent drugs, the answer may lie with industry," not with FDA. An industry analyst states, "the issue of a lack of generic competition isn't so much of an issue of FDA's speed in bringing this competition to market, but in industry submitting applications that would create this competition. For instance, there are only 23 innovator drugs with ANDAs pending and no patent or exclusivity protection ... and nothing else stopping the generic drug makers from bringing competition to the market except for FDA. But there are another 125 innovator drugs with no approved generics and no ANDAs submitted." On June 21, 2017, Scott Gottlieb, Commissioner of Food and Drugs, indicated FDA is working on a Drug Competition Action Plan to increase the development of lower-cost generic drugs and is scheduled to hold a public meeting on July 18, 2017, to obtain additional input. On June 27, 2017, FDA announced a new policy to "expedite the review of generic drug applications until there are three approved generics for a given drug product" and published "a list of off-patent, off-exclusivity branded drugs without approved generics."

A generic drug is a lower-cost copy of a brand-name chemical drug. Marketing of the generic drug becomes possible only when the brand-name--also called innovator--drug is no longer protected from market competition by patent and other protections, called regulatory exclusivity. Prior to marketing, the sponsor of a brand-name drug must submit to the Food and Drug Administration (FDA) clinical data in a new drug application (NDA) to support the claim that the drug is safe and effective for its intended use. The FDA uses the information in the NDA as a basis for approving or denying the sponsor's application. Once a drug is approved, the brand-name manufacturer has free rein in setting the drug price due to a government-sanctioned monopoly for a defined period of time. This is designed to enable the company to recoup its r esearch and development expenses, allow further R&D investment, and provide a profit to stockholders. The branded drug is protected from market competition by (1) patents issued by the U.S. Patent Office and (2) regulatory exclusivity granted by the FDA following enactment of the Drug Price Competition and Patent Term Restoration Act of 1984 ( P.L. 98-417 ), also called the Hatch-Waxman Act. These congressionally established incentives allow the brand-name company to charge a much higher price for the drug product than the cost of manufacture. In one extreme example, as calculated by researchers in the United Kingdom and the United States, the annual cost to produce the cancer drug Gleevec--including a 50% profit--could be $216 per patient; the current annual price for a U.S patient is $107,799. The Hatch-Waxman Act amended the Federal Food, Drug, and Cosmetic Act (FFDCA) allowing a generic drug manufacturer to submit an abbreviated NDA (ANDA) to the FDA for premarket review. In the ANDA, the generic company establishes that its drug product is chemically the same as the already approved drug and thereby relies on the FDA's previous finding of safety and effectiveness for the approved drug. Because the generic sponsor does not perform costly animal and clinical research--and usually does not pay for expensive advertising, marketing, and promotion--the generic drug company is able to sell its drug product at a lower price compared with the branded drug product. The cost of a generic drug is, on average, about 85% lower than the brand-name product. According to FDA, the success of the Hatch-Waxman Act led to significant regulatory challenges for the agency. FDA's resources did not keep pace with the increasing number of ANDAs, resulting in delayed approvals of generic drugs, "a major concern for the generics industry, FDA, consumers, and payers alike." In March 2012, median review time for generic drug applications was approximately 31 months and FDA had a backlog of over 2,500 ANDAs. In addition, FDA had to conduct more inspections as the number of manufacturing facilities grew, "with the greatest increase coming from foreign facilities." To eliminate the backlog, expedite ANDA reviews, and provide resources for more inspections, FDA proposed generic drug user fees in each annual budget request to Congress beginning with the FY2008 request. Such fees became possible in July 2012 when the Food and Drug Administration Safety and Innovation Act (FDASIA, P.L. 112-144 ) became law. Title III of FDASIA, the Generic Drug User Fee Amendments (GDUFA), authorized FDA to collect fees from industry for agency activities associated with generic drugs. What is now called GDUFA I allowed the collection of such fees from October 2012 through September 2017. Between October 2015 and August 2016, FDA held negotiation sessions with industry on GDUFA reauthorization. In October 2016, FDA posted on its website the draft agreement--GDUFA II--setting fees and FDA performance goals for FY2018 through FY2022. After receiving the GDUFA II recommendations (both statutory and the agreement), Senate and House committees favorably reported bills for floor consideration.

The Food and Drug Administration (FDA), under the authority of the Federal Food, Drug, and Cosmetic Act (FFDCA), regulates the sale of drugs and biological products, such as vaccines, in the United States. Under the act, a manufacturer may not market a prescription drug without an approved new drug application (NDA) or a vaccine without an approved biologics license application (BLA). However, under limited circumstances--some of which this report addresses--there are certain mechanisms under which the FDA may expand access to a drug or biologic outside the standard regulatory framework. Two such mechanisms are expanded access to investigational drugs , commonly referred to as compassionate use , and emergency use authorization . Compassionate Use . One type of compassionate use request may come from a person with a terminal diagnosis who has tried all appropriate FDA-approved drugs. Perhaps a promising drug is being tested in a clinical trial closed to new patients or for which the patient does not qualify. In that case, a physician may ask FDA for permission to get the investigational new drug for the patient outside of the clinical trial. Before approaching FDA, the patient or physician must already have contacted the sponsor of the investigational drug, usually its manufacturer, to ask for the drug, and the manufacturer must have agreed to provide the drug pending FDA authorization. In 2014, FDA received 1,882 such requests and approved all but 9. What that 99.5% rate does not reveal is how many people took the first step--requesting access from manufacturers--and how many of those requests companies denied. Companies do not release those numbers. An article in BioCentury related a conversation with bioethicist Arthur Caplan, whom it described as consulting with many companies about expanded access, writing that Caplan "says it is likely that only a small fraction of the refusals make it into the media." Also not revealed by the over 99% FDA approval rate is how many patients and doctors did not pursue expanded access because the FDA process was too involved or lengthy. Emergency Use Authorization. Emergency use authorization (EUA) follows another path. When one of the Secretaries of Defense, Health and Human Services, or Homeland Security declares a military, domestic, or public health emergency or potential for such an emergency, FDA, following procedures authorized by law, may issue EUAs for unapproved products. Two circumstances have contributed to a recent increase in public and congressional discussion of expanded access to investigational drugs. The first is patients and interested groups who are asking state legislatures to pass right-to-try laws, which aim to bypass FDA authorization. These advocates are using the power of social media to influence manufacturers' decisions to provide investigational drugs. Second is the demand for unapproved medical products to fight Ebola virus disease. Members of Congress ask about FDA authorities and practices such as compassionate use, which can apply to one or a few patients, and emergency use authority, which expands access to investigational drugs to protect the public against national security or public health threats. Both mechanisms involve people with an immediate life-threatening condition, no standard therapy, and a possible "nothing-to-lose" attitude who are willing to try a drug that may not work or may even hasten an already imminent death. This report discusses the underlying philosophy behind how FDA, concerned with safety and effectiveness, weighs risks and benefits when deciding whether to allow access to a medical product, either through normal approval channels or outside them; FDA policies on compassionate use and emergency use authority; obstacles--perceived as the result of FDA or manufacturer decisions--to individuals' expanded access to investigational drugs, and some possible remedies; and how expanded access to compassionate use and emergency use authority might form part of a broader approach to ensuring safe, effective, and available drugs. In general, a manufacturer may not sell a drug or vaccine in the United States until FDA has reviewed and approved its marketing application. That application (a new drug application [NDA] or a biologics license application [BLA]) includes data from clinical trials as evidence of the product's safety and effectiveness for its stated purpose(s). After laboratory and animal studies have identified a potential drug or vaccine, a sponsor may submit an investigational new drug (IND) application to FDA. With FDA permission, the sponsor may then start the first of three major phases of clinical--human--trials. ( Figure 1 illustrates the general path of a pharmaceutical product.) Once the IND application is approved, researchers test in a small number of human volunteers the safety they had previously demonstrated in animals. These trials, called Phase I clinical trials, attempt "to determine dosing, document how a drug is metabolized and excreted, and identify acute side effects." If a sponsor considers the product still worthy of investment based on the results of Phase I trial, it continues with Phase II and Phase III trials. Those trials look for evidence of the product's efficacy --whether it works under controlled conditions--and evidence of how well it works when conditions are less controlled, such as effectiveness in larger groups of individuals with the particular characteristic, condition, or disease of interest. The sponsor presents analyses of the clinical trials in its marketing application--NDA or BLA--as evidence of the product's safety and effectiveness. The application also includes information on the manufacturing facilities and processes, reporting mechanisms, and labeling information. When the FDA approves a drug or licenses a vaccine, it usually leaves prescribing decisions to licensed clinicians. If the risks associated with a drug outweigh the expected benefit to the population with the condition it is meant to treat, FDA typically keeps the product off the market. Sometimes, though, FDA may approve a drug subject to certain restrictions or requirements. One mechanism is a risk evaluation and mitigation strategy (REMS), which may limit who may prescribe the drug and which pharmacies may dispense it. A REMS may require patient registries or clinical laboratory tests at the time of dispensing (e.g., for liver function or pregnancy). Once FDA has approved a drug (with or without a REMS), it places several ongoing requirements on the manufacturer. These include periodic facility registration and inspection requirements, along with manufacturer reporting requirements regarding any adverse events that may be related to the drug's use. FDA may also require studies to resolve specific questions about the drug's safety or effectiveness; such studies may require a large number of people to take the drug, or a long time to observe infrequent problems. A manufacturer may distribute a drug or vaccine in the United States only if FDA has approved its NDA or BLA, or if its use is in a clinical trial under an FDA-approved IND. Under standard procedures, individuals outside of the sponsor-run clinical trials do not have access to the investigational new drug. The FFDCA, however, permits FDA in certain circumstances to allow access to an unapproved drug or to an approved drug for an unapproved use. This report focuses on two main categories of expanded access: individual investigational new drug applications (commonly referred to as compassionate use) and emergency use authorizations . The primary route for an individual to obtain an investigational drug is to enroll in a clinical trial testing that new drug. However, an individual may be excluded from the clinical trial because its enrollment is limited to patients with particular characteristics (e.g., in a particular stage of a disease, with or without certain other conditions, or in a specified age range), or because the trial has reached its target enrollment number. Through FDA's expanded access procedure, a person, acting through a licensed physician, may request access to an investigational drug--through either a new IND or a revised protocol to an existing IND--if a licensed physician determines the patient has "no comparable or satisfactory alternative therapy available to diagnose, monitor, or treat" the serious disease or condition; and "the probable risk to the person from the investigational drug or investigational device is not greater than the probable risk from the disease or condition"; and the Secretary determines "that there is sufficient evidence of safety and effectiveness to support the use of the investigational drug" for this person; and "that provision of the investigational drug ... will not interfere with the initiation, conduct, or completion of clinical investigations to support marketing approval"; and "the sponsor, or clinical investigator, of the investigational drug ... submits" "to the Secretary a clinical protocol consistent with the provisions of" FFDCA Section 505(i) and related regulations. In addition to the individual IND or protocol, regulations describe other categories of expanded use of investigational drugs: individual patient IND or protocol, including for emergency use; intermediate-size patient populations, with one IND or protocol that consolidates several individual access requests; treatment IND or treatment protocol for "widespread treatment use" when a drug is farther along the clinical trial and marketing application process. FDA makes most expanded use IND and protocol decisions on an individual-case basis. Consistent with the IND process under which the expanded use mechanism falls, the requesting physician is considered the investigator. The investigator is responsible for complying with informed consent and institutional review board (IRB) review of the expanded use. The manufacturer is responsible for required safety reports to FDA. FDA may permit a manufacturer to charge a patient for the investigational drug, but "only [for] the direct costs of making its investigational drug available" (i.e., not for development costs or profit). The widespread use of expanded access is limited by an important factor: whether the manufacturer agrees to provide the drug, which--because it is not FDA-approved--cannot be obtained otherwise. The FDA does not have the authority to compel a manufacturer to participate. Since 2004, and with the most recent amended reauthorization in 2013, the Commissioner of Food and Drugs (FDA commissioner), as delegated by the HHS Secretary, may issue an emergency use authorization (EUA) to allow temporary use of medical products that FDA has not approved or licensed, or unapproved uses for approved or licensed products. EUAs are possible only after the Secretary of Defense, Homeland Security, or HHS has determined that a military, domestic, or public health emergency (or potential for such emergency) meeting statutory criteria exists. To exercise EUA authority, the commissioner must consult with other HHS officials and conclude that the agent against which the medical product is to be used can cause a serious or life-threatening disease or condition; available scientific evidence indicates "it is reasonable to believe" the product may be effective and the known and potential benefits of the product outweigh its known and potential risks; no adequate alternative to the product is approved and available; and any other criteria prescribed in regulation are met. FDA has issued several EUAs. Examples include use of anthrax vaccine for the prevention of inhalation anthrax in 2005, several antivirals to treat H1N1 influenza in 2010, and oral doxycycline for post-exposure prevention of inhalation anthrax in 2011. In response to the 2014 Ebola disease outbreak in West Africa, FDA EUAs have covered several diagnostic tests. Who decides whether risks outweigh benefits or vice-versa? On what criteria? Such a decision varies, depending on many factors: an individual's prognosis, threat to the community, alternative available treatments, and informed consent, among others. Although sometimes it makes sense to use an unapproved product, doing so presents possible risks to patients, research goals, and manufacturers. Investigators first seek to establish safety and effectiveness thresholds for patients. No drug--even if FDA-approved--is completely safe. FDA approval involves weighing the potential risks (including known side effects) against the potential benefits. The threshold for acceptable risk rises with the risk of not acting at all. Someone with a disease that was 100% certain to be fatal in the next hour might well take a drug with an 80% risk of immediate death and a 2% chance of helping. When it comes to access questions, FDA decisions generally fall into four categories. Approved use for a new drug. FDA approves or licenses a product only when its scientists think the manufacturer has submitted evidence of the drug's safety and effectiveness for a specific use (among other requirements of approval). Unapproved use of a drug that FDA has approved for another use . A product's labeling includes information, including dosage, for the FDA-approved use. With a few exceptions, however, a physician may prescribe that drug for what is called "off-label" use. The physician may have seen anecdotal evidence or a relationship to FDA-reviewed data about another disease. For example, a product on the market labeled to treat depression might be used by a clinician to treat a patient with obsessive compulsive disorder. In such a case, a clinician could be aware of the likely safety and side effect profile of the drug but would have limited data, if any, with which to predict the drug's effectiveness in its off-label use. FDA does not require an IND application in this situation. Unapproved use of an investigational new drug . Because all drugs involve risks, regulators require that researchers design clinical trials to protect research participants (patients) from unnecessary risks. That is why the law forbids a sponsor that is testing an as yet unapproved drug from providing it outside that trial without FDA permission. FDA may allow individual access to an investigational drug, but it cannot compel the sponsor to provide the drug. (See discussion of " How Does FDA Regulate Individual IND Applications? ") Unapproved use of a product that has not yet begun clinical testing . Before clinical tests have started, researchers have conducted no human safety (or effectiveness) studies. In considering whether to allow the use of such an experimental product, FDA might analyze animal studies and any information about similar drugs or diseases to see whether the animal data might be applicable to humans. If no other treatment option exists and the patient is likely to die soon, assessing drug risk becomes less relevant to an individual patient. It may, however, be relevant to a public health decision. The risk criteria for an individual would not always be the same as they would be for public health policy. Some find the process of asking FDA for a treatment IND is too cumbersome. Others question FDA's right to act as a gatekeeper at all. Some point to manufacturers' refusal to provide their experimental drugs. Most critics see solutions as within the control of FDA or pharmaceutical companies. An August 2014 editorial in USA Today called the FDA procedures that patients must follow to request compassionate use access "bureaucratic absurdity," "daunting," and "fatally flawed." Echoing much of the criticism that the FDA has received regarding this issue, the editorial called for one measure that would "cut out the FDA, which now has final say." Difficult process to request FDA permission. In considering a federal response to patients' concerns, Congress might explore whether FDA's procedures discourage patients from seeking treatment INDs. For example: Does FDA ask for so much information in an individual IND application that physicians and patients refrain from beginning or completing the application? Does the FDA application process take too much time given the urgent circumstances of requests? In February 2015, FDA issued draft guidance on individual patient expanded access applications; its Federal Register announcement included: FDA is concerned that its goal of facilitating access to drugs for individual patient treatment use may have been complicated by difficulties experienced by physicians in submitting Form FDA 1571 (currently used by sponsors for all types of IND submissions) including associated documents, which is not tailored to requests for individual patient expanded access. FDA is circulating a draft new form that a physician could use when requesting expanded access for an individual patient. It reduces the amount of information required from the physician by allowing reference (with the sponsor's permission) to the information the sponsor had already submitted to FDA in its IND. FDA as gatekeeper. The solution USA Today proposed involved what proponents term "right-to-try" laws. These laws, which many states have passed in the absence of federal legislation, are intended to allow a manufacturer to provide an investigational drug to a terminally ill patient if certain conditions are met: the drug has completed Phase I testing and is in a continuing FDA-approved clinical trial; all FDA-approved treatments have been considered; a physician recommends the use of the investigational drug; and the patient provides written informed consent. The state laws account for anticipated obstacles to the new arrangement. For example, they provide that insurers may, but are not required to, cover the investigational treatment; and state medical boards and state officials may not punish a physician for recommending investigational treatment. The laws vary on the detail required in the informed consent and liability issues of the manufacturer and the patient's estate. As of early June 2015, governors have signed such laws in 20 states. In November 2014, Arizona voters passed a comparable ballot referendum. Legislators in another 17 states have introduced bills. Many of the bills mirror the approach that the Goldwater Institute has set forth as a model. At the federal level, three House bills introduced in the 114 th Congress would allow terminally ill patients to use investigational medical products if they provide informed consent. Another reported spur to action is the 2013 movie Dallas Buyers Club , which sympathetically portrays people with AIDS in 1985 trying to obtain experimental drugs, despite what the film presents as FDA obstacles. Although the stated goal of these laws--allowing desperately ill people to try an experimental drug when other treatments have failed--may be understandable, provisions in the laws may be subject to legal, logistical, ethical, and medical obstacles. Do these laws actually increase such access? Provisions in state right-to-try laws allow a patient to obtain--without the FDA's permission--an investigational drug that has passed the Phase 1 (safety) clinical trial stage. However, several experts have suggested that this state law approach is unlikely to directly increase patient access. First, federal law (the FFDCA), which requires FDA approval of such arrangements, may preempt this type of state law. Second, for a patient who follows FDA procedures, FDA action is not the final obstacle to access. During FY2010 through FY2014, FDA received 6,029 expanded access requests and granted 5,996 (99.5%) of them. Requests in FY2014 were double those in FY2013. One perspective is that the movement for state right-to-try legislation is a piece of a broader strategy. Referring to a "campaign of persuasion," one author suggests that the state legislative activities and anticipated subsequent court and media involvement could influence Congress and FDA to change. Rather than expect patients to gain access to drugs under those laws, the proponents aim to elevate the issue through these state activities. A key obstacle would nonetheless remain: FDA does not have "final say" because it cannot compel a manufacturer to provide the drug. In March 2014, millions of Americans heard about the plight of a seven-year-old boy with cancer who was battling an infection no antibiotic had been able to tame. His physicians thought an experimental drug might help. The manufacturer was still testing the drug, though. It declined to provide it. Because the drug was not yet approved by the FDA, it was not available in pharmacies. However, the FDA may permit the use of an unapproved drug in certain circumstances--a process referred to as compassionate use . For FDA to grant that permission, however, the manufacturer must have agreed to provide the drug. Why would a manufacturer not give its experimental drug to every patient who requests it? From the perspective of a seriously ill and possibly dying patient, a manufacturer that declines to provide its potentially life-saving experimental drug may seem callous. However, that manufacturer faces a complex decision. Certainly profit plays a role: companies think about public relations problems and the opportunity costs of limited staff and facility resources, but companies must also consider the available supply of the drug, liability, safety, and whether adverse event or outcome data will affect FDA's consideration of a new drug application in the future. Available supply. If a manufacturer only has a tiny amount of an experimental drug, that paucity may limit distribution, no matter what the manufacturer would like to do. Sponsors of early clinical research make small amounts of experimental products for use in small Phase I safety trials, and progressively more for Phase II and III trials. Although one or two additional patients may not cause supply problems, a manufacturer does not know how many expanded access requests it will receive. Investment in building up to large-scale production usually comes only after reasonable assurance that the product will get FDA approval. Even for an already approved or licensed product, scaling up production in response to an outbreak may be difficult. For a company to redirect its current manufacturing capacity involves financial, logistic, and public relations decisions. A solution--though not immediately effective--might be committing additional resources to increase production. In emergency circumstances, FDA could adapt its facility inspection and application review timetables. It could also contact other manufacturers or consider importing products that have not been approved for U.S. sale. During the recent Ebola outbreak, DOD and HHS funds, as well as those from other countries, have gone to scale up production of drugs and vaccines that are potentially effective against the Ebola virus. Such concentrated investment is less likely for any one of the cancer or Alzheimer's disease drugs in development. Liability . In discussing expanded access, some manufacturers have raised liability concerns if patients report injury from the investigational products. In the state right-to-try laws are some attempts to protect manufacturers or clinicians from state medical practice or tort liability laws. If there are legitimate concerns, Congress could consider acting as it has in past, choosing diverse approaches to protect manufacturers, clinicians, and patients in a variety of situations. Whether these concerns become illustrated by court cases and how any issues may be resolved in future laws are beyond the scope of this discussion. Limited staff and facility resources. Any energy put into setting up and maintaining a compassionate use program could take away from a company's focus on completing clinical trials, preparing an NDA, and launching a product into the market. While this delay would have bottom-line implications, one CEO, in denying expanded access, portrayed the decision as an equity issue, saying, "We held firm to the ethical standard that, were the drug to be made available, it had to be on an equitable basis, and we couldn't do anything to slow down approval that will help the hundreds or thousands of [individuals]." Pointing to ways granting expanded access might divert them from research tasks and postpone approval, he said, "Who are we to make this decision?" For a small biotech company developing its first commercial product, any diversion of its attention from carrying out the clinical trials that will form the basis of its NDA to FDA could, at best, delay approval and, at worst, allow a competitor to succeed first. However, if the public and Congress perceive a threat to be serious enough, government or private resources could supplement the company's staff and facilities, thereby allowing research to continue while also providing the experimental product to those in need. In less-extreme situations, a manufacturer could (with FDA consultation, perhaps) modify its clinical trial designs to incorporate information gathered from the patients taking the drug through expanded access programs. Data for assessing safety and effectiveness . By distributing the drug outside a carefully designed clinical trial, it may be difficult, if not impossible, to collect the data that would validly assess safety and effectiveness. Without those data, a manufacturer would be hampered in presenting evidence of safety and effectiveness when applying to FDA for approval or licensure. Disclosure. It is unclear how many people request and are denied expanded access to experimental drugs. This lack of information makes devising solutions to manufacturer-based obstacles difficult. Although FDA reports the number of requests it receives, manufacturers do not. The number of individuals who approach manufacturers is unknown, although some reports suggest that it is much larger than the number of successful requests that then go to FDA. For example, one report indicated that the manufacturer of an investigational immunotherapy drug, which does not have a compassionate use program, received more than 100 requests for it. Two bills in the 114 th Congress address manufacturers' disclosure. Those who set national policy seek to balance (1) protecting the public by trying to ensure that the drugs people take are safe and effective and (2) protecting the public by getting new products to the market quickly. That balancing act is reflected in the various authorities Congress has granted FDA and in the mechanisms FDA has developed. Congress has not only given FDA tools to keep unsafe or ineffective drugs off the market. It has also provided FDA with various authorities to encourage and expedite drug development and to expedite the review of new marketing applications. These tools, like compassionate use and emergency use authorization, help get drugs to patients more quickly. Four of these tools are described below. Incentives to Development . The FDA provides incentives to those who would develop certain categories of drugs in two main ways. Market exclusivity. During the period for which FDA offers this incentive, it will not grant marketing approval to another manufacturer's product. FFDCA allows market exclusivity for the first generic version of a drug coming to market, a drug used in the treatment of a rare disease or condition, certain pediatric uses of approved drugs, and new qualified infectious disease products. Priority review voucher. Priority review shortens the time between when a manufacturer submits a marketing application to FDA and when FDA issues its approval decision. The program works by FDA's awarding a priority review voucher to the manufacturer with a successful NDA for a drug treating certain tropical or rare pediatric diseases. The manufacturer may use it to get priority review of a subsequent NDA (which would not have received priority review on its own) or may sell the voucher to another manufacturer. Expediting Development and Review . Not all reviews and applications follow standard procedures. Some drugs address unmet needs or serious conditions, have the potential to offer better outcomes or fewer side effects than drugs currently on the market, or meet other criteria associated with better public health. For those, FDA can expedite both development and review. Fast track and breakthrough product designations make the application process faster--but do not change the types of evidence required to demonstrate safety and effectiveness. Accelerated approval and animal efficacy approval change what is needed in an application. Instead of requiring evidence gathered by a clinical endpoint, such as heart attack or death, FDA may accept evidence from a surrogate or intermediate clinical outcome. Priority review designation affects the timing of the review but not the process leading to submission of an application. Limiting Access . FDA regulates access mostly through product approval and licensing. FDA fine tunes that access for some drugs through risk evaluation and mitigation strategies (REMS), which can include restrictions on distribution. FDA enforces restrictions on imports and exports and requirements concerning supply chain. It also recommends to the Drug Enforcement Administration (DEA in the Department of Justice) whether to declare a drug a controlled substance. Separate from the government's role in safety and effectiveness, the government (not necessarily through FDA) can also control access via other tools, such as laws, regulations, and policies regarding patents, insurance coverage and benefits, Medicare and Medicaid coverage and payment, and pharmacy benefits. Regulatory Science . Not all FDA scientists review new drugs. Some study what FDA calls regulatory science , "the science of developing new tools, standards, and approaches to assess the safety, efficacy, quality, and performance of all FDA-regulated products." FDA current and planned efforts include further developing expertise in areas such as how to evaluate animal models, biomarkers, genomics, and nanotechnology. Exploring computer simulations and data analysis can yield new statistical techniques for clinical trials that could shorten their length or reduce the number of patients needed. It might involve new ways to adjust ongoing clinical trials as researchers learn more about how a new drug works. All these techniques can shorten the time it takes to bring products to market. An increased interest in compassionate use and emergency use policies comes from two distinct directions. The ongoing concerns of individuals facing serious and life-threatening conditions have become more apparent, especially with the increasing use of social media to publicize the struggles of those facing life-or-death decisions. The sudden public interest in the Ebola virus disease outbreak in West Africa has influenced discussions of international and domestic health care and research and development priorities. Expanding access to drugs in various stages of development--whether to an individual with a stubborn cancer or to a community facing an infectious threat--involves serious decisions. As the 114 th Congress confronts these issues, it may consider the following: how to define, measure, and articulate risks and benefits, and how to choose their appropriate balance, what changes to FDA authority and policy might increase appropriate access to unapproved products, how to address manufacturers' reluctance, and what approaches other than expanded access programs might Congress and FDA develop to encourage research and development of products for unmet needs; expedite activities of manufacturers and FDA in the development and review of investigational products; and generally ensure that medical products are safe, effective, and available when they can help patients. As Congress considers these issues, new options and ideas may arise, but in a context as old as public health--the constant push and pull between the need for scientific rigor and the equally compelling need for what is reflected in the very name of one policy: compassion. No FDA-approved drugs or vaccines are known to specifically treat or prevent Ebola virus disease. Nor are there approved or known drugs or vaccines recognized by other regulatory or medical authorities. In August 2014, when the Ebola virus disease outbreak in West Africa began to attract worldwide attention, news articles reported on several Ebola-focused products in the development pipeline. None of these products had yet reached the stage in which clinical trials of safety or effectiveness had begun in humans. The World Health Organization (WHO) convened a panel to consider the ethics of providing unapproved drugs to Ebola-infected people. The WHO panel said it was ethical in this outbreak. In addition to urging "ethical criteria" in the use of the drugs, it referred to "a moral obligation to collect and share all data generated" and "a moral duty to also evaluate these interventions ... in the best possible clinical trials under the circumstances." Further consideration will likely go toward identifying the limit of that ethical threshold, by considering different groups--such as the general population, those at risk of exposure, and those exposed, infected, or symptomatic--each with a different likelihood of death. Around the same time, two volunteers in Africa providing medical care to people with Ebola were themselves infected with the virus. While in Africa, they received doses of an experimental product that had shown promise in treating nonhuman primates but had not yet reached the human testing stage. These two U.S. citizens were then flown to a hospital in Atlanta for further care. Both survived. Did the experimental drug help? FDA's policies on expanded access to investigational drugs were not relied upon in the drug's use for these two individuals. First, the drug would not have been eligible because it had not yet entered the investigational new drug (IND) stage of FDA involvement, so clinical trials had not yet begun. Second, the drug was provided outside of the United States and was not, therefore, subject to FDA regulation. Since August 2014, with financial and logistical support from the U.S. and other governments, several Ebola-specific medical products (as well as several products approved for other uses that may also help in the treatment of people with Ebola virus disease) have entered clinical trials. FDA may now allow the use of these investigational drugs and vaccines under its expanded access policies. However, even if manufacturers are willing to provide the products in that situation, they may be limited by their available supplies. Emergency use authorization (EUA) could come into play as more information on the investigational Ebola products becomes available as clinical trials proceed. FDA has already approved the use of several diagnostic tests under EUA. Several commentators, including National Institute of Allergy and Infectious Diseases (NIAID) Director Anthony Fauci, have urged that any emergency distribution of unapproved drugs coincide with data collection that would support an assessment of the drugs' safety and effectiveness. In deadly situations, placebo is often considered unethical. In a deadly situation, though, where available drugs are in short supply, not everyone will receive the drug. A creative design could, within ethical guidelines, either determine who received the drugs or, certainly, keep track of who did and did not receive the drug along with characteristics of the patient, disease stage, and other relevant information. A former FDA Chief Scientist described how lack of data on a new product's use and outcome could lead to a misinterpretation of a product's utility. The illustrative example showed how wrongly thinking a drug was effective and wrongly thinking a drug was not effective could both harm future patients. Upon the American doctor's Ebola-free release from the hospital, the head of the unit that cared for him and the other infected worker said, "Frankly we do not know if it helped them, made any difference, or even delayed their recovery." An incorrect assumption of a drug's effectiveness or ineffectiveness might also hurt the larger community, which would lose the opportunity to rigorously assess a drug's safety and effectiveness and then to inform future decisions on whether to use it. Lack of such information could lead to more spending on ineffective or unsafe products in critical situations. Options to solve these issues include emergency use plans that address data collection and explicit decisions about who will have access to those data.

The Food and Drug Administration (FDA) regulates the U.S. sale of drugs and biological products, basing approval or licensure on evidence of the safety and effectiveness for a product's intended uses. Without that approval or licensure, a manufacturer may not distribute the product except for use in the clinical trials that will provide evidence to determine that product's safety and effectiveness. Under certain circumstances, however, FDA may permit the sponsor to provide an unapproved or unlicensed product to patients outside that standard regulatory framework. Two such mechanisms are expanded access to investigational drugs, commonly referred to as compassionate use, and emergency use authorization. If excluded from a clinical trial because of its enrollment limitations, a person, acting through a physician, may request access to an investigational new drug outside of the trial. FDA may grant expanded access to a patient with a serious disease or condition for which there is no comparable or satisfactory alternative therapy, if, among other requirements, probable risk to the patient from the drug is less than the probable risk from the disease; there is sufficient evidence of safety and effectiveness to support the drug's use for this person; and providing access "will not interfere with the ... clinical investigations to support marketing approval." The widespread use of expanded access is limited by an important factor: whether the manufacturer agrees to provide the drug, which--because it is not FDA-approved--cannot be obtained otherwise. The FDA does not have the authority to compel a manufacturer to participate. Manufacturers consider several factors in deciding whether to provide an investigational drug, such as available supply, perceived liability risk, limited staff and facility resources, and need for data to assess safety and effectiveness. Although FDA reports the number of requests it receives, manufacturers do not. In the case of determination of a military, domestic, or public health emergency, the Commissioner of Food and Drugs may issue an emergency use authorization (EUA) to allow temporary use of medical products that FDA has not approved or licensed, or unapproved uses for approved or licensed products. FDA's assessment of the balance of a drug's potential risks and benefits--whether for overall market approval or for an individual with a serious disease or a public faced with an unusual and dangerous threat--may vary with the circumstance, such as an individual's prognosis, threat to the community, alternative available treatments, extent of knowledge of safety and effectiveness in the anticipated use, and informed consent. Although FDA granted over 99% of the expanded access requests it has received since 2010, patients and others point to what they see as FDA-created obstacles to access. In February 2015, FDA released draft guidance and a new form that, when finalized, would reduce the amount of information required from the physician. Since 2014, 20 states have passed so-called right to try laws to bypass FDA permission for access to an investigational drug. Congress and FDA seek to protect the public by balancing ensuring that drugs are safe and effective with getting new products to the market quickly. Complementing expanded access programs in achieving those goals are broader tools including incentives to development, expediting development and review, limited access, and regulatory science.

96-395 -- World Heritage Convention and U.S. National Parks Updated April 24, 2001 Summary On March 6, 2001, Congressman Don Young introduced H.R. 883 , the AmericanLand Sovereignty Act. H.R. 883 requires congressional approval to add any lands owned by the United States to the World HeritageList, a UNESCO-administered listestablished by the 1972 World Heritage Convention. Two years ago, on May 20, 1999, the House passed (by voicevote) an identical bill also numbered H.R. 883 , but the legislation did not pass in the Senate. Sponsors of that bill expressed concern that addinga U.S. site to the U.N. list, which iscurrently done under executive authority, might not protect the rights of private property owners or the states. TheClinton Administration and opponents of thebill argued that the designation has no effect on property rights and does not provide the United Nations with anylegal authority over U.S. territory. In relatedlegislation, P.L. 106-429 , in which H.R. 5526 , the Foreign Operations, Export Financing, and RelatedPrograms appropriations act for 2001 wasreferenced, contained language prohibiting funding from this bill for the United Nations World Heritage Fund. TheFY2000 contribution to the Fund was$450,000. The World Heritage Fund provides technical assistance to countries requesting help in protecting WorldHeritage sites. This paper describes theoperation of the UNESCO Convention and will be updated periodically. This legislation would also affect U.S.participation in the UNESCO Man and theBiosphere Program, which includes some of the same sites. For information on that program, see CRS Report RS20220(pdf) , Biosphere Reserves and the U.S. MABProgram. There are currently 690 natural and cultural sites in 122 countries listed on the World Heritage List established underthe World Heritage Convention. TwentyU.S. sites are listed, including Yellowstone and Grand Canyon National Parks, Independence Hall, and the Statueof Liberty. The World Heritage in Danger listcurrently has 30 sites in 24 countries, including Yellowstone National Park and Everglades National Park. Yellowstone National Park was listed on the sites indanger list in 1995 and the Everglades was listed in 1993. The 1980 National Historic Preservation Act establishesthe Interior Department as the administratorand coordinator of U.S. activities under the Convention. H.R. 883 , the American Land Sovereignty Act,would place conditions on Interior'sauthority to nominate new sites and require specific congressional authorization for new nominations. About the Convention The Convention Concerning the Protection of the World Cultural and Natural Heritage, popularly known as the World Heritage Convention, was adopted by theGeneral Conference of the United Nations Educational, Scientific, and Cultural Organization (UNESCO) in 1972. The United States initiated and led thedevelopment of the treaty and was the first nation to ratify it in 1973. Currently, 162 nations are parties to theConvention. The Convention's purpose is toidentify and list worldwide natural and cultural sites and monuments considered to be of such exceptional interestand such universal value that their protection isthe responsibility of all mankind. Each country adopting the Convention pledges to protect listed sites andmonuments within its borders and refrain fromactivities which harm World Heritage sites in other countries. The Convention states in Article 4 that each partyto it "recognizes that the duty of ensuring theidentification, protection, conservation, presentation and transmission to future generations of the cultural andnatural heritage .... situated on its territory, belongsprimarily to that state." (1) The internationalcommunity agrees to help protect them through the World Heritage Committee and Fund. World Heritage Committee and Fund The World Heritage Committee, composed of 21 specialists from member nations elected for 6-year terms, administers the Convention. (The United States wasmostly recently a member of the Committee for a term ending October 1999). The Committee has two principaltasks. First, it recognizes the sites nominated bymember states to be included on the World Heritage List, based on the criteria established by the Committee. Decisions on additions to the List are generallymade by consensus. UNESCO provides administrative assistance to the Committee but has no role in its decisions.The Committee monitors the sites and when asite is seriously endangered, it may be put on a List of World Heritage in Danger after consultation with the countryin which the site is located. In 1992, theCommittee adopted a plan to improve its operations, including an increased focus on monitoring conditions atexisting sites rather than adding new sites to theList. The Committee also administers the World Heritage Fund, which provides technical and financial aid to countries requesting assistance. Assistance can includesuch support as expert studies, training, and equipment for protection. World Heritage Fund technical assistancemust be requested by a member country in anagreement with the Committee, which sets conditions for the assistance. The World Heritage Fund receives incomefrom several sources. Member states pay duesequal to 1% of their UNESCO contribution. The United States is not a member of UNESCO and therefore doesnot contribute as a member. The Fund alsoreceives voluntary contributions from governments, donations from institutions, individuals, and from national orinternational promotional activities. The UnitedStates contributed $450,000 voluntarily to this program in FY2000, an amount appropriated in the ForeignOperations Appropriation. A similar contribution wasrequested for FY2001. This contribution was prohibited by P.L. 106-429 . Virtually no other U.S. money wascontributed to this program. U.S. Participation The National Park Service is the primary U.S. contact for World Heritage sites in the United States. The National Historic Preservation Act Amendment of 1980( P.L. 96-515 ) charges the Department of Interior with coordinating and directing U.S. activities under theConvention, in cooperation with the Departments ofState, Commerce, and Agriculture, the Smithsonian Institution, and the Advisory Council on Historic Preservation. The National Park Service administers all theU.S. sites with funds appropriated by Congress, except for several that are owned by states, a foundation, and anIndian tribe. Legislation American Land Sovereignty Protection Act. H.R. 883 was introduced by Representative DonYoung on March 6, 2001, and referred to the Committee on Resources. It has 30 cosponsors. The legislationamends the National Historic Preservation Act of1980 ( P.L. 96-515 ) to require a determination by the Interior Department that the designation of a new site will notadversely affect private land within ten milesof the site, a report to Congress on the impact of the designation on existing and future uses of the land andsurrounding private land, and specific authorization byCongress for new World Heritage site designations. The bill also terminates and prohibits unauthorized designationof biosphere reserves under the UNESCOMan and the Biosphere Program. Foreign Operations, Export Financing, and Related Appropriations Act, 2001. ( P.L. 106-429 , as passed byCongress, enacted by reference in H.R. 5526 .) Section 580 of this bill states that none of the fundsappropriated or made available by this Act may beprovided for the U.S. contribution to the United Nations World Heritage Fund. P.L. 106-429 was signed by thePresident on November 6, 2000. Although the debate on the American Land Sovereignty Protection bill was often couched in terms which included U.N. influence over U.S. parks andmonuments, supporters of the American Land Sovereignty Protection Act were primarily concerned that a lack ofa congressional role in designating the sites anda lack of congressional oversight of implementation of the act undermines the congressional role under theConstitution to make rules governing land belongingto the United States. As the House Resources Committee web site on the legislation stated: "By using theseinternational designations, the Executive Branch isable to guide domestic land use policies without consulting Congress." (2) Supporters express concern that even though there may be no internationalor U.N. directcontrol of U.S. sites, federal agency managers may take into account the international rules of the World Heritageprogram in making land use decisions, or usethe designation to undermine local land use decisions, often without the advice or even the knowledge of localauthorities or property owners. The World Heritage Convention does not give the United Nations authority over U.S. sites. The Department of State has testified that under the terms of theWorld Heritage Convention, management and sovereignty over the sites remain with the country where the site islocated. Supporters of the World Heritagesystem note that member countries nominate sites for the World Heritage List voluntarily and agree to develop lawsand procedures to protect them using theirown constitutional procedures. Most of the U.S. sites named have already been accorded protection in law asnational monuments or parks. In commenting onthe bill, the Clinton Administration stated that the designation does not give the United Nations the authority toaffect land management decisions within theUnited States and has not been utilized to exclude Congress from land management decisions. The Department ofState noted that the Convention itself has norole or authority beyond listing sites and offering technical advice and assistance. Supporters of the conventionassert that World Heritage status has been theimpetus behind closer cooperation between federal agencies and state and local authorities. Inclusion on the World Heritage List increases knowledge and interest in sites throughout the world. Many countries use the World Heritage designation toincrease tourism to site areas. Designation also brings international attention and support to protect endangeredsites. In 1993, the World Heritage Committeesupported the United States in protecting Glacier Bay National Park and Preserve by publicizing U.S. concerns abouta Canadian open pit mine near the Bay andreminding the Canadian government of its obligations under the Convention to protect the site. In 1996,international concern, including concern raised by U.S.citizens, was instrumental in changing the plans of a Polish company to build a shopping center near AuschwitzConcentration Camp in Poland, a World HeritageSite. In March of 2000, Mexico dropped plans to develop a salt plant on the shores of a gray whale breeding groundin a protected Mexican area designated as aWorld Heritage Site. Supporters of legislation restricting U.S. World Heritage participation express concern about the impact of the designation on private property near the sites. Theysuggest that agreeing to manage the site in accordance with the international convention may have an impact on theuse of private land nearby, or may even be anindirect way of complying with treaties which the Congress has not approved. They claim that advocacy groupsuse federal regulations and international land usedesignations to frustrate the public land management decision-making process. The Interior Department hastestified, on the other hand, that the nominationprocedure includes open public meetings and congressional notification on sites being considered. In June 1995, the U.S. Department of the Interior notified the World Heritage Committee that Yellowstone was in danger and requested an on-site visit. In afollow up letter, the Department of the Interior noted actions which the United States was taking to address thesituation. A team organized by the World HeritageCenter reviewed actual and potential threats to the park. In December 1995, based on this visit and consultationswith U.S. government officials, the WorldHeritage Committee placed Yellowstone on the List of World Heritage in Danger, citing threats posed by plans fora gold mine just over 1 mile from the Park, theintroduction of non-native fish into Yellowstone Lake, and activities to eliminate brucellosis from Park bison herds. The World Heritage Committee noted thatany response to the threat was a U.S. domestic decision and asked that the U.S. government keep the committeeinformed of actions taken by the United Statesand to assess what more must be done in order to remove Yellowstone from the endangered list. Both the non native fish and the Park bison herds are the subject of ongoing federal, state, and local discussions.The gold mine issue has been resolved. Congress appropriated funds to compensate the mine owners for not developing it. The non-native fish problemis ultimately unresolvable, but Park authoritiesare working to minimize the number of non native fish in Yellowstone lake. The Administration will continue toreport annually to the World HeritageCommittee on both Yellowstone and Everglades National Parks until they are removed from the endangered list. The World Heritage Committee will continueto list both parks on the World Heritage in Danger List in consultation with the United States. The Decembermeeting of the World Heritage Committee will bethe next opportunity for the United States to report on actions taken to eliminate the danger to the parks, or todiscuss changes to their designation. It is too earlyto know what the Bush Administration position will be on this topic. 1. (back) Convention concerning the protection ofthe world cultural and natural heritage. 27 UST 37. 2. (back) U.S. Congress. House. Committee onResources. http://resourcescommittee.house.gov/resources/106cong/fullcomm/sovereignty.htm .

On March 6, 2001, Congressman Don Young introduced H.R. 883 , the AmericanLand Sovereignty Act. H.R. 883 requires congressional approval to add any lands owned by the United States to the World HeritageList, a UNESCO-administered listestablished by the 1972 World Heritage Convention. Two years ago, on May 20, 1999, the House passed (by voicevote) an identical bill also numbered H.R. 883 , but the legislation did not pass in the Senate. Sponsors of that bill expressed concern that addinga U.S. site to the U.N. list, which iscurrently done under executive authority, might not protect the rights of private property owners or the states. TheClinton Administration and opponents of thebill argued that the designation has no effect on property rights and does not provide the United Nations with anylegal authority over U.S. territory. In relatedlegislation, P.L. 106-429 , in which H.R. 5526 , the Foreign Operations, Export Financing, and RelatedPrograms appropriations act for 2001 wasreferenced, contained language prohibiting funding from this bill for the United Nations World Heritage Fund. TheFY2000 contribution to the Fund was$450,000. The World Heritage Fund provides technical assistance to countries requesting help in protecting WorldHeritage sites. This paper describes theoperation of the UNESCO Convention and will be updated periodically. This legislation would also affect U.S.participation in the UNESCO Man and theBiosphere Program, which includes some of the same sites. For information on that program, see CRS Report RS20220(pdf) , Biosphere Reserves and the U.S. MABProgram.

States and localities have at times proposed or enacted measures restricting governmental transactions with entities doing business or having financial ties with foreign countries whose conduct is found objectionable, particularly because of terrorism or human rights concerns. This report summarizes constitutional arguments made for and against these laws and discusses the Supreme Court's decisions in Crosby v. National Foreign Trade Council and American Insurance Association v. Garamendi , where the Court addressed the permissibility of state laws having implications upon U.S. foreign affairs. The report also discusses a 2007 federal district court decision which held that an Illinois law that imposed sanctions upon Sudan was unconstitutional, along with a 2012 federal district court decision preliminarily enjoining the enforcement of a Florida statute which, among other things, restricts the state or local governments from entering contracts with certain entities that do business in Cuba. The report also suggests some possible legal ramifications of recent case law for future state and congressional action in this area, and summarizes recent federal enactments addressing state economic sanctions. State and local sanctions have generally taken the form of (1) selective purchasing or contracting laws, which generally prohibit state or local agencies from contracting with or procuring goods and services from companies that do business in a named country, or (2) selective investment laws, which prohibit state or local agencies from investing public funds in such companies. A variation of the latter is a state or local divestment law which, for example, may require divestment by state pension funds of stock in companies that either do business within a named country or with that country's government. In the 1990s, a number of state laws focused on conditions in Burma (Myanmar), while others targeted Nigeria, Tibet, Cuba, Indonesia, Switzerland, and Northern Ireland. Other state laws addressed poor foreign labor practices regardless of country. Due to the troubled situation in Darfur, between 2006 and 2010 a number of states proposed or enacted divestment legislation focused on Sudan. Other states have passed legislation prohibiting pension fund investment in debt instruments issued by any nation designated by the State Department as supporting or engaging in terrorism. Other pending or enacted state legislation is aimed at divestment of state funds from companies engaged in certain business activities in Iran, in either Iran or Sudan, or in state sponsors of terrorism. In February 2007, a federal district court held that an Illinois statute, which restricted the deposit of state funds to institutions having customers with ties to Sudan and barring the investment of state pension funds with Sudanese-connected entities, was constitutionally impermissible. The state's appeal to the U.S. Court of Appeals for the Seventh Circuit was subsequently dismissed as moot. State and local economic sanctions that target foreign government behavior ordinarily raise three constitutional issues: (1) whether they burden foreign commerce in violation of the Foreign Commerce Clause and, if so, whether they are protected by the market participant exception to the Clause; (2) whether they impermissibly interfere with the federal government's exclusive power to conduct the nation's foreign affairs; and (3) where Congress or the President has acted, whether they are preempted by federal law. The Constitution provides Congress with the authority to regulate both interstate and foreign commerce (Art. I, SS8, cl. 3). In addition to this affirmative grant of constitutional authority, the Supreme Court has recognized that the Commerce Clause implies a corresponding restraint on the authority of the states to interfere with commerce, even absent Congressional action. This inferred restriction arising from congressional inaction is generally referred to as the "dormant" Commerce Clause. Under this established principle, states and localities are impliedly prohibited from unreasonably burdening or discriminating against either interstate or foreign commerce unless they are authorized by Congress to do so. In a series of cases involving state taxes, the Supreme Court has set out criteria for examining whether state measures impermissibly burden foreign commerce where affirmative congressional permission is absent. In sum, the Court has required a closer examination of measures alleged to infringe the Foreign Commerce Clause than is required for those alleged to infringe its interstate counterpart, but has also provided scope for state measures in situations where a federal role is not clearly demanded. In Japan Line, Ltd. v. County of Los Angeles , the Supreme Court struck down on Foreign Commerce Clause grounds a California state statute that applied an ad valorem property tax on foreign cargo containers. In doing so, the court identified two reasons why "a more extensive constitutional inquiry is required" in foreign commerce cases than those involving "purely interstate commerce." First, there is an "enhanced risk of multiple taxation" upon goods involved in foreign commerce than in the case of domestic goods. Secondly, a state tax upon an instrumentality in foreign commerce "may impair federal uniformity in an area where federal uniformity is essential," or, in other words, may "prevent [] the Federal Government from 'speaking with one voice when regulating commercial relations with foreign governments.'" The Court made clear that "[i]f a state tax contravenes either of these precepts, it is unconstitutional under the Commerce Clause." Four years later in Container Corp. of America v. Franchise Tax Board , the Court upheld a state income tax law challenged by a multinational enterprise, finding that it did not infringe upon the federal government's authority over foreign commerce. The Court viewed the case as involving several facts which made it distinguishable from the state tax which had been struck down in Japan Line, Ltd . In upholding the California state income tax law, the Court also elaborated upon its prior recognition in Japan Line, Ltd. that a state tax may be impermissible if it prevents the federal government from speaking with "one voice" on international trade issues. Here, the Court indicated that state action may have "merely foreign resonances" without impermissibly treading upon the federal government's authority over foreign affairs. A state tax "will violate the 'one voice' standard if it either implicates foreign policy issues which must be left to the Federal Government or violates a clear federal directive." The Court noted that the second of these factors "is, of course, essentially a species of preemption analysis." The Court later concluded in Barclays Bank PLC v. Franchise Tax Board of California , a case examining California's income-based corporate franchise tax, that even a state statute that may make it more difficult for the federal government to speak with a single voice on international trade will be sustained if there is no clear indication that Congress had intended to bar the state practice. The Court stated that Container Corporation and a subsequent case, Wardair Canada Inc. v. Florida Dep't of Revenue , in which the Court upheld a state tax on jet fuel purchased by foreign airlines, suggested that "Congress may more passively indicate that certain state practices do not 'impair federal uniformity in an area where federal uniformity is essential....'" Moreover, Congress "need not convey its intent with the unmistakable clarity required to permit state regulation that discriminates against interstate commerce...." Where Congress has not clearly immunized a state selective purchasing or divestment law for Foreign Commerce Clause purposes, arguments that any such law impermissibly burdens foreign commerce may be countered by invocation of the market participant doctrine. First articulated in the Supreme Court's 1976 ruling in Hughes v. Alexandria Scrap Corp. , the doctrine exempts from the clause those laws in which the state or local government acts as a buyer or seller of goods rather than as a regulator. It is counter-argued, however, that the doctrine is inapplicable where the state seeks to affect behavior beyond the immediate market in which it is operating; that it does not immunize laws from other constitutional challenges; and that, as suggested by the Supreme Court, it may not even apply in Foreign Commerce Clause cases. "Power over external affairs is not shared by the States; it is vested in the national government exclusively." State or local laws which encroach upon the federal government's authority over foreign affairs may be deemed constitutionally impermissible. In its 1968 decision in Zschernig v. Miller , the Supreme Court struck down an Oregon law prohibiting nonresident aliens from inheriting property if they could not satisfy certain requirements. Namely, the Oregon statute required such aliens to demonstrate to the Oregon state courts that their home countries allowed U.S. nationals to inherit estates on a reciprocal basis and that payments to foreign heirs from the Oregon estates would not be confiscated. Although the federal government had not exercised its power in the area, the Supreme Court nonetheless found that the inquiries required by the Oregon statute would result in "an intrusion by the State into the field of foreign affairs which the Constitution entrusts to the President and the Congress." The Court distinguished its earlier decision in Clark v. Allen , which had upheld a similar California statute, on the ground that the statute in that case could be implemented through "a routine reading of foreign law" and did not require the particularized inquiries demanded by the Oregon statute. Many observers have characterized the parameters of the Zschernig ruling as unclear. Application of the ruling is often an issue in litigation concerning state or local measures which restrict economic transactions with companies doing business with foreign entities whose conduct the state or locality finds objectionable. It has been argued, for example, that state or local selective procurement laws, through which jurisdictions condition eligibility for a public contract upon business entity refraining from certain activities within or in relation to a foreign country, are directed at influencing or scrutinizing foreign behavior in the manner that the Zschernig Court found objectionable. Courts that have upheld restrictive procurement laws that were challenged on Zschernig grounds have emphasized that the challenged laws applied neutrally to all foreign products, and thus did not require the assessment of a particular government's policies that might result in constitutional infirmity. The Supremacy Clause of the Constitution establishes that federal statutes, treaties, and the Constitution itself are "the supreme Law of the Land." Accordingly, states can be precluded from taking actions that are otherwise within their authority if federal law is thereby thwarted. The extent to which federal law preempts, or supersedes, state law in a given area is entirely within the control of Congress. Congress may, by clearly or expressly stating its intent, choose to preempt all state laws, no state laws, or only certain state laws. Absent an express statement from Congress, an act of Congress may also impliedly preempt state or local action in a given area. Where Congress has not expressly preempted state and local laws, two types of implied federal preemption may be found: field preemption , in which federal regulation is so pervasive that one can reasonably infer that states or localities have no role to play, and conflict preemption , in which "compliance with both federal and state regulations is a physical impossibility," or where the state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." The delineation between preemption categories, and in particular between conflict and field preemption, is not rigid. In preemption cases involving foreign affairs, courts may well weigh the deference traditionally accorded areas subject to state and local regulation against the policy considerations implicated by the federal scheme affecting foreign affairs or commerce. For example, in the Supreme Court's ruling in the 1941 case of Hines v. Davidowitz , which invalidated a state alien registration statute, the Court reiterated the long-recognized, constitutionally based supremacy of federal authority in foreign affairs and made clear that any concurrent state power in the area must be "restricted to the narrowest of limits....." Depending on the nature of a state statute and the type of federal action taken to deal with a problematic foreign nation, opponents of a state sanctions law may thus argue that, even absent express preemption by a federal statute, (1) a state law may conflict with federal laws and policies targeted at a specific country with respect to the activities and persons covered, or (2) there is reason to presume that Congress intended that all state and local measures targeting a particular country be preempted. In response, it might be maintained, inter alia , that federal limitations on the exercise of proprietary powers to contract and invest must be expressly intended or must result from a highly pervasive federal scheme. Moreover, state laws may arguably mandate consequences that differ from federal remedies or that do not exist on the federal level so long as the federal legislation or action involved does not constitute a "complex and interrelated federal scheme of law, remedy and administration." In Crosby v. National Foreign Trade Council , the Supreme Court unanimously ruled that a Massachusetts selective purchasing law targeted at Burma was impliedly preempted by federal sanctions against Burma contained in the Foreign Operations Appropriations Act, 1997 ( P.L. 104-208 ). At the time, the absence of well-developed case law directly addressing sub-federal sanctions had made the outcome of a constitutional challenge to state sanctions laws unclear. Although various Supreme Court cases had previously examined aspects of such laws, none directly ruled on such a statute. Moreover, the few state cases scrutinizing such measures on constitutional grounds differed in result. Although Congress had not expressly preempted state laws in the federal Burma statute, the Court found the Massachusetts law was impliedly preempted because it "undermines the intended purpose and 'natural effect' of at least three provisions of the federal Act, namely, its delegation of effective discretion to the President to control economic sanctions against Burma, its limitation of sanctions solely to United States persons and new investment, and its directive to proceed diplomatically in developing a comprehensive, multilateral strategy towards Burma." After rejecting the state's argument that the law could not be preempted because it was based on an exercise of the state's spending power, the Court found that the law lacked the flexibility inherent in the federal statute: the state law had stringent application requirements and no termination provision, while federal law authorized the President to lift federal measures in certain circumstances, allowed him to prohibit new investment based on his own findings, and provided waiver authority with regard to all sanctions imposed in the statute. The state law was also found to exceed federal authorities. While the Massachusetts law covered most state contracts, foreign and domestic firms, and firms already operating in Burma, the federal law imposed sanctions solely on U.S. persons, authorized a prohibition on new investment only, and exempted purchase and sales contracts from any ban. Finally, the Court ruled that the state law had impeded the President's ability to pursue the multilateral strategy envisioned in the federal act, with the Court noting formal protests from U.S. trading partners, World Trade Organization complaints, and the distraction caused by the state law in discussions with foreign countries regarding the situation in Burma. Finally, the Court rejected the state's argument that Congress had implicitly permitted the state law because it had failed to expressly preempt state sanctions against Burma. Massachusetts noted that Congress was aware of the state's law when it adopted the federal Burma statute in 1996. However, the Court found that "[a] failure to provide for preemption expressly may reflect nothing more than the settled character of implied preemption doctrine that the courts will dependably apply" and that "in any event, the existence of a conflict cognizable under the Supremacy Clause does not depend on express recognition that federal and state law may conflict." The Court found that in this case Congress's silence was ambiguous and insufficient to warrant an inference of congressional intent to permit states to adopt their own Burmese sanctions. In American Insurance Association v. Garamendi , the Supreme Court reaffirmed the Zschernig Court's finding of a dormant federal foreign affairs power. In a 5-4 vote, the Court struck down a California law, the Holocaust Victim Insurance Relief Act, which required any insurer doing business in the state to disclose information about all life insurance policies issued in Europe during the Nazi regime. An executive agreement with Germany signed by the President provided that the International Commission on Holocaust Era Insurance Claims would serve as the sole vehicle for voluntary insurance claims to reduce litigation between foreign nationals and German firms. Despite the lack of a specific preemption clause, the Court, citing the "kid glove" approach chosen by the executive branch that was evident in the German agreement and similar agreements with Austria and France, along with executive branch statements supporting this approach, determined that there was a "clear conflict" between the policies adopted by the executive and the "iron fist" that California sought to use. The Court made clear that state law could be preempted by the President's exercise of his independent constitutional authority to conduct foreign affairs, noting that Congress had not acted on the matter addressed in the California law and that given this independent authority, "congressional silence is not to be equated with congressional disapproval." In National Foreign Trade Council v . Giannoulias , the first lower federal court decision since Crosby and Garamendi to address a state sanctions law, the U.S. District Court for the Northern District of Illinois held the Illinois Sudan Act unconstitutional and permanently enjoined its enforcement. At issue in the February 23, 2007, decision was a statute that placed restrictions both on the deposit of state funds and the investment of state and municipal pension assets. The Illinois law amended the Deposit of State Moneys Act to prohibit the Illinois Treasurer from investing state funds in commercial instruments of Sudan and so-called "forbidden entities" and also from depositing state funds into any financial institution that did not certify that it "has implemented policies and practices that require loan applicants to certify that they are not 'forbidden entities.'" The category of "forbidden entities" included any company that had not certified that it did not own or control certain Sudan-related property or assets and did not engage in certain Sudan-related transactions. The statute also amended the Illinois Pension Code to prohibit the fiduciary of any pension fund established under the Code from investing in any entity unless the company managing the funds' assets certified that the managing company had not transferred any assets of the Illinois retirement system or pension fund to a forbidden entity. The statute ultimately required that none of the assets of the system or fund be invested in "forbidden entities" by the end of July 2007. For purposes of the pension amendments, the term "forbidden entity" included (1) the firms described above; (2) any publicly traded company that owned or controlled Sudan-related property or assets or engaged in other Sudan-related transactions; and (3) any non-publicly traded company that failed to submit to the fund's managing company a sworn affidavit averring that the company did not own or control any Sudan-related property or conduct business transactions in Sudan. The statute was challenged on preemption, foreign affairs, and foreign commerce grounds. In reaching its decision, the court set out federal law regarding Sudan, beginning with a 1997 Executive Order signed by President Clinton freezing Sudanese property in the United States and prohibiting various transactions between the United States and Sudan, and continuing with three subsequent public laws: the Sudan Peace Act (2002), the Comprehensive Peace in Sudan Act (2004), and the Darfur Peace and Accountability Act (2006). None of these statutes contains a provision expressly preempting states from enacting their own sanctions against the Sudan. Addressing the statutory preemption argument, the court held that, with respect to the amendment to the Deposit of State Moneys Act, the Illinois statute's "lack of flexibility, extended geographic reach, and impact on foreign entities interferes with the national government's conduct of foreign affairs," and was thus preempted by federal law. On the other hand, the pension amendments were found not to be preempted, since federal law did not expressly address divestment, and, in the district court's view "the potential effects of pension divestment on the national government's ability to conduct foreign policy are highly attenuated." The court stated that it had not been presented with evidence "suggesting that these pension funds' inability to purchase the securities of such companies would be in any way likely to affect their decision to do business in that country" and thus it had not been shown "that pension fund divestment stands as an 'obstacle to the accomplishment and execution of the full purposes and objectives of Congress' with regard to Sudan policy." Regarding the claim that the state measure impermissibly intruded upon the federal government's authority over foreign affairs, the court found scant prior case law on the issue, but concluded that the amendments to the Deposit of State Moneys Act "would have an impact on the national government's ability to deal with Sudan that is at least equal to or greater than the impact of the state laws in Zschernig and Garamendi. " The court considered that the amendments might cause multinational companies to pull out of Sudan, resulting in a "real and direct" effect on Sudan's economy, and that they thus clearly had "more than an incidental or indirect effect" in Sudan. Noting as well the amendments' "substantive and direct impact on the national government's ability to carry out the flexible and measured approach to Sudanese relations that Congress and the president have created," the court held that they interfered impermissibly with the federal government's power to conduct the nation's foreign affairs. At the same time, the court held that the pension amendments did not improperly intrude on the federal foreign affairs authority, finding that they did not place the same kind of pressure on firms to sever business ties with that country that flowed from the banking amendments and thus were not likely to affect the firms' willingness to do business in Sudan. Because the court had already found the banking amendments unconstitutional on two grounds, it did not consider them in light of the Foreign Commerce Clause. Nevertheless, it did find that "there is little doubt that the conduct the Illinois Sudan Act seeks to proscribe involves foreign commerce" and that "[w]ithout the protection of the market participant exception, the amendment to the Pension Code violates the Foreign Commerce Clause." The court found that to the extent that the state was exercising control over municipal pension funds, however, it was acting as a market regulator and that the market participant doctrine, even if it were determined applicable in Foreign Commerce Clause cases, did not apply to this situation. With respect to the state's control of its own pension funds, the court held that, even if the amendment was constitutional if only applied to these funds, it could not be severed from the unconstitutional portion of the statute. The court therefore struck down the pension amendment as a whole. The State of Illinois appealed the decision to the U.S. Court of Appeals for the Seventh Circuit. It also enacted new Sudan-related divestment legislation, which included a repeal of the invalidated provisions. In October 2007, the state moved to dismiss the appeal as moot and to vacate the district court judgment. The appellate court granted the motion and remanded the case to the district court on November 30, 2007, with instructions to vacate the decision. Faculty Senate of Florida International University v. Winn , a per curiam opinion of the U.S. Court of Appeals for the Eleventh Circuit, held that states can restrict the use of funds to sponsor travel by state education employees to specific countries for national security reasons. At issue in Winn was a Florida statute prohibiting the allocation of both public and non-public funds for travel to countries that the federal government had identified as "State Sponsors of Terror." Presented with plaintiff's arguments that the law impeded the federal foreign policy powers, the court distinguished Crosby and Garamendi by emphasizing that there were no penalties for traveling to these countries and that no conflict with a federal law existed. The court also considered Zschernig , but found that Florida's willingness to follow the federal list of state sponsors rather than create its own criteria minimized the possibility of interference with the Executive's foreign affairs powers. Finally, the Eleventh Circuit emphasized that this statute did not place broad limits on trade with or travel to these countries and thus lacked a large economic effect on the target nations. The U.S. Supreme Court denied certiorari in the case on June 25, 2012. In Odebrecht Constr., Inc. v. Prasad , the U.S. District Court for the Southern District of Florida granted a preliminary injunction halting the enforcement of a Florida law that sought to prevent the state and local governments from awarding public contracts to companies with business connections to Cuba. Specifically, the law prohibited companies "engaged in business operations in Cuba," from bidding on, or entering contracts with, state or local entities for "goods or services of $1 million or more." In granting the preliminary injunction, the court determined that there was a substantial likelihood that the Florida law was preempted by federal law, impermissibly interfered with the federal government's foreign affairs power, and violated the Foreign Commerce Clause. In holding that the statute was likely preempted by federal law, the court relied principally on the Supreme Court's decision in Crosby . Like the Massachusetts state law challenged in that case, the Florida law was found to likely conflict with federal law because it impermissibly "frustrates the President's discretion to carefully calibrate sanctions against Cuba," and "diminishes the President's bargaining power by imposing inconsistent sanctions." In addition, the district court determined that the law would likely also fall under field preemption grounds, as "Congress has clearly intended to 'occupy the field' relating to this country's policy toward Cuba." In addition to being preempted, the district court also held that the Florida statute was likely to infringe on the federal government's foreign affairs power by forcing "foreign companies to choose between doing business with Florida and lawful business with Cuba," and because the statute had the "potential for diplomatic disruption or embarrassment." Finally, the court determined that the law also likely violated the Foreign Commerce Clause because it discriminated against foreign companies and regulated economic activity "beyond [the state's] borders that implicates foreign affairs and impairs federal uniformity." The district court's ruling has been appealed, but the Eleventh Circuit has yet to issue a ruling in the case. Where state or local sanctions are held to be preempted by federal statute, Congress may choose expressly to authorize such measures in new legislation. It is also possible that a state or local sanctions law could be written so as not to conflict with a federal enactment. Where Congress has not enacted or authorized sanctions against a particular country, state or local sanctions directed at that jurisdiction may be challenged on dormant foreign affairs or Foreign Commerce Clause grounds, given that Crosby did not address, and thus did not foreclose or limit the use of, these constitutional arguments. At the same time, questions remain as to the outcome of these arguments in a particular case. For example, if state or local sanctions were challenged on Foreign Commerce Clause grounds, would congressional silence be construed by a reviewing court as implied authorization of these measures or, instead, as a manifestation of an overriding federal policy that a particular country not be subject to restrictive U.S. measures? Whether the market participant exception applies in Foreign Commerce Clause cases also remains unclear. Where a state law is challenged as intruding into the federal foreign affairs power, the Supreme Court's ruling in Garamendi suggests that executive agreements or statements might preempt state action, despite a lack of specific agreement language showing the intent to do so. At the same time, the Court recommended following Justice Harlan's standard from the Zschernig case as a minimum threshold for foreign affairs preemption, that is, that the state legislation should "produce something more than incidental effect in conflict with express foreign policy of the National Government." Some commentators have provided practical criticisms of the state divestment laws. For instance, state investors rely on private organizations to identify firms with business interests in targeted countries. The particular concern is that this information might be inaccurate or fail to take account of the federal government's interests. This could lead to divestment activities inconsistent or directly counter to U.S. foreign policy goals. In response, the National Conference of State Legislatures has asked the federal government to provide U.S. investors with "authoritative information" regarding foreign and domestic firms with financial and investment activities in states that sponsor terrorism. There are also overarching concerns about whether public plans are suitable means for achieving foreign policy goals. Besides questions of their efficacy in changing foreign government behavior, divestment measures could diminish the rate of return on investment. There are increased administrative costs related to screening investments for ties to targeted nations. Broad restrictions on investment in certain companies could also undermine the goal of a diversified portfolio. These risks are likely to be especially problematic because there may well be limited overlap between those authorizing and making divestment decisions and the stakeholders whom these decisions will affect. The Sudan Accountability and Divestment Act of 2007 ( P.L. 110-174 ), enacted into law on December 31, 2007, authorizes state and local governments to adopt divestment measures involving (1) federally identified persons with investments and business in the Sudanese energy and military equipment sectors or (2) persons having a direct investment in or carrying on a trade or business with Sudan or the Government of Sudan, provided certain notification requirements are met; the statute also provides that a measure falling within the scope of the authorization is not preempted by any federal law or regulation. The enactment is based on S. 2271 , an original bill of the Senate Committee on Banking, Housing, and Urban Affairs ( S.Rept. 110-213 ). H.R. 180 (Lee) and S. 831 (Durbin) also addressed Sudan divestment by state and local governments; H.R. 180 passed the House on July 31, 2007. President George W. Bush, upon signing the act, stated that "the executive branch shall construe and enforce this legislation in a manner that does not conflict" with the federal government's "exclusive authority" to conduct foreign relations. The Comprehensive Iran Sanctions, Accountability, and Divestment Act ( P.L. 111-195 ), enacted into law on July 1, 2010, includes provisions authorizing state and local governments to divest or prohibit investments of public monies in Iran. Responding to state and local divestment activities related to Iran, Congress designed Title II's divestment provisions to "remove [] any doubt as to the constitutionality of these measures." Specifically, states can require public divestment from businesses making investments of (or extending credit to persons who will make investments of) $20 million or more in Iran's energy sector. States must provide notice to those affected by divestment measures and give those affected the opportunity to comment or challenge the measures' applicability to their business dealings. If 90 days elapse after notice is given without the notified company changing its behavior, divestment can occur. The statute clearly states that no federal laws or regulations preempt actions taken by the states under these provisions. Below is a list of state laws related to divestment of public funds from companies doing business in foreign countries. Unless otherwise indicated, the provided statute fits the general model of identifying companies doing business in a country and, after giving notice and opportunity to discontinue the offending activity, requiring divestment of public funds from these companies. Some, but not all, of these measures include language providing for their expiration in the event that Congress or the President take specified action.

States and localities have occasionally enacted measures restricting their agencies from conducting economic transactions with entities that do business with or in foreign countries whose conduct these jurisdictions find objectionable. While some maintain that sub-federal entities may enact such laws under sovereign proprietary powers and other constitutional prerogatives, others argue that these measures impermissibly invade federal commerce and foreign affairs authorities and may, in some cases, be preempted by federal statute. In 2000, the U.S. Supreme Court unanimously held in Crosby v. National Foreign Trade Council that a Massachusetts law restricting state transactions with firms doing business in Burma was preempted by federal statute. In its 2003 decision in American Insurance Association v. Garamendi, the Court reaffirmed the relevance of the dormant federal foreign affairs power to preemption analysis when it struck down a California law requiring certain businesses to disclose information regarding Holocaust-era insurance policies sold in Europe, but the scope of the 5-4 decision is unclear. In recent years, a number of states have proposed or enacted some type of divestment legislation against Sudan in response to the troubled situation in Darfur. States have also considered or adopted divestment legislation involving Iran, Cuba, or terrorist states in general. In February 2007, a federal district court held Illinois's Sudan sanctions law unconstitutional and permanently enjoined its enforcement (National Foreign Trade Council v. Giannoulias). Illinois subsequently repealed its statute, and the state's appeal in the case was dismissed as moot later that year. In 2012, a U.S. federal district court issued a preliminary injunction barring the enforcement of a Florida statute which, among other things, restricted the state or local governments from entering into contracts with certain entities that do business in Cuba. In recent years, Congress has enacted legislation authorizing states to prohibit investments in, or divest assets from, Sudan and Iran. The Sudan Accountability and Divestment Act of 2007 (P.L. 110-174) authorizes states and local governments to adopt divestment or investment prohibition measures involving (1) persons the state or local government determines are conducting business operations in the Sudanese energy and military equipment sectors or (2) persons having a direct investment in or carrying on a trade or business with Sudanese entities or the Government of Sudan, provided certain notification requirements are met. The Comprehensive Iran Sanctions, Accountability, and Divestment Act (P.L. 111-195) which was enacted in 2010, includes provisions authorizing state and local governments to divest from those businesses making investments of $20 million or more in Iran's energy sector after adequate investigation and notification have occurred. Both laws provide that a measure falling within the scope of the authorization is not preempted by any federal law or regulation.

Historically, Central California's San Joaquin River supported large Chinook salmon populations. Since the Bureau of Reclamation's Friant Dam on the San Joaquin River became fully operational in the 1940s, much of the river's water has been diverted for agricultural uses. As a result, approximately 60 miles of the river is dry in most years, making it impossible to support Chinook salmon populations in the upper reaches of the river. In 1988, a coalition of conservation and fishing groups advocating for river restoration to support Chinook salmon recovery sued the Bureau of Reclamation (hereafter referred to as Reclamation), which owns and operates Friant Dam ( Natural Resources Defense Council v. Rodgers ). Most long-term water service contractors who receive the diverted water were added to the case shortly thereafter as defendant intervenors. A U.S. District Court judge has since ruled that operation of Friant Dam violates state law because of its destruction of downstream fisheries. Faced with mounting legal fees, considerable uncertainty, and the possibility of dramatic cuts to water diversions, parties agreed to negotiate a settlement instead of proceeding to trial on a remedy regarding the court's ruling. In September 2006, a Settlement Agreement was reached concerning operation of Friant Dam--one of the largest federal dams operated as part of Reclamation's Central Valley Project (CVP) in California. The Settlement calls for new releases of water from Friant Dam to restore fisheries in the San Joaquin River and for efforts to mitigate water supply losses due to the new releases. Full implementation of the Settlement would require congressional authorization and appropriations. Title X of H.R. 146 , which passed the Senate March 19, 2009, contains a San Joaquin River Restoration Settlement implementation provision; the legislation had previously been considered and passed the Senate as Title X of S. 22 . Under the Settlement and implementing legislation, increased water flows for restoring fisheries would reduce diversions of water for off-stream purposes, such as irrigation, hydropower, and municipal and industrial uses. The quantity of water used for restoration flows and the quantity by which water deliveries would be reduced are related, but the relationship would not necessarily be one-for-one. For instance, in some of the wettest years, flood water releases could provide a significant amount of the restoration flows, thereby lowering the reduction in deliveries to agricultural and municipal users. Under the Settlement, no water would be released for restoration purposes in the driest of years; thus, no reductions in deliveries to Friant contractors would be made due to the Settlement in those years. Additionally, in some years, the restoration flows released in late winter and early spring may free up space for additional runoff in Millerton Lake, potentially minimizing reductions in deliveries later in the year--assuming Millerton Lake storage is replenished. Consequently, how deliveries to Friant water contractors might be reduced in any given year would depend on many factors. Regardless of the specifics of how much water might be released for fisheries restoration vis-a-vis water diverted for off-stream purposes, there will be impacts to existing surface and groundwater supplies in and around the Friant Division Service Area and adjustments in local economies. Although some opposition to the Settlement and its implementing legislation remains, the largest and most directly affected stakeholders (i.e., the majority of Friant water contractor organizations, and environmental, fisheries, and community groups) support proceeding with the Settlement Agreement, in lieu of going to trial. For some groups, going to trial risks considerable uncertainty and expense; others may be more willing to take such risks. Congressional authorization and appropriations are required for full implementation of the Settlement. If Congress does not act on the legislation, some fear that the court will order a remedy, which may differ from the Settlement, and which may have more severe consequences for area water users and third parties. A key legislative issue is how to finance Settlement implementation, specifically how to resolve congressional Pay-As-You-Go (PAYGO) issues. Other challenges are how to achieve the Settlement's dual goals of fisheries restoration and water management, and how to address concerns of stakeholders not party to the Settlement, without disrupting the negotiated agreement. This report provides a brief overview of the Settlement, its legal history, and the legislative context in which implementing legislation is being considered. For more information on fisheries restoration, water management, funding, economic, and third party issues, see CRS Report RL34237, San Joaquin River Restoration Settlement . The Settlement in the lawsuit Natural Resources Defense Council v. Rodgers, involves operation of Friant Dam on the San Joaquin River--one of the largest federal dams of the Bureau of Reclamation's Central Valley Project (CVP) in California. As shown in Figure 1 , Friant Dam and the Friant Division of the CVP are situated in the southern portion of the San Joaquin Valley (SJV); however, the San Joaquin River flows north to the San Joaquin and Sacramento Rivers Delta confluence with San Francisco Bay (Bay-Delta). Hydrologically, the Friant Division Service Area extends into the Tulare basin. Agriculture in these areas is highly dependent on irrigation; much of the irrigation water is surface water supplied by the Friant Division. Many growers also use groundwater, conjunctively managing their surface and groundwater supplies. This conjunctive management improves seasonal and multi-year water reliability for growers. The SJV, an eight-county region extending 250 miles from Stockton in the north to Bakersfield in the south ( Figure 1 ), is both rapidly growing and economically depressed. (For more information on challenges facing the SJV, see CRS Report RL33184, California's San Joaquin Valley: A Region in Transition , by [author name scrubbed] et al. (pdf)) Yet, the 27,280 square mile SJV is home to five of the nation's ten most agriculturally productive counties, as measured by value of total annual sales. The Friant Division Service Area includes four of these counties: Fresno, Tulare, Kern, and Merced. The SJV faces significant environmental and natural resource challenges, including the court-ordered restoration of the San Joaquin River discussed in this report. The CVP is a multi-unit, multi-purpose reclamation project administered by the Bureau of Reclamation (Reclamation) under federal law, including the Reclamation Act of 1902 and amendatory acts (known as Reclamation Law), the federal Endangered Species Act (ESA), various other federal environmental and administrative laws, and various state laws. The Friant Dam was built on the San Joaquin River by Reclamation in the early 1940s. It stores the San Joaquin River's flow in Millerton Lake, the reservoir behind the dam, from which water for irrigation and other purposes is diverted into two canals. Reclamation delivers the impounded water to 28 irrigation and water districts in the Friant Division pursuant to various types of water service contracts, many of which originated in the 1940s. The Friant Division serves irrigation and water districts in the Fresno, Kern, Madera, Merced, and Tulare counties ( Figure 2 ). Unlike most Reclamation projects, the Friant Division (dam and distribution facilities) is operated in a way that diverts nearly all the San Joaquin River's flow away from the River. By the late 1940s, Reclamation's operation of Friant Dam had caused long stretches of the river to dry up. Portions of the San Joaquin River upstream of its confluence with the Merced River remain mostly dry today, except during flood events. Reclamation's operation of Friant Dam largely destroyed numerous species of native fish from the Upper San Joaquin River, including spring- and fall-run Chinook salmon. The diverted water helped develop and continues to support a diverse agricultural economy from north of Fresno to Bakersfield--the Friant Division Service Area (see Figure 2 ). While water diverted from rivers helped establish California's vibrant and valuable agricultural economy, some California fisheries have declined--particularly commercial and recreational salmon fisheries--due to water diversions and other factors. Historically, Central Valley spring-run Chinook were found throughout the Central Valley--from the northern Sacramento River drainage area to the southern portions of the San Joaquin drainage. The Middle and Upper San Joaquin River historically supported two or more independent populations of spring-run Chinook salmon. Most spawning by spring-run Chinook salmon in the San Joaquin River occurred upstream of the current location of Friant Dam. Historical spawning runs may have exceeded 200,000 fish annually, ascending the river as far as Mammoth Pool (about 1,000 meters elevation), which lies about 50 miles above Friant Dam. Although the spring-run Chinook population had declined from historic levels before construction and full operation of the Friant unit of the Central Valley Project, it appears from California Department of Fish and Game records that a viable spring-run population existed well into the 1940s with returns ranging from 2,000 to 56,000 fish. For several years after Friant Dam was in place, spring Chinook successfully spawned in habitat below the dam. However, by the late 1940s, operation of Friant Dam caused long stretches of the San Joaquin River to dry up, and the offspring of adults hauled by truck around the dry stretch were no longer able to out-migrate. Today Central Valley spring-run Chinook salmon are listed as threatened under the ESA; however, Central Valley spring-run Chinook salmon have been entirely extirpated from the San Joaquin River drainage, and currently inhabit only the Sacramento River drainage. Native fall and late-fall-run Chinook salmon continue to spawn in small numbers in the San Joaquin River tributaries such as the Mokelumne, Stanislaus, Tuolumne, and Merced Rivers. These fish spawn at lower elevations in these tributaries and have been less affected by dam construction than were spring-run Chinook salmon. In addition, there is significant artificial production of fall-run Chinook salmon by California Department of Fish and Game hatcheries on the Tuolumne, Mokelumne, and Merced Rivers. Fall-run Chinook salmon are not listed under the ESA, but are identified as a species of concern. Litigation involving waters of the San Joaquin River spans several decades. Litigation resulting in the most recent Settlement, however, can be traced to a 1988 lawsuit. This lawsuit and the negotiated Settlement Agreement are discussed below. During the late 1980s the Friant Division water users sought renewal of their long-term water service contracts with Reclamation. Beginning in 1988, a coalition of environmental groups and anglers led by the Natural Resources Defense Council (NRDC) challenged the contract renewals in federal court on a number of environmental grounds. In addition to claims that the process under which Reclamation had begun contract renewals violated the National Environmental Policy Act (NEPA) (42 U.S.C. SSSS 4321 et seq.) and that the lack of water in the river violated the ESA (16 U.S.C. SSSS 1531-1544), the plaintiffs argued that Reclamation had violated Section 8 of the Reclamation Act of 1902 (43 U.S.C. SS 383). That section provides that Reclamation will act in conformity with state laws "relating to the control, appropriation, use or distribution of water used in irrigation." The state law that is at issue here is California Fish and Game Code SS 5937. Section 5937 provides as follows: "The owner of any dam shall allow ... sufficient water to pass over, around or through the dam, to keep in good condition any fish that may be planted or exist below the dam." The claims have been litigated in the U.S. District Court for the Eastern District of California. The district court has reviewed the application of SS 5937 to the problem at hand on several occasions since 1988 and has issued several decisions. In 2004, the District Court issued another decision regarding the application of SS 5937 to the San Joaquin River, finding that Reclamation had violated the state law. It stated: "There can be no genuine dispute that many miles of the San Joaquin River are now entirely dry, except during extremely wet periods, and that the historical fish populations have been destroyed." The court did not declare what amount of water was necessary to satisfy the law or declare any other type of relief; rather, it set a 2006 trial date to determine a proper remedy. Faced with the prospect of a court-imposed remedy, and mounting legal fees in preparation for trial, the parties (NRDC et al., Reclamation et al., and Friant long-term water service contractors) began a series of settlement negotiations in late 2005, and came to a tentative agreement in June 2006. The terms of the Settlement were then vetted with selected stakeholders, finalized, and presented to Congress in September 2006--the final Stipulation of Settlement was filed with the U.S. District Court, Eastern District of California, September 13, 2006. The Settlement Agreement was accepted by the District Court on October 23, 2006. The stated goals of the Settlement are twofold: (1) to restore and maintain fish populations in "good condition"--the SS 5937 standard--in the main stem of the San Joaquin River below Friant Dam to the confluence of the Merced River; and (2) to reduce or avoid adverse water supply impacts to the Friant long-term water service contractors that may result from both interim flows and restorative flows provided in the Settlement. To accomplish these goals, the Settlement calls for numerous actions, some of which need congressional authorization and appropriations. Further, appropriations authorization is needed to finance settlement implementation as envisioned under the Settlement. The Settlement states that if legislation is not enacted by December 31, 2006, the Settlement may become void at the election of a party, at which point litigation might resume. While implementation legislation was considered in the 110 th Congress ( H.R. 4074 , H.R. 24 and S. 27 ), it was not enacted. Title X of H.R. 146 (the 111 th Congress) contains a revised version of this legislation. Revisions address direct spending and restoration flow provisions (SSSS 10004 and 10009). To date, no party has officially elected to void the Settlement. In September 2006, the settling parties presented the Settlement, including its legislative proposal, to various Members of Congress. The parties hoped implementing legislation would be enacted prior to adjournment of the 109 th Congress. However, numerous entities who were not party to the Settlement (i.e., third parties ), objected to the legislative proposal included in the Settlement, as well as the swift time line imposed by the Settlement Agreement. Shortly thereafter, many third parties met with the Settlement parties and certain Members of the California delegation. An agreement was reached to address certain third party interests; in exchange, these third parties agreed to support new legislation. Although many parties who had opposed the draft legislation in September 2006 supported the new legislation, other parties emerged that were not part of the new agreement, resulting in further opposition to Settlement legislation. San Joaquin River restoration Settlement legislation was first introduced in early December 2006 ( H.R. 6377 and S. 4084 ); however, no action was taken on the bills before adjournment of the 109 th Congress. The Settlement bills were reintroduced in the 110 th Congress as H.R. 24 and S. 27 . Hearings were held in both houses of Congress; however, the legislation was not enacted. One of the primary hurdles facing the legislation has been its budgetary impact and financing mechanisms. Implementation of the Settlement calls for construction of numerous projects and other activities that could cost between $250 million and $1.1 billion. Federal funding for these projects and activities is sought by the parties and is contemplated under the Settlement. Direct spending funding mechanisms included in the legislation would typically require a budgetary offset under congressional PAYGO rules--according to some, a difficult task in today's budget climate. While short-term (10 year) direct spending in H.R. 146 has been reduced substantially compared with earlier versions of the legislation, the budget effects of the legislation in its entirety are still at issue for some. An overall complication for Congress in considering San Joaquin Settlement legislation is that although the Settlement aims to end a 19-year lawsuit and comports with a court ruling, the Settlement would affect others outside the Friant Division Service Area. Changes embodied in H.R. 146 aim to resolve concern about the introduction of restoration flows. Another complication is the prospect that funding for the San Joaquin River Settlement may divert funds from salmon restoration projects in other river basins. Lastly, other recent events potentially limiting water exports from the Sacramento and San Joaquin Rivers Delta confluence could significantly affect implementation of the recirculation portion of the water management goal and has caused increased concern among some stakeholders. If Congress does not act on the legislation, some fear that the court will order a remedy, which may differ from the Settlement and which may have more severe consequences for some area water users and third parties. The Settlement Agreement and subsequent implementing legislation are the culmination of nearly two decades of discussion, argument, and study on whether and how to restore fisheries below Friant Dam, a federally owned and operated facility on the San Joaquin River. The most recent actions relate to a court decision that Reclamation is operating the dam in violation of California state fish and game code. The implications of this decision are far reaching for California water management and for both the directly affected water users and the indirectly affected communities, landowners, and water users. Several broad policy issues are raised by the Settlement. These issues partially derive from constraints imposed by the pressure to react to a settlement responding to a judicial ruling, as opposed to managing or legislating on an issue prior to, or absent, such a settlement. Another overarching issue is how San Joaquin River management ties into other CVP management decisions, as well as state and local water systems. Both the CVP and State Water Project (SWP)--a largely parallel state water supply system south of the Bay-Delta--are operating under regulations that limit the amount (and timing) of water that can be exported south out of the Bay-Delta. Recent court decisions regarding the health of threatened Delta Smelt have constrained water exports and may constrain future exports. The degree to which some of the water management goals identified in the Settlement might rely on moving water in and out of the Bay-Delta could affect the ultimate ability to recapture, recirculate, and/or reuse San Joaquin River restoration flows. At minimum, it appears the restoration effort will necessitate multi-year water planning and investments, including having the funding on hand and infrastructure in place to buy and put to use surplus water (e.g., for groundwater recharge), and to buy water in dry years for those without sufficient access to groundwater, those with primarily Class II supplies, or in the driest of years. Therefore, the future of water resource management in the Central Valley is not just conjunctive water management, but multi-year conjunctive management with the financial resources to make it happen, in addition to integration of federal, state, local, and private infrastructure projects. Whether Congress addresses this issue--in California and elsewhere--given current water resource authorization and appropriations practices and a restrictive budgetary climate remains to be seen. While the issues discussed here have confronted prior Administrations and Congresses, a Settlement Agreement was not reached until the U.S. District Court acted, ultimately resulting in the difficult choices facing Congress today (e.g., budgetary, water delivery, and ecosystem health trade-offs). This is a common dilemma for resource agencies implementing projects and programs which are based on societal and political trade-offs made decades ago (e.g., agricultural industry over commercial and sport fishing industries, or timber harvest over species habitat). It is hard to say what is fair or just when such significant trade-offs were made decades ago, causing harm to some, but providing benefit to others who then made financial and livelihood decisions based on those policies. In the eyes of many, the San Joaquin river restoration is an effort to respond to fisheries economic and ecological damage begun 60 years ago; for others the potential of reduced water supplies for off-stream use is a breach of promises made 60 years ago. For the court, it is a matter of Friant Dam operations comporting with state law.

Historically, the San Joaquin River in Central California has supported large Chinook salmon populations. Since the Bureau of Reclamation's Friant Dam on the San Joaquin River became fully operational in the 1940s, much of the river's water has been diverted for off-stream agricultural uses. As a result, approximately 60 miles of the river bed is dry in most years. Thus, the river no longer supports Chinook salmon populations in its upper reaches. In 1988, a coalition of conservation and fishing groups sued Reclamation (Natural Resources Defense Council v. Rodgers). A U.S. District Court judge ruled in 2004 that operation of Friant Dam violates state law because of its destruction of downstream fisheries. Faced with mounting legal fees, uncertainty, and the possibility of dramatic cuts to water diversions, parties negotiated a settlement instead of proceeding to trial. The Settlement reached calls for new releases of water from Friant Dam to restore fisheries, potential river channel modifications to accommodate increased flows, and efforts to mitigate reductions in off-stream deliveries lost to restoration flows. Congressional authorization and appropriations are required for full Settlement implementation. Legislation based on the Settlement (H.R. 4074, H.R. 24 and S. 27) was considered in the 110th Congress; a new version of the legislation has been introduced in the 111th Congress--Title X of S. 22, an omnibus public lands bill, which became Title X of H.R. 146 and passed the Senate on March 19, 2009. A key legislative issue is how to finance the Settlement, specifically how to resolve direct spending and related congressional pay-as-you-go (PAYGO) issues. Other challenges have been how to achieve the Settlement's dual goals of fisheries restoration and water management, and how to address concerns of stakeholders not party to the Settlement, without disrupting the negotiated agreement. The region may benefit from increased recreational expenditures and investment in river restoration activities under the Settlement. For example, some communities and interests believe restoration will bring other benefits to the river and river communities, such as improved surface water quality in lower San Joaquin River reaches and enhanced recreation benefits. On the other hand, some studies suggest the Settlement would have a negative economic impact on the agriculture industry, at least in the short term. In addition, downstream interests not party to the Settlement have been concerned about increased flooding, groundwater infiltration, and competition with existing federal financial commitments. Nearby communities fear harm to groundwater quantity and quality. Some of these concerns have been addressed in the newest version of the legislation, but some may remain.

On the first day of the 111 th Congress, the House agreed to H.Res. 5 , which made several changes to House rules affecting floor proceedings. Following a well-established practice, H.Res. 5 provided that the rules of the previous Congress be the rules of the new Congress, but with a set of amendments. Four changes to the standing rules of the House concern the transaction of business on the floor in the 111 th Congress. Calendar Wednesday is a rarely-utilized procedure that allows committee-reported legislation, not otherwise privileged for floor consideration, to be called up by the committee of jurisdiction on Wednesdays. Only the chair or another Member specifically authorized by a majority of the committee can call up legislation under the procedure. H.Res. 5 amended clause 6 of Rule XV to require that the Calendar Wednesday procedure only occur at the request of a committee. Prior to this rules change, the call of committees would automatically occur on Wednesdays unless the House specifically waived the procedure. For many years, the House routinely waived the Calendar Wednesday procedure by unanimous consent; absent unanimous consent, a two-thirds vote of the House was necessary to waive the procedure. H.Res. 5 also eliminated the provision in House Rule XIII, clause 6, that prevented the Rules Committee from reporting a special rule that would allow the House to waive Calendar Wednesday with less than two-thirds support. One effect of these changes is to eliminate the need for the Majority Leader or his designee to seek unanimous consent to waive the procedure each week. The contemporary Congress has not considered legislation under the Calendar Wednesday procedure. The House adopted the Calendar Wednesday rule in 1909 for the purpose of providing a means by which committees could call up legislation that was not otherwise privileged for consideration on the House floor. The new set of procedures initially proved ineffective as a means of guaranteeing each committee equal opportunity to call up measures for consideration. The House soon adjusted the rule, however, and thereafter until the 1940s the procedures were followed regularly as a means for a committee majority to bring up a measure without having to arrange consideration through party leadership or to secure unanimous consent. Over time, however, the House came to rely on other means to process business, and in the 1960s, the House began to use suspension of the rules with increasing frequency. The Calendar Wednesday procedure has been used very rarely since then because, generally speaking, committees are able to arrange instead for measures to be considered under suspension of the rules or under the terms of a special rule reported by the Rules Committee. The recent rules change preserves the Calendar Wednesday procedure if a committee wishes to utilize it in the future, although it differs from the earlier procedure in at least two important respects. First, it requires that only the committee(s) requesting the Calendar Wednesday procedure be called, rather than all the committees alphabetically as was previously required. Second, by eliminating the prohibition against the Rules Committee reporting a rule to waive Calendar Wednesday with less than two-thirds support, the rules change allows a simple majority of the House to vote to prevent the procedure, even if requested by a committee. H.Res. 5 added a paragraph to clause 1 of Rule XIX to grant the presiding officer the authority to postpone consideration of legislation. Under the new paragraph, if legislation is being considered under the terms of a typical special rule, the presiding officer can postpone further consideration to a time designated by the Speaker. In the 110 th Congress, special rules routinely included a provision giving the Speaker the authority to postpone consideration of legislation. One effect of adding this paragraph to the standing rules is that it will no longer be necessary to include in special rules a section permitting postponement. Although a motion to postpone consideration of legislation is in order under clause 4 of House Rule XVI, some standard provisions of special rules had the effect of preventing a Member from offering the motion to postpone. Nearly all special rules providing for the initial consideration of legislation expedite the procedural steps that occur just prior to final passage. More specifically, most special rules provide that, after the period allowed (if any) for offering amendments under the regular rules of the House, the "previous question" is considered as ordered on the bill and any amendments without any intervening motions except those specifically allowed in the rule. The "previous question" motion ends all debate and prevents further amendments and motions. When the previous question is ordered to final passage, as it is in current practice under the terms of nearly all special rules, then a motion to postpone consideration of the bill, or even a motion to adjourn or recess, is not in order. In other words, the House could not, even by majority vote, halt consideration of the legislation. In the past, the House agreed to special rules that granted the Speaker the authority to postpone consideration when it anticipated that such authority might be useful. For example, in the 107 th Congress (2001-2002), a special rule (H.Res. 574) providing for consideration of a measure authorizing the use of the United States Armed Forces against Iraq allowed 17 hours of general debate and the consideration of two amendments, followed by an additional hour of debate. The rule included a section authorizing the Speaker to postpone consideration of the legislation, and the Speaker did so twice, once at the end of the day on October 8, 2002, and again at the end of the day on October 9, 2002. In recent years, the frequency of including such provisions in special rules has increased. The provision was included in only one special rule each during the 106 th (1999-2000) and 107 th (2001-2002) Congresses. In the 108 th Congress (2003-2004), the provision was included in 5% (6/129) of the special rules adopted for the initial consideration of bills and resolutions. In the 109 th Congress, it was included 9% (12/137) of the time. The provision appeared more frequently in special rules in the 110 th Congress, when it was included in 98% (157/161) of the special rules that provided for the consideration of bills and resolutions. In the 110 th Congress, the inclusion of the provision allowed the Speaker to delay consideration of legislation after a motion to recommit was offered. As discussed at length below, House Rules allow a Member of the minority party to offer a motion to recommit just prior to final passage of a bill. The motion to recommit with instructions to report back "forthwith" is effectively a last chance opportunity for a Member of the minority party to offer an amendment to the measure. The motion to recommit need not be available to Members prior to being offered on the floor. In the 110 th Congress, the House actually postponed consideration of a bill on six occasions. In four of those cases, consideration was postponed after a motion to recommit was offered, but before it was voted on. In a fifth case, consideration was postponed before the motion to recommit was offered, but it was reported that the Speaker postponed consideration because of an anticipated motion to recommit. The inclusion in the standing rules of authority to postpone measures being considered under the terms of a special rule reflects, to some degree, previous patterns in Rules development. In the past, the House has adopted into its standing rules a provision that had become standard language in special rules. For example, by the 106 th Congress (1999-2000), it had become standard for special rules that allowed the offering of amendments to include a provision that gave the presiding officer the authority to postpone a request for a recorded vote on any amendment. In the 107 th Congress (2001-2002), House Rule XVIII was amended to incorporate, in clause 6(g), a general grant of this authority to the presiding officer. H.Res. 5 amended House Rule XIX, clause 2(b) to require that a motion to recommit a bill or joint resolution with instructions consist only of directions to report back an amendment "forthwith." The adoption of such a motion has the effect of bringing an amendment immediately before the House. Under House rules and precedents, minority party members are given preferential recognition to offer the motion. H.Res. 5 also amended the rule to allow 10 minutes of debate on any motion to recommit, even if the motion does not contain any instructions. If a motion to recommit a bill does not contain instructions, then adoption of the motion would return the bill to the committee in the form it was introduced. As discussed in detail below, the changes to the rule eliminated the opportunity for Members to offer motions to recommit with instructions that the committee do anything other than report back "forthwith." For example, it is no longer in order to offer a motion to recommit instructing the committee to report back a measure "promptly" with an amendment. The primary procedural effect of any motion to recommit with instructions other than to report back "forthwith" was the same as that of a motion to recommit without any instructions: the measure would be returned to committee with no requirement for further action. Under the new form of the rule, motions to recommit without instructions are still in order and are now debatable, providing an opportunity for proponents to discuss any actions they hope the committee will take with regard to the legislation. Prior to the rules change at the start of the 111 th Congress, a motion to recommit with instructions could have omitted the term "forthwith" (referred to as a motion to recommit with non-forthwith instructions). Non-forthwith instructions could include language instructing the specified committee(s) either to report the measure back with an amendment or to take some other action, such as conducting further research or holding hearings. Such instructions were considered advisory and did not compel a committee to take any action. In the 110 th Congress, some motions to recommit with instructions proposed that the committee report back "promptly" an amendment. Although they included the language of an amendment, these motions did not direct the committee to report back "forthwith," and, therefore, if adopted, would have only returned the bill to the specified committee with no requirement for further action. In short, motions to recommit with instructions to report back "promptly" did not bring an amendment immediately before the House. Motions to recommit with non-forthwith instructions were offered more frequently in the 110 th Congress (2007-2008) than in the past. From the 101 st (1989-1990) through the 109 th Congress (2005-2006), an average of about eight motions to recommit with non-forthwith instructions were offered each Congress, while in the 110 th (2007-2008), 47 such motions were offered. Motions to recommit with non-forthwith instructions sometimes had the effect of creating a difficult choice for Members who supported both the underlying measure and the amendment contained in the motion to recommit. If such proponents of the measure voted for the motion to recommit with non-forthwith instructions, they were voting to send the measure back to committee, delaying and perhaps effectively defeating the bill. However, if such Members voted against the motion to recommit with non-forthwith instructions in order to move the underlying bill to passage more quickly, they would be on public record as having voted against a policy that they (and perhaps their constituents) strongly supported. In addition, some argued that the use of non-forthwith instructions to present specific policy amendments was not necessary, because the presumably preferable option of bringing the amendment immediately before the House could be achieved by drafting forthwith instructions. There were, however, other procedural differences between non-forthwith instructions and forthwith instructions. First, some restrictions on the content of amendments applied only to forthwith instructions. Most prominently, forthwith instructions that propose amendments that would not be in order under the Congressional Budget Act are subject to points of order under that act. In contrast, most Budget Act points of order did not apply to non-forthwith instructions because those points of order apply to the consideration of amendments, and a non-forthwith instruction did not propose that the House immediately consider an amendment. In addition, a point of order could be made against a motion to recommit proposing that the committee report "forthwith" an amendment that would violate clause 10 of Rule XXI (the pay-as-you-go budget enforcement rule); no corresponding point of order applied to a motion with non-forthwith instructions. Under the previous rule, a motion to recommit with amendatory instructions that might have violated the pay-as-you-go rule therefore could have been offered with non-forthwith instructions to avoid an immediate point of order. Second, non-forthwith instructions did not need to propose an amendment, and prior to the rules change motions to recommit could be used to instruct specified committee(s) to take some type of action. For example, in the past, some motions to recommit instructed committees to conduct further research or to hold hearings. These advisory instructions were not procedurally binding on the committee; no point of order could subsequently be raised if the committee failed to follow them. Under the new rule, these types of instructions are no longer in order. Finally, if the goal of offering a motion to recommit was simply to return the measure to committee, perhaps for significant revisions or perhaps even to delay its consideration, non-forthwith instructions could have been included in the motion in order to secure time for debate. In previous Congresses, a straight motion to recommit was not debatable. As explained above, the primary procedural result of agreeing to a motion to recommit with non-forthwith instructions and agreeing to a straight motion to recommit was the same: the measure would be returned to committee. Prior to the 111 th Congress, however, consideration of the two forms of the motion to recommit was not the same. Straight motions to recommit were not debatable, while those with instructions (both forthwith and non-forthwith) were. H.Res. 5 amended House Rule XIX, clause 2(b), to allow 10 minutes of debate on any motion to recommit in order under this rule. As a result, debate is now in order on a straight motion to recommit as well as on a motion to recommit with instructions. All other procedures concerning the debate time on a motion to recommit remain the same: the time is equally divided between the proponent and an opponent of the motion, and each Member can yield to other Members to speak, but cannot yield portions of time (such as one minute) to other Members, and cannot reserve time. The opponent of the motion speaks after the time of the proponent has been exhausted. The effect of this rules change is that Members may now offer a straight motion to recommit, seeking to send the bill back to committee, and secure debate time to express their goal in offering the motion. In other words, the Member making the motion can use this time to express his or her desires for committee actions, such as further research into alternative proposals. If the Member seeks to return the bill to committee in the hopes that the measure will not be brought again before the House, at least not in its present form, then he or she could use the five minutes to express reasons for opposition. House rules related to the motion to recommit were last amended in 1995. Prior to 1995, a special rule reported from the Rules Committee could prevent the offering of a motion to recommit with instructions on a bill or joint resolution, as long as it allowed some form of a motion to recommit, normally a straight motion to recommit. At the beginning of the 104 th Congress (1995-1996), the House amended its rules to prohibit the Rules Committee from reporting a special rule that would prevent the offering of a motion to recommit with instructions on a bill or joint resolution. H.Res. 5 removed from House Rule XX, clause 2(a), a provision aimed at prohibiting the presiding officer from holding a vote open "for the sole purpose of reversing the outcome of such vote." The provision had been added at the start of the 110 th Congress, but due in part to issues concerning its enforceability, its deletion was recommended by the Select Committee to Investigate the Voting Irregularities of August 2, 2007. Since the use of the electronic voting system began in the House in 1973, House rules have included a minimum, but not a maximum, length of time for a record vote by electronic device. Pursuant to clause 2 of Rule XX, the minimum length of time for an electronic vote shall be 15 minutes, unless the presiding officer has postponed the vote and scheduled a series of electronic votes back-to-back. If several votes are postponed, then after the first vote is held open for the minimum 15 minutes required by House rules, the presiding officer can reduce the minimum time for subsequent votes to 5 minutes each. Under the precedents of the House, the Chair has the discretion to allow additional time beyond the minimum requirement for Members to record their votes. Historically, it has not been uncommon for votes to be held open for at least a few minutes past the minimum time to allow Members to reach the floor. The provision deleted by H.Res. 5 aimed to limit the discretion of presiding officers by precluding them from allowing additional time to vote by electronic device "for the sole purpose of reversing the outcome of such vote." The House agreed to the provision at the start of the 110 th Congress as a reaction, in part, to an earlier instance of a vote being held open for nearly three hours. In the 108 th Congress, some Members contended that a vote was held open while party leaders attempted to reverse the expected outcome of the vote by persuading Members to switch their votes. In the 110 th Congress, concerns arose regarding the enforceability of the new provision. It prohibited votes from being held open for a specified reason, and therefore seemed to require a determination of the motivations of the Chair. In addition, the provision did not provide a mechanism for immediate procedural redress, such as the closing of a vote. For example, a vote was reportedly held open in the 110 th Congress for approximately a half hour, and some Members claimed leadership held the vote open to provide more time to persuade Members to switch their votes. In response to parliamentary inquiries, the Chair explained that Members could only enforce the rule collaterally by raising a question of the privileges of the House at a later time. This means of procedural redress was the same as existed prior to the 110 th Congress rules change; indeed, questions of the privileges of the House were raised and considered in relation to the vote that was held open for nearly three hours in the 108 th Congress. It was not clear, however, how the rule of the 110 th Congress could have been enforced immediately, rather than collaterally. If a point of order was raised during a vote that was not yet closed, the presiding officer would rule as to whether he or she was holding the vote open "for the sole purpose of reversing the outcome of such vote." Presumably, the chair would rule that he or she was not violating the House rule. That ruling would be subject to appeal, but the electronic voting system cannot accommodate the taking of a second vote (the appeal) with the original vote still pending. Even setting that arguably technical difficulty aside, the rule was silent with regard to the next stage. If the Chair ruled, or the House decided on appeal, that a vote was being held open too long, it was not clear what the status of the long vote would be. The vote could, for example, be considered vitiated, but others might argue that the vote should simply be closed at that point, while others might argue that it should be considered closed at the point before the outcome was reversed by holding the vote open. Enforcing the rule through a question of the privileges of the House avoided these procedural difficulties, and furthermore provided an opportunity for Members to present relevant information concerning the length of the vote and the purpose for holding it open. At the start of each Congress, the Speaker customarily makes announcements to the chamber concerning House operations and the legislative process. The announced policies are not rules of the House, but they indicate how the Speaker intends to carry out various responsibilities granted to the Speaker by law and House rules. Most of the policies announced by the Speaker at the start of the 111 th Congress were originally announced by previous Speakers, and have been reiterated each Congress since. On January 6, 2009, however, the Speaker did make two modifications to announced policies from previous Congresses related to floor proceedings. The first concerned the closing of votes taken by electronic device and the second addressed the use of the House floor. The Speaker announced that the 1995 policy concerning the conduct of votes by electronic device would continue, with a modification that gave the Speaker's endorsement to the existing practices for closing a vote taken by electronic device. The announcement did not change the long-standing practices for ending a vote. Prior to this modification, however, no policy was published concerning the manner of closing a vote taken by electronic device. In the 110 th Congress, the presiding officer closed an electronic vote without following the appropriate protocol, which led to the creation of the Select Committee to examine voting procedures and the recommendation to modify the Speaker's policy. As described above, the House rules set a minimum, but not a maximum, on the length of time an electronic vote will be held open. In practice, the presiding officer exercises some discretion on when to close a vote. The announced policy of the Speaker states that electronic votes will be closed as soon as possible after the minimum time limit has expired. Generally, however, the presiding officer works to ensure that any Member intending to vote has an opportunity to do so, and indeed the policy of the Speaker includes the assurance that "No occupant of the Chair would prevent a Member who is in the well before the announcement of the result from casting his or her vote." The 2009 modification of the Speaker's announced policy establishes that the best practice is "for presiding officers is to await the Clerk's certification that a vote tally is complete and accurate." The Select Committee to Investigate the Voting Irregularities of August 2, 2007 did not recommend that a detailed description of the practice for closing a vote be included in the announcement, or raised to the level of a standing rule, in part because the clerks need flexibility to change processes of this nature that might be affected by changes to the electronic voting system or the House chamber. For many years, the presiding officer and the clerks have followed established practices for closing a vote taken by electronic device. After the minimum time has elapsed, the presiding officer indicates that the available time is about to expire by asking if any other Members wish to vote or to change their votes. After allowing Members to respond, the Reading Clerk then reads the names of the Members who changed their votes in the well from a list prepared by a Tally Clerk. Shortly after that announcement, the electronic voting stations are closed. The clerks wait several moments after closing the electronic voting stations to allow any Members to cast votes in the well, to ensure that all well cards are accounted for, and to be certain all information has processed through the system. The final vote count is recorded on what is referred to as a "tally slip." The clerk gives the tally slip to the Parliamentarian, who hands it to the presiding officer, who uses it to announce the outcome of the vote. A recorded vote is considered to be over when the presiding officer makes an unequivocal statement of the result. Pursuant to authority granted to the Speaker over "general control of the Hall of the House" in House Rule I, clause 3, the Speaker also announced that the chamber of the House should not be used for "mock proceedings on the floor" or "political rallies." Clause 4 of House Rule IV has long prohibited the use of the hall of the House for anything other than legislative sessions, caucuses of Members of the House, and official ceremonies. When the House is not in session, however, it is common for Members and staff to escort visitors onto the House floor. As referenced in the Speaker's announced policy, during the August recess of 2008, Members of the House held simulated legislative proceedings in the hall of the House. Members delivered speeches on the House floor and distributed recordings of the proceedings with the stated intent of calling attention to energy policy issues they felt were not adequately addressed during the legislative session. The Speaker's announced policy aimed to clarify that such use of the chamber was not appropriate and should not occur again.

On the first day of the 111th Congress, the House agreed to H.Res. 5, which made several changes to House rules affecting floor proceedings. First, the House amended clause 6 of Rule XV to require that Calendar Wednesday only occur at the request of a committee. Calendar Wednesday is a rarely-utilized procedure that allows reported legislation, not otherwise privileged for floor consideration, to be called up by the committee of jurisdiction on Wednesdays. Prior to this rules change, unanimous consent was routinely granted to waive the Calendar Wednesday procedure. The House also added a paragraph to clause 1 of Rule XIX to grant the presiding officer the authority to postpone consideration of legislation. Under the new paragraph, if legislation is being considered under the typical terms of a special rule, the presiding officer can postpone further consideration to a time designated by the Speaker. During the 110th Congress, special rules usually included a provision granting the presiding officer this authority, and the addition of this paragraph to the standing rules makes such provisions unnecessary. The authority allows the presiding officer to postpone consideration even after the motion to recommit has been offered. In addition, the House amended House Rule XIX, clause 2(b), to allow 10 minutes of debate on any motion to recommit in order under this rule. Prior to this rules change, a straight motion to recommit, which proposes to send the measure back to committee without instructions, was not debatable. The rule was further amended to require that any instructions in a motion to recommit be to report back an amendment "forthwith." It was previously in order to offer motions to recommit with instructions that did not propose that the committee report back "forthwith." For example, Members could propose instructions that the committee hold hearings, or report back a measure "promptly" with an amendment. The primary procedural effect of a motion to recommit with any instructions other than to report back "forthwith" was the same as a straight motion to recommit: the measure would be returned to committee with no requirement for further action. Finally, the House removed from House Rule XX, clause 2(a), a provision that aimed to prohibit the presiding officer from holding a vote open "for the sole purpose of reversing the outcome of such vote." The provision had been added at the start of the 110th Congress, but due in part to issues concerning its enforceability, its deletion was recommended by the Select Committee to Investigate the Voting Irregularities of August 2, 2007. At the start of the 111th Congress, the Speaker made customary announcements concerning House operations and the legislative process, with two modifications related to floor proceedings. First, the Speaker announced her endorsement of the existing process for closing a vote by electronic device. This announcement does not change long-standing practices for closing votes, but it states that the best practice is for presiding officers to rely on certification from the clerks that a vote tally is complete and accurate. Second, pursuant to authority granted to the Speaker over "general control of the Hall of the House" in House Rule I, clause 3, the Speaker announced that the chamber of the House should not be used for "mock proceedings on the floor" or "political rallies."

Generally speaking, whistleblowers are those who expose misconduct (e.g., fraud, abuse, or illegal activity) within an organization. In the context of the Intelligence Community (IC), whistleblowers are generally employees or contractors of federal intelligence agencies who bring to light information on agency wrongdoings. Whistleblowers disclose this information through government channels (e.g., the congressional intelligence committees or agency inspectors general) or to the media. Such disclosures can aid oversight of, and thereby curb misconduct within, intelligence agencies. When an IC whistleblower discloses information on alleged agency wrongdoing, he could face retaliation from his employer by, for example, being fired, demoted, or having his security clearance revoked. The threat of retaliation may deter potential whistleblowers from disclosing information on agency wrongdoing. There is seemingly tension between the desire to eliminate this deterrence, and thus encourage whistleblowers to bring agency misconduct to light, and the need to protect government secrets which, if disclosed publicly, could be harmful to the country's national security interests. Apparently seeking to strike balance within this tension, Congress and President Obama have taken action to limit retaliation against IC whistleblowers for certain types of protected disclosures, which do not include disclosures to media sources. That is, IC whistleblowers who disclose information to media sources generally are unprotected against potential retaliation or criminal sanction. There are three sources of protections against retaliation for IC whistleblowers: the Intelligence Community Whistleblower Protection Act of 1998 (ICWPA), Presidential Policy Directive 19 (PPD-19), and Title VI of the Intelligence Authorization Act for Fiscal Year 2014 (Title VI). Before passing the ICWPA, which is the oldest of the three protections, Congress observed that intelligence whistleblowers apparently lacked protection against retaliation stemming from their disclosures of agency wrongdoings. Whistleblower protections for federal employees are largely governed by the Whistleblower Protection Act (WPA), which Congress initially passed in 1989, and its amendments. The WPA expressly excluded intelligence agency employees from its applicability, and thus initially left intelligence whistleblowers unprotected against retaliation. The ICWPA seemingly represented Congress's attempt at filling this gap by extending protections to intelligence whistleblowers. Though the ICWPA extended some protections to intelligence whistleblowers, it afforded such whistleblowers less protection than the WPA affords non-intelligence whistleblowers. However, protections for intelligence whistleblowers have strengthened over time. PPD-19, which President Obama issued in 2012, expanded upon the ICWPA's protections for some IC whistleblowers, and Title VI generally codified, and in some instances built upon, the protections of PPD-19. This report describes these three sources of IC whistleblower protection. The ICWPA is the oldest of the three intelligence whistleblower protections. In passing the ICWPA, Congress observed that the threat of adverse personnel action to IC employees deterred them from whistleblowing. This deterrence from whistleblowing, Congress found, may have been constricting the flow of information to congressional intelligence committees that the committees needed to properly perform their oversight responsibilities. The ICWPA therefore permits IC employees and contractors to bring a complaint or disclose specified information to Congress, and outlines the procedures for doing so. However, the ICWPA does not expressly prohibit retaliation against IC whistleblowers for permissibly bringing a complaint or information to Congress and contains no explicit mechanism for obtaining a remedy for this retaliation. Rather, the ICWPA merely allows an IC whistleblower who has faced such retaliation to then use the act's disclosure procedures to inform the intelligence committees that the retaliation has occurred. The ICWPA applies to employees of the Central Intelligence Agency, Defense Intelligence Agency, National Imagery and Mapping Agency, National Reconnaissance Office, National Security Agency, Federal Bureau of Investigation, and any other agency that the President determines has the principal function of conducting foreign intelligence or counterintelligence activities. The ICWPA also applies to the employees of a contractor of any of the aforementioned agencies. An employee seeking to bring a complaint or disclose information to Congress under the ICWPA is subject to two limitations: (1) the complaint or information must be related to an "urgent concern" as defined in the act; and (2) the employee must first bring the complaint or disclose the information to the agency head through the proper agency channels. Under the ICWPA, IC employees and contractors can disclose to Congress only complaints and information that are "with respect to an urgent concern." Under the act, an "urgent concern" can be one of three things. First, it can be a "serious or flagrant" abuse, problem, violation of executive order or law, or deficiency in funding, agency administration, or agency operations involving classified information. Second, an urgent concern can be a false statement to, or willful withholding from, Congress on an issue of material fact relating to intelligence activity funding, administration, or operation. Third, an urgent concern can include adverse personnel action stemming from disclosure under the ICWPA. A complaint or information that is not regarding one of these three "urgent concerns" is not covered by the ICWPA. IC employees and contractors must first bring complaints or information regarding "urgent concerns" to the agency head through proper agency channels, as described in the ICWPA, before bringing them to Congress. This generally requires first bringing a complaint or information to the agency's Inspector General or the Inspector General of the IC (IGIC), who then has 14 calendar days to evaluate the credibility of the complaint or information. Upon finding the complaint or information credible, the Inspector General must send notice of its finding, along with the complaint or information, to the agency head within the 14-calendar-day period for evaluation. The agency head then has 7 calendar days from receipt of the Inspector General's notice to forward the notice, along with any of the agency head's comments, to the congressional intelligence committees. The ICWPA allows employees to contact intelligence committees directly if the Inspector General either does not find the complaint or information credible, or sends the agency head an inaccurate complaint or inaccurate information. However, this ability to contact the intelligence committees directly is subject to two limitations. First, before making such contact, an employee or contractor must give the agency head a statement of the complaint or information through the Inspector General, along with notice of intent to contact the intelligence committees directly. Second, the employee or contractor must follow the agency head's direction, given through the Inspector General, on compliance with appropriate security practices when contacting the intelligence committees. The ICWPA seemingly represents an attempt by Congress to fill a gap in federal whistleblower protections by extending such protections to IC whistleblowers where they were expressly excluded from the WPA and its amendments, which generally provide whistleblower protections to federal employees. However, the ICWPA appears to afford IC whistleblowers fewer protections than the WPA affords non-intelligence whistleblowers. The WPA provides an employee with an individual right of action for prohibited retaliation, through which he can bring a claim against this agency in the Merit Systems Protection Board (MSPB). The MSPB can then provide several remedies, including, but not limited to, returning the individual to the position he would have been in if retaliation had not occurred, awarding back pay, and awarding any reasonable and foreseeable consequential damages. If an employee's claim is unsuccessful before the MSPB, the employee can appeal the MSPB's decision to the U.S. Court of Appeals for the Federal Circuit. Conversely, the ICWPA provides no explicit mechanism for remedying for retaliation stemming from disclosure of an urgent concern to Congress; it merely prescribes the process through which such disclosures can be made and allows employees and contractors to then use those disclosure procedures to inform Congress of any resulting improper retaliation. Further, the ICWPA expressly states that Inspector General and agency head action taken pursuant to the ICWPA is not subject to judicial review, unlike retaliation claims under the WPA. In comparing the ICWPA's protections against the WPA's, some commentators have questioned the ICWPA's effectiveness at protecting intelligence whistleblowers from improper retaliation. President Obama issued PPD-19 on October 10, 2012, to ensure that IC employees can effectively report instances of waste, fraud, and abuse. PPD-19 protects employees who engage in "protected disclosures" from certain types of adverse action by their employers. Thus, unlike the ICWPA, PPD-19's protections do not appear to extend to IC contractors. Under PPD-19, five types of disclosures fall under the umbrella of "protected disclosures." First, protected disclosures include employee disclosures to the agency Inspector General, Director of National Intelligence, IGIC, or supervisors within the employee's direct chain-of-command. The employee must reasonably believe that disclosures to such persons evidence (1) a perceived violation of law, rule, or regulation; (2) gross mismanagement; (3) gross waste of funds; (4) abuse of authority; or (5) a specific and substantial threat to public health or safety. Second, PPD-19 protects disclosures to congressional committees made pursuant to the ICWPA, discussed above. Third, "protected disclosures" comprise any disclosure of a violation of PPD-19. Fourth, protected disclosures include those made pursuant to an investigation or proceeding involving a violation of PPD-19. Finally, the definition of "protected disclosures" generally includes disclosures to Inspectors General. Under PPD-19, intelligence agency employees who make protected disclosures cannot consequently be subject to adverse personnel actions or have their access to classified information negatively affected by an officer or employee of the agency. PPD-19 required intelligence agencies to certify, within 270 days of its issuance, that they had internal procedures for reviewing allegations of wrongful personnel actions or impacts on access to classified information. These procedures must provide for the protection of classified information and intelligence sources and methods. PPD-19 requires that agency procedures permit agency Inspectors General to review employee allegations of adverse personnel action or improper restriction of access to classified information and recommend agency heads take corrective action if a violation of PPD-19 has occurred. Such corrective action can include (but is not limited to) reinstatement, back pay, and attorney's fees. Once an agency head receives an Inspector General's recommendation, PPD-19 requires he "carefully consider" the recommendation and findings and decide whether or not corrective action is appropriate. After employees exhaust the internal agency review process, PPD-19 allows them to request external review to the IGIC acting on behalf of the Director of National Intelligence. Once such a request is made, the IGIC can, within his or her discretion, convene an external review panel. Such a panel consists of the ICIG plus two Inspectors General that the ICIG chooses from the Departments of State, the Treasury, Defense, Justice, Energy, Homeland Security, or the CIA, exclusive of the Inspector General of the agency that internally reviewed the retaliation claim. The panel then has 180 days to determine whether improper retaliation occurred. If the panel concludes that such retaliation did happen, it can recommend that the agency head take corrective action, and the agency head must "carefully consider" this recommendation. The agency head then has 90 days to inform the panel and the Director of National Intelligence of what, if any, action it takes. The Director of National Intelligence must notify the President if the agency head does not tell the Director what action he takes within the allotted 90-day window. PPD-19 further requires the IGIC to report annually all panel determinations and recommendations, along with agency head responses, to the Director of National Intelligence and, "as appropriate, to the relevant congressional committees." PPD-19 offers intelligence whistleblowers falling within its scope more protection against retaliation than the ICWPA. By allowing IC employees and contractors to disclose retaliation via adverse personnel action to congressional intelligence committees, the ICWPA purports to protect against only adverse personnel action; unlike PPD-19, it makes no mention of adverse security clearance determinations. Further, PPD-19, unlike the ICWPA, expressly prohibits retaliation against IC whistleblowers who make protected disclosures, whereas the ICWPA merely outlines the process through which such disclosures can be made. Although PPD-19 offers intelligence whistleblowers more protection against retaliation than the ICWPA, it is unclear how effective PPD-19 will be in curbing such retaliation. Under PPD-19, the initial review of an improper retaliation allegation occurs within the agency wherein the whistleblower allegedly faced retaliation. This could raise questions regarding the initial review's impartiality, and thus effectiveness at achieving accurate results. Further, though PPD-19 appears to attempt to counteract impartiality in reviewing retaliation claims by creating an external review panel to whom such claims can eventually go, this external review panel cannot mandate that agency heads take corrective action after finding that impermissible retaliation occurred. Rather, this external review panel can only recommend that agency heads take corrective action. The agency head is then free to disregard the board's recommendation. Finally, as with all presidential policy directives or executive orders, President Obama (or any future Presidents) can revoke or modify it at any time. On July 7, 2014, Congress enacted the Intelligence Authorization Act for FY2014, which included protections for IC whistleblowers at Title VI of the act. Title VI seemingly codifies some of PPD-19's protections and, under specified circumstances, expands upon them. Like PPD-19, Title VI's protections extend only to employees of "covered intelligence community element[s]," and therefore do not appear to apply to IC contractors. Title VI's protections are bifurcated: it protects whistleblowers from retaliation in the form of both adverse personnel actions and adverse security clearance or information access determinations resulting from their making protected disclosures. Whether or not a disclosure is protected under Title VI depends on what is being disclosed to whom, and protected disclosures and enforcement mechanisms under the act differ in the context of retaliation via adverse personnel actions and adverse security clearance or information access determinations. Under Title VI, disclosures for which an employee is protected against retaliation in the form of adverse personnel action include those made to (1) the Director of National Intelligence (or his or her designee); (2) the IGIC (or his or her designee); (3) the head of the employing agency (or his or her designee); (4) the employing agency's Inspector General; (5) congressional intelligence committees; or (6) a member of a congressional intelligence committee. For Title VI to protect an employee against adverse personnel action, the disclosure must be of information that the employee reasonably believes evidences a violation of federal laws or regulations, mismanagement, waste of funds, abuse of authority, or a substantial and specific danger to public health or safety. Title VI does not contain any mechanism to enforce its protection against retaliation by adverse personnel action; it merely prohibits agency employees from taking adverse personnel action against other employees who make protected disclosures. Enforcement is expressly left to the President. It is unclear whether the President will develop new enforcement procedures, or will utilize enforcement procedures that already exist (i.e., PPD-19's enforcement procedures). Under Title VI, an IC employee cannot take adverse security clearance action against another employee, or restrict the other employee's access to classified information, because the employee made a protected disclosure. The disclosures for which an employee cannot face adverse security clearance actions or access determinations differ from the disclosures for which an employee cannot face adverse personnel actions. In the context of adverse security clearance actions or access determinations, Title VI's umbrella of protected disclosures includes a number of lawful communications. First, it includes communications to the Director of National Intelligence, agency head, or agency Inspector General (or their respective designees) that the employee reasonably believes evidences a violation of federal laws or regulations, gross mismanagement, waste of funds, abuse of authority, or a substantial and specific danger to public health or safety. Second, it includes disclosures made in accordance with the procedures outlined in the ICWPA, discussed above. Finally, Title VI protects disclosures made while exercising a legal right of appeal or complaint (including testimony in connection with someone else exercising such a right) or cooperating with an Inspector General. However, disclosures within this third category fall within Title VI only if they do not result in the sharing of information that is classified under an executive order for national security reasons. Title VI's protections against adverse security or information access determinations also differ from its protections against adverse personnel actions because it provides mechanisms for enforcing the former; whereas enforcement of the latter is left to the President's discretion as mentioned above. Title VI directed the President to select, within 180 days of the statute's enactment (July 7, 2014), an agency or department responsible for ensuring that intelligence agencies have adequate procedural protections that they must follow before taking action that adversely affects an employee's security clearance or information access. Within this time frame, the President must also select an agency or department responsible for developing procedures that agencies must follow for employee appeals of adverse security clearance or information access decisions to the ICIG or agency Inspector General. Title VI permits an employee 90 days from the adverse security clearance or information determination to use these appeal procedures. The appeal procedures that must be established under Title VI must allow the ICIG or agency Inspector General to engage in a fact-finding investigation and report the investigation results to the agency head within 180 days of the employee's appeal. During the investigation, the employee must be allowed, "to the fullest extent possible," to present relevant evidence. The ICIG or agency Inspector General cannot find that a prohibited security clearance or information access determination occurred if the agency demonstrates that the employee's disclosure was not a contributing factor in the determination. The agency can demonstrate such by establishing, by a preponderance of the evidence, that it would have taken the same action absent the employee's protected disclosures. Under the preponderance of the evidence standard, it appears as though the agency must show that it is more likely than unlikely that the agency would have taken the same action against the employee absent the employee's disclosures. In evaluating the agency's contributing factor evidence, Title VI requires the ICIG or agency Inspector General to afford the "utmost deference" to the agency's judgments regarding threats to national security. If the ICIG or agency Inspector General determines that a prohibited security clearance or information access determination occurred and reports its determination to the agency head, the agency head "shall" take corrective action. If, however, the ICIG or agency Inspector General finds that no improper adverse security clearance or information access determination occurred, Title VI requires that the employee be given 60 days to externally appeal such a finding. Title VI does not contain substantive requirements for this external appeal. Rather, through the statute, Congress mandated that the Director of National Intelligence, in consultation with the Attorney General and the Secretary of Defense, develop and implement procedures for adjudicating external appeals. As of this writing, the Director of National Intelligence does not appear to have developed these appeal procedures. Though Title VI does not contain substantive requirements for appeal procedures, it does require the Director of National Intelligence to inform the congressional intelligence committees when he issues an appeal order under the procedures that he develops. Title VI seemingly expands PPD-19's protections against retaliation in the form of adverse security clearance or information access determinations by introducing additional enforcement mechanisms. For example, Title VI requires adequate protections prior to adverse security clearance or information access determinations, where PPD-19 does not. However, Title VI does not appear to strengthen PPD-19's protections against retaliation in the form of adverse personnel action, as it leaves enforcement of such protections to the President.

Intelligence whistleblowers are generally Intelligence Community (IC) employees or contractors who bring to light allegations of agency wrongdoings by, for example, disclosing information on such wrongdoings to congressional intelligence committees. Such disclosures can aid oversight of, or help curb misconduct within, intelligence agencies. However, intelligence whistleblowers could face retaliation from their employers for their disclosures, and the fear of such retaliation may deter whistleblowing. Congress and President Obama have taken measures to protect certain intelligence whistleblowers from retaliation, and thereby seemingly encourage these whistleblowers to disclose information on agency wrongdoing. These measures are the Intelligence Community Whistleblower Protection Act of 1998 (ICWPA), Presidential Policy Directive 19 (PPD-19), and Title VI of the Intelligence Authorization Act of 2014 (Title VI). Each of these measures details what disclosures fall within the scope of its protections, which generally include certain disclosures through government channels (e.g., disclosures to agency inspectors general or congressional intelligence committees). None of these measures protect against retaliation or potential criminal liability arising from disclosures to media sources. The ICWPA applies to both IC employees and contractors, whereas PPD-19 and Title VI appear to apply only to IC employees. The ICWPA is the oldest of the three intelligence whistleblower protections and, of the three, provides the least amount of protection to those falling within its scope. The ICWPA does not explicitly prohibit retaliation against IC whistleblowers. Rather, it outlines procedures through which whistleblowers can disclose to the congressional intelligence committees information on "urgent concerns," such as violations of law or false statements to Congress. The ICWPA further contains no explicit mechanism for obtaining a remedy for retaliation stemming from disclosure of an urgent concern to Congress. It merely allows an IC whistleblower who has faced an adverse personnel action because he disclosed an urgent concern to the congressional intelligence committees to then use the ICWPA's disclosure procedures to inform the committees of the retaliation. PPD-19, unlike the ICWPA, expressly prohibits an IC employee from taking an adverse personnel action or security clearance determination against another employee because of a protected disclosure. It additionally requires intelligence agencies to develop procedures for internally investigating, through agency Inspectors General, allegations of impermissible retaliation. After finding that impermissible retaliation has occurred, Inspectors General can recommend that agency heads take corrective action. When an employee has exhausted the internal review procedures that must be established under PPD-19, he can appeal to the Director of National Intelligence, who then has the discretion to convene a review panel. If it finds that improper retaliation occurred, the review panel can recommend that the agency head take remedial action. Title VI seemingly codifies, and expands upon, some of the protections of PPD-19. Its protections, and modes of enforcement, differ depending on the type of retaliation alleged. More specifically, Title VI's protected disclosures and enforcement methods in the context of allegations of adverse personnel action are distinct from its protected disclosures and enforcement methods for allegations of adverse security clearance or information access determinations.

Under its civil works program, the U.S. Army Corps of Engineers (Corps) plans, builds, operates, and maintains a wide range of water resource facilities. The Corps also undertakes flood-fighting activities and other natural disaster response activities. These emergency activities have been authorized by Congress and generally have been funded by supplemental appropriations, which have been significant relative to Corps discretionary appropriations since 2005. From 1987 to 2016, Congress has appropriated approximately $33.2 billion in Corps supplemental appropriations. Of this total, Congress provided $31.4 billion from 2005 to 2016, which was significant relative to the agency's regular (i.e., nonsupplemental) annual discretionary appropriations over that period (approximately $63.8 billion for FY2005 through FY2016). If supplemental bills provide funds to the Corps, they most frequently fund two accounts: Flood Control and Coastal Emergencies (FCCE; i.e., flood fighting, repairs to damaged nonfederal flood-control projects) and Operations and Maintenance (O&M; i.e., repairs to existing Corps projects). In some instances, principally since 2005, Congress also has provided supplemental funding for other Corps accounts, such as the Mississippi River and Tributaries (MR&T) account and the Construction account. Of the supplemental funds that Congress provided to the Corps for Hurricanes Katrina and Sandy, 31% and 66%, respectively, were for construction activities. Congress also provided the agency with $4.6 billion as part of the American Recovery and Reinvestment Act of 2009 (ARRA; P.L. 111-5 ). In the wake of major flooding and other natural disasters, Congress often considers whether to provide supplemental appropriations to the Corps and other agencies. Proponents of providing supplemental funding for the Corps argue that these investments are significant for recovery efforts and improve flood resilience of the affected areas. Congress may provide these funds with special considerations (e.g., designated as emergency funding and not requiring budgetary offsets; waiving nonfederal cost-share requirements). Others argue that the annual appropriations process is the more appropriate forum for deciding on significant federal flood-damage reduction investments, contending that postdisaster investments should be subject to the same project-development and cost-sharing requirements as other similar Corps projects and should compete in the agency's annual budget-development process. Other stakeholders would prefer more attention and funding that supports other programs and measures to reduce the nation's flood risks. (For an overview of federal flood-related assistance programs, see CRS Report R45017, Flood-Risk Reduction and Resilience: Federal Assistance and Programs , by [author name scrubbed] et al.) This report analyzes Corps supplemental funding. The report focuses on supplemental funding provided directly to the Corps from 1987 to 2016, as well as recently proposed supplemental funding in H.R. 4667 --Further Additional Supplemental Appropriations for Disaster Relief Requirements, 2017 (as passed by the House). The report does not include extensive analysis of annual Corps discretionary appropriations or supplemental appropriations for other agencies. Apart from Corps disaster response, the Federal Emergency Management Agency (FEMA) has extensive authority to assist and coordinate disaster response actions under the National Response Framework, and FEMA receives significant regular and supplemental appropriations for this work. Although the Corps performs work under some mission assignments for FEMA (i.e., funded by FEMA, under direction of the President and FEMA), that work is not addressed in this report. The majority of natural disaster-related supplemental appropriations generally are placed into one of the following four Corps budget accounts based on the type of activity funded. The FCCE account is the primary account through which the Corps funds disaster-related activities. The primary activities funded under FCCE are flood fighting (e.g., sandbagging), emergency preparedness and response, and repair of damaged nonfederal flood and hurricane protection projects. Congress authorized the Corps in the Flood Control Act of 1941 (33 U.S.C. SS701n) to assist in flood fighting and flood response. The Corps can assist in flood fighting at the discretion of its Chief of Engineers to protect life and property, principally when state resources are overwhelmed. Congress also authorized the Corps to operate the Rehabilitation and Inspection Program (RIP, also known as the P.L. 84-99 program) to fund the repair of participating nonfederal flood-control works (e.g., levees, dams, dunes) damaged by natural events. Repairs under this program are funded by the agency's FCCE account. Congress also has directed the Corps to use supplemental funds to repair and rebuild federally owned flood-control and other projects (e.g., navigation projects) through the agency's O&M and Construction accounts. In the event of an emergency, Congress has given the Secretary of the Army (generally delegated to the Assistant Secretary of the Army [Civil Works]) discretion to transfer from existing appropriations the monies necessary for the emergency work referenced above, until funds become available in the applicable account through supplemental appropriations or other avenues. In recent floods, the Corps has exercised this authority to transfer regular annual appropriations from ongoing projects (i.e., projects funded by annual appropriations) to pay for emergency actions. The Corps has then internally reimbursed itself for this funding once supplemental appropriations have become available. The O&M account funds activities related to existing Corps projects, including upkeep of physical infrastructure and other activities (i.e., dredging of ports and waterways). Common disaster activities funded under this account include repair of damaged federally operated flood and hurricane protection projects (e.g., dams, levees, floodwalls) and dredging of authorized federal navigation channels. The MR&T account consists of flood-control and navigation projects for the lower Mississippi River Valley. Supplemental expenditures under this account consist primarily of repair to damaged MR&T levees, floodways, and other project features. The Construction account funds new project construction and major upgrades to existing projects (e.g., significant dam repairs). Supplemental construction funding has been used at times to improve existing Corps coastal and riverine flood-risk reduction projects and for new Corps construction projects to reduce flood risks. Congress previously has provided the Corps with approximately $33.2 billion (nominal dollars) in supplemental funding in 26 laws enacted between 1987 and 2016. It is considering legislation, principally H.R. 4667 , that would provide the Corps an additional $12.09 billion in supplemental appropriations for the agency's activities associated with response, repair, and recovery from natural disasters including Hurricanes Harvey, Irma, and Maria in 2017. This section discusses enacted Corps supplemental appropriations, as well as Corps supplemental funding proposed in H.R. 4667 in the 115 th Congress. It also discusses common issues that policymakers consider in deliberating on these supplemental appropriations bills. Table 1 shows account-level funding in enacted Corps supplemental appropriations bills and in H.R. 4667 . Of the $33.2 billion in enacted supplemental appropriations legislation, most of this amount ($31.4 billion) was provided in 12 appropriations laws enacted between 2005 and 2016. Adjusting prior-year appropriations for inflation, Congress provided the Corps with approximately $38 billion (in 2016 dollars) in supplemental appropriations between 1987 and 2016. Of this total, 92% was provided between 2006 and 2016. Enacted Corps supplemental appropriations and H.R. 4667 also are shown by year in Figure 1 . The discussion below differentiates between five primary types of supplemental funding that the Corps received or the 115 th Congress is considering: funding for the 2005 hurricanes; funding for Hurricane Sandy response and recovery; funding for "all other" floods, hurricanes, and other natural disasters; funding for other nondisaster purposes, such as economic recovery and facility security; and funding proposed in H.R. 4667 (as passed by the House) for natural disasters including Hurricanes Harvey, Irma, and Maria. Separately, the Appendix lists the disaster events that were explicitly referenced in enacted Corps supplemental appropriations from 2003 to 2016 and in H.R. 4667 . As noted above, the 2005 hurricanes (primarily Hurricane Katrina) account for much of Corps supplemental appropriations since 2003. The $16 billion received for these storms is more than three times the size of the agency's annual civil works budget. These appropriations were provided in six separate supplemental appropriations bills passed between 2005 and 2009, and most of these funds were designated for rebuilding and in some cases significantly strengthening Corps facilities, principally in Southeast Louisiana. Approximately 94% of the supplemental funds appropriated for Corps hurricane response and recovery went to activities in Louisiana, including $14.5 billion for protective measures in Southeast Louisiana. These funds were used for significant repair and strengthening of 350 miles of levees and floodwalls in New Orleans and new surge-protection barriers, including the Inner Harbor Navigation Canal Surge Barrier, which is one of the largest surge barriers in the world. Although the federal government funded 100% of the costs of FCCE and O&M infrastructure in Southeast Louisiana, most of the supplemental funds for construction projects were subject to federal-nonfederal cost-sharing requirements (generally a 65/35 federal/nonfederal split). That is, the state of Louisiana is contributing $1.7 billion, consisting of $0.2 billion for real estate acquisition and $1.5 billion for the state's cash-share contribution, for its share of the $5.0 billion in improvements funded through supplemental appropriations to the Corps Construction account. Under a specially negotiated arrangement, Louisiana's cash contribution initially was provided through federal appropriations and is being repaid over 30 years. Hurricane Katrina significantly damaged the Mississippi coast. In contrast to the congressional response to fund hurricane-protection construction through supplemental appropriations for Southeast Louisiana, Congress directed the Corps to develop a plan for how to protect coastal Mississippi. As part of a supplemental appropriations bill for the Corps ( P.L. 109-148 ), Congress directed the Corps to design comprehensive improvements and modifications to Mississippi coastal counties to provide hurricane protection, prevent erosion, preserve fish and wildlife habitat, and achieve other purposes. This effort is known as the Mississippi Coastal Improvements Program (MsCIP). In a 2009 supplemental bill ( P.L. 111-32 ), Congress authorized and funded $439 million in Corps FCCE activities under this program. The agency's final MsCIP plan was submitted to Congress for authorization in January 2010. Congress in the Water Resources Reform and Development Act of 2014 ( P.L. 113-121 ) authorized an additional $1.07 billion in MsCIP activities based on the final plan. These projects were planned in compliance with the standard 65% federal and 35% nonfederal cost share for this type of Corps construction project. Because Congress designated most of these funds for Hurricane Katrina recovery, the funds are generally not available to other projects or emergencies. The second-largest enacted supplemental appropriation for the Corps was through the Disaster Relief Appropriations Act of 2013 ( P.L. 113-2 ), for response and recovery related to Hurricane Sandy's 2012 landfall. The act provided $5.35 billion in supplemental appropriations to address damages caused by Hurricane Sandy and to reduce future flood risks in the areas impacted by the storm. Generally, funding under the O&M and FCCE accounts ($821 million and $1.008 billion, respectively) was to "address the consequences" of Hurricane Sandy. The majority of funding appropriated to the Construction account ($2.9 billion of $3.4 billion in this account) was set aside to "reduce future flood risks in ways that will support the long-term sustainability of the coastal ecosystem and communities and reduce the economic costs and risks associated with large-scale flood and storm events ... within the boundaries of the North Atlantic Division of the Corps that were affected by Hurricane Sandy." Among other things, P.L. 113-2 allowed for the repair of damaged projects to prestorm conditions and for the restoration of some projects to their authorized "design profiles" (i.e., their original construction designs). Additionally, Congress made available funding in the Construction account for new construction projects (i.e., projects that were undergoing study or authorized for construction prior to the storm) but made release of this funding dependent on the Corps publishing certain interim reports also required under the legislation. Finally, the legislation waived cost-sharing requirements for ongoing construction projects (although it provided no such waiver for the aforementioned new construction projects). Outside of the aforementioned three sections (funding for response and repair related to the 2005 hurricane season, the 2013 landfall of Hurricane Sandy, and other nondisaster supplemental appropriations), between 1987 and 2016 Congress provided the Corps with approximately $7.1 billion to respond to various other natural disasters (e.g., riverine and coastal flooding). The vast majority of this funding was provided between 2005 and 2016. A considerable portion of the funding for these other flood events was for Corps actions under the O&M account and the FCCE account (38% and 40%, respectively); the MR&T account received roughly 17% of these appropriations, as shown in Figure 2 . Other than funding for Hurricane Sandy, the other most recent supplemental appropriation for the Corps ( P.L. 114-254 ), passed in December 2016, is included in this category. That appropriation focused on repair to Corps facilities in response to flooding in Louisiana and in Florida (although neither state was explicitly referenced in the enacted legislation); the majority of these funds were for the MR&T and O&M accounts (specific account totals are available in Observations on Corps Supplemental Funding). The Corps also has received supplemental funds for maintenance and facility upgrades. Specifically, the Corps received funding for facility security upgrades in 2002 and 2003 following the terrorist attacks of 2001. It also received funding for facility upgrades (including more than $2 billion in the O&M account) and new project construction ($2 billion in the Construction account) under ARRA. A combined breakdown of this non-natural-disaster-related supplemental funding is provided in Figure 2 . Other than the combined total appropriations to support response, repair, and recovery from the 2005 hurricanes, H.R. 4667 , if enacted, would provide the largest supplemental appropriation for the Corps. Further, it would be the largest appropriation for the Corps in a single bill in the history of the agency. This funding, if provided, would go toward response and repair activities for natural disasters and for study and construction work on reducing flood risks in the areas impacted by Hurricanes Harvey, Irma, and Maria. The bill would provide the Corps $12.09 billion in supplemental appropriations. Like most supplemental appropriation bills with direct appropriations for the Corps, the bill would fund the agency's emergency response activities and repair of damage to flood-control works and other Corps civil works projects (e.g., navigation); these response and repair activities would be funded as follows: $537 million for natural disasters through the FCCE account, $608 million for natural disaster-related repairs through the O&M account, $370 million for natural disasters through the MR&T account, and $55 million for natural disaster-related repairs to Corps construction projects through the Construction account. H.R. 4667 would allow for the Construction account funds to be used not only for the repair of damaged projects to prestorm conditions but also for the restoration of some projects to their authorized "design profiles" (i.e., their original construction designs). The majority of the Corps funding in H.R. 4667 --$10.425 billion (86% of the $12.09 billion)--would be for construction of Corps flood-control and storm-damage reduction projects in the areas affected by Hurricanes Harvey, Irma, and Maria. For comparison, Congress directed 31% and 65% of the Corps supplemental funding for Hurricanes Katrina and Sandy to Corps construction of flood-risk reduction projects. While the Corps repair funding is for natural disasters broadly, the $10.425 billion and the $75 million for Corps studies in the Investigations account are limited to the areas affected by Hurricanes Harvey, Irma, and Maria. The studies and the ongoing Corps construction projects that would receive funds from the Construction account through the bill would proceed at full federal expense (i.e., no nonfederal cost-share requirement). The standard process for Corps projects is that after the completion of a multistep project development process (which includes, among other measures. a completed feasibility study and environmental documentation and a report by the agency's Chief of Engineers known as a Chief's Report), Congress authorizes the project's construction in a Water Resources Development act. H.R. 4667 would provide the Secretary of the Army authority to use funds from the bill to initiate construction on projects that have completed the agency's multistep project development process without obtaining project-specific congressional construction authorization, subject to approval by the House and Senate Appropriations Committees. Similar authority was provided to the Secretary for the use of the Corps funds from the Hurricane Sandy supplemental appropriation. The granting of this authority provides for a project to be initiated without project-specific congressional authorization. Given current federal fiscal constraints and the multiple natural disasters that have occurred in recent years, the enactment of and reliance on emergency supplemental funding is receiving more attention. For Corps natural disaster supplemental funding, some of the topics receiving attention include the following: transparency of natural disaster funding; use of supplemental bills for postdisaster infrastructure improvements; and nonfederal cost sharing of natural disaster repair and recovery. Each of these topics is discussed below. After the initial appropriation, public reporting on Corps expenditure of supplemental funding has generally been limited. There are very few overarching requirements for public reporting on Corps supplemental expenditures, including the amount and extent of transfers from annual discretionary appropriations to initially cover emergency response and repairs and the project-level descriptions and funding data on expenditures of supplemental appropriations. In some of the early post-Katrina supplemental bills and in the Sandy supplemental appropriations bill, Congress set reporting requirements for Corps appropriations, including regular reports to the Committee on Appropriations. For annual discretionary appropriations, project-level data are available through congressional reports and in recent years through agency work plans that follow shortly after enacted appropriations. Additionally, as noted above, Congress conditioned release of some of the Corps construction funding in the Sandy supplemental bill on the Corps completing and releasing information on projects that qualified for these funds. However, outside these reports and ARRA spending (which was tracked through a public website), detailed data on Corps expenditures of supplemental appropriations have not been required or widely available in the same manner as the annual budget. Congress is faced with deciding whether to use Corps supplemental funding for improving flood protection in impacted areas to reduce future flood risk. Congress funded Corps infrastructure investments to improve hurricane storm protection infrastructure for Southeast Louisiana in post-Katrina supplemental bills. Also 65% of the $5.3 billion in supplemental funding provided to the Corps for Hurricane Sandy recovery was designated for new or ongoing construction to reduce flood risks. However, Congress did not use supplemental Corps construction funds for such improvement for the 2008 Hurricane Ike-impacted Texas coast, the Midwest areas impacted by the 2011 and 1993 floods, or the 1992 Hurricane Andrew-impacted areas. Proponents of supplemental construction funds for flood-impacted areas argue that these investments are significant to the recovery effort and that flooding events often bring to light flood risks warranting attention. Others argue that the annual appropriations process is the appropriate forum for identifying national priorities for federal flood-infrastructure investments. The Corps has a backlog of authorized flood and storm damage-reduction projects across the country; these authorized projects compete for the less than $1 billion typically provided for flood-damage reduction activities in the annual discretionary budget process. Over the decade from FY2008 to FY2017, discretionary appropriations for Corps flood-related construction activities averaged $907 million annually; total funding for the decade was $9.1 billion. Figure 3 provides data on flood-related construction spending using annual appropriations. A portion of the spending shown is for major rehabilitation activities of existing Corps facilities, such as dam repair. Therefore, the discretionary appropriations spent on new construction over the FY2008-FY2017 decade would be lower than $9.1 billion. Although many Corps civil works activities are cost shared with nonfederal sponsors, much of the supplemental appropriations for flood fighting and repair of damaged infrastructure and projects have not been subject to significant cost sharing. In addition to these activities, Congress occasionally has provided funding for upgrades and construction of new infrastructure in supplemental appropriations. Congress provided supplemental appropriations for construction activities to improve infrastructure in areas affected by Hurricane Katrina, particularly in Louisiana. These construction activities generally have been cost shared either at the standard nonfederal cost shares shown in Table 2 or consistent with the cost-sharing arrangement for the original Corps project. For supplemental appropriations related to Hurricane Sandy, cost-sharing requirements were waived for ongoing construction projects but not for new construction. The appropriate cost share for Corps construction activities has been the subject of debate, with proposals ranging from standard cost shares to requirements for the federal government to handle most or all of a project's costs. Some also have proposed relaxing cost-sharing requirements for specific project types (e.g., cost-sharing waivers for ongoing construction projects, as noted above) and changing what costs should be counted toward the nonfederal share. Various justifications for altering the standard arrangement have been advanced, including the potentially limited ability of many communities impacted by disasters to pay the standard nonfederal share. Assuming some sort of nonfederal cost share is required, another issue is who is responsible for the nonfederal share and the time period over which that share will be repaid. In the case of Louisiana, Congress required that Louisiana create a single state or quasistate entity to act as its nonfederal construction partner for post-Katrina Corps repairs and improvements and allowed the entity 30 years to repay its share of the construction costs (which was covered by the federal government with funds provided in P.L. 109-148 ). The status of other existing cost-sharing requirements, such as those that apply to navigation projects, as they relate to supplemental funding also is common issue. Although certain categories of funding for federal navigation projects normally require cost sharing from the Harbor Maintenance Trust Fund (HMTF) and the Inland Waterway Trust Fund (IWTF), similar cost-sharing arrangements generally have not been required for supplemental funding for natural disasters. That is, neither of these two trust funds has been responsible for navigation-related natural disaster response and recovery costs funded in supplemental appropriations over the last decade. However, a few supplemental appropriations bills in the late 1990s required cost sharing from the HMTF. H.R. 4667 would require that HMTF funds (rather than the funds derived from the General Fund of the U.S. Treasury) be used for the federal costs associated with HMTF-eligible activities; the bill does not mention any similar requirement for the use of IWTF funds. For its part, the Corps Rehabilitation and Inspection Program (RIP) essentially functions as an insurance program for many nonfederal flood-control and coastal-protection projects and is active in addressing postdisaster repairs and rehabilitation. Approximately 14,000 miles of levees participate in RIP: 2,250 miles of locally constructed and operated levees; 9,650 miles of Corps-constructed, locally operated levees; and 2,100 miles of federally operated levees. For locally constructed projects, 80% of the cost to repair the damage is paid using federal funds and 20% is paid by the levee owner. For federally constructed projects, the repair cost is entirely a federal responsibility (except for the cost of obtaining the sand or other material used in the repair). For damage to be repaired, the Corps must determine that repair has a favorable benefit-cost ratio. There is no annual cost or premium for participating in the RIP program beyond maintaining the project to RIP standards. The 115 th Congress is considering possible responses to various natural disasters in 2017. In recent years through supplemental appropriations, Congress not only has funded the emergency response and repair activities of the Corps but also has provided the Corps with funding to study and construct projects that reduce flood risks in areas recently affected by some hurricanes and floods. That is, supplemental appropriations in response to Hurricane Katrina and Hurricane Sandy supported new investments in flood-risk reduction infrastructure projects in affected areas to a much greater extent than Congress has provided for other flood events. H.R. 4667 proposes $12.09 billion for the agency's activities associated with response, repair, and recovery from natural disasters including Hurricanes Harvey, Irma, and Maria; of the $12.09 billion total, $10.425 billion would be for new construction of Corps flood-risk reduction projects in areas affected by Hurricanes Harvey, Irma, and Maria. During its deliberations on Corps supplemental appropriations, Congress often considers various issues and special considerations associated with the provision of these funds. These include the role of Congress in the authorization of construction of Corps projects that receive supplemental funds, whether to maintain requirements for nonfederal cost sharing, and what requirements to include regarding reporting to Congress and public transparency associated with supplemental funds. Supplemental Corps funding debates also raise broader questions for policymakers, such as the effectiveness and efficiency of processes such as those for postdisaster supplemental appropriations and Corps annual budget development, especially in regard to identifying and supporting priority investments in reducing the nation's flood risk.

Congress directs the U.S. Army Corps of Engineers (Corps) to plan and build water resource facilities through the agency's civil works program. The Corps also has a prominent role in responding to natural disasters, especially floods, in U.S. states and territories. In recent years through supplemental appropriations, Congress also has funded the agency to study and construct projects that reduce flood risks in areas recently affected by some hurricanes and floods. The 115th Congress is considering possible responses to various natural disasters in 2017. H.R. 4667--Further Additional Supplemental Appropriations for Disaster Relief Requirements, 2017 (as passed by the House)--proposes $12.09 billion for the agency's activities associated with response, repair, and recovery from natural disasters including Hurricanes Harvey, Irma, and Maria. Policy Considerations. A common issue for Congress after a flood-related disaster is whether to provide supplemental funds directly to the Corps and, if so, how much and for which Corps activities. During its deliberations on recent supplemental appropriations bills, Congress also has considered whether to maintain requirements for nonfederal cost sharing, what requirements to include regarding reporting to Congress and public transparency associated with supplemental funds, and what type of flood damage-reduction efforts to support (e.g., repair of existing infrastructure, construction of new infrastructure). Supplemental Corps funding debates also may raise broader questions for policymakers. These include, for example, the effectiveness and efficiency of processes such as those for postdisaster supplemental appropriations and Corps annual budget development, especially in regard to identifying and supporting priority investments in reducing the nation's flood risk. Supporters of supplemental appropriations for the construction of Corps flood-risk reduction projects in natural disaster-affected areas view these projects as part of the broader recovery effort and as means to improve flood resilience of the affected areas. Other stakeholders would prefer more attention and funding that supports other programs and measures to reduce the nation's flood risks. Supplemental Funds. From 2005 to 2016, Congress appropriated $31.4 billion in supplemental funding to the Corps; these funds amounted to almost half of the agency's annual discretionary appropriations over that same period. Of the $31.4 billion, $27.2 billion (87%) was for responding to flooding and other natural disasters. The majority of this funding related to Hurricane Katrina and other 2005 storms (approximately $16 billion) and to Hurricane Sandy in 2012 ($5.3 billion). Supplemental bills most frequently fund two Corps accounts: Flood Control and Coastal Emergencies (FCCE; i.e., flood fighting, repairs to damaged nonfederal flood-control projects) and Operations and Maintenance (O&M; i.e., repairs to existing Corps projects). In some instances, principally since 2005, Congress also has provided supplemental funding for other Corps accounts, such as the Construction account. Of the supplemental funds that Congress provided to the Corps for Hurricanes Katrina and Sandy, 31% and 66%, respectively, were for construction activities. Of the $12.1 billion that H.R. 4667 would provide, $10.48 billion would be for activities in the agency's Construction account--$55 million for repairs to Corps construction projects damaged by natural disasters, and $10.425 billion for expedited construction of flood control and storm damage reduction projects in areas affected by Hurricanes Harvey, Irma, and Maria. That is, 86% of the funding for the Corps in H.R. 4667 would be for construction. For comparison, that amount would exceed the agency's $9.1 billion total discretionary spending appropriations for flood-related construction for the decade FY2008 to FY2017. Conditions Applicable to Supplemental Funds. In supplemental appropriations bills, Congress has at times maintained, and at other times waived, local cost-sharing requirements for Corps flood-risk reduction construction projects. The standard nonfederal cost shares range from 35% to 50%, depending on the activity. H.R. 4667 would waive the nonfederal cost share for studies and ongoing construction funded through the bill. The bill also would provide the Secretary of the Army with the authority to use funds from the bill, subject to approval by the House and Senate Appropriations Committees, to initiate construction on projects that have completed the agency's multistep project development process without project-specific congressional construction authorization.

The skills, knowledge, and credentials obtained through education are widely believed to be connected to positive occupational and economic outcomes. In recent decades, considerable attention has been devoted to improving educational attainment levels of students with disabilities. Several federal policies have aimed to require educators to pay greater attention to the educational progress and attainment of students with disabilities, and many others provide for a variety of supports with the goal of improving levels of attainment. Data collection efforts have also been launched to allow for better tracking of relevant trends. This report discusses policies aiming to promote educational attainment and examines trends in high school graduation and college enrollment for students with disabilities. It begins with a discussion of the laws related to the education of students with disabilities at the secondary and postsecondary levels. Subsequent sections discuss the existing data on transition-aged students with disabilities, what is currently known about such students, and federal legislation and other factors that may have contributed to changes in students with disabilities' high school graduation rates and postsecondary enrollment over time. The report offers a brief overview of what is currently known about the U.S. population of students with disabilities in secondary and postsecondary education. It focuses on data gathered in conjunction with federal programs and federally funded studies of nationally representative samples of students with disabilities. It does not attempt to provide an overview or review of existing research on transition-aged students with disabilities or to provide an in-depth examination of the differences between the rights of and services afforded to students with disabilities at the secondary and postsecondary levels. The next sections of the report provide an overview of the education and civil rights laws that aim to support students with disabilities as they work toward completing high school and potentially transition into further educational pursuits. The IDEA was originally enacted in 1975 ( P.L. 94-142 ) and was most recently reauthorized in 2004. It is the primary federal act providing for special education and related services for children with disabilities between birth and 21 years old. Approximately 13% of the K-12 student population received IDEA services in the 2013-2014 school year (SY). The IDEA provides states with grants that support the identification, evaluation, and provision of special education services to children with disabilities. States may receive grants under the condition that, among other requirements, they provide each qualifying student with (1) an individualized education program (IEP) outlining the student's goals, and the accommodations, special education, and related services that the school will provide to the student, and (2) a free appropriate public education (FAPE) in the least restrictive environment (LRE). This means specially designed instruction to meet students' needs, provided to the greatest extent possible with their general education peers and at no cost to their families. Beginning with its 1990 reauthorization, the IDEA has required that the IEPs of students who are 16 years old or older contain a statement of transition goals and services. Transition services are defined as: A coordinated set of activities for a child with a disability that-- (A) is designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child's movement from school to post-school activities, including post-secondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation; (B) is based on the individual child's needs, taking into account the child's strengths, preferences, and interests; and (C) includes instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation. The 1997 and 2004 amendments to the IDEA have supported students with disabilities graduating with regular diplomas and transitioning to postsecondary education by increasing local education agencies' (LEAs) accountability for improving the performance of students with IEPs, emphasizing students' progress toward meaningful educational and postsecondary goals in the IEP process, and requiring states to develop IDEA performance goals and indicators, including dropout and graduation rates, and to report to the Secretary of Education (the Secretary) and the public on the progress of the state and of students with disabilities in the state toward these indicators at least every two years. The ESEA was originally enacted in 1965 (20 U.S.C. 6301 et seq.). It was most recently reauthorized by the Every Student Succeeds Act (ESSA; P.L. 114-95 ) in 2015. The ESEA is the largest source of federal aid to K-12 education, supporting educational and related services for low-achieving and other students attending elementary and secondary schools with high concentrations of students from low-income families. The largest grant program in the ESEA is Title I-A. There are a number of educational accountability requirements that states, LEAs, and schools must meet to receive Title I-A funds. For example, amendments to the ESEA enacted under the No Child Left Behind Act of 2001(NCLB; P.L. 107-110 ) included several educational accountability provisions that aimed to promote the educational progress of all students in schools served. These provisions have subsequently been amended through the ESSA. Over half of public elementary and secondary schools receive Title I-A funds. While students with disabilities benefit from this funding, they are not specifically targeted by it. However, many of the ESEA's educational accountability provisions do require that schools pay particular attention to students with disabilities and likely have an effect on them. For example, when the ESEA was amended through the NCLB in 2001, provisions were adopted requiring states to develop and implement a state accountability system to ensure that schools and LEAs made progress with respect to student achievement. Under the NCLB provisions, student progress was not only systematically measured and monitored for the broad population of K-12 students served under the ESEA but also for specific subgroups of students, of which "students with disabilities" was one. Under NCLB provisions, student proficiency in relation to academic performance standards was regularly tracked in selected subject areas, as were high school graduation rates. The NCLB contained high-stakes accountability provisions featuring varied consequences for schools in which a sufficient percentage of students or subgroups of students, such as students with disabilities, failed to make sufficient academic progress in relation to the academic achievement and high school graduation standards. The accountability provisions of the NCLB, and those in place after the ESEA was amended through the ESSA, emphasize holding all students and all subgroups of students (including students with disabilities) to the same standards and levels of academic achievement, and closing gaps between subgroups of students. To comply with these accountability provisions, schools and school districts are required to pay specific attention to the academic progress and graduation rates of students with disabilities. The HEA was originally enacted in 1965 (P.L. 89-329). It was most recently reauthorized in 2008 by the Higher Education Opportunity Act (HEOA; P.L. 110-315 ) in 2008, which authorized appropriations for most HEA programs through FY2014. Funding is still being provided for HEA programs through appropriations acts. The HEA authorizes student financial aid programs that help students and their families meet the costs of attending postsecondary institutions, a series of targeted grant programs that assist students transitioning into postsecondary education, and grants that support program and institutional development at some colleges and universities. While students with disabilities benefit from many of the HEA's student financial aid programs, the programs that specifically target support and assistance to students with disabilities are the TRIO Student Support Services (SSS) program and Comprehensive Transition and Postsecondary (CTP) programs for students with intellectual disabilities. The TRIO SSS program served over 200,000 students through grants to over 1,000 projects in SY2015-2016. The program, originally enacted in 1992 through amendments to the HEA, provides support services to primarily low-income first generation college students with the aim of improving their retention, graduation rates, financial and economic literacy, and transfers from two-year to four-year schools. TRIO SSS programs are also intended to foster an institutional climate supportive of potentially disconnected students. These include students with disabilities, students who are limited English proficient, students from groups that are traditionally underrepresented in postsecondary education, students who are homeless children and youths, and students who are in foster care or aging out of the foster care system. Under the TRIO SSS program, the U.S. Department of Education (ED) makes competitive grants to Institutions of Higher Education (IHEs) and combinations of IHEs. Grantees must provide statutorily defined services to an approved number of participants. At least two-thirds of participants must be either students with disabilities or low-income, first-generation college students. The remaining one-third of participants must be low-income students, students with disabilities, or first-generation college students. Also, at least one-third of the participating students with disabilities must be low-income. The CTP programs for students with intellectual disabilities served approximately 1,000 students through grants to 66 institutions in SY2015-2016. The programs, enacted through the HEOA, provide transition support for students with intellectual disabilities. Under provisions in the HEA, CTP programs for students with intellectual disabilities are not required to lead to a recognized credential (e.g., bachelor's or associate's degree, certificate) or adhere to the same durational requirements that regular postsecondary programs must meet (e.g., a certain number of credit-bearing clock hours). Instead, CTP programs require students with intellectual disabilities to receive curriculum advising, participate at least part-time in courses or training with students who do not have intellectual disabilities, and prepare for gainful employment. In addition to the education laws that fund programs for students with disabilities, there are two civil rights laws that protect them in secondary and postsecondary education from discrimination based on their disabilities: Section 504 of the Rehabilitation Act ( P.L. 93-112 ) and the Americans with Disabilities Act of 1990 (ADA; 42 U.S.C. SS12101 et seq.). Section 504 prohibits discrimination on the basis of a disability by protecting the rights of people with disabilities to access programs receiving federal funding. Section 504 also provides for accommodations such as extended time on tests for students with learning disabilities, accessible classrooms for students with orthopedic impairments, and large print or braille materials for students who are visually impaired. These accommodations are available at all levels of schooling--preschool to postsecondary--in schools that receive any federal funding. All children with disabilities attending K-12 public schools who are served under Section 504 are entitled to a FAPE and an individualized accommodations plan, often called a "504 plan." At the postsecondary level, Section 504 requires IHEs to provide students with disabilities with appropriate academic adjustments and equitable access to educational programs and facilities. ED's Office for Civil Rights (OCR) reported that in SY2011-2012, more than 6 million K-12 students were served under the IDEA, and slightly less than three-quarters of a million K-12 students were served under Section 504. This means approximately 89% of children with disabilities served by K-12 public schools are served under the IDEA and approximately 11% of students with disabilities served by K-12 public schools are served solely by Section 504. At the postsecondary level, however, the IDEA no longer applies to students with disabilities; instead, all students with disabilities attending IHEs that receive federal funding are protected by Section 504. Most IHEs have a 504 coordinator or a disabled student services (DSS) office on campus that coordinates accommodations such as extended time on tests, early course registration, and physical accommodations and access to campus facilities for students with disabilities. The Americans with Disabilities Act of 1990, most recently amended by the ADA Amendments Act of 2008 (together, ADA), includes a conforming amendment to the Rehabilitation Act that broadens the meaning of the term "disability" in both the ADA and Section 504 to protect people who have or are regarded as having a physical or mental disability that impacts one or more major life activities. The ADA provides broad nondiscrimination protection in employment, public services, public accommodations and services operated by private entities, transportation, and telecommunications for individuals with disabilities. The ADA states that its purpose is "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." In 2008, in response to Supreme Court and lower court decisions that narrowly interpreted the term " disability , " Congress passed the ADA Amendments Act to, among other things, "carry out the ADA's objectives of providing 'a clear and comprehensive national mandate for the elimination of discrimination' and 'clear, strong, consistent, enforceable standards addressing discrimination' by reinstating a broad scope of protection to be available under the ADA." Both Section 504 and the ADA require that educational institutions at all levels provide equal access for people with disabilities. The ADA extends the requirements of Section 504 from only institutions receiving federal financial assistance to all institutions, with some exceptions for institutions controlled by religious organizations. The ADA impacts schools from pre-K to postsecondary because it extends the rights of people with disabilities to access facilities and receive accommodations, allowing them to participate in the activities of both public and private institutions. Federal data on students with disabilities transitioning from secondary to postsecondary education include both data reported from public high schools to ED, and federally funded studies and datasets examining students with disabilities transitioning from secondary to postsecondary education and enrolled in postsecondary education. This section will examine what is currently known about transition-aged students with disabilities from federal data, and the limitations of that data. As displayed in Figure 1 , the percentage of students with disabilities graduating with a regular high school diploma has increased substantially since SY1995-1996, when ED revised and expanded the categories of special education exiting data it tracked to those in use today. The rise in high school diploma attainment among high school-aged students receiving special education and related services, from less than 30% in the mid-1990s to over 70% two decades later, was mirrored by a decline in the dropout rate among secondary school-aged students served under the IDEA, from a high of nearly 46% in the mid-1990s to 18% in SY2014-2015. Currently, states report annually to ED the number of students ages 14 to 21 served under the IDEA who graduated from high school with a regular diploma during the past school year. To be included in the reported data, students with disabilities must graduate with a regular diploma, meaning they must meet the same academic standards required for students without disabilities. Students who receive certificates of attendance/completion, general educational development credentials (GED), or alternative degrees that are not fully aligned with the state's academic standards are not included in the data on students with disabilities graduating with a regular high school diploma. ED data on the averaged freshman graduation rate (AFGR), a measure of the percentage of all public school students who attain a regular high school diploma within four years of starting 9 th grade for the first time, has been collected as part of the data reporting requirements of the ESEA for decades. From SY1995-1996 through SY2014-2015, the AFGR increased from 71% to 83%. Recently, in addition to AFGR data for the general population of high school students, ED has begun releasing a more precise estimate called a four-year adjusted cohort graduation rate (ACGR). Because ACGRs use more precise student-level data, they can track the graduation rates of a variety of cohorts, including students with disabilities. The ACGR data on students with disabilities is comparable to the ACGR data used to examine the outcomes of all students in a particular cohort year (beginning in 9 th grade or the first year of high school). A four-year ACGR for students with disabilities has only been available for comparison to the general ACGR since SY2013-2014. In the two available years of comparison ACGR data shown in Figure 2 , the ACGR for students with disabilities increased more than the ACGR for the general student population (1.5% vs. 0.9%) from SY2013-2014 through SY2014-2015, but it remained nearly 20 percentage points lower overall. The exiting data on students with disabilities who graduate with a regular diploma shown in Figure 1 provides a more complete picture of the population of secondary students served by the IDEA, because it reports on all students with IEPs that graduate with a regular diploma whether they do so in four, five, six, or seven years. However, the ACGR data on students with disabilities shown in Figure 2 allows the graduation rates of students with and without disabilities to be compared. Further data on the two ACGR groups would be needed to determine any trends in their relative graduation rates. When the IDEA's original predecessor legislation was first reauthorized in 1983, Congress requested that ED conduct a national longitudinal study of youth with disabilities from ages 13 to 21 as they transitioned from high school to adult life to determine how they fared in terms of education, employment, and independent living. The result was the first National Longitudinal Transition Study (NLTS), a five-year study beginning in SY1985-1986 that tracked a nationally representative sample of more than 8,000 students representing each of the federal disabilities categories. The NLTS showed that secondary school-aged students with disabilities were more likely to be male, poor, and minorities than were their general education peers. It also showed that transition-aged students with disabilities often dropped out of or exited high school without attaining a regular diploma; had inconsistent access to transition planning; and often received insubstantial transition planning, which rarely included postsecondary education among students' transition goals, when planning was made available. In contrast to the original NLTS's finding that fewer than one in four 12 th graders reported postsecondary education as a goal, the National Longitudinal Transition Study-2 (NLTS2), which began 15 years after the first NLTS, found that more than four out of five secondary school-aged students with disabilities who had transition plans named postsecondary education as a primary post-high school goal. In addition, the NLTS2 found that a majority of secondary school-aged students with disabilities (60%) continued on to postsecondary education within eight years of leaving high school, and most of them began postsecondary studies within a year of leaving high school. The NLTS2 also found the following for postsecondary students with disabilities: They enrolled most frequently in two-year programs or community colleges (44%). They also enrolled in vocational, business, or technical schools (32%), and four-year colleges or universities (19%). They usually enrolled in postsecondary education programs on a consistent (77%), full-time (71%) basis, where they were working toward a diploma or certificate (90%). They were likely to stop self-identifying as disabled once in postsecondary education. A majority (63%) of students who had been identified as having disabilities by their secondary schools no longer considered themselves to have a disability by the time they transitioned to postsecondary school. Only 28% of postsecondary students continued to identify as students with disabilities and disclosed their disabilities to their IHEs, as required to receive accommodations or supports at the postsecondary level, and fewer than one in five students (19%) received accommodations for their disability from an IHE. When postsecondary students did request assistance because of their disabilities, they received a range of accommodations and supports from their schools, the most common of which was additional time to complete tests (79%). The NLTS2 findings generalize to students with disabilities nationally, but they are only representative of students in the early 2000s. The NLTS2 allows insight into the outcomes of students with disabilities transitioning from high school to postsecondary life that could not be arrived at through cross-sectional data such as high school graduation and college enrollment rates. However, because the study's sample is nationally representative of secondary students circa 2000, the NLTS2 results cannot be assumed to reflect the postsecondary outcomes of the current national population of young adults with disabilities. A new NLTS study began in 2012. Once it has collected additional waves of data, the NLTS 2012 will begin to provide some insight into the characteristics, experiences, and outcomes of a more recent nationally representative sample of students with disabilities transitioning from high school to postsecondary education and life. Until then, examining the NLTS2 findings along with more recent data on high school graduation and college enrollment rates helps to form a more accurate picture of students with disabilities currently transitioning between secondary and postsecondary education. The National Postsecondary Student Aid Study (NPSAS) is a federal study focused primarily on student aid at IHEs. However, the NPSAS also includes a survey designed to be nationally representative of students attending Title IV postsecondary institutions, which among other subjects asks students whether they have a disability. In the most recent administration of the NPSAS (SY2011-2012), 11% of undergraduates and 5% of post-baccalaureate students reported having a disability. Male and female undergraduates reported having disabilities at statistically similar rates. Other student characteristics such as veteran status, age, and dependency status showed significant differences between undergraduates who reported having a disability and those who did not. The largest of these differences was between the percentage of veterans (21%) and nonveterans (11%) reporting a disability. The percentage reporting a disability was also higher among older students: 16% among undergraduates age 30 and over compared to 11% among 24 to 29 year olds and 9% among 15 to 23 year olds. The results of NPSAS data collection cannot be compared across years because of changes in the relevant survey questions posed to students to determine if they had a disability and in the number and types of disabilities students were asked about across different administrations of the NPSAS. In addition, the use of students self-identifying as disabled on a survey is fundamentally different and more likely to result in lower reported rates of disability than data tracked by schools or pulled from student records. For example, the increase in postsecondary students self-identifying as disabled as they grow older may reflect more about the reluctance of students who have recently exited high school special education programs to adopt the disability label in their new postsecondary institution than it does about actual increases in the number of disabilities among older undergraduate students. High school graduation and college enrollment have increased considerably for all students in recent decades. The increased rates of students with disabilities graduating from high school with a regular diploma and continuing on to postsecondary education may be part of the trends seen in the general population of transition-aged students. The appeal of higher earnings or self-sufficiency may be a factor in the increasing educational attainment of students with and without disabilities. Relatedly, the increase in unemployment among 16 to 24 year olds in the years immediately after the 2007-2009 recession may have factored both in declining high school dropout rates and in increasing postsecondary enrollment rates during those years. In addition, changes in the postsecondary landscape, such as increased access to non-selective two-year and less than two-year programs, may have encouraged more students to pursue postsecondary education. In addition to the potential factors impacting the overall population of transition-aged students, several congressional actions may have contributed specifically to the increasing percentages of students with disabilities graduating from high school with a regular diploma ( Figure 1 ) and enrolling in postsecondary education. P.L. 101-476 (IDEA; 1990) introduced requirements that all students' IEPs contain a statement of needed transition services by the time those students turn 16 years old, and that the students be invited to attend and participate in all IEP meetings where their transition goals are discussed. P.L. 101-476 marked the first time that IEP teams were required to set goals for what students would do in their postsecondary lives and determine the services needed to help them attain those goals. P.L. 101-476 also included two new disability categories: autism and traumatic brain injury (TBI). Both categories have grown significantly in terms of raw numbers and the percentage of students with disabilities served, with the growth in the autism category being particularly pronounced. Autism is now the fourth largest category of children served under the IDEA, accounting for nearly 10% of all children with IEPs. According to ED data, more than two-thirds of students with autism (68%) and three-quarters of students with TBI (75%) graduated from high school with a regular diploma in SY2014-2015. P.L. 105-17 (IDEA; 1997) required children with IEPs to participate in statewide assessments and the general education curriculum. The bill required all students' IEPs to relate their IEP programming to their achievement in the general education curriculum. In addition, under this act states were required to establish performance goals and indicators for students with IEPs and include students with IEPs in statewide assessments and alternative assessments. P.L. 107-110 (NCLB; 2001) required states to implement accountability systems tracking the academic progress of different subgroups of students, including students with disabilities, toward meeting state developed educational standards. The NCLB contained high-stakes accountability provisions, which emphasized holding all students, including students with disabilities, to the same standards; closing gaps between different groups of students; and expecting all students to reach proficiency in reading and mathematics. The NCLB's accountability provisions required that specific attention be paid to academic progress and graduation rates of students with disabilities. P.L. 108-446 (IDEA; 2004) increased accountability requirements by revising state performance goals and requiring that students with disabilities be included in all state and district-wide assessments, including assessments required under the ESEA. In addition to the TRIO SSS program and CTP programs for students with intellectual disabilities, established in earlier amendments to the HEA, the HEOA established a new competitive CTP grant program, which operates on a limited scale, called Model Transition Programs for Students with Intellectual Disabilities into Higher Education (TPSID). TPSID grants fund IHEs in partnering with one or more LEAs and create model transition programs from secondary to postsecondary education for students with intellectual disabilities.

In recent decades, many federal policies have attempted to help prepare students with disabilities to complete high school and to continue into postsecondary education. Corollary interest has arisen in being able to track the progress being made toward achieving these aims. This report offers a brief overview of what is currently known about the U.S. population of students with disabilities as they advance through secondary education and into postsecondary education. It devotes particular attention to high school graduation trends and data on postsecondary enrollment. Within the limitations of available data, some of the noteworthy information presented in the report includes the following: Roughly 70% of high-school aged students receiving services under the Individuals with Disabilities Education Act (IDEA), the primary federal act providing services to students with disabilities in elementary and secondary schools, graduated with a regular high school diploma in the 2014-2015 school year (SY), up substantially from the 27% receiving regular diplomas nearly 20 years earlier. A different measure of graduation rates, the four-year adjusted cohort graduation rate (ACGR), which captures those graduating within four years of entering high school, suggests that in SY2014-2015 roughly 65% of students with disabilities graduated high school within that time frame, compared to approximately 82% of the total population of students. Data on post-high school experiences of a nationally representative sample of 13 to 16 year old students receiving special education services in 2000 (who were followed for eight years through the National Longitudinal Transition Study-2) found that 60% enrolled in postsecondary education within eight years of leaving high school; two-year postsecondary programs were the most common destination. More recent data from the National Postsecondary Student Aid Study, examining a nationally representative sample of all students enrolled in postsecondary institutions in SY2011-2012, indicates that roughly 11% of all undergraduates and 5% of all post-baccalaureate students self-identify as having a disability, with higher percentages among older undergraduate students (16%) and veterans (21%); however, there are many known limitations associated with self-reported data of this nature.

Paragraphs 2 and 3 of Senate Rule XIX identify language that is considered to violate standards of decorum in debate. Such "disorderly" language includes directly or indirectly imputing to another Senator or Senators "any conduct or motive unworthy or unbecoming a Senator" (paragraph 2) and referrin g "offensively to any State of the Union" (paragraph 3). Rule XIX prohibits imputing conduct or motive "by any form of words" to a sitting Senator. The presiding officer has stated that this prohibition includes language taken from "quotes, articles, or other materials," not just original words spoken by a Senator in debate. From a historical standpoint, these explicit statements of words that constitute disorderly language are relatively recent additions to the Senate's standing rules. The language of paragraph 2 related to impugning motives and of paragraph 3 against speaking offensively of any state were both adopted on April 8, 1902. While these explicit examples of disorderly language are newer to Senate rules, the prohibitions they codify are not. The Senate has, from its earliest days, stressed the importance of decorum in debate and had a mechanism in its rules to sanction Senators who use disorderly language. Senators could have been, and were, called to order for imputing motives or maligning a state prior to the adoption of these paragraphs. The concepts of decorum in debate made explicit by Rule XIX are clearly stated in Section XVII of Thomas Jefferson's Manual of Parliamentary Practice (" Jefferson's Manual ") and stem from English parliamentary practice prior to the 1 st Congress under the Constitution. The statements listed in Rule XIX are not considered to be a comprehensive recitation of language that may be considered disorderly and violate decorum in Senate debate. For example, while there is no specific Senate rule governing such statements, chamber precedents indicate that the body has, on occasion, ruled certain references made in debate to the character or conduct of the House of Representatives and its Members to be disorderly. The application of Rule XIX does not, however, "extend to remarks made about the President of the United States, the Vice President, or Administration officials," and a Senator cannot be called to order under the rule for comments or remarks made in debate about such individuals. Likewise, general criticism of the action of a congressional committee does not constitute a violation of the rule as to motives. As is discussed below, the presiding officer decides if a Senator has used disorderly language in debate in violation of Rule XIX, subject to an appeal to the full Senate. Paragraphs 4 and 5 of Rule XIX establish a parliamentary mechanism whereby a Senator who engages in the type of disorderly language described in the rule (discussed above) can be "called to order" by the presiding officer or by another Senator. These paragraphs of the rule state: 4. If any Senator, in speaking or otherwise, in the opinion of the Presiding Officer transgress the rules of the Senate the Presiding Officer shall, either on his own motion or at the request of any other Senator, call him to order; and when a Senator shall be called to order he shall take his seat, and may not proceed without leave of the Senate, which, if granted, shall be upon motion that he be allowed to proceed in order, which motion shall be determined without debate. Any Senator directed by the Presiding Officer to take his seat, and any Senator requesting the Presiding Officer to require a Senator to take his seat, may appeal from the ruling of the Chair, which appeal shall be open to debate. 5. If a Senator be called to order for words spoken in debate, upon the demand of the Senator or of any other Senator, the exceptionable words shall be taken down in writing, and read at the table for the information of the Senate. In current practice, the Rule XIX call to order is rarely formally invoked. It is far more common for the presiding officer, acting on his or her own initiative, to issue a "warning" to a Senator who has violated standards of decorum in debate or to simply read the provisions of Rule XIX aloud as a general reminder to the Senate in cases where debate has become heated. Occasionally, however, a formal call to order is made. The steps used to invoke the Rule XIX call to order are as follows: Any Senator who believes that another Senator has transgressed the rules of decorum in debate under Rule XIX may call that Senator to order. A Senator would do so by saying: Mr. (or Madam) President, I call the Senator to order under Rule XIX. The presiding officer may also, on his or her own initiative, call a Senator to order without any call to order being raised from the floor. Senate precedents state that a Senator or the presiding officer may call a Senator to order "without the latter yielding for that purpose." That is, a Senator properly in possession of the floor may be interrupted by another Senator who wishes to call the first to order for his or her remarks. Senate precedents further indicate that Rule XIX "can be invoked at any time upon its violation" and that a Senator may call another Senator who is addressing the Senate to order "at any time." Under paragraph 5 of Rule XIX, any Senator may demand that the allegedly objectionable words be read aloud, although this step is optional. To do so, a Senator would say: Mr. (or Madam) President. I demand that the words of the Senator from [STATE] be read aloud for the information of the Senate. The chair would then rule on whether or not the words in question were disorderly and transgressed Rule XIX. If the presiding officer ruled that a speaking Senator had transgressed Rule XIX, he or she would direct the speaking Senator to take his or her seat. Senate precedents indicate that the "penalty" for violating "Rule XIX, is that the speaking Senator take his seat." If, on the other hand, the presiding officer, in response to a call to order from the floor, ruled that the speaking Senator had not violated Rule XIX, the speaking Senator would be allowed to proceed in order. The ruling of the presiding officer under Rule XIX that a Senator has used disorderly words in debate is subject to an appeal by any Senator, including by a Senator who has been directed to take his or her seat. If such an appeal is raised, the presiding officer would state: The question before the Senate is, 'Shall the decision of the Chair to hold the Senator from [STATE] in violation of rule XIX stand as the judgment of the Senate?' Such an appeal is debatable but subject to a nondebatable motion to lay the appeal on the table. A speaking Senator who has been found to have violated Rule XIX by using disorderly language may not proceed in debate without the permission of the Senate. Senate precedents suggest that, unless lifted by unanimous consent or by motion, the prohibition on debate is in force during consideration of the pending question. Senate precedents state, however, that a Senator who has been called to order "would be entitled to recognition to speak on another matter subsequently taken up by the Senate." Permission for a sanctioned Senator to proceed in order could be granted by unanimous consent or by the adoption of a nondebatable motion. If a motion to proceed in order is adopted, the speech of the offending Senator is not terminated: He or she would retain possession of the floor and could continue speaking. The motion to proceed in order can be made only by a Senator in possession of the floor or when a Senator in possession of the floor yields for the purpose of making the motion. Such a motion cannot be made after the Senate has taken up other business. To make such a motion, a Senator would say: Mr. (or Madam) President, I move that the Senator from [STATE] be permitted to proceed in order. If a Senator has been found to have violated decorum in debate under Rule XIX, his or her objectionable words may be stricken from the Congressional Record either by unanimous consent or by motion. Senate precedents indicate that matters that have, by such a motion, been stricken from the Record as having violated Rule XIX include not only remarks or language reflecting on a sitting Senator but also a chart, a letter, or a telegram doing so. CRS identified one instance in which a Senator sought a ruling that language used in debate earlier in the day by a colleague had violated Rule XIX, and when the chair indicated that, in his opinion, it had, the Senator asked and received unanimous consent to strike the offending language from the Record . A mechanism for calling Senators to order for the use of disorderly language in debate has existed in Senate rules since the 1 st federal Congress (1789-1790), beginning with the Senate's adoption of 19 standing rules governing its operation on April 16, 1789. Of these, Rule XVI, stated: When a member shall be called to order, he shall sit down until the President shall have determined whether he is in order or not; and every question of order shall be decided by the President, without debate; but, if there be a doubt in his mind, he may call for the sense of the Senate. The rule was rewritten in 1856 to state: If any member, in speaking, or otherwise, transgress the rules of the Senate, the presiding officer shall, or any member may, call to order, and when a member shall be called to order by the President, or a Senator, he shall sit down, and shall not proceed without leave of the Senate. And every question of order shall be decided by the President, without debate, subject to an appeal to the Senate; and the President may call for the sense of the Senate on any question of order. Rule XIX was amended to its present form on June 14, 1962, by Senate adoption of S.Res.37. The 1962 amendment made a significant change in the operation of the call-to-order mechanism. Under the 1856 amendment described above, the mechanism had been interpreted to require a Senator to immediately take his or her seat when called to order by another Senator, even before any ruling had been made as to whether the words spoken by the Senator were, in fact, disorderly. This interpretation is illustrated in an exchange Majority Leader Scott Lucas had with the presiding officer on the Senate floor on May 8, 1950: Sen. Lucas: Mr. President. Can a Senator, at any time when another Senator is speaking, merely rise and say in substance that the Senator from Nebraska, the Senator from Illinois, or whoever might be speaking, is violating rule XIX, and that he therefore demands the Senator take his seat? Under those circumstances, is it necessary for the Senator who is speaking to take his seat? And can one Senator discipline another Senator under those circumstances, whether the Senator is guilty of violating Rule XIX or is not guilty? The Vice President: The Chair is bound to say that the language of the rule gives the Chair no authority whatever to pass on the question of whether a Senator is violating rule XIX. It provides that whenever a Senator is speaking, and another Senator calls him to order on the ground that he is violating the rule, he must take his seat. No matter what he has said, no matter what he is talking about, no matter whether there is any offense given or any violation of the rule, the Senator must take his seat until the Senate permits him to proceed in order. The Chair would not hesitate to say that it is a rather peculiar rule, but even if a Senator is repeating the Lord's Prayer, some other Senator may call him to order, and the Senator must take his seat until he is permitted to proceed in order. The 1962 amendment to the call-to-order provision changed the interpretation of Rule XIX so that, when called to order by a colleague, the presiding officer would first have to rule whether the words were disorderly (with that ruling subject to an appeal) before a Senator was required to be seated. The amendment was designed to ensure that a Senator could not be taken off his or her feet by a simple allegation that he or she had transgressed Rule XIX, something supporters of amending the rule argued had occurred. The Rules Committee report accompanying S.Res.37, quoting its author, Senator Joseph S. Clark, stated: [S.Res.37] would modify Senate Rule XIX, requiring a Senator to take his seat without a ruling by the Chair that he has spoken disparagingly of another Senator, which has become a deterrent to frank and free debate.... Rule XIX ... has been construed to permit a Senator at any time to interrupt another Senator, raise a point of order and require that Senator to take his seat without any ruling on the part of either the Presiding Officer or the Senate that the Senator called to order had violated the rule. All Senators will recall the several instances of abuse of the rule which have occurred during the August session of Congress. Senate rules governing the call to order mechanism have seen a number of other, smaller changes over the years. Table 1 , below, outlines the evolution of the Senate's call to order rule from its inception in 1789 to the present. It provides the dates that amendments to the rule were adopted, the text of the rule at that time, and notes providing additional context. As previously mentioned, the Rule XIX call to order is rarely formally invoked. However, references to the rule in floor debate have been a much more common occurrence and served as warnings or reminders that decorum should be maintained. Both methods of practice are examined in more detail below. CRS conducted full-text searches of the Congressional Record and the Senate Journal using the Legislative Information System of the U.S. Congress (LIS) and the ProQuest Congressional database in order to identify instances in which a call to order under Senate Rule XIX had been formally invoked since June 14, 1962. These instances are identified in Table 2 . The most recent example of a formal call to order being made occurred on February 7, 2017. In that case, a Senator was called to order by the majority leader for quoting a former Senator and reading passages from a letter written to the Committee on the Judiciary by a notable private individual, both of which negatively characterized a sitting Senator. The presiding officer had previously warned the speaking Senator that her remarks could be in violation of the Rule XIX provisions regarding disorderly language. When called to order, the speaking Senator asked unanimous consent to proceed in order, but objection was heard to the request. The presiding officer then instructed the Senator in question to take her seat, and she appealed the ruling of the chair. After a quorum was established, the ruling of the chair was upheld on appeal. A subsequent motion to allow the speaking Senator to proceed in order was rejected by a vote of 43-50. In practice, Senators have utilized a number of different techniques to draw a speaker's attention to Rule XIX without formally invoking a call to order. Senators have, for example, stated that they considered raising a Rule XIX call to order, indicated their belief that certain words transgressed the rule, cautioned their colleagues to be mindful of Rule XIX when speaking, made parliamentary inquiries of the chair about the application of the call to order mechanism, or directly asked the chair to read from the rule. These practices afforded Senators the opportunity to express their displeasure with a speaker's remarks without having to formally call a colleague to order. This informal manner of lessening tensions and enforcing decorum in debate is perhaps unsurprising in a chamber that has traditionally valued comity and senatorial courtesy over a rigid adherence to procedure. Most recently, at the urging of a Senator, the presiding officer of the Senate, on January 21, 2018, read paragraph 4 of Rule XIX aloud to the Senate immediately following a request by a Senator that it be read aloud. While it is not clear what specific words prompted the request that the rule be read, the incident occurred in the course of an animated floor debate regarding government funding during a lapse in appropriations. In another example, on October 4, 2013, a Senator stated in debate that, in his judgment, certain statements made by another Senator violated Rule XIX standards of decorum but that he was not going to raise a call to order related to them. In response to the Senator's statement, the presiding officer read paragraph 2 of Rule XIX aloud "for the edification of all Senators." There have been numerous other examples in recent years in which Rule XIX was mentioned in floor debate but a call to order was not formally invoked.

The Senate has, from the 1st Congress (1789-1790), valued the importance of decorum in debate and included a "call to order" mechanism in its rules to sanction Senators who use "disorderly" language. The rules adopted in 1789 contained such a call-to-order provision, and its language has been amended multiple times over the years. Table 1 of this report details the historical evolution of the rule. The present form of the Senate's call-to-order provision was adopted on June 14, 1962. Senate Rule XIX identifies specific language that is considered disorderly. This includes language directly or indirectly imputing to another Senator or Senators "any conduct or motive unworthy or unbecoming a Senator" (paragraph 2) and referring "offensively to any State of the Union" (paragraph 3). Rule XIX prohibits imputing conduct or motive "by any form of words" to a sitting Senator, which includes not just original words spoken in debate but quotes, news articles, and other materials. The statements in paragraphs 2 and 3 are not considered to be a comprehensive recitation of language that may violate decorum in Senate debate. Although precedents on the subject are mixed, Senators have at times also been called to order for making disparaging references in debate to the House of Representatives or its Members. Paragraphs 4 and 5 of Rule XIX establish a parliamentary mechanism whereby a Senator who engages in the type of disorderly language described in the rule can be "called to order" by the presiding officer or by another Senator. This call to order is rarely formally invoked in the modern Senate. Table 2 of this report lists instances in which the rule has been invoked since 1962. It is far more common for the presiding officer, acting on his or her own initiative, to issue a "warning" to a Senator who has violated standards of decorum in debate or to read the provisions of Rule XIX aloud as a general reminder to the Senate in cases where debate has become heated. If a formal call to order is made, however, any Senator may demand that the allegedly disorderly words be read aloud for the benefit of the Senate. Should the chair then rule that the speaking Senator's words have violated Rule XIX, the sanctioned Senator must take his or her seat. The chair's ruling in this regard is subject to an appeal to the full body. A Senator sanctioned under the rule in this manner is barred from participating in further debate on the pending matter unless the Senate, by unanimous consent or by nondebatable motion, permits him or her to proceed in order. Disorderly words used in Senate debate can be stricken from the Congressional Record by unanimous consent or by motion.

The U.S. Postal Service (USPS) has a long relationship with the Department of Defense (DOD) to facilitate correspondence and the exchange of gifts between service personnel and their families. Post offices throughout the country accept mail and packages for military personnel and deliver these items to military installations in the United States. Overseas military mail delivery is somewhat more complicated. The USPS delivers mail and packages to USPS gateway sites in New York, Newark, San Francisco, Miami, and Chicago. Domestic postage covers the cost of this service. The cost of transporting the mail from those sites to overseas Army/Air Force Post Offices (APOs) and Fleet Post Offices (FPOs) that serve members of the Armed Forces is borne by the military mail service. For mailers, then, the postage is subsidized--they pay only the domestic portion of the cost. When the Armed Forces are engaged in combat or other dangerous activities, the President has the authority to permit service members to send personal correspondence, free of charge, to places within the delivery limits of a U.S. post office (39 U.S.C. 3401(a)(1)). This privilege is currently available to service members in Iraq, Afghanistan, and certain surrounding countries and seas, and to service personnel hospitalized in a military facility as a consequence of service in the designated areas. The DOD pays the USPS for the costs of delivering this mail from the U.S. gateway sites to any domestic address. Free mail must have a complete APO or FPO return address and the word "free" written in the upper right corner with an APO or FPO postmark. However, citizens of the United States have never been authorized to send mail to service members, whether overseas or not, without paying postage. It is the case that the government created "V-Mail" as a means for Americans to correspond with members of the Armed Forces during World War II. But only members of the Armed Forces could send V-Mail free of postage. Families and friends had to pay postage at the standard rates of the day. Those wishing to send written correspondence to members of the Armed Forces overseas currently pay postage between $0.44 and $3.28 per letter (1 to 13 ounces). Someone wishing to send a package will pay the standard domestic package postage rates, which are calculated on a range of factors, including package size, shape, and weight. Alternatively, a mailer may take advantage of the discounted APO/FPO Priority Mail Flat-Rate Box. The USPS offers "free Military kits" to military families who want to send packages overseas. The mailing kits can be ordered by phone by calling 1-800-610-8734 and asking for the Care Kit. Each kit includes two Priority Mail boxes, six Priority Mail Flat-Rate boxes, eight Priority Mail labels, one roll of Priority Mail tape and eight customs forms with envelopes. A sender must pay postage of $12.95, a discount of $2 off the standard postage, for each 12" by 12" by 5" box. Representative Peter King introduced H.R. 1935 , the Supply Our Soldiers Act of 2011, on May 23, 2011. It was referred to the House Committee on Armed Services. H.R. 1935 would establish a postage benefit for members of the armed services on active duty in Iraq or Afghanistan, and for individuals who are "hospitalized at a facility under the jurisdiction of the Armed Forces of the United States as a result of a disease or injury incurred as a result of service in Iraq or Afghanistan," provide a beneficiary with one coupon or voucher per month, which he or she could give to anyone who wished to send a letter of no more than 13 ounces or a parcel of no more than 15 pounds; and authorize an appropriation to the DOD to cover the cost of this program to the USPS. Funding is "not to exceed $75 million for the total period beginning with fiscal year 2012 and ending with fiscal year 2017." H.R. 1935 is nearly identical to bills introduced in previous Congresses by Representative King-- H.R. 704 (111 th Congress) and H.R. 1439 (110 th Congress). Legislation to establish a free-mail-to-troops postage benefit has been introduced in the 109 th , 110 th , and 111 th Congresses. None of the bills were enacted. Representative Vito Fossella introduced H.R. 923 , the Mailing Support to Troops Act of 2005, on February 17, 2005. As introduced, the bill would have allowed family members of military service personnel to mail letters and packages free of charge to active members of the military serving in Afghanistan or Iraq, and to servicemen and women hospitalized as a result of disease or injury suffered in Afghanistan or Iraq. To receive this free postage benefit, mailers simply would have written on the envelope or box "'Free Matter for Member of the Armed Forces of the United States' or words to that effect [as] specified by the Postal Service." H.R. 923 would have forbidden this mail to contain advertisements. The bill would have authorized appropriations to reimburse the USPS for its extra expenses in transporting such mail. Another approach to providing a free postage benefit was taken by Representative Harold E. Ford, Jr., in H.R. 2874 , the Supply Our Soldiers Act of 2005, which was introduced on June 14, 2005. The bill would have provided a free postage benefit to both families of service members and charities. Soldiers mobilizing for overseas duty would have been given an allotment of special stamps (equivalent in value to $150 per calendar quarter) to send to their families or selected charities. These stamps would have permitted them to mail letters and packages to service members without postage. There would have been a 10-pound limit on packages mailed, and the DOD would have reimbursed USPS for providing this service. By putting individual service members into the authorization chain for the mail they received, this bill would have avoided the problem of the free postage benefit being used to send unsolicited mail to the troops. Additionally, capping the allotment per service member would have mitigated potential stress on the military postal system. H.R. 2874 was referred to the House Committees on Armed Services and Government Reform. On September 29, 2005, the House Government Reform Committee marked up H.R. 923 and, in doing so, adopted an amendment in the nature of a substitute that incorporated the core concept, as well as the title, of H.R. 2874 . As amended and ordered to be reported by voice vote of the committee, the new version of H.R. 923 would have required the DOD, in consultation with the USPS, to establish a one-year program under which a qualified member of the Armed Forces would have received a monthly voucher. The voucher was transferable to a service member's family or friends, and would cover the postage to send one letter or parcel (weighing up to 15 pounds) to the service member. The Congressional Budget Office (CBO) estimated that nearly all of the about 145,000 American service personnel who would have been eligible for the postage benefit would have taken advantage of it, and assigned it a budget cost of $30 million over FY2006 and FY2007. The House Armed Services Committee added the language of H.R. 923 as Sections 575, 576, and 577 of H.R. 5122 , the John Warner National Defense Authorization Act for Fiscal Year 2007. The House passed H.R. 5122 on May 11, 2006. On June 22, 2006, the Senate substituted its own defense authorization language for the House language and passed H.R. 5122 . Neither the Senate version of the FY2007 authorization bill nor the conference report ( H.Rept. 109-702 ) included the free-mail-for-troops provision. Thus, the free postage provision was not included in either the FY2007 defense authorization act ( P.L. 109-364 ) or the FY2007 defense appropriations act ( P.L. 109-289 ). Representative Fossella and 13 cosponsors introduced H.R. 1439 on March 9, 2007. The bill would have established a postage benefit for members of the armed services on active duty in Iraq or Afghanistan, and for individuals who are "hospitalized at a facility under the jurisdiction of the Armed Forces of the United States as a result of a disease or injury incurred as a result of service in Iraq or Afghanistan." A beneficiary would have received one voucher per month, which he or she could have given to anyone who wished to send him or her a letter or parcel free of charge. The bill would have limited the weight of letters to no more than 13 ounces and parcels to no more than 15 pounds. H.R. 1439 would have authorized an appropriation to the DOD to cover the cost of this program to the USPS. H.R. 1439 was referred to the House Armed Services Committee. Senator Hillary Clinton and two cosponsors introduced S. 1444 on June 6, 2007. This bill was very similar to H.R. 1439 , although it would have limited packages to no more than 10 pounds, and it would have capped the cost of the free postage program at $10 million in FY2008. S. 1444 was referred to the Senate Committee on Homeland Security and Governmental Affairs, then to the Subcommittee on Federal Financial Management, Government Information, Federal Services, and International Security. On May 16, 2007, Representative Fossella offered a floor amendment ( H.Amdt. 184 ) to H.R. 1585 , the National Defense Authorization Act for Fiscal Year 2008. The amendment was quite similar to H.R. 1439 and S. 1444 . It would have required the Secretary of Defense to provide a "qualified individual" with one voucher every other month. As in earlier bills, a "qualified individual" would have been defined as a member of the Armed Forces serving in Iraq or Afghanistan, or a member of the Armed Forces hospitalized under the care of the military. This individual could have given the voucher to anyone, who then could mail, at no charge, a parcel (up to 10 pounds) or first-class mail piece (up to 13 ounces) to the same qualified individual. H.Amdt. 184 was adopted by voice vote immediately. The House passed H.R. 1585 with the postage benefit provision on May 17, 2007, by a vote of 397 to 267. Again, the Senate passed its version of the defense authorization bill without the postage benefit provision on October 1, 2007, by a vote of 92 to 3. The conference report ( H.Rept. 110-477 ) filed on December 6, 2007, did not authorize an appropriation for the postage benefit. Representative Peter King introduced H.R. 704 , the Supply Our Soldiers Act of 2009, on January 27, 2009. The same day, Representative Kathy Castor introduced H.R. 707 , the Home Front to Heroes Postal Benefits Act. H.R. 704 and H.R. 707 were referred to the House Armed Services Committee, and then to its Subcommittee on Military Personnel. Like earlier bills, both H.R. 704 and H.R. 707 would have given one free-postage voucher per month to each "qualified individual" in the Armed Forces. Each voucher would have provided free postage on letters weighing up to 13 ounces or packages weighing up to 15 pounds. The DOD would have provided advance transfers of funds to the USPS to cover the Postal Service's costs in delivering the mail to the APOs and FPOs. H.R. 704 and H.R. 707 would have authorized this postage benefit for one year. Though similar, H.R. 704 and 707 differed in two significant ways. (1) H.R. 704 , Sec. 2(b) defined a "qualified individual" as a member of the Armed Forces of the United States on active duty (as defined in section 101 of title 10, United States Code); and ... serving in Iraq or Afghanistan ... or ... hospitalized at a facility under the jurisdiction of the Armed Forces of the United States as a result of a disease or injury incurred as a result of service in Iraq or Afghanistan. 10 U.S.C. 101(d)(1) defined "active duty" to mean full-time duty in the active military service of the United States. Such term includes full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned. Such term does not include full-time National Guard duty. Meanwhile, H.R. 707 , Sec. 2(b) defined a "qualified individual" as "a member of the Armed Forces described in subsection (a)(1) of section 3401 of title 39, United States Code, who is entitled to free mailing privileges under such section." This definition of "qualified individual" may be broader than the definition included in H.R. 704 because 39 U.S.C. 3401(a)(1) includes an individual who is a member of the Armed Forces of the United States on active duty, as defined in [10 U.S.C. 101], or a civilian, otherwise authorized to use postal services at Armed Forces installations, who holds a position or performs one or more functions in support of military operations, as designated by the military theater commander.... (2) H.R. 704 did not define who may use a postage voucher. H.R. 707 , Section 2(e) would have permitted qualified individuals to transfer a voucher to "a member of the family of the qualified individual, a nonprofit organization, or any other person selected by the qualified individual for use to send qualified mailings to the qualified individual or other qualified individuals." When the House passed H.R. 2647 , the National Defense Authorization Act for Fiscal Year 2010, on June 25, 2009, it included the text of H.R. 707 as Section 666. However, when the Senate approved an amended version of H.R. 2647 on July 23, it did not include the free postage benefit. Additionally, neither the House nor the Senate Appropriations Committee included a free postage benefit when it approved H.R. 3326 , the Department of Defense Appropriations Act, 2010. Ultimately, the 111 th Congress did not enact a free-mail-to-troops postage benefit. The recent postage benefit bills prompt at least two observations and four questions. (1) It is unclear whether any concerns exist about the voucher-type free postage proposals. As indicated above, during the 109 th , 110 th , and 111 th Congresses, measures advanced but were not enacted. In each instance, the House bill carried the free postage benefit, and the Senate bill did not. The conference committee reports did not elaborate on why the Senate version was preferred, and the Congressional Research Service has not located any published accounts that detail any objections to these postage benefit bills. (2) It is unclear how much a free-mail-to-troops postage benefit would cost annually. Only one of the aforementioned bills was scored--the CBO scored the final version of H.R. 923 (109 th Congress), at $30 million for the 2006 calendar year, "including $17 million for postage, and $13 million for the DoD's transportation and administrative costs." (1) None of the free postage for troops bills described the means through which the DOD was to provide postage vouchers to military personnel overseas; nor did the bills describe how these individuals would transfer these vouchers to family members or friends back in the United States. Rather, legislation has required the DOD to devise the means for administering the benefit. (The CBO's scoring of H.R. 923 during the 109 th Congress, it should be noted, did not include an estimate of the costs of either voucher distribution to military personnel or voucher transference to persons in the United States.) Should legislation provide guidance or direction for this aspect of implementation? (2) What precautions would be adopted to ensure that vouchers were not counterfeited? Is there any risk that individuals could sell or trade postage vouchers for cash? (3) Recent bills would have permitted a voucher to be used either to send correspondence or a package. As noted above, currently a mailer must pay between $0.44 and $3.28 in postage to send written correspondence. Should this relatively low-cost mailing be further subsidized by enacting a free-mail-to-troops postage benefit? And are senders likely to use a voucher for letters that can be used to cover the more expensive parcel postage? (4) The dimensions and shape of a package significantly affect the USPS's costs to deliver it. For example, mailing 15 pounds of widgets in a 20" by 4" by 4" package (320 cubic inches) from the Silver Lake, Ohio zip code 44224 to the APO zip code 96278-2050 would require over $20 in postage. Sending the same 15 pounds of widgets in a 12" by 12" by 5" Priority Mail Flat-Rate Box (720 cubic inches) would cost $14.95. (Whether the DOD experiences similar cost differences for package delivery is unclear.) To reduce delivery costs, should any free postal benefit require recipients to use a box of a particular size and shape?

Members of the Armed Forces on duty in designated combat areas can send personal correspondence, free of postage, to addresses in the United States. However, there is not a comparable policy to permit individuals in the United States to send letters and packages to troops serving overseas free of charge. H.R. 1935 has been introduced in the 112th Congress to establish a new, free postage benefit. Military personnel who are deployed in Afghanistan or Iraq, or who are hospitalized as a result of such deployment, would receive one postage voucher or coupon per month. The recipient may then give this voucher to a person in the United States, who could use it to send a letter or a parcel to a deployed member of the Armed Forces. Similar legislation was introduced but not enacted in the previous three Congresses. The federal government does subsidize the postage an individual pays to send mail to troops. A sender is charged only for the cost of the domestic portion of the delivery--the Department of Defense pays the cost to move the mail from the United States to troops overseas. Additionally, since October 2008 the U.S. Postal Service has offered a discounted package service to families wishing to send packages to members of the Armed Services stationed overseas. This report will be updated to reflect significant legislative action.

The annual Interior, Environment, and Related Agencies appropriations bill funds agencies and programs in three federal departments, as well as numerous related agencies and bureaus. Among the more controversial agencies represented in the bill is the Fish and Wildlife Service (FWS), in the Department of the Interior (DOI). This report analyzes FY2011 appropriations and gives a brief review of the agency's appropriation enacted for FY2010 ( P.L. 111-88 ). For FWS in FY2011, the Administration requests $1.64 billion, down 0.3% from the FY2010 level of $1.65 billion. By far the largest portion of the FWS annual appropriation is the Resource Management account, for which the President requests $1.27 billion, down 0.07% from the FY2010 level of $1.27 billion. Among the programs included in Resource Management are Endangered Species, the Refuge System, Law Enforcement, and Climate Change Adaptive Science Capacity. Only a few FWS issues that may arise in an appropriations context seem predictable at this early phase of the appropriations cycle. One possibility may be the management of certain California water projects. The Bureau of Reclamation has faced many legal challenges in its role as a water resources manager in California. Among them are lawsuits challenging how Reclamation operations may affect several species listed under the Endangered Species Act (ESA). Over a year ago both FWS and the National Marine Fisheries Service (NMFS) issued separate biological opinions (BiOps) for Central Valley Project (California) water operations, holding that certain actions by Reclamation would jeopardize listed species. Under the ESA, these BiOps provided alternatives to avoid jeopardy or adverse modification of habitat designated as critical to the listed species. In addition, the BiOps provided incidental take statements (ITSs) that authorized takes of listed species that might result even though the action agency followed the BiOp, the alternatives, and any mitigation recommended by FWS or NMFS. Some of the actions in the alternatives may result in restricting water supplies to certain water users in central and southern California. The agricultural users are in regions of California that are also heavily affected by the general downturn in the economy and loss of jobs in the building construction industry. Various California water interests support restricting or modifying the implementation of the BiOps to provide more water for agriculture. Others in the area point to the need for maintaining water in streams not only for listed species but also for commercial fisheries and water quality. While the shape of the congressional response is unclear, FWS appropriations might become a vehicle for an amendment to address California long-standing water issues. Funding for the endangered species program is part of the Resource Management account, and is one of the perennially controversial portions of the FWS budget. The Administration's FY2011 request is $181.3 million, an increase from the FY2010 enacted level of $179.5 million. (See Table 2 .) For FY2010, the House Appropriations Committee's report encouraged FWS to address a backlog of candidate species awaiting listing decisions; the Administration's request proposed a decrease in this program for FY2011. The Senate Appropriations Committee's FY2010 report urged improvement in the consultation program to address past deficiencies. The FY2010 conference report set aside $2.5 million in the consultation program to improve monitoring and record-keeping. The Cooperative Endangered Species Conservation Fund also benefits conservation of species that are listed, or proposed for listing, under the Endangered Species Act, through grants to states and territories. The President proposes to leave the program at the FY2010 level. In total, the two endangered species programs would increase by 1%. The Administration requested $499.5 million for FY2011 for refuge operations and maintenance, a 1% decrease from the FY2010 level of $502.8 million. Costs of operations have increased on many refuges, partly due to special problems such as hurricane damage and more aggressive border enforcement, but also due to increased use, invasive species control, maintenance backlog and other demands. Refuge funding was not keeping pace with new demands, and these demands, combined with the rising costs of rent, salaries, fuel, and utilities, led to cuts in funding for programs to aid endangered species, reduce infestation by invasive species, protect water supplies, address habitat restoration, and ensure staffing at the less popular refuges. While some increases were provided to address these problems in recent years, the FY2009 stimulus law provided additional funding to address these concerns. Some observers contend that the system's problems are ongoing and will be significant after the stimulus funding is exhausted. Balanced against these concerns is congressional interest in general deficit reduction. The Administration requests $63.3 million for nationwide law enforcement, a decrease of 4% from the FY2010 level of $65.8 million. Nationwide law enforcement covers border inspections, investigations of violations of endangered species or waterfowl hunting laws, and other activities. The American Recovery and Reinvestment Act of 2009 (ARRA, P.L. 111-5 ) provided FWS with $165.0 million for Resource Management and $115.0 million for Construction, using nearly identical criteria for project selection. Obligation authority for these funds ceases on October 1, 2010. According to FWS, "[t]o complete this work, we plan to hire local laborers, building contractors, companies and other entities to do the maintenance, repairs, retrofits, and construction." Refuges are among the biggest beneficiaries within FWS of the stimulus funding, and the refuge maintenance backlog could be affected substantially. Improvements in energy conservation at refuge visitor centers are also being funded, as are habitat improvements, such as removal of invasive species, and recovery of protected species. For FY2011, the Administration requests $28.8 million for Climate Change Planning and Adaptive Science Capacity, an increase of 44% over the FY2010 level of $20.0 million. Part of the funding would support work with partners at federal, state, tribal, and local levels to develop strategies to address climate impacts on wildlife at local and regional scales. The remainder would be used to support cooperative scientific research on climate change as it relates to wildlife impacts and habitat. Both portions would support and work through a network of new Landscape Conservation Cooperatives (LCCs) to ameliorate the effects of climate change. The LCCs are an amalgam of research institutions, federal resource managers and scientists, and lands managed by agencies at various levels of government. The additional funding is intended to increase the network of LCCs from 9 to 12, with an eventual goal of 21 LCCs. The Administration requests $106.3 million for land acquisition, an increase of $20.0 million (19%) from the FY2010 enacted level of $86.3 million. See Table 1 . As compared to recent years, the request and the FY2010 level both devote a somewhat higher percentage (80% and 77% respectively) of the funding to acquisition of land for specified federal refuges, rather than for closely related functions (e.g., acquisition management, land exchanges, emergency acquisitions, and purchase of inholdings). This program is funded with appropriations from the Land and Water Conservation Fund. Under the Migratory Bird Conservation Account (MBCA), FWS (in contrast to the other three federal lands agencies) has a source of mandatory spending for land acquisition. The MBCA does not receive funding in annual Interior appropriations bills. The account is permanently appropriated, with funds for FY2011 estimated at $58.0 million, derived from the sale of duck stamps to hunters and recreationists, and import duties on certain arms and ammunition. This estimate is $14.0 million above the previous year, and is based in part on the assumption that Congress approves a proposed increase in the price of duck stamps from $15 to $25. The National Wildlife Refuge Fund (also called the Refuge Revenue Sharing Fund) compensates counties for the presence of the non-taxable federal lands of the NWRS. A portion of the fund is supported by the permanent appropriation of receipts from various activities carried out on the NWRS. However, these receipts are not sufficient for full funding of amounts authorized in the formula, and county governments have long urged additional appropriations to make up the difference. For FY2011, the Administration requests $14.1 million, down 3% from the FY2010 level of $14.5 million. With refuge receipts, the FY2010 appropriation was estimated to fund about 36% of the authorized payment level. A projected increase in receipts, combined with the appropriation of $14.1 million, would increase the payment to 38% of the authorized level in FY2010. The Multinational Species Conservation Fund generates considerable constituent interest despite the small size of the program. It benefits Asian and African elephants, tigers, rhinoceroses, great apes, and marine turtles. The President requests $10.0 million for FY2011, a 13% decrease from the FY2010 level of $11.5 million. See Table 3 . The President also requests $4.0 million for the Neotropical Migratory Bird Conservation Fund, down 20% from the FY2010 level of $5.0 million. State and Tribal Wildlife Grants help fund efforts to conserve species (including nongame species) of concern to states, territories, and tribes. The grants have generated considerable support from these governments. The program was created in the FY2001 Interior appropriations law ( P.L. 106-291 ) and further detailed in subsequent Interior appropriations laws. (It has no separate authorizing statute.) Funds may be used to develop state conservation plans as well as to support specific practical conservation projects. A portion of the funding is set aside for competitive grants to tribal governments or tribal wildlife agencies. The remaining portion is for grants to states. A state's allocation is determined by formula. The Administration's request for FY2011 is $90.0 million, identical to the FY2010 level. See Table 1 , above. The FY2010 appropriations law included language reducing the required state match from 50% to 25% for planning grants. (Because the entire program is part of annual appropriations bills, the change would apply only to that year's appropriation.) It also reduced the required state share of implementation grants from 50% to 35%, to encourage more states to participate. The Administration proposal for FY2011 would return the latter figure to a minimum of 50% from the states for implementation, and allow grants to be distributed to more projects. CRS Report R40185, The Endangered Species Act (ESA) in the 111 th Congress: Conflicting Values and Difficult Choices , by [author name scrubbed] et al. CRS Report RS21157, International Species Conservation Funds , by [author name scrubbed] and [author name scrubbed]. For general information on the Fish and Wildlife Service , see its website at http://www.fws.gov/ .

For Fish and Wildlife Service appropriations in FY2011, the Administration requests $1.64 billion, down 0.3% from the FY2010 level of $1.65 billion. Climate change and land acquisition programs would receive notable increases; construction and funds for wetlands, neotropical migratory birds, and selected foreign species would decrease. The annual Interior, Environment, and Related Agencies appropriations bill funds agencies and programs in three federal departments, as well as numerous related agencies and bureaus. Among the more controversial agencies represented in the bill is the Fish and Wildlife Service (FWS), in the Department of the Interior. This report analyzes FY2011 appropriations and gives a brief review of the agency's appropriation enacted for FY2010 (P.L. 111-88). Emphasis is on FWS funding for programs of interest to Congress, now or in recent years. These include the endangered species program, global climate change, wildlife refuges, land acquisition, international conservation, and state and tribal wildlife grants. In addition, related policy issues are also considered in the funding context. Each of the related policy issues is explained in more detail in the report. For FY2010, the House passed H.R. 2996, the Interior appropriations bill, containing FWS appropriations, on June 26, 2009 (H.Rept. 111-180). The Senate passed its version of H.R. 2996 on September 24, 2009 (S.Rept. 111-38). The conference report (H.Rept. 111-316) included a Division B, providing continuing appropriations for other federal agencies and programs whose FY2010 appropriations had not yet been passed. The House and Senate both approved the conference report on October 29, 2009; the President signed the bill the following day (P.L. 111-88).

The Congressional Review Act ("CRA," 5 U.S.C. SSSS801-808) requires federal agencies to submit all of their final rules to both houses of Congress and the Government Accountability Office (GAO) before they can take effect. The act also establishes a special set of expedited or "fast track" legislative procedures, primarily in the Senate, through which Congress may enact joint resolutions disapproving agencies' final rules. Although the general powers of Congress permit it to overturn agency rules by legislation, the CRA is unique in permitting the use of expedited procedures for this purpose. If a rule is disapproved through the CRA procedures, the act specifies not only that the rule "shall not take effect" (or shall not continue, if it has already taken effect), but also that the rule may not be reissued in a "substantially" similar form without subsequent statutory authorization. The CRA was initially considered a reassertion of congressional authority over rulemaking agencies, but thus far it has had little direct effect on agency rules. After enactment, a CRA joint resolution of disapproval must be presented to the President for signature or veto. Under most circumstances, it is likely that the President would veto the resolution to protect rules developed under his own administration, and it may also be difficult for Congress to muster the two-thirds vote in both houses needed to overturn the veto. Of the nearly 50,000 final rules that have been submitted to Congress since the legislation was enacted in March 1996, the CRA has been used to disapprove only one rule--the Occupational Safety and Health Administration's November 2000 final rule on ergonomics. The March 2001 rejection of the ergonomics rule was the result of a specific set of circumstances created by a transition in party control of the presidency. The majority party in both houses of Congress was the same as the party of the incoming President (George W. Bush). When the new Congress convened in 2001 and adopted a resolution disapproving the rule published under the outgoing President (William J. Clinton), the incoming President did not veto the resolution. Congress may be most able to use the CRA to disapprove rules in similar, transition-related circumstances. This report addresses some of the implications of the CRA with regard to agency rulemaking in the final months of a presidential administration. It first notes the practice of increased rulemaking activity during this period, and describes how this practice has been addressed by two White House memoranda issued during the current Bush Administration. The report then briefly identifies key elements of the complex set of time periods established by the CRA--elements that define points during the disapproval process at which various actions may occur. This discussion focuses on the CRA provisions for carrying over the disapproval process into a subsequent session of Congress, and indicates how rules submitted at the end of a Congress may be affected by these provisions. Then, the report identifies the dates in previous sessions of Congress after which rules have (since the enactment of the CRA) been subject to these carryover provisions, and identifies some of the rules that may be issued in the final months of the current Bush Administration. At the conclusion of most recent presidential administrations, the volume of agency rulemaking has increased noticeably--a phenomenon that has been characterized as "midnight rulemaking." As one observer stated, putting rules into effect before the end of a presidency is "a way for an administration to have life after death," for the only way that a subsequent administration can change or eliminate the rule is by going back through the often lengthy rulemaking processes that are required by the Administrative Procedure Act (5 U.S.C. SS551 et seq. ) and various other statutes and executive orders. The current Bush Administration has responded to this situation by delaying and ultimately reducing the volume of effective rules issued in the last months of the Clinton Administration, and by protecting rules issued in its own last months from the possibility of similarly being rendered ineffective. During the final months of the Clinton Administration, federal agencies issued hundreds of final rules--a number of which were considered "major" under the CRA. In response to this action, on January 20, 2001, the Chief of Staff and Assistant to the new President, Andrew H. Card, Jr., sent a memorandum to the heads of all executive departments and agencies generally directing them to (1) not send proposed or final regulations to the Office of the Federal Register (OFR), (2) withdraw regulations that had been sent to the OFR but not published in the Federal Register , and (3) postpone for 60 days the effective date of regulations that had been published in the Federal Register but had not yet taken effect. The memorandum cited the desire to "ensure that the President's appointees have the opportunity to review any new or pending regulations." In 2002, GAO reported that 90 final rules had their effective dates delayed as a result of the Card memorandum, and 15 rules still had not taken effect one year after the memorandum was issued. The Bush Administration has also taken action in anticipation of possible "midnight rules" at the end of the current President's term. On May 9, 2008, White House Chief of Staff Joshua B. Bolten issued a memorandum to the heads of executive departments and agencies stating that the Administration needed to "resist the historical tendency of administrations to increase regulatory activity in their final months." Therefore, Bolten said that, except in "extraordinary circumstances, regulations to be finalized in this Administration should be proposed no later than June 1, 2008, and final regulations should be issued no later than November 1, 2008." He also said that the Administrator of the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget would "coordinate an effort to complete Administration priorities in this final year," and the OIRA Administrator would "report on a regular basis regarding agency compliance with this memorandum." The CRA is a complex statute, and among the act's chief complexities is its use of at least four different ways to measure the passage of time, each for different purposes: calendar days ; days of continuous session , which excludes all days when either the House of Representatives or the Senate is adjourned for more than three days; session days , which include only calendar days on which a chamber is in session; and legislative days , which end each time a chamber adjourns and begin each time it convenes after an adjournment. The following sections describe how the CRA uses each of these measures of time, focusing especially on the way in which they affect Congress's ability to use the CRA disapproval process for rules submitted toward the end of a session of Congress, and especially toward the end of a presidential term. Section 801(a)(3) of the CRA generally requires that the effective dates of all "major" rules be delayed for 60 calendar days after the date they are provided to Congress or published in the Federal Register , whichever is later. This delay in the effective dates helps to ensure that Congress has an opportunity to review and, if necessary, disapprove these major rules before they take effect. All non-major rules are allowed to take effect as stipulated in the rules themselves. Nevertheless, even if a rule has already taken effect, the CRA can still be used to disapprove it if time remains in the periods established for congressional proceedings. Section 802(a) of the CRA states that a joint resolution of disapproval may be introduced as soon as a rule is received by Congress, but the resolution must be introduced no later than 60 days after that date, "excluding days either House of Congress is adjourned for more than 3 days during a session of Congress." This 60 days of continuous session defines the "initiation period" for CRA resolutions of disapproval. For example, if the House of Representatives and the Senate adjourn on a Friday and both reconvene on the following Monday or Tuesday, the 60-day "clock" for the introduction of resolutions of disapproval continues to run throughout the weekend because neither house was out of session for more than three days. On the other hand, if the House is in recess for a month but the Senate continues in session, then the 60-day "clock" for this "initiation period" stops until the House comes back into session. Once introduced, resolutions of disapproval are referred to the committees of jurisdiction in each house of Congress. The House of Representatives would consider the resolution under its general procedures, very likely as prescribed by a special rule reported from the Committee on Rules. In the Senate, however, if the committee has not reported a disapproval resolution within 20 calendar days after the regulation has been submitted and published, then the committee may be discharged of its responsibilities and the resolution placed on the Senate calendar if 30 Senators submit a petition to do so. Once the Senate committee has reported or been discharged, the CRA makes consideration of the measure privileged, prohibits various other dilatory actions, disallows amendment, and limits floor debate to 10 hours. Section 802(e) of the CRA states that the Senate has 60 session days from the date a rule is submitted to Congress or published in the Federal Register to use these expedited procedures and act on a joint resolution of disapproval. This "action period" for the Senate includes only the calendar days on which the Senate is actually in session, in contrast to the "days of continuous session" for the initiation period, which includes all days other than those when either house is in adjournment lasting more than three days. Because of this difference in which days are counted, the "action period" will normally last longer than the "initiation period." Section 801(d) of the CRA provides that, if Congress adjourns its annual session sine die less than 60 legislative days in the House of Representatives or 60 session days in the Senate after a rule is submitted to it, then the rule is subject, during the following session of Congress, to (1) a new initiation period in both chambers and (2) a new action period in the Senate. The purpose of this provision is to ensure that both houses of Congress have sufficient time to consider disapproving rules submitted during this end-of-session "carryover period." In any given year, the carryover period begins after the 60 th legislative day in the House or session day in the Senate before the sine die adjournment, whichever date is earlier . The renewal of the CRA process in the following session occurs even if no resolution to disapprove the rule had been introduced during the session when the rule was submitted. For purposes of this new initiation period and Senate action period, a rule originally submitted during the carryover period of the previous session is treated as if it had published in the Federal Register on the 15 th legislative day (House) or session day (Senate) after Congress reconvenes for the next session. In each chamber, resolutions of disapproval may be introduced at any point in the 60 days of continuous session of Congress that follow this date, and the Senate may act on the resolution during the 60 days of session that follow the same date. In light of the CRA's requirement that major rules be delayed for 60 calendar days, the May 2008 Bolten memorandum's requirement that final rules be published in the Federal Register by November 1, 2008, indicates that these rules will have taken effect before the 111 th Congress begins and the next President takes office in January 2009. As a result, the Bolten memorandum may also have the effect of preventing the next presidential administration from doing what was done via the Card memorandum--directing federal agencies to extend the effective dates of any rules that had been published during the Bush Administration but had not taken effect (since the rules would have already taken effect by the time the next President takes office). However, many rules submitted before the Bolten memorandum deadline will remain subject to congressional disapproval in the 111 th Congress because they will not have been submitted before the starting point of the carryover period, and because the CRA permits Congress to enact resolutions of disapproval regarding rules that have already taken effect. Although the exact starting point for the CRA carryover period in the second session of the 110 th Congress can be determined only after sine die adjournment has taken place, the likely date or range of dates may be illuminated by examining congressional activity in prior years. To identify these earlier starting points, CRS examined the calendars of the House and the Senate for all sessions of Congress during the previous 20 years (i.e., from the 100 th Congress, which began in 1987, through the first session of the 110 th Congress in 2007). Counting backwards from the end of each session, we determined the date after which there were either less than 60 days of session in the Senate or less than 60 legislative days in the House. Although some of these sessions of Congress predate the enactment of the CRA, the starting points for those sessions were included to better understand the trends in these dates. Table 1 below presents these data. For each session of Congress, the earlier of the House or Senate starting point dates is shown in the table in bold face . Since the CRA was enacted in March 1996, any rule submitted after the specified date in that session was available for disapproval under the CRA process during the following session of Congress. As the table indicates, the starting points for the CRA carryover periods varied between the two houses of Congress in each session, and across the sessions within each chamber. The data also show the following: In all but two sessions of Congress during this period (i.e., the first and second sessions of the 101 st Congress), the starting point date for the House of Representatives occurred earlier than the starting point date for the Senate. In every session since the CRA was enacted in March 1996, the House starting point has determined the relevant date for CRA carryovers to the next session of Congress. Across all of these sessions of Congress, the earliest starting point for the carryover period was May 12 (second session of the 108 th Congress), and the latest date was September 9 (first session, 100 th Congress). However, it has been unusual for the starting point to be before June or after July. The median relevant starting point (i.e., half occurring before, half after) for all of these sessions of Congress was June 25. The starting points for the CRA carryover periods were almost always earlier during the second sessions of Congress (i.e., during election years) than the starting points in the first sessions. The median starting point during all second sessions was June 9; the median during first sessions was July 19. This difference in median starting points is explained by the fact that both houses often adjourn or recess just prior to and/or after congressional elections. Since the CRA was enacted in March 1996, the starting points for the carryover periods during second sessions of Congress have been even earlier than for the full period, ranging from May 12 to June 23, with the median starting point being June 7. Any rule that was submitted to Congress after the relevant starting point date in any session since the CRA was enacted in March 1996 would not have had 60 days of session in both houses, and Congress' ability to introduce and act on CRA resolutions of disapproval regarding the rule carried over to the next session of Congress. A new initiation period and a new action period for the rule began on the 15 th session (Senate) or legislative (House) day of that new session of Congress. Whether the patterns discussed above will hold true in the second session of the 110 th Congress is currently unclear. The targeted adjournment date in the House of Representatives is September 26, 2008, but no targeted adjournment has been set in the Senate. It is possible that the House and the Senate could have so many days in session late in the year that the starting point for the carryover period (determining which rules would be eligible for new CRA initiation and action periods in the 111 th Congress) would fall later than any of the above dates. However, doing so would require both houses of Congress to be in session for more days at the end of the session than has occurred during the past 20 years. Another way to understand the significance of the starting point dates for CRA carryover periods is to identify some of the rules that may be issued late in the second session of the 110 th Congress (and that therefore may be subject to disapproval during the first session of the 111 th Congress). According to press accounts and other sources, federal agencies are reportedly planning to make a number of controversial proposed rules final by the end of calendar year 2008, including: an Environmental Protection Agency (EPA) revision of the definition of "solid waste" that, if consistent with the October 2003 proposed rule, would exclude certain types of sludge and byproducts (referred to in the proposed rule as "hazardous secondary waste") from regulation under the Resource Conservation and Recovery Act. a Department of Transportation (DOT) rule updating existing standards for roof-crush resistance in passenger vehicles. Several Members of Congress have criticized the August 2005 proposed rule, and after a June 4, 2008, Senate oversight hearing and a bipartisan letter from several Senators, DOT asked Congress to extend the statutory deadline for the issuance of the final rule until October 2008. an EPA "new source review" rule that, if made final, would alter current requirements for when upgrades at older power plants would require the installation of modern anti-pollution equipment. EPA said that the change would balance environmental protection with the "economic need of sources to use existing physical and operating capacity." However, environmental groups contend that the change would weaken existing protections and is counter to a recent decision of the Supreme Court related to this issue. an EPA rule that is expected to change how pollution levels are measured under certain parts of the Clean Air Act, and that some contend will change emissions standards for industrial facilities operating near national parks. a National Park Service rule that, if consistent with the April 2008 proposal, would change the agency's current policy and permit state laws to determine whether concealed firearms could be carried in national parks. a Department of Justice (DOJ) proposed rule that would "clarify and update" the policies governing criminal intelligence systems that receive federal funding, but that some contend would make it easier for state and local police to collect, share, and retain sensitive information about Americans, even when no underlying crime is suspected. a National Highway Traffic Safety Administration rule on how automakers are to meet stricter fuel economy standards for cars and light trucks pursuant to the Energy Independence and Security Act of 2007, which requires the agency to raise fuel economy standards to a fleet wide average of at least 35 miles per gallon by 2020. a Food and Drug Administration (FDA) rule that, if consistent with the proposal, would prohibit pharmaceutical companies and manufacturers of medical devices from changing the labeling of an approved drug, biologic, or medical device unless there is "evidence of a causal association" between the product and a safety concern. Several committee and subcommittee chairmen in the House and Senate have written to FDA expressing concern that this standard, if made final, would "inevitably result in fewer company-initiated warnings." an Employment Standards Administration (ESA) rule that, if made final, would change the implementation of the Family and Medical Leave Act of 1993. ESA and others defended the rule at an April 2008 congressional hearing, while other participants in the hearing (including the chairwoman of the subcommittee) said it would make it more difficult for workers to exercise their rights under the act. The proposed rule is expected to be made final in November 2008. a Department of the Interior (DOI) rule that, in the words of the proposal, requires that surface coal mining operations "minimize the creation of excess spoil and the adverse environmental impacts of fills," but that some observers have said would allow deposits of waste mountaintop material within 100 feet of certain streams. a proposed amendment to the Federal Acquisition Regulation to require certain contractors and subcontractors to use the E-Verify system to confirm that certain of their employees are eligible to work in the United States, but which the U.S. Chamber of Commerce and others said contravenes the intent of Congress and raises numerous practical difficulties. a Housing and Urban Development (HUD) rule that would amend disclosure regulations under the Real Estate Settlement and Procedures Act (RESPA), and that some Members of Congress have requested that HUD withdraw. a Department of Health and Human Services proposed rule that would protect medical providers' right to choose whether they would help perform abortions and other medical procedures, but that some have said could affect the ability of women to obtain certain forms of contraception and other health services. a Department of Labor proposed rule that would change the way that occupational health risk assessments are conducted within the department. Legislation has been introduced in the 110 th Congress ( H.R. 6660 ) that would prohibit the issuance or enforcement of this rule. a DOI proposed rule that would, among other things, give federal agencies greater responsibility in determining when and how their actions may affect species under the Endangered Species Act. Several Members of Congress have expressed concerns about the draft rule, and congressional hearings are expected. The foregoing information suggests the following observations: Federal departments and agencies are likely to issue a number of significant final rules during the last months of the current Bush Administration, as has been done at the conclusion of most recent presidential administrations. Some Members of Congress have already expressed concerns about several of those Bush Administration "midnight" rules, should they be issued. All of the final rules that are submitted to Congress during the second session of the 110 th Congress with less than 60 session days left in the Senate or less than 60 legislative days left in the House will be automatically be carried over to the 111 th Congress. Starting on the 15 th legislative day (House) or session day (Senate) of the new session, each rule will have a new CRA initiation period (60 days of continuous session of Congress) and a new action period in the Senate (60 days of session) for resolutions of disapproval. House and Senate calendars from previous sessions of Congress, particularly sessions that occurred during election years (second sessions), suggest that any final rule submitted to Congress after June 2008 may be carried over to the first session of the 111 th Congress, and may be subject to a resolution of disapproval during that session. However, the starting point for the carryover period could slip to late September or early October if an unprecedented level of congressional activity occurs late the session. Expedited procedures in the Senate and special rules in the House can help ensure that such resolutions are acted upon in each chamber. However, the enactment of any resolution of disapproval will still depend heavily on the action of the new President. If the resolution of disapproval is vetoed, it will require a two-thirds vote in both houses of Congress for the targeted rule to be rejected. The memorandum issued by White House Chief of Staff Bolten directing agencies to issue most final rules by November 1, 2008, would, if fully implemented, ensure that most of the rules--even those considered "major" under the CRA and whose effective dates must be delayed for 60 days--would take effect before the 111 th Congress begins and the next President takes office in January 2009. As noted earlier in this report, the Bolten memorandum may also have the effect of preventing the next presidential administration from doing what was done via the Card memorandum--directing federal agencies to extend the effective dates of any rules that had been published during the Bush Administration but had not taken effect (since the rules would have already taken effect by the time the next President takes office). In addition, some believe that the memorandum may be cited as a reason why certain rules will not be issued before the end of the Bush Administration. However, as also pointed out earlier, the Bolten memorandum will have no impact on the next Congress's ability to overturn agency rules that are submitted within the last 60 legislative or session days in each house of Congress, since the CRA permits Congress to enact resolutions of disapproval regarding rules that have already taken effect. Also, once a rule is disapproved, the CRA prevents the agency from proposing a substantially similar rule without subsequent statutory authorization. Even without the CRA, though, Congress can stop rulemaking in other ways. For example, each year, Congress includes provisions in appropriations legislation prohibiting rulemaking within particular policy areas, preventing particular proposed rules from becoming final, and prohibiting or affecting the implementation or enforcement of rules. However, unlike disapprovals under the CRA, the regulatory requirements that have been put into effect are not rescinded, and the agency is not prohibited from issuing a substantially similar regulation in the future.

The Congressional Review Act ("CRA," 5 U.S.C. SSSS801-808) established a special set of expedited or "fast track" legislative procedures, primarily in the Senate, through which Congress may enact joint resolutions disapproving agencies' final rules. Members of Congress have 60 "days of continuous session" to introduce a resolution of disapproval after a rule has been submitted to Congress or published in the Federal Register, and the Senate has 60 "session days" to use CRA expedited procedures. Although the CRA was considered a reassertion of congressional authority over rulemaking agencies, only one rule has been disapproved using its procedures, and that reversal was the result of a specific set of circumstances created by a transition in party control of the presidency. The CRA also indicates that if a rule is submitted to Congress less than 60 session days in the Senate or 60 legislative days in the House of Representatives before Congress adjourns a session sine die, then the rule is carried over to the next session of Congress and treated as if it had been submitted to Congress or published in the Federal Register on the 15th legislative day (House) or session day (Senate). This restart of the CRA process in a new session of Congress occurs even if no joint resolution of disapproval had been introduced regarding the rule during the preceding session of Congress. A review of the House and Senate calendars from the first session of the 100th Congress to the first session of the 110th Congress indicates that the date triggering the carryover provisions of the CRA (i.e., the date after which less than 60 legislative or session days remained in a session) has usually been determined by the House of Representatives, and that the date was almost always earlier in second sessions of Congress (during which congressional elections are held) than in first sessions. The median date after which the "carryover periods" began for all sessions during this period was June 25, and the median for all second sessions was June 9. Since the CRA was enacted in March 1996, the median starting point for these carryover periods during second sessions of Congress has been somewhat earlier--June 7. At the conclusion of most recent presidential administrations, the volume of agency rulemaking has increased noticeably. In May 2008, the White House Chief of Staff generally required federal agencies to finalize all regulations to be issued during the Bush Administration by November 1, 2008. According to press accounts and other sources, federal agencies are planning to issue a number of significant final rules by the end of 2008. If any of these "midnight rules" are submitted within the "carryover period" of the second session of the 110th Congress, then they will be subject to the carryover provisions of the CRA. This report will be updated to reflect changes in factual material or other developments.

Under the Chicago Convention, agreed in 1944, airlines provide international air services for passengers, cargo, and mail on the basis of bilateral or multilateral air service agreements covering the countries concerned. Traditionally, air service agreements covered topics such as route selection, airline identity, capacity, pricing, provisions for charter and cargo transportation, and a number of ancillary issues. Open skies agreements were conceived as a way to stretch the framework of bilateral air service agreement to the least restrictive form by "giving the airlines of each contracting party unlimited access to operate services to and from any point in each other's territory, creating a virtually untrammeled pricing regime, and eliminating prescribed curbs on airline capacity." In addition, open skies agreements contain provisions governing commercial opportunities, safety, and security. In August 1992, the U.S. Department of Transportation (DOT) announced its "open skies" initiative, which was intended to continue the trend of liberalizing international civil aviation. As defined by DOT, "open skies" consists of the following 11 principles: open entry on all routes between the signatory countries; unrestricted capacity and frequency on all routes; the right to operate between any point in the United States and any point in other signatory countries without restriction, including service to intermediate and beyond points, and the right to transfer passengers to an unlimited number of smaller aircraft at the international gateway; flexibility in setting fares; liberal charter arrangements; liberal cargo arrangements; the ability of carriers to convert earnings into hard currency and return those earnings to their homelands promptly and without restriction; open code-sharing opportunities; the right of a carrier to perform its own ground handling in the foreign country; the ability of carriers to freely enter into commercial transactions related to their flight operations; a commitment to nondiscriminatory operation of and access to computer reservation systems. Since the open skies initiative was unveiled in 1992, the United States has reached 114 open skies agreements governing international air passenger and air freight services. These agreements typically allow any airline based in a signatory jurisdiction to offer service between the jurisdictions, and let the airlines determine their flight routes, frequencies, fares, and aircraft types according to market demand. In general, international air service agreements involve the granting of various levels of the "freedoms of the air." The foundation and framework for modern international civil aviation agreements can be traced back to the Chicago Convention, which affirmed the principle that every nation has absolute and exclusive sovereignty over its airspace. The Chicago Convention produced two ancillary accords, the International Air Services Transit Agreement ("Two Freedoms Agreement") and the International Air Transport Agreement ("Five Freedoms Agreement"). These are the "five freedoms" of air transport that are often referred to in negotiations over international air service agreements. The Two Freedoms Agreement contains provisions limited to overflight and noncommercial landing rights. These provisions are widely accepted around the world. The Five Freedoms Agreement includes the two transit rights in the Two Freedoms Agreement and three additional freedoms called "traffic rights" that permit airlines to develop deeper transnational route networks: The Third Freedom allows an air carrier to deplane traffic that was enplaned in its home country in a foreign country. The Fourth Freedom refers to the right to enplane traffic in the foreign country that is bound for the carrier's home country. The Fifth Freedom is the right to enplane traffic at one foreign point and deplane it at another foreign point as part of a continuous operation also serving the airline's home country. After the United States implemented domestic airline deregulation in the late 1970s, it began to pursue more liberal and market-based international agreements. However, some aspects of international civil aviation remain subject to U.S. laws. Current U.S. law requires that to operate as an air carrier between domestic locations in the United States, a carrier must be a "citizen of the United States." To be considered a citizen for civil aviation purposes, an entity must be owned by an individual U.S. citizen, a partnership of persons who are each U.S. citizens, or a corporation (1) whose president and at least two-thirds of whose directors and other managing officers are U.S. citizens, (2) that is under the actual control of U.S. citizens, and (3) has at least 75% of its voting stock owned or controlled by U.S. citizens. This limits foreign ownership of any U.S. airline to 25%, considerably lower than the 49% limit set by the EU. Another U.S. law contains a general prohibition against cabotage activity, excluding foreign airlines from providing domestic point-to-point air services. Since the Chicago Convention, international civil aviation rights have developed primarily through a series of bilateral agreements treated in the United States as "executive agreements" rather than as treaties, meaning they do not require the advice or consent of Congress. DOT's Office of the Assistant Secretary for Aviation and International Affairs, with assistance from the State Department, is responsible for negotiating bilateral agreements and awarding U.S. airlines the right to offer services provided for in those agreements. There are currently two debates related to open skies agreements. In both cases, several U.S. network airlines and unions representing U.S. airline workers have objected that foreign carriers are making use of rights granted under open skies agreements in ways that were not intended when those agreements were reached. The airlines have called for "fair skies." Some other U.S. air carriers, as well as groups representing airline passengers and cargo shippers, have accused advocates of "fair skies" of seeking to limit international competition. In one case, representatives of three major U.S. airlines--American Airlines, Delta Air Lines, and United Airlines--and airline labor unions allege that three carriers based in the Persian Gulf region have received subsidies and government support that contravene Article 11 of the U.S.-United Arab Emirates (UAE) open skies agreement and identical language in the U.S.-Qatar agreement. The language in question states the following: "Each Party shall allow a fair and equal opportunity for the designated airlines of both Parties to compete.... " The other case, also initiated by U.S. network airlines and labor unions, involves Norwegian Air International (NAI), which seeks to operate transatlantic flights to U.S. destinations. The opponents accuse NAI, a subsidiary of Norway-based Norwegian Air Shuttle, of registering in Ireland so that it could employ a business model that purportedly would violate labor standards provisions in the U.S.-European Union (EU) open skies agreement. On a separate but related note, there has been debate over a U.S. Customs and Border Patrol (CBP) preclearance facility that began operation in January 2014 at Abu Dhabi International Airport in the UAE. The presence of a preclearance facility makes an airport more attractive to U.S.-bound travelers, as they are not delayed by the need to pass through immigration and customs controls upon arrival in the United States. The Abu Dhabi facility was strongly opposed by some U.S. air carriers, labor unions, and Members of Congress because Etihad Airways, owned by the government of Abu Dhabi, is the only airline that operates nonstop flights from Abu Dhabi to the United States. Opponents were concerned that U.S. carriers, which rely on code-sharing partners to serve Abu Dhabi via connections in Europe, would be competitively disadvantaged because their passengers are not eligible for preclearance. Three fast-growing air carriers in the Persian Gulf region are involved in the controversy: Emirates Airline, Etihad Airways, and Qatar Airways. All three airlines are state-owned: Emirates Airline by the government of Dubai, Etihad Airways by the government of Abu Dhabi, and Qatar Airways by the government of Qatar. Dubai and Abu Dhabi are emirates within the UAE. These three airlines are referred to as the Persian Gulf carriers in this report. These relatively young carriers are among the fastest-growing airlines in the world. For example, the youngest among the three, Etihad Airways, was established by royal decree in July 2003. It started operation in November 2003, and has grown extremely rapidly. Nearly 14.3 million passengers flew Etihad in 2014, an increase of 24% over the 2013 level. Emirates Airline was established in 1985; Qatar Airways in 1993. Emirates flew 44.5 million passengers and 2.25 million tons of cargo in its fiscal year 2013-2014, and is now the world's largest international airline by capacity. The three carriers have young fleets and hundreds of wide-body aircraft on order. Collectively, these three carriers serve about 10 U.S. cities. Although the open skies agreements allow U.S. carriers to fly between the United States and Qatar and between the United States and the UAE, no U.S. carriers serve Qatar or Abu Dhabi. Delta and United each operate one daily round trip to Dubai. American Airlines, Delta Air Lines, and United Airlines, joined by the Air Line Pilots Association, International, as well as the Allied Pilots Association and the Association of Professional Flight Attendants, accused the UAE and Qatar of providing more than $40 billion in subsidies to the Persian Gulf carriers over the past decade. They claim that such practices have distorted the global air transport market in favor of the three state-owned carriers. Americans for Fair Skies, a group led by former Air Line Pilots Association (ALPA) President Lee Moak, joined the coalition to oppose the expansion of the Persian Gulf carriers' service to the United States. Among specific allegations, the opponents claim that Emirates Airline received between $1.6 billion and $4 billion in subsidies when its government took over its fuel-hedging losses, and at least $2.3 billion in subsidies since 2004 from subsidized Dubai airport expansions; that Etihad Airways received $6.3 billion in government capital injections plus $4.6 billion in interest-free loans; and that Qatar Airways benefited from airport fee exemptions and rebates and billions of dollars in interest-free, unsecured loans from its state owner that did not require repayment. The U.S. carriers also accuse their Persian Gulf rivals of "skyrocketing capacity" at more than three times the global GDP growth rate, and of targeting international routes to the United States. The Wall Street Journal reported that, collectively, the Persian Gulf carriers have doubled the number of available seats on flights to the United States since 2009. The opponents have promoted a concept they refer to as "fair skies," which would limit foreign carriers' access to the United States. They have asked the Administration to freeze the number of flights Persian Gulf carriers operate to the United States and to renegotiate the open skies accords with Qatar and the UAE, or even annul the agreements if no terms can be reached within a fair-competition framework. All open skies agreements the United States has entered include provisions for consultations to resolve disputes. However, the agreements do not provide for unilateral changes, nor for capacity restrictions. A similar debate was initiated in Europe in late 2014 by Lufthansa Group and Air France-KLM, and by labor groups such as the European Cockpit Association (ECA). They have been pushing for the EU to limit certain traffic rights offered by open skies, and advocate a change to what the ECA and other groups call "fair skies," which would allow governments to limit some traffic rights to carriers perceived to benefit from unfair state subsidies and/or support. The European Commission indicated that it would address German and French concerns over the alleged unfair subsidies to Persian Gulf carriers later in 2015. The German Transport Minister and his French counterpart reportedly have asked the European Commission not to grant additional traffic rights into the EU until the dispute is resolved. The two ministers have reportedly said that the Netherlands, Belgium, Sweden, and Austria support their position. The United Kingdom, home to the British Airways, has not expressed an official view. British Airways is now owned by International Airlines Group (IAG), which is also the parent company of the Spanish airline Iberia and the Spanish low-cost carrier Vueling. In January 2015, Qatar Airways acquired nearly 10% of IAG's shares. At the end of March 2015, British Airways and Iberia left the Brussels-based Association of European Airlines (AEA), an industry lobby group, reportedly over disagreement with Air France-KLM and Lufthansa regarding their demands to limit access to Europe for the Persian Gulf carriers and to investigate the alleged government subsidies to the Persian Gulf carriers. Air Berlin, in which Etihad holds over a 29% stake, reportedly also left AEA soon after the departure of British Airways. All three Persian Gulf carriers have denied the subsidy allegations individually without making a joint response to the U.S. allegations. Qatar Airways CEO Akbar Al Baker contended that Qatar's government acts as a shareholder, saying the situation is similar to instances in the past when European governments owned carriers such as Lufthansa, British Airways, and Air France. He pointed out that U.S. airlines do not fly to 90% of the destinations that Qatar Airways serves. The Persian Gulf carriers have suggested that the U.S. airlines benefited from financial restructuring under Chapter 11 of the U.S. Bankruptcy Code in the aftermath of the 9/11 attacks, indicating that shedding debt obligations under bankruptcy protection might be seen as a subsidy outside the United States. Emirates, Etihad, and Qatar Airways maintain that they are unsubsidized and profitable companies, and that they offer Americans access to cities around the globe that U.S. airlines ignore. They say the U.S. airlines should improve the way they run their businesses, offer better service, and compete. As did the U.S. airlines and labor unions, the Persian Gulf carriers have presented their case to U.S. government officials. In early April 2015, the U.S. Departments of State, Commerce, and Transportation invited comments from interested parties on both the subsidies case and whether the U.S. government should begin consultations with the governments of the UAE and Qatar. Emirates Airline filed a request asking the U.S. government to release all materials that the Partnership for Fair & Open Skies, Delta Air Lines, United Airlines, and American Airlines have submitted to make their case. Emirates said in its filing that it would be "fundamentally unfair for Emirates to be asked to respond to specific allegations when it continues to be denied full access to all of the materials the Coalition claims support those allegations." Some trade groups, tourism interests, and consumer advocates, including Airports Council International-North America, the U.S. Travel Association, the U.S. Business Travel Coalition, and some domestic passenger and cargo carriers, have voiced their support for the competition brought by the open skies agreements. These organizations have alleged that the U.S. air carriers that have complained about the subsidization of the Persian Gulf carriers have themselves benefited from extensive U.S. government subsidies. FedEx Corp., concerned about potential restrictions to its air cargo hub in Dubai, maintains that the open skies deals with the Persian Gulf countries are crucial to its cargo business, and warns that "retrenchment in any way from open skies by the U.S. would jeopardize the economic growth benefits that air cargo provides." U.S. passenger airline JetBlue, which has a code-sharing agreement with Emirates, supports the open skies policy and argues that its own success in serving the Caribbean and Latin America would not have been possible without such agreements. The major aircraft manufacturers, such as Boeing and Airbus, have customers on both sides. They have not explicitly taken sides in the debate. Boeing and Airbus maintain that they generally support the liberalization of international aviation and oppose drastic changes to the Qatar and UAE agreements. The Persian Gulf air carriers are based in locations with relatively moderate population levels and moderate growth potential for local air traffic. However, they appear to be following the operational model of Singapore Airlines, which has been developing its hub to connect travelers between Asia Pacific and Europe or North America. From the Persian Gulf carriers' hubs in Dubai, Abu Dhabi, and Doha, 80% of the world's population lives within an eight-hour flying distance. This has helped the Persian Gulf carriers to benefit from the growth in traffic between U.S. and European points and Asia, especially the Indian subcontinent. These carriers are also changing the landscape of international aviation. First, by connecting passengers via their hubs in the Persian Gulf, they alter global aviation connectivity and put pressure on major traditional international air travel hubs such as Paris and Frankfurt. In a Wall Street Journal article, Lufthansa said that its Frankfurt hub has lost nearly a third of its market share on routes between Europe and Asia since 2005, and that more than 3 million passengers now fly annually from Germany to other points via Persian Gulf hubs. Lufthansa said the market share erosion would affect its North American partners such as United Airlines and Air Canada as it cuts flights and reduces connections for North American passengers who change planes in Germany en route to points in Europe, Africa, and South Asia. Second, by acquiring stakes in or forming partnerships with other airlines, the Persian Gulf carriers are challenging the established global alliances while raising concerns over the role they would play in the existing network alliances. For example, Etihad has been expanding its network and operations through investments in relatively small European airlines, as well as by purchasing equity in India's Jet Airways (24%) and Virgin Australia (22%). It has acquired a 49% stake in the Italian carrier Alitalia, and also holds stakes in other "partner airlines." Alitalia is a member of the Skyteam alliance, whose members include Delta and Air France-KLM. Air Berlin, in which Etihad owns a 29.21% stake, is in the Oneworld alliance, whose members include American Airlines, British Airways, and Qatar Airways. However, aside from the opposition from Europe and the United States, the Persian Gulf carriers face issues that may challenge their future growth. One key issue, according to a 2014 International Air Transport Association (IATA) report, is airspace management. Since approximately 40%-60% of airspace in the Persian Gulf region is controlled by various countries' militaries, the limited available airspace may hamper the airlines' continuing expansion. Another challenge is staff shortage: with the Persian Gulf carriers leading the world in new aircraft orders, the region may face pilot and crew shortages in the next 20 years. On the other hand, the government of Dubai is building a new airport, Al Maktoum International Airport, which it envisions as the largest passenger hub in the world. Al Maktoum, located approximately 40 miles from Dubai International Airport, is used mainly as a cargo airport at present and sees only a handful of passenger flights. Last September, Dubai's ruler, Sheik Mohammed bin Rashid Al Maktoum, approved a $32 billion expansion plan that would enable the airport to handle 120 million passengers per year and to service 100 Airbus 380 jets at the same time. Further expansion plans would take capacity to 220 million passengers per year. The government expects Emirates to relocate its hub to the new airport. The existing Dubai International Airport is expected to remain in operation. An application by Norwegian Air International (NAI) for a foreign air carrier permit under the U.S.-EU open skies agreement has become controversial. NAI is a subsidiary of Norwegian Air Shuttle, the third-largest discount carrier in Europe. Norwegian Air Shuttle and its intercontinental arm, Norwegian Long Haul, hold FAA-issued airline certificates under Norwegian license and provide nonstop services to several U.S. destinations from several European countries, including Norway. These services are authorized under the U.S.-EU agreement, which has applied to Norway, not an EU member state, since 2011. On December 3, 2013, Norwegian Air Shuttle submitted an application for NAI, which is registered in Ireland, to operate transatlantic flights to U.S. destinations. NAI's application has been pending before DOT for more than a year. In general, DOT approves EU carriers' applications within weeks, making the delay unprecedented. At issue is NAI's plan to operate with an Irish air operator certificate, using not only Norwegian, EU, and U.S. citizens as crew members, but also contracting for crew members from other countries. Opponents, including labor groups, some airlines, and many Members of Congress, allege that NAI violates Article 17 bis of the U.S.-EU open skies agreement, which states that "opportunities created by the Agreement are not intended to undermine labour standards.... " They contend that NAI's practices, which include hiring crew in Asia via employment agencies and using an Irish Air Operator's Certificate instead of a Norwegian one, would create precedent for using low-wage crew members from third countries aboard flights to the United States and violate the U.S.-EU open skies agreement. On the other side of the argument, several former U.S. secretaries of transportation, as well as EU officials and the Irish Aviation Authority, say the application is valid under the terms of the U.S.-EU open skies agreement and would encourage competition and bring lower fares. On September 2, 2014, DOT issued an order dismissing NAI's request for a temporary exemption from the rules so that it could begin flights to the United States while DOT considers its application for a foreign air carrier permit. This dismissal was not a ruling on the merits of NAI's permit application. The EU delegations as well as European Commission and Norwegian officials believe that the U.S. authorities are in breach of the U.S.-EU open skies agreement by delaying NAI's traffic rights, and have raised the issues multiple times. Norwegian Air Shuttle is one of the few European discount carriers now flying to the United States. However, other low-fare airlines in Europe are known to be interested in offering transatlantic service, making it possible that the controversy raised by the NAI application will reappear in similar context, but with different air carriers. In the Consolidated and Further Continuing Appropriations Act, 2015 ( P.L. 113-235 ), Congress adopted two provisions related to the NAI issue. Section 415(a) of Division K prohibits any expenditure of funds to approve a foreign air carrier permit that would contravene Article 17 bis of the U.S.-EU open skies agreement. The section immediately following, Section 415(b), provides that the language of Section 419(a) does not bar issuance of a foreign air carrier permit that is consistent with the U.S.-EU open skies agreement and U.S. law. Neither section binds DOT to reach any particular conclusion with respect to the NAI application. In the Department of Homeland Security Appropriations Act, 2015 ( P.L. 114-4 ), Congress included a provision regarding the establishment of new CBP air preclearance operations. Section 555 prohibits funds from being used for new air preclearance agreements entering into force after February 1, 2014, unless such operations provide (1) a homeland or national security benefit to the United States; (2) U.S. passenger airlines are not precluded from operating at preclearance locations; and (3) a U.S. passenger air carrier is operating at any airport contemplated for establishment of new air preclearance operations. So far there has been no legislative action regarding the allegations against the Persian Gulf air carriers. Congress has no legal authority to suspend or alter the air service agreements between the United States and Persian Gulf countries. On April 30, 2015, in a letter to Secretary of State John Kerry and Secretary of Transportation Anthony Foxx, a bipartisan group of 262 lawmakers expressed their concerns and urged the agencies to begin consultations with the governments of the UAE and Qatar.

"Open skies" agreements are a form of international civil air service agreement that facilitates international aviation in a deregulated environment. They eliminate government involvement in airline decisionmaking about international routes, capacity, and prices. Since 1992, the United States has reached 114 open skies agreements governing international air passenger and air freight services. There are two ongoing controversies that are related to open skies agreements. One controversy involves some U.S. network airlines' and labor unions' opposition to the expansion of three fast-growing airlines based in the Persian Gulf region--Emirates Airline, Etihad Airways, and Qatar Airways. The U.S. carriers allege the subsidies and support that these three Persian Gulf carriers purportedly receive from their government owners contravene fair competitive practices requirements of their home countries' open skies agreements with the United States. The U.S. carriers have urged the Administration to freeze the number of flights Gulf carriers operate to the United States and to renegotiate the open skies accords with Qatar and the United Arab Emirates. Similar protests have occurred in Europe, initiated by Lufthansa Group and Air France-KLM, and organized labor. The other controversy concerns Norwegian Air International (NAI), an airline that is registered in Ireland and plans to operate transatlantic flights to U.S. destinations. NAI's application has met strong opposition from labor groups and some airlines that allege that NAI violates a provision of the U.S.-EU open skies agreement that governs labor standards. They contend that NAI's plan would create precedent for using low-wage crew members from third countries aboard flights to the United States. However, several former U.S. secretaries of transportation and Irish and European Union (EU) officials, as well as some U.S. consumer advocates and travel industry groups, maintain that the NAI application is valid under the terms of the open skies agreement and would encourage competition and bring lower fares. This report addresses some of the most frequently asked questions related to these two on-going controversies.

Justice Stevens has been a key figure in the Supreme Court's recent decisions interpreting the scope of two "companion rights": the due process right to a "beyond a reasonable doubt" determination and the right to trial by jury. The right to a jury trial in criminal prosecutions is explicitly protected in the Sixth Amendment to the U.S. Constitution. The "proof beyond a reasonable doubt" standard is guaranteed by the Due Process Clauses of the Fifth Amendment (federal proceedings) and the Fourteenth Amendment (state proceedings). Together, those constitutional provisions require that a criminal conviction follow a jury determination of "proof beyond a reasonable doubt of every fact necessary to constitute the crime." Those rights have a strong legal and historical foundation. However, a question emerged regarding their application to sentencing determinations, particularly as "sentence enhancements" became a popular legislative tool: to what extent do facts taken into account during sentencing require a "beyond a reasonable doubt" determination by a jury? Justice Stevens has had a critical role in the Supreme Court's resolution of that question, in several respects. First, he asserted that the constitutional question should be addressed, describing the constitutional guarantees at issue as being of "surpassing importance." Second, along with Justice Scalia, in early cases reviewing sentencing enhancements, he indicated his broad interpretation of the jury trial and due process rights. In a concurring opinion, for example, he wrote, "I am convinced that it is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed." He added that "[i]t is equally clear that such facts must be established by proof beyond a reasonable doubt." Third, having persuaded five of the Court's nine justices of his views, he authored the opinion for the Court in a Apprendi v. New Jersey , the leading case in which the Court announced a broad reading of the constitutional rights at issue. Finally, he wrote for the Court in United States v. Booker , a decision applying the Apprendi holding to the Federal Sentencing Guidelines. Although this line of cases has resulted in closely divided opinions, the justices were not divided along typical lines. Justice Scalia has been the other justice arguing in agreement with Justice Stevens in many of the cases addressing a jury's role in criminal sentencing. In Apprendi , Justices Scalia, Thomas, Souter, and Ginsburg joined Justice Stevens's majority opinion. Justice Stevens's opinion in Apprendi was foreshadowed in several dissenting and concurring opinions in cases decided during the 1980s and 1990s. The first such case was McMillan v. Pennsylvania , decided in 1986. McMillan involved a Pennsylvania statute establishing a mandatory five-year minimum prison sentence in cases in which a judge finds, by a preponderance of the evidence (a lower standard than "beyond a reasonable doubt"), that the defendant visibly possessed a firearm during the commission of the offense. The statute expressly stated that the firearm possession "shall not be an element of the crime." Instead, it stated that it "shall be determined at sentencing," indicating that it was to be removed from typical jury trial and "beyond a reasonable doubt" requirements. The U.S. Supreme Court upheld the statute. Writing for the Court, Chief Justice Rehnquist emphasized that the state legislature expressly designated firearm possession as a "sentencing factor," rather than "an element of the crime." The Court concluded that the state legislature had intended to create a sentencing factor which "operates solely to limit the sentencing court's discretion in selecting a penalty within the range already available to it." Justice Stevens wrote a dissenting opinion, not joined by any other justice, in which he first articulated his view of the constitutional implications of sentencing statutes of this kind. "In my view," he wrote, "a state legislature may not dispense with the requirement of proof beyond a reasonable doubt for conduct that it targets for severe criminal penalties." His disagreement with the Court stemmed in part from his interpretation of prior precedents. He agreed with the statement from a prior case, also quoted by the majority, that "[the] applicability of the reasonable-doubt standard ... has always been dependent on how a State defines the offense that is charged." However, he interpreted that holding to ensure that states have discretion regarding what conduct to criminalize, not over which conduct will be treated as a "criminal element" versus a "sentencing factor." "In my opinion," he concluded, "the constitutional significance of the special sanction cannot be avoided by the cavalier observation that it merely 'ups the ante' for the defendant." A 1998 case, Almendarez-Torres v. United States , involved a federal statute that makes it a crime to, among other things, return to the United States (without express consent of the Attorney General) after having been deported. A general provision authorizes criminal penalties of up to two years imprisonment. A second provision authorizes greater penalties in cases in which the alien was removed after a conviction for one of several specified crimes. In Almendarez-Torres , the defendant had been deported subsequent to three convictions for aggravated felonies, for which the statute increased the maximum prison sentence for reentry to 20 years. Prosecutors did not introduce the fact of the aggravated felonies at the indictment or trial phase. Nevertheless, at sentencing, the U.S. district court relied on those aggravated felony convictions to enhance the sentence. A five-justice majority on the Supreme Court framed the question on appeal as "whether [the aggravated felony provision] defines a separate crime or simply authorizes an enhanced penalty." Noting that the provision's concern is recidivism--a factor commonly weighed in sentencing decisions, it held that it is "reasonably clear" that Congress intended to "set forth a sentencing factor" rather than a "separate crime." Thus, it concluded that the statute "simply authorizes a court to increase the sentence," and thus does not require a determination by a jury. Justice Stevens and two other justices joined a dissent written by Justice Scalia. Justice Scalia asserted that the Court's prior decisions made it "genuinely doubtful whether the Constitution permits a judge (rather than a jury) to determine by a mere preponderance of the evidence (rather than beyond a reasonable doubt) a fact that increases the maximum penalty to which a criminal defendant is subject." Justice Stevens wrote an opinion reiterating his view on the constitutional question the following year, in Jones v. United States . The defendant in Jones was convicted for violation of a federal carjacking statute, 18 U.S.C. SS 2119. That statute generally caps imprisonment for violations at 15 years, but a subsection increased the maximum prison term in cases in which "serious bodily injury ... results." The defendant, Nathaniel Jones, was charged with carjacking, but the specific allegation that the carjacking resulted in serious bodily injury was not raised until the sentencing phase. At that time, the court found that serious bodily injury had occurred and increased Jones's sentence accordingly. No jury determinations were made on that question. The Court resolved the case on statutory grounds. In an opinion by Justice Souter, it held that the "serious bodily injury" prong, as written in the existing statute, constituted a separate criminal offense, and thus needed to be determined by a jury "beyond a reasonable doubt." It indicated that a different reading of the statute might "raise serious constitutional questions," but avoided resolving such issues because the case could be resolved on statutory grounds. In brief concurring opinions in Jones , Justices Stevens made clear that he would have reached the constitutional issues lurking in the case. Furthermore, he expressed the view that "it is unconstitutional to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed." Justice Stevens expressed that view on behalf of the Court in Apprendi v. New Jersey . In Apprendi , the Court reviewed a New Jersey statute that authorized 10- to 20-year increases in prison sentences if a defendant's actions were found by a judge, by a preponderance of the evidence, to have been committed with a purpose to intimidate the victim because of the victim's race or other specified characteristics. The defendant, Charles Apprendi, was found to have fired a gun into the home of an African American family. The morning of his arrest, he was alleged to have stated that "because [the family is] black in color he does not want them in the neighborhood." He later argued that his statements had been mischaracterized. In the state prosecution, Apprendi pleaded guilty to three weapon possession charges. In the plea agreement, the state reserved the right to request a sentencing enhancement based on the state's "hate crimes" statute. At sentencing, evidence was presented to support and refute Apprendi's alleged racial motivation in firing into the victims' home. Applying a preponderance of the evidence standard as directed by the state statute, the state trial judge concluded that Apprendi had acted with racial prejudice and accordingly enhanced his sentence on that basis. On appeal, Apprendi argued that the Fifth and Fourteenth Amendment Due Process Clauses require that the facts justifying the sentence enhancement (i.e., a motivation of prejudice) to be found by a jury using the "beyond a reasonable doubt" standard. Both a state appellate court and the New Jersey Supreme Court rejected Apprendi's argument. Relying in part on the U.S. Supreme Court's rulings in Almendarez-Torres and McMillan v. Pennsylvania , they held that the "biased purpose" determination was not an element of the underlying offense and thus did not require a jury finding of proof beyond a reasonable doubt. The U.S. Supreme Court reversed. Writing for the Court, Justice Stevens asserted that the constitutional question was "starkly presented" by the facts in the case. He examined the history of the constitutional rights involved, noting that statutory sentence enhancements are a relatively new development in a landscape of constitutional rights with centuries-old foundations. He acknowledged that the history supports judges' ability to exercise discretion in sentencing. However, he argued that such discretion has generally been limited to determinations regarding an appropriate sentence within a given range; it has not historically been extended to authorize additional penalties on the basis of a new factual determination. After reviewing the history and relevant precedents, he articulated the Court's major holding: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Key cases decided after Apprendi have addressed the decision's application to sentencing guidelines. In a 2004 case, Blakely v. Washington , the defendant challenged a sentence imposed pursuant to Washington State's sentencing guidelines. He was convicted of a crime for which the guidelines designated a maximum sentence of 53 months imprisonment, but was sentenced to 90 months after the sentencing judge found that he had acted with "deliberate cruelty"--a factor for which the guidelines authorized judges to increase a sentence. In an opinion written by Justice Scalia and joined by Justice Stevens and three other justices, the Supreme Court applied Apprendi to strike down the sentencing scheme. It held that the "statutory maximum" for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. One year later, Justice Stevens wrote one of two majority opinions for the Court in United States v. Booker , in which the Court addressed the question whether the Blakely holding applied to the Federal Sentencing Guidelines. The case involved a conviction for possession with intent to distribute crack cocaine. At sentencing, the judge found, by a preponderance of the evidence, that the defendant had distributed additional drugs and obstructed justice, and increased the sentence on that basis. Applying Apprendi and Blakely , the Court held that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Justice Stevens characterized the holding as a reaffirmation of the Apprendi holding. His opinion again emphasized the historical importance of the constitutional rights at issue. A different majority of justices joined an opinion written by Justice Breyer. In that opinion, the Court interpreted the constitutional holding (announced in the opinion by Justice Stevens) as requiring the Court to strike down two provisions of the Federal Sentencing Act, including one which made the guidelines mandatory. That holding was based on the Court's determination of what Congress might have intended in light of the Court's constitutional holding. It concluded that Congress would not have intended the guidelines to be made mandatory in situations where a judge is constitutionally required to receive jury determinations regarding facts relevant to sentencing. Justice Stevens dissented from that opinion. He characterized the Court's invalidation of the Sentencing Act provisions as judicial overstepping, arguing that the constitutional holding in the case "does not authorize the Court's creative remedy" with regard to the Federal Sentencing Act. He asserted that "[b]ecause the Guidelines as written possess the virtue of combining a mandatory determination of sentencing ranges and discretionary decisions within those ranges, they allow ample latitude for judicial factfinding that does not even arguably raise any Sixth Amendment issue." The impact of Justice Stevens's role, and of the Apprendi case in particular, has been to limit the extent to which criminal penalties can be increased based on facts found by a judge rather than a jury. Although it remains permissible for judges to take relevant facts into consideration when rendering criminal sentences, they now may not increase sentences beyond the prescribed statutory maximum unless the facts supporting such an increase are found by a jury beyond a reasonable doubt. As can be seen in the cases applying that holding to sentencing guidelines, Justice Stevens's interpretation of the constitutional trial-by-jury and due process rights has had practical and lasting effects on criminal sentencing.

Justice Stevens has played a critical role in the Supreme Court's interpretation of a jury's role in criminal sentencing. In 2000, he wrote the majority opinion for the Court in Apprendi v. New Jersey, a landmark case in which the Court held that a judge typically may not increase a sentence beyond the range prescribed by statute unless the increase is based on facts determined by a jury "beyond a reasonable doubt." In 2005, he wrote one of two majority opinions in United States v. Booker, in which the Court applied the Apprendi rule to the Federal Sentencing Guidelines. In those two cases and in several other cases on this issue during the past few decades, Justice Stevens has been a leading voice, articulating a broad interpretation of the jury trial and due process rights at issue.

Congressional interest in the patent system has been evidenced by the recent passage of patent reform legislation by both houses of the 112 th Congress. Among the topics of legislative debate has been the presumption of validity enjoyed by issued patents. In this respect the June 9, 2011, decision of the United States Supreme Court in Microsoft Corp. v. i4i Limited Partnership et al. is notable. In that decision, the Court retained current legal standards by holding that patents must be proved invalid by "clear and convincing evidence." The Court explicitly rejected the argument that the "preponderance of the evidence" s tandard, which would have made patents more vulnerable to challenge, applied in this situation. This report reviews the Microsoft v. i4i decision and its implications for innovation policy in the United States. The Patent Act of 1952 authorizes the U.S. Patent and Trademark Office (USPTO) to review patent applications and to approve them where "the applicant is entitled to a patent under the law." Congress has established a number of patentability requirements--including novelty and nonobviousness --that USPTO examiners must evaluate in determining whether a patent should issue. To be considered novel, the invention must not be wholly anticipated by the so-called "prior art," or public domain materials such as publications and other patents. The nonobviousness requirement is met if the invention is beyond the ordinary abilities of a person of ordinary skill in the art in the appropriate field. To assess whether a particular invention meets these requirements, examiners will conduct a search of the prior art to look for relevant treatises, journal articles, and other patents. Once a patent issues, its owner gains the right to exclude others from using the claimed invention. This right can be enforced by bring a civil action for infringement in federal court. Congress provided the accused infringer with several defenses. Among them is that the patent is invalid; in other words, the USPTO should not have allowed the patent to issue at all. The patent statute provides that a "patent shall be presumed valid" and that the "burden of establishing invalidity ... rest[s] on the party asserting such invalidity." However, the patent statute does not specify how persuasive the evidence of invalidity must be in order for the judge, jury, or other finder of fact to rule in favor of the accused infringer. Under case law developed by the courts, the accused infringer must overcome the presumption of validity by persuading the factfinder of the patent's invalidity by "clear and convincing evidence." The standard of clear and convincing evidence is satisfied if the factfinder believes that a particular proposition is substantially more likely to be true than not. Stated differently, the trier of fact must have a firm belief in the factuality of that proposition. Most civil litigation proceeds under the more readily satisfied "preponderance of the evidence" standard. Under the preponderance of the evidence standard, the factfinder must only be persuaded that the something is more likely so than not so. Patent holder i4i filed an infringement suit against Microsoft in 2007. According to i4i, Microsoft Word infringed its patent to an improved method of editing computer documents. Microsoft denied infringement and counterclaimed for a declaration of invalidity and unenforceability. With regard to its invalidity defense, Microsoft contended that i4i's sales of software known as "S4" rendered the asserted patent invalid for lack of novelty. At trial, Microsoft objected to i4i's proposed instruction that Microsoft was required to prove invalidity by clear and convincing evidence because the USPTO had not been aware of the S4 software when it approved i4i's patent application. Microsoft requested that the following instruction be read to the jury: Microsoft's burden of proving invalidity and unenforceability is by clear and convincing evidence. However, Microsoft's burden of proof with regard to its defense of invalidity based on prior art that the examiner did not review during the prosecution of the patent-in-suit is by preponderance of the evidence. The District Court rejected this proposal and instead instructed the jury that "Microsoft has the burden of proving invalidity by clear and convincing evidence." The jury found that Microsoft failed to prove invalidity and that Microsoft had willfully infringed the i4i patent. This holding was affirmed on appeal. Microsoft then petitioned the Supreme Court for review of the case. According to Microsoft, the proper standard for proving invalidity should be the preponderance of the evidence. Alternatively, Microsoft asserted that the preponderance of the evidence standard should apply when an invalidity defense rests on evidence that was not considered by the USPTO during examination of the asserted patent. The Supreme Court affirmed the holdings of the lower courts. Each of the eight Justices who considered the case agreed that accused infringers must prove invalidity by clear and convincing evidence. Chief Justice Roberts was recused from the case. Writing for the Court, Justice Sotomayor observed that section 282 of the Patent Act of 1952 establishes a presumption that a patent is valid and imposes the burden of proving invalidity on a patent's challenger, but "includes no express articulation of the standard of proof." However, judicial opinions issued prior to 1952 established that patents enjoyed "a presumption of validity, a presumption not to be overthrown except by clear and cogent evidence." Justice Sotomayor therefore understood that by the time Congress enacted the 1952 Patent Act, "the presumption of patent validity had long been a fixture of the common law." The Court was therefore unable to "conclude that Congress intended to 'drop' the heightened standard of proof from the presumption simply because SS 282 fails to reiterate it expressly." The Court next addressed Microsoft's argument that a preponderance of the evidence standard should apply where the evidence was not before the USPTO during the examination process. Justice Sotomayor responded that "pre-1952 cases never adopted or endorsed the kind of fluctuating standard of proof that Microsoft envisions." Justice Sotomayor further took note of the "impracticalities" of a dual standard of proof, observing that because an examiner has no duty to cite every reference considered, whether an examiner has considered a particular reference will often be "a question without a clear answer." Justice Breyer joined the Court's opinion but also wrote a separate, concurring opinion that was joined by Justices Scalia and Alito. He "emphasiz[ed] that in this area of law as in others the evidentiary standard of proof applies to questions of fact and not to questions of law." He added that "[w]here the ultimate question of patent validity turns on the correct answer to legal questions--what these subsidiary legal standards mean or how they apply to the facts as given--today's strict standard of proof has no application." Justice Thomas also concurred in the Court's conclusion. He also believed that SS 282 did not alter the judicially developed "heightened standard of proof ... which has never been overruled by this Court or modified by Congress." The distinction between "clear and convincing evidence" and a "preponderance of the evidence" may seem to be a subtle one. That interested observers from a variety of innovative industries filed numerous amicus curiae (friend of the court) briefs with the Supreme Court suggests the significance of the presumption of validity, however. Many observers believe that the heightened "clear and convincing evidence" does not account for the nature of the patent acquisition process, promotes costly litigation, and enourages "patent assertion entities." Others argued that switching to a "preponderance of the evidence" standard would discount the nature of the patent litigation process, discourage investment in R&D, and ultimately discourage innovation. This report briefly reviews some of these positions. The Federal Trade Commission (FTC) and other observers have supported a shift to the more easily satisfied "preponderance of the evidence" standard for a number of reasons. First, many observers believe that modern patent examination involves "little actual assessment of whether a patent should issue." Patent examination is conducted on an ex parte basis--that is to say, there is no adversary to present arguments to the examiner that the application should not be approved. Applicants must report the relevant prior art of which they are aware to the USPTO, but need not conduct a "due diligence" search of the literature prior to filing. The examiner is reportedly allotted approximately 18 hours to review the application. Under these circumstances, some believe that the USPTO issues many patents that would have been rejected had the agency possessed a better understanding of the prior art. In their view, the higher "clear and convincing evidence" standard is inappropriate in view of these compact acquisition proceedings. Second, some commentators believe that the current standard promotes charges of patent infringement. The Honorable William Alsup, District Judge for the Northern District of California, wrote that the "clear and convincing evidence" standard provides a huge advantage for the patent holder--and it is often an unfair advantage, given the ease with which applicants and their agents can sneak undeserving claims through the PTO. Because of the burnish of this presumption, patentees can use a weak, arguably invalid patent, to force an accused infringer through years of litigation. This is more than just a nuisance. Legal defense costs run, at the low end, about three million dollars per case, and range well over ten million dollars in some actions. In the United States, the number of patent infringement suits filed annually nearly doubled between 1994 and 2004. According to the Phoenix Center for Advanced Legal and Economic Public Policy Studies, patent litigation costs the economy 4.5 billion dollars annually. Finally, some believe the "clear and convincing evidence" standard promotes so-called "patent assertion entities," sometimes termed "patent trolls." The FTC has defined "patent assertion entities" as "firms whose business model primarily focuses on purchasing and asserting patents" as compared to using patent in support of manufacturing or the provision of services. Some observers believe that the "clear and convincing evidence" standard encourages aggressive licensing and litigation tactics by patent assertion entities because an accused infringer "faces an uphill battle in defending itself." In their view, the increased vulnerability of asserted patents would discourage "patent trolling." On the other hand, others support the conclusion of the Supreme Court in Microsoft v. i4i that patents must be proven invalid by "clear and convincing evidence." First, some believe that the "clear and convincing evidence" standard reflects realties of the litigation process. Patent cases are tried before federal courts of general jurisdiction and often involve juries consisting of lay persons. Many commentators believe that the "clear and convincing evidence" standard appropriately causes these decision makers to defer to a specialized agency, the USPTO, in patent matters. Some observers also believe that inventors put themselves in a vulnerable position when they patent their inventions. Whether courts ultimately uphold their patents or not, their inventions have already been disclosed to the public. As attorney Albert Walker explained in his early treatise on patent law: It is easy for a few bad or mistaken men to testify, that in some remote or unfrequented place, they used or knew a thing substantially like the thing covered by the patent, and did so before the thing was invented by the patentee. In such a case it may happen that the plaintiff can produce nothing but negative testimony in reply: testimony of persons who were conversant with the place in question, at the time in question, and did not see or know the thing alleged to have been there at that time. If mere preponderance of evidence were to control the issue, the affirmative testimony of a few persons, that they did see or know or use a particular thing at a particular time and place, would outweigh the negative testimony of many persons, that they did not see or know or use any such thing. Under this view, the presumption of validity should be a robust one so as to encourage inventors to seek patent protection. Finally, some observers believe that strong, enforceable patents are necessary to support investment in high-technology innovation. The development of cutting-edge inventions, such as new medicines, electronics, and biotechnologies, often involves considerable expense and risk. An innovative firm may be less likely to engage in such endeavors if its entire patent portfolio would become more vulnerable to challenge by competitors. These observers believe that the "clear and convincing evidence" standard promotes innovation while still allowing room for accused infringers to contest the validity of improvidently granted patents. In the Microsoft v. i4i opinion, the Supreme Court concluded: Congress specified the applicable standard of proof in 1952 when it codified the common-law presumption of patent validity. Since then, it has allowed the Federal Circuit's correct interpretation of SS 282 to stand. Any recalibration of the standard of proof remains in its hands. This passage plainly provides the Court's deference to Congress on this issue. If the current "clear and convincing evidence" is deemed appropriate, then no change need be made. Alternatively, straightforward amendments to SS 282 could change the standard to the "preponderance of the evidence" standard. The presumption of validity also arises in other contexts. For example, patent reform legislation in the 112 th Congress stipulates that in both post-grant and inter partes review proceedings before the USPTO, "the petitioner shall have the burden of proving a proposition of unpatentability by a preponderance of the evidence." The decreased evidentiary showing required before the USPTO may reflect increased legislative confidence in the patent expertise of that agency as compared to the federal courts. Although the Microsoft v. i4i opinion addressed a seemingly technical point of patent law, the implications of a shift from a "clear and convincing evidence" standard to a "preponderance of the evidence" standard were potentially significant for the nation's environment for innovation and investment. The Supreme Court's ruling leaves any possible change to patent law's presumption of validity squarely within the purview of Congress.

The June 9, 2011, decision of the United States Supreme Court in Microsoft Corp. v. i4i Limited Partnership et al. rained current legal standards by holding that patents must be proved invalid by "clear and convincing evidence." The Court explicitly rejected the argument that the "preponderance of the evidence" standard, which would have made patents more vulnerable to challenge, applied in this situation. The decision arguably holds a number of potential implications for U.S. innovation policy, including incentives to innovate, invest, and assert patents, and leaves the question of the appropriate presumption of validity for patents squarely before Congress.

In 1970, the K visa category was created for foreign national fiance(e)s of U.S. citizens. The first visa within the category, the K-1 visa, is a nonimmigrant visa that grants temporary admission to the United States for fiance(e)s in order for them to marry their U.S. citizen petitioners. Since the visa's creation, Congress has passed additional legislation that has added protections for fiance(e)s and their children. There were 35,925 K-1 visas issued by the U.S. Department of State (DOS) in FY2014. The K-1 visa has drawn increased attention due to a mass shooting in San Bernardino, CA, on December 2, 2015. One of the suspected shooters, Tashneen Malik, reportedly came to the United States on a K-1 visa to marry the other suspected shooter, Syed Rizwan Farook. The investigation of the couple, after the fact, reportedly brought to light suspicions to the couple's support of violent jihadists. Due to these events, Congress and the public have raised questions about the K-1 visa and its security screening. For instance, how well are individuals screened for fraud and security risks, and are there any gaps in the screening process? After the shooting, President Barack Obama asked the U.S. Department of Homeland Security (DHS) to review the U.S. visa program. Some members of Congress have also called for the inclusion of visa applicants' social media accounts as an added screening measure. This report will review the K-1 visa, providing information on the background of the program. Next, the report will cover the requirements of the visa and its application procedures, including the filing of a petition, the application for a visa, and the national security screening. The following section will describe K-1 visa holders' admission to the United States and their adjustment of status to lawful permanent residency. The last section will provide statistics on the issuance of the K-1 visa and the source countries of visa holders. P.L. 91-225 established the K nonimmigrant visa category in 1970 for fiances, fiancees, and the derivative children of the fiance(e). The law amended the Immigration and Nationality Act (INA) in an effort to address the difficulties faced by U.S. citizens who wished to bring their fiance(e)s to the United States to be married. There are four subcategories within the K visa category. P.L. 91-225 created the first two categories (K-1 visa and K-2 visa), and in 2000 the Legal Immigration Family Equity Act (LIFE Act; Title XI of P.L. 106-553 ) created the last two categories (K-3 visa and K-4 visa). The K-1 visa is for noncitizens seeking to enter the United States to marry a U.S. citizen, and the K-2 visa is for their children. The K-3 visa is for noncitizens who married a U.S. citizen abroad and want to enter the United States while they wait for their immigration petition, or for an immigrant visa to become available, and the K-4 visa is for their children. Subsequent legislation was enacted in order to provide protections to the fiance(e) (also referred to as the beneficiary). The International Marriage Broker Regulation Act of 2005 (IMBRA; Title VIII, Subtitle D, of P.L. 109-162 ) requires the disclosure of the use of an international marriage broker and the petitioner's criminal convictions for certain crimes, notably sexual crimes. Additionally, IMBRA provides requirements with regard to international marriage brokers and requires the Department of State to provide beneficiaries with a pamphlet containing facts about the K-1 visa, domestic violence, and their rights. The Adam Walsh Child Protection and Safety Act of 2006 ( P.L. 109-248 ) further prohibits U.S. citizens from petitioning for a K-1 visa if they have been convicted of certain offenses against a minor (unless the Secretary of DHS can determine, under his/her sole discretion, that the petitioner poses no risk to the beneficiary). In order for a foreign national to be issued a K-1 visa, the petitioner who is filing on the fiance(e)'s behalf must be a U.S. citizen and must provide the following evidence: The parties have met in person within two years of the petition's filing, though the Secretary of DHS may waive this requirement. The parties have a bona fide intention to marry. The parties are legally able and willing to conclude a valid marriage in the United States within 90 days of the fiance(e)'s arrival. In addition to the determination that a foreign national is qualified for a K-1 visa, a decision must be made as to whether the foreign national is admissible or excludable under the INA. A U.S. citizen petitioner must file Form I-129F, Petition for Alien Fiance(e), with DHS's U.S. Citizenship and Immigration Services (USCIS), along with supporting documents. Additional requirements, established in IMBRA, mandate that the petitioners provide criminal records related to certain crimes and that they notify USCIS if they used an international marriage broker to meet the beneficiary. IMBRA also requires the petitioners to obtain a waiver if they have filed two or more K-1 petitions in the past or have had a K-1 petition approved in the two years before their current petition. Furthermore, if the petitioners are subject to the Adam Walsh Child Protection and Safety Act, they must demonstrate they pose no risk to the beneficiary. After USCIS approves a petition, it is sent to the U.S. Embassy or Consulate in the home country of the foreign national to determine eligibility for a K-1 visa for admission to the United States. The petitioner and beneficiary (including eligible children) must provide a completed Form DS-160, Online Nonimmigrant Visa Application, valid passports, divorce or death certificates for any previous spouses, police certificates from their present countries of residence and other countries they lived in for at least six months, medical examinations, evidence of financial support, photographs, evidence of relationship, and fees. Once all necessary documents are provided and security clearances are completed, the consular office schedules an interview to determine eligibility. Although the K-1 visa is a nonimmigrant visa, due to the beneficiary's intention of remaining in the United States, the consular office treats it as an immigrant visa and seeks to determine whether the individual would be admissible as an immigrant. Additionally, DOS has issued instructions with regard to consideration of these applications. The K visa applicant is required to submit his or her photograph and fingerprints, as well as full name (and any other name used or by which he or she has been known), age, gender, and the date and place of birth, as are all foreign nationals seeking a visa. The visa applicant's personal data are added to the Consular Consolidated Database (CCD), a biometric/biographic database that screens all visa applicants, including those seeking a K visa. CCD links with other databases to flag problems that may have an impact on the issuance of the visa, which include DHS's Automated Biometric Identification System (IDENT) and the Federal Bureau of Investigation (FBI) Integrated Automated Fingerprint Identification System (IAFIS). In addition to performing biometric checks of the fingerprints for all visa applicants, DOS uses facial recognition technology to screen visa applicants against a "watchlist" of photos of known and suspected terrorists obtained from the Terrorist Screening Center (TSC), as well as the entire gallery of visa applicant photos contained in the CCD. To screen K visa applicants, as well as all other visa applicants, consular officers use the Consular Lookout and Support System (CLASS) database, which has name-searching algorithms to ensure matches between names of visa applicants and any derogatory information contained in CLASS. DOS reports that about 70% of the records in CLASS come from other agencies, including DHS, the FBI, and the Drug Enforcement Administration (DEA). DOS also employs an automated CLASS search algorithm that runs the names of all visa applicants against the CCD to check for any prior visa applications, refusals, or issuances. Consular officers have long relied on the Security Advisory Opinion (SAO) system, which requires a consular officer abroad to refer selected visa cases for greater review by intelligence and law enforcement agencies. If consular officials receive information about a K visa applicant that causes concern, they send a dedicated and secure communication to the National Counterterrorism Center (NCTC). In a similar set of SAO procedures, consular officers send suspect names, identified by law enforcement and intelligence information, to the FBI for a name check. There is also the "Terrorist Exclusion List" (TEL), which lists organizations designated as terrorist-supporting and includes the names of individuals associated with these organizations. In June 2013, DOS began "Kingfisher Expansion" (KFE) in partnership with the NCTC for conducting interagency counterterrorism screening of all visa applicants. The consular official submits the K visa applicants' electronic visa applications as a "vetting package" to the NCTC. In turn NCTC uses an automated process to compare the vetting package with its holdings, most notably the Terrorist Identities Datamart Environment (TIDE) on known and suspected terrorists and terrorist groups. A "hit" in KFE triggers a Washington-based interagency review of the visa application. KFE also conducts post-issuance reviews of valid visas to check for new information on emerging threats. The deadly attack in San Bernardino raised questions as to whether immigration officials should be pre-emptively trawling the social media accounts of visa applicants, after early rumors that Tashneen Malik (using a pseudonym) had posted declarations of loyalty to the Islamic State on Facebook that day. A former DHS official who currently serves as a consultant to ABC News asserted that DHS had a policy of not reviewing the social media accounts of visa applicants during his tenure at DHS. According to media accounts, the FBI was also criticized for not uncovering evidence of pro-jihadist messages that Malik reportedly had e-mailed in 2012. Multiple media sources have reported that FBI Director James Comey has subsequently stated that there was "no evidence of a posting on social media" by either of the suspects in the San Bernardino shootings. DHS initiated three pilot programs earlier in 2015 to specifically incorporate appropriate social media review into its vetting of applicants for certain immigration benefits. If the beneficiary is issued a K-1 visa, it is normally valid for six months. DHS Customs and Border Protection (CBP) officers inspect all arrivals to the United States at ports of entry and again screen the K visa holder against the various DHS databases and "watch lists." Once in the United States, the K-1 nonimmigrant is required to marry the U.S. citizen petitioner within 90 days. K-1 visa holders are permitted to work in the United States during this time if they file for employment authorization. The foreign national is eligible for lawful permanent residence as an immediate relative if the marriage takes place within 90 days and the fiance(e) is otherwise admissible. This status is conditional for two years. If the marriage does not occur within 90 days, the K visa expires and the foreign national must depart from the United States. From FY2000 to FY2014, DOS issued a total of 430,900 K-1 visas, with an additional 65,833 K-2 visas issued to the children of K-1 visa beneficiaries. Since FY2000, K-1 visa issuances have fluctuated, though they have experienced an overall rise. FY2014 was the peak year thus far in the 21 s century for fiance(e) visas, with DOS issuing 35,925 K-1 visas, an increase of 36% from FY2013. The lowest number of K-1 visa issuances in the 21 st century, at 21,471 visas, was in FY2000. In terms of source countries for all K visa holders, the Philippines led with 8,525 K visas in FY2014. In comparison, Chinese nationals were issued the second largest number of K visas at 2,177 visas; and Mexican nationals were issued the third largest portion of K visas at 2,101 visas. In FY2014, Asia was the top receiving region of K visas with 18,864, or 46% of all K visas issued. Additionally, North America and Central America was the second largest source region with 19% of K visas, while Europe was the third largest source region with 18% of K visas. Figure 2 presents the regional breakdown of K visas that DOS issued in FY2014, and Figure 3 shows the top 12 source countries.

The K nonimmigrant visa category was created in 1970 through P.L. 91-225, which amended the Immigration and Nationality Act (INA). Within the K visa category, the K-1 visa is a visa for fiance(e)s of U.S. citizens and the K-2 visa is a visa for the fiance(e)'s children. Congress later enacted legislation to provide protections for fiance(e)s, specifically creating requirements around the use of international marriage brokers, the disclosure of the U.S. petitioner's criminal background, the provision of information to fiance(e)s on their rights, and additional protections for minors. A mass shooting on December 2, 2015, in San Bernardino, CA, where one of the suspected shooters entered the United States on a K-1 visa, has drawn increased attention to the visa category. This tragedy has spurred questions surrounding the K-1 visa national security screening process and any possible gaps. Some Members of Congress have suggested including a review of K-1 applicants' social media accounts into the screening process. In order to qualify for a K-1 visa, a U.S. citizen must file on behalf of his/her fiance(e) and provide evidence that (1) the parties have met in person within two years of the petition's filing, (2) the parties have a bona fide intention to marry, and (3) the parties are legally able and willing to be married in the United States within 90 days of the fiance(e)'s arrival. The petitioner must first file a petition with the Department of Homeland Security's (DHS's) U.S. Citizenship and Immigration Services (USCIS). Once the petition is approved, it is sent to a U.S. Embassy or Consulate in the home country of the foreign national, where it is determined if the fiance(e) is eligible for admission to the United States. Although the K-1 visa is a nonimmigrant visa, the fiance(e) intends to remain in the United States and is therefore also subject to the admission requirements of immigrant visas. K visa applicants' national security screening entails the use of biographical, biometric, and photographic data. The data are entered into consular-based databases, such as the Consular Consolidated Database (CCD) and Consular Lookout and Support System (CLASS), which flag problems that may have an impact on the issuance of a visa or matches to any derogatory information. Consular offices send suspect individuals' applications for greater review to other agencies, such as the Federal Bureau of Investigation (FBI) and the National Counterterrorism Center (NCTC). In 2013, NCTC began conducting interagency counterterrorism screening of all visa applicants and in 2015, DHS began pilot programs to incorporate social media screening into its vetting of applicants for certain immigration benefits. Once visa applicants have been approved and their security clearances are completed, they can travel to the United States, where they must marry their U.S. citizen petitioners within 90 days of their arrival. Once married, the fiance(e) adjusts to a conditional residency and after two years can become a lawful permanent resident. In FY2014, the U.S. Department of State issued 35,925 K-1 visas. Asia received the largest portion of K visas at 46%, with the Philippines being the country with the highest number of K visas at 8,525 visas.

A perceived lack of coordination in the federal government's warning notification processand inconsistent messages regarding threats to the homeland have led to an erosion of confidencein the information conveyed to the Nation. Congress is now considering legislation( H.R. 1817 , The Department of Homeland Security Authorization Act for FY2006) toreform the Homeland Security Advisor System to assure greater confidence in the threat informationbeing conveyed to the Nation. A universally understandable, consistent, and reliable national threatnotification system is deemed necessary in today's world of increasing and time-sensitive threats tothe Nation. Many believe that the notification of a threat to the United States should be conveyedby a single entity and the message should be consistent with other communications federalgovernment officials may offer. In times of crisis or national emergency, the federal government'sunity of message and a coordinated delivery of the threat notification are widely seen as crucial tothe effectiveness of the system designed to convey the message. "The System's color-coded warningshave become the primary means by which the federal Government communicates directly to thepublic its bottom-line judgment on the risk of terrorist attack at any given time." (1) However, the circumstancesand explanations surrounding the warnings and changes in the Homeland Security AdvisorySystem's (HSAS) color code to date have called into question the utility and credibility of the system.In particular: At times it appears the color-code has been raised based on speculation thata terrorist attack may occur rather than receipt of new threat information; At other times, warnings of heightened threats have been issued withoutchanging the HSAS; and On numerous occasions agencies have provided different, and sometimescontradictory, information about threats to the homeland. On March 11, 2002, the President signed Homeland Security Presidential Directive-3 (HSPD-3) and created the HSAS (See Figure 1). This Directive gave responsibility to the AttorneyGeneral to administer and make public announcements regarding threats to the Nation. (2) Subsequent of the HomelandSecurity Act of 2002, enacted November 25, 2002, provided that the Under Secretary of theInfrastructure Analysis and Infrastructure Protection (IAIP) Directorate, subject to the direction andcontrol of the Secretary (of Homeland Security), shall administer the Homeland Security AdvisorySystem (HSAS), including (1) exercising primary responsibility for public advisories related tothreats to homeland security (2) in coordination with other agencies of the Federal Government,providing specific warning information to State and local government agencies and authorities, theprivate sector, other entities, and the public. (3) Figure 1. HSAS Though the Homeland Security Act of 2002 is fairly clear regarding the transition ofresponsibility of administering a national threat notification system from the Attorney General to theSecretary of Homeland Security, there reportedly have been "a few occasions in the past couple ofyears that Secretary Ridge was frustrated when Attorney General Ashcroft announced terrorist threatinformation, despite the fact that the Homeland Security Act of 2002, transferred the responsibilityof management of the HSAS from DOJ to DHS. Also at times, DHS has disagreed with the alarmingtone of Ashcroft's announcements." (4) This paper will discuss examples of uncoordinated national threatannouncements between DHS, DOJ, and other federal government entities. It is possible that recentchanges of Departmental and Agency leadership may assist in resolving future occurrences of uncoordinated and premature threat announcements. However, the issue remains that previous threatannouncements and arguably a lack of discernible processes in determining from whom threatinformation is to be conveyed, has seriously eroded the HSAS's credibility generating congressionalreview and discussion of ways to approach future national threat warning efforts. September 11 - September 24, 2002 First time the threat-level is raised from Yellow-Elevated (Significant Risk ofTerrorist Attack) to Orange-High (High Risk of Terrorist Attack) Pursuant to the responsibility given to the Attorney General and delineated in HSPD-3, Attorney General Ashcroft announced on September 11, 2002, that "the U.S. intelligence communityhas received information, based on the debriefing of a senior Al Qaeda operative, of possible terroristattacks timed to coincide with the anniversary of the September 11 attacks on the United States."However, one-week prior to the official notice put forth by the Attorney General, Office ofHomeland Security Chief Tom Ridge reportedly stated that "U.S. officials do not have intelligenceindicating terrorists are plotting another attack on the September 11th anniversary. We do notanticipate raising the threat level for that day." (5) Though it is common in the world of intelligence to receiveinformation that contradicts previous analysis, possibly explaining moving from an elevated (yellow)to a high threat (orange) environment in one-week's time, the concern is that prior to the first use ofthe HSAS, two senior members of the Administration spoke publicly to the status of the threatenvironment. In this case the Director of the Office of Homeland Security seemed to have preemptedthe Attorney General's responsibility to publicly announce information regarding the threatenvironment and the status of the HSAS. The following two items review instances where threat information of a significant nature wasdiscussed by senior Administration officials in an open forum. These instances did not result in achange of the HSAS. On October 17, 2002, Director of Central Intelligence (DCI) Tenet stated before a jointsession of the House and Senate Intelligence Committees, "You must make the assumption that AlQaeda is in an execution phase and intends to strike us both here and overseas. That's unambiguousas far as I am concerned." (6) On November 15, 2002, the FBI stated, "Sources suggest Al Qaeda may favor spectacularattacks that meet several criteria: high symbolic value, mass casualties, severe damage to the U.S.economy and maximum psychological trauma." (7) Despite the tone of the warning, White House spokesman ScottMcClellan said the national alert status would remain unchanged. Although the previous two examples did not represent official public announcements, theeffect was the same in that both of these events were widely publicized. Both statements may havebeen analytically correct, however a potentially troublesome precedent was being set by seniorofficials offering diverging interpretations of the nation's threat environment in a public forum. February 7 - February 27, 2003 Second time the threat-level raised to Orange Prior to the raising of the alert level, the Homeland Security Act of 2002 had been enacted(November 11, 2002). The act provided that the Under Secretary of IAIP subject to the direction andcontrol of the Secretary (of Homeland Security), shall administer the Homeland Security AdvisorySystem (HSAS). On February 7, 2003, Secretary of Homeland Security Ridge announced thatintelligence reports suggested that Al Qaeda was planning attacks on apartment buildings, hotels,and other soft targets. (8) In the week leading up to the issuance of this threat warning and during the twenty-dayduration of this rise in the alert level, numerous Administration officials provided varyingdescriptions as to the level of specificity and immediacy of the threat. Homeland Security SecretaryRidge said a terrorist attack was unlikely one-week after Attorney General Ashcroft stated that therewas an increased likelihood of an attack on the United States. During this same time-period DCITenet testified before Congress that the information that led to this threat alert was as specific as ithas ever been. (9) SecretaryRidge also stated during this alert level change that the intelligence about a possible attack moreoften than not is vague, whereas Attorney General Ashcroft stated that specific intelligence wascorroborated by multiple intelligence sources. (10) On February 24, 2003, in the waning days of this increased alert level, Attorney GeneralAshcroft stated that the threat of terrorist attack remained high and there were no plans to downgradethe Nation's alert level. Less than three days later, Secretary Ridge announced that the HSAS wasbeing lowered to Yellow- Elevated. March 17 - April 11, 2003 Third time threat-level raised to Orange On March 17, 2003, Secretary of Homeland Security Ridge stated that Intelligence reportsindicated Al Qaeda would probably attempt to launch terrorist attacks against U.S. interests to defendMuslims and the Iraqi people. On the eve of the war in Iraq, Secretary Ridge informed the public thatthe terrorist threat level was being raised, not because of any new threatening intelligence, butbecause the war seemed likely to provoke a terrorist response in the U.S. (11) Prior to the war in Iraq, numerous Administration officials including some at the CIA andFBI, and lawmakers believed that should the United States commence military operations in Iraq,terrorist attacks in the United States would be an inevitable cost of toppling Saddam Hussein. (12) In lowering the threat level on April 11, 2003, DHS released a statement that after anassessment of the threats by the intelligence community, the Department of Homeland Security hadmade the decision to lower the threat advisory level. Defense Secretary Rumsfeld later noted that"the Nation must remain vigilant and alert to the possibility Al Qaeda or those sympathetic to theircause; as well as former Iraqi regime state agents, may attempt to conduct attacks against the UnitedStates." (13) This change of alert level status was accompanied by a continuing pattern of independentofficial announcements regarding possible threats to the Nation, including statements by theSecretary of Defense countering the reasoning used to lower the alert level: threats remain of anattack from al Qaeda or Iraqi sympathizers. (14) May 20 - May 30, 2003 Fourth time threat-level raised to Orange On May 20, 2003, the Department of Homeland Security announced that the United Statesintelligence community believed Al Qaeda had entered an operational period worldwide, includingplans to attack the United States On the morning of May 20, 2003 DHS Secretary Ridge appeared before the HouseCommittee on Homeland Security and stated that "America had the terror networks off-balance andthat we are much safer (as a Nation)". Later that day in a press conference held to announce raisingthe threat alert level, Secretary Ridge reportedly stated "in response to intelligence reports concerninganti-U.S. terrorist group intentions and the recent attacks in Saudi Arabia and Morocco (15) we are raising the HSASto Orange". "While there is not credible, specific information with respect to targets or method ofattack, the use of tactics similar to those seen in recent terrorist attacks overseas include small armsequipped assault teams, large vehicle-borne improvised explosive devices, and suicidebombers." (16) Simultaneous with this announcement, DHS Under Secretary for Border and Transportation SecurityAsa Hutchinson announced at a press conference on Capitol Hill that the alert level had been raisedbecause "there is increased specificity in what we hear, but not necessarily in terms of thetarget." (17) On the following day FBI Director Mueller stated that there was no specific informationregarding potential targets or the timing of an attack. DOD Secretary Rumsfeld reportedly stated thatsame day that some Al Qaeda leaders in Iran were plotting attacks. (18) In this instance, a number of senior members of the Administration discussed the informationconsidered in the raising of the alert level, and one of the Secretary of Homeland Security's principaldeputies offered conflicting information regarding the specificity of that information. December 21, 2003 - January 9, 2004 Fifth time threat-level raised to Orange On December 21, 2003, Secretary of Homeland Security Ridge stated that the United Statesintelligence community had received a substantial increase in threat-related intelligence reports andthat credible sources suggested the possibility of attacks against the homeland around the holidayseason and beyond. "The information we have indicates that extremists abroad are anticipatingnear-term attacks that they believe will either rival or exceed the attacks that occurred in New Yorkand the Pentagon and the fields of Pennsylvania nearly two years ago." (19) On numerous occasions since the inception of the HSAS a variety of senior governmentofficials have been quoted saying that it may never be known if raising the alert level stopped aterrorist act from occurring. However, two days after the alert level was raised for the fifth timesince its creation, the Secretary of Defense stated that "there's no question that there are any numberof terrorist acts that were stopped prior to their actually occurring." (20) Also, six days after thisHSAS threat level was lowered, the FBI Director stated that he did not foresee a time when thecountry could drop its guard and that "we probably will at some point in time have anotherattack." (21) There were two public discussions in 2004 of threat information of a significant nature thatproduced some anxiety among U.S. citizens and frustration on the part of the Congress. Neither ofthe following instances resulted in a change of the HSAS. On March 24, 2004, the FBI issued a threat advisory indicating that the Texas oil industrymay have been targeted by terrorists. While DHS is statutorily responsible for public advisoriesrelating to the announcement of homeland security threats, specifically as they pertain to alertinginfrastructure owners and operators of threat related information, the advisory came solely from theFBI. As House Committee for Homeland Security Chairman Christopher Cox stated two-weeksafter this occurrence, "Clearly this is a very troubling development. Was it simply a one-time glitchor has there been a breakdown in communications between some of our key federal agencies?"Chairman Cox added, "Congress and the American people need to know, given the dangerous,uncertain times we live in today, cooperation among all authorities is more important than ever. Wesimply can't afford to be sending confusing messages to a nervous public." (22) May 26, 2004 , On May 26, 2004, Secretary Ridge appeared on five television news showsstating that although the prospect of a terrorist attack is significant, Americans should "go aboutliving their lives and enjoying living in this country." At 3 p.m. that same day Attorney GeneralAshcroft and Federal Bureau of Investigation Director Mueller held a press conference and gave awarning to the American public. The Attorney General announced that based on "credibleintelligence from multiple sources, Al Qaeda intends to attack the United States in the next fewmonths. This disturbing intelligence indicates Al Qaeda's specific intention to hit the United Stateshard." Ashcroft said the intelligence -- along with recent public statements attributed to Al Qaeda-- "suggest that it is almost ready to attack the United States." He further stated that after the March11 train bombings in Madrid, Spain, an Al Qaeda spokesman said the network had completed "90percent of preparations" to attack the United States. (23) During this press conference a reporter asked if there was credible intelligence suggestingthe United States is going to be attacked between now and the election, why the threat level had notbeen raised. Attorney General Ashcroft responded that "the Homeland Security Council, led bySecretary Ridge, would make such a decision, and for me to try to speak for them at this time wouldbe inappropriate." (24) After Mr. Ashcroft's announcement, Mr. Ridge seemed surprised by the Attorney General's warning.Asked why the National Color-code alert had not been raised, Mr. Ridge replied "there is nothingspecific enough (to raise the alert level)." This seemingly uncoordinated effort was followed by a response from RepresentativeChristopher Cox, Chairman of the House Select Committee on Homeland Security. "Disseminationby our government of sensitive terrorism warnings must be closely coordinated across ourintelligence and law enforcement communities," Cox said. "In the Homeland Security Act, DHS wasassigned the central coordinating role in this process. The absence of Secretary Ridge fromyesterday's news conference held by the attorney general and the FBI director, and the conflictingpublic messages their separate public appearances delivered to the nation, suggests that the broadand close interagency consultation we expect, and which the law requires, did not take place in thiscase." (25) These last two examples are cited by many observers as suggesting a general lack ofcoordination and unity in message of warnings to the nation of threats, and also reflecting a lack ofoverall collaboration between DHS and other federal intelligence community and law enforcementorganizations. Homeland Security employees have complained that their CIA and FBI colleaguesshow them little respect. Intelligence agents reportedly counter saying that DHS has been known togo public with terror alerts based on information that other agencies found to be sketchy. (26) This latter contention doesnot seem to be supported by the pattern of Administration officials, other than the DHS Secretary,openly discussing threats to the Nation. August 1 - November 10, 2004 Sixth time threat-level raised to Orange On August 1st, 2004, Secretary of Homeland Security Ridge stated that the HSAS was beingraised to Orange based on threat intelligence that indicated Al Qaeda was planning attacks againstfinancial institutions in New York, Washington, D.C., and New Jersey prior to September 11, 2001.In announcing this threat level change, the DHS Secretary Ridge stated that the United States hadnew and unusually specific information about where al Qaeda would like to attack. The following day, Monday, August 2, 2004 White House Homeland Security Advisor FranTownsend similarly stated that the increase in threat level was based on information showing thatAl Qaeda had been surveilling financial targets in 2000 and 2001. However, she also added that themost recent intelligence included mention of threats to the U.S. Capital and Members of Congress. This prompted Washington, D.C. Capitol Police Chief to remark that the briefings he had receivedon the recent intelligence did not speak to specific, credible, direct threats against Congress as aninstitution, or its Members. (27) Secretary Ridge did not mention the Capital or Congress in hisstatement announcing the increase in the threat level. However, one month later, Secretary Ridgereportedly admitted that though the Administration viewed the threat as "credible," the informationwas "sketchy and incomplete." (28) On October 12, 2004, in view of the uncertainty of the intelligence that was presented andthe subsequent announcements regarding the threat environment, Senator Mark Dayton temporarilyclosed his Washington, D.C. Office, " based upon that information, I have decided to close my officeuntil after the upcoming election. I do so out of extreme, but necessary, precaution to protect thelives and safety of my Senate staff and my Minnesota constituents, who might otherwise visit myoffice in the next few weeks. I feel compelled to do so, because I will not be here in Washington toshare in what I consider to be an unacceptably greater risk to their safety." (29) During this threat level change, a senior member of the White House proffered additionalinformation as to the reason the threat level was raised in Washington, D.C. The additionalinformation led to further confusion, producing follow-on statements and actions by the WashingtonD.C. Police Chief and a Member of Congress that further called into question the credibility of theoriginally announced information that led to the raising of the HSAS. Given the history of these seemingly uncoordinated threat notifications, local governmentsand the public have complained about being confused by the varying details supporting the decisionto raise the alert level. Many have lost confidence in the system. In February 2003, the Governor of Hawaii decided to keep Hawaii at the blue (guarded) levelwhen the federal government raised its level to orange (high risk). Monetary cost of increasedsecurity and the public's psyche were figured into the decision as well as the potential loss of life. Ed Teixeira, vice director of the civil defense division of the Hawaii's Department of Defensereportedly commented that, "just because [Secretary of Homeland Security Tom] Ridge and[Attorney General John] Ashcroft go on TV and say we are on orange, it doesn't mean states andcounties have to be at orange." (30) Though a lack of information regarding place and timing of anattack was noted as the reason to not follow the federal government's recommendation regardingraising the alert level, it is equally telling that the Hawaii State Homeland Security advisor pointedto the Secretary of Homeland Security and the the Attorney General as the individuals Hawaii Stateofficials listen to regarding threat warnings. Business leaders argued for better threat information from law enforcement, as well as bettercoordination among agencies providing threat information. Specifically, they said that they did notreceive sufficient specific threat information, and frequently received threat information frommultiple government agencies. (31) Some federal agencies, as well as state and local officialsreported hearing about notification of national threat level changes from other entities, such as theFBI and media sources, before being notified by DHS. (32) There have been examples and findings that speak to the issue of coordinated warnings andunity of message. A significant finding of the USS Cole Commission acknowledged thatcontradictory threat levels played a role in the level of protection of the ship on the day of theattack. (33) Similarly, theCommission on the Intelligence Capabilities of the United States regarding Weapons of MassDestruction reported on the confusion associated with threat warning products destined for thePresident and senior decision makers. (34) "The American public, state and local law enforcement,governors and mayors, and private sector officials with responsibility for critical infrastructure alldeserve crystal clarity when it comes to terrorism threat advisories." (Representative ChristopherCox (R-Calif.), Chairman of the House Select Committee on Homeland Security) A number of options exist that include clarifying DHS's primacy in alerting the Nation ofimpending threats, eliminating the Homeland Security Advisory System, or transferring the nationalthreat notification responsibility to the National Counter Terrorism Center. One issue is whether the intent of Section 201d7 (35) of the Homeland Security Act of 2002 was to give DHS explicitauthority and responsibility to be the sole federal entity charged with conveying homeland securitythreat information to the American people. In delivering to Congress the proposed legislation tocreate the Department of Homeland Security, President Bush recommended that "one departmentcoordinate communication with State and local governments, private industry, and the Americanpeople about threats and preparedness." (36) Section102(c)(3) of the Homeland Security Act also states thatthe Secretary of Homeland Security has the authority and responsibility for "distributing or, asappropriate, coordinating the distribution of warnings and information to State and local governmentpersonnel, agencies, and authorities and to the public." Congress could reemphasize DHS' primacyin alerting the Nation of impending threats. This might put other Agency officials on notice as towhom is authorized to be the public face of national threat notifications. Another option would beto allow other Departments to disseminate threat information regarding the security of the homelandwhen such information is deemed credible and extremely time-sensitive (exigent circumstances). Given the short history of the HSAS, uncoordinated warning efforts, lack of uniformity inthe type of information conveyed, and an increasingly wary populace as to the credibility of themessage, Congress could choose to eliminate the system. The natural question that follows is whatwould the replacement system be and would it be an improvement on the current system. One could argue that, given the uniqueness of each threat situation requiring acommunication to the public, threat notifications may not allow for a system per se. According tothis line of reasoning, each "warning-notice" should be handled as its own entity. Threat information,geographic location, target location, timing of perceived attack, defensive measures, and the likeshould be addressed individually and not formulated to fit into a neat category of threat-levels. Thismight be problematic for a number of reasons. First, many federal and state programs are tied to thecurrent color-code with numerous actions and funding decisions tied to a raising or lowering of thealert. Secondly, though cumbersome and non-specific, the current HSAS allows for an assessment,by federal and state governments, the private sector, and the public as to a general threat level thatcomes with certain expectations regarding the federal response. Lastly, if a warning-notice typesystem were introduced, the inevitable question would arise regarding how one compares today'sthreat warning to past color-coded warnings and other warning-notices. As stated in the Intelligence Reform and Terrorism Prevention Act of 2004, a mission of theNational Counter Terrorism Center is to serve as the primary organization for analyzing andintegrating all intelligence possessed or acquired by the United States Government pertaining toterrorism and counter terrorism (except intelligence pertaining exclusively to domestic terrorists anddomestic counter terrorism) and to serve as the central and shared knowledge bank on known andsuspected terrorists and international terror groups, as well as their goals, strategies, capabilities, andnetworks of contacts and support. (37) Since the relevant Departments concerned with terrorism are represented at the NCTC andlegislatively NCTC is the focal point of all federal analytical and strategic operational planningterrorism efforts, this entity may be well positioned to review all applicable information regardingthe terrorist threat and also coordinate the warning message to be conveyed to the public. One optionwould be to designate the NCTC the federal government's communicator of threat information tothe Nation. Precedence exists for this option as Secretary Ridge and the Director of the NCTC(formerly the Terrorist Threat Integration Center) held a joint press conference discussing the threatenvironment and suggested protective measures. (38) Formalizing the NCTC as the national threat messenger wouldallow Congress to hold one organization (NCTC) responsible for terrorism analysis and the warningsthat are derived therein. DHS could continue to provide specific advice regarding protectivemeasures to the private sector, state and local governments, and the public. However, the advice andcollaborative efforts would be based on threat information compiled and communicated by theNCTC. Congress could include language to allow for other Departments to disseminate threatinformation under exigent circumstances. Whether the threat notification process continues in the current form of the HSAS, iseliminated and replaced by situation specific warning-notices, or is transferred to the NCTC or someother entity, the issue remains one of coordination and unity of message, rather than in what formthe threat information should be conveyed. Undoubtedly, numerous government agencies willcontinue to comment on various aspects of a given threat condition. However, critics argue thatfuture national threat announcements should occur in a coordinated manner that allows for anunambiguous message. Due to a lack of coordination and unity in message it appears that the generalpublic and affected localities are becoming desensitized or disinterested in the information containedin national threat warning notification messages. The lack of confidence brought on by confusionin the current notification process could be a severe liability in an actual emergency.

A perceived lack of coordination in the federal government's warning notification processand inconsistent messages regarding threats to the homeland have led to an erosion of confidencein the information conveyed to the Nation. Congress is now considering legislation( H.R. 1817 , The Department of Homeland Security Authorization Act for FY2006) toreform the Homeland Security Advisor System to allow for greater confidence in the threatinformation conveyed to the Nation. Since September 11, 2001, numerous federal government organizations have notified thepublic of threats to the Nation. At times, warnings have been issued in a government-widecoordinated manner; other times this has not been the case. In each situation that has led toincreasing the threat level, a number of organizations have made public pronouncements regardingthe nature of the threat prior to, during, or after the raising of the alert-level. The informationconveyed to the public often has been inconsistent regarding the threat or the timing of a suspectedattack. This lack of coordination and unity in message has led to a dilution in the American public'sbelief in the pronouncements and a questioning of the utility of the Homeland Security AdvisorySystem (HSAS). The focus of this paper is the federal government's coordination efforts in publiclyalerting the Nation of threats to the homeland. The report reviews past warnings and changes in thealert level, organizations that have made public statements regarding threats to the Nation, andexamples of how this lack of unity might lead to confusion and misinterpretations of the threat level.Options for Congress are provided regarding delineation of roles and responsibilities and whichgovernment entity should be held accountable for warning the Nation of threats to the homeland . This paper may be updated based on future National threat notifications or changes in thenotification system. For a discussion and options regarding the Homeland Security AdvisorySystem's (HSAS) level of detail with respect to disseminated warnings, Department of HomelandSecurity's suggested protective measures, coordination of the HSAS with other current federalwarning systems, or the costs associated with threat levels changes see CRS Report RL32023 , Homeland Security Advisory System: Possible Issues for Congressional Oversight .

In the 19 th century and first half of the 20 th century, the federal government made determinations about which groups of Indians were tribes on an ad hoc basis when negotiating treaties and determining which groups of Indians could reorganize their governments under the Indian Reorganization Act. In the 1970s, the number of requests for tribal recognition by the Department of the Interior (Department) increased exponentially in the wake of the decisions in United States v. Washington , which recognized tribal treaty fishing rights in the Pacific Northwest, and Joint Tribal Council of Passamaquoddy v. Morton , which recognized a tribal land claim on the East Coast. Faced with many requests for tribal recognition, in 1978, the Department adopted a uniform process and uniform criteria for considering whether a group should be acknowledged as an Indian tribe. Acknowledgment or recognition as an Indian tribe has important legal and practical significance. One scholar on tribal acknowledgment explains the significance of tribal recognition as follows: An administrative determination that a group is a tribe (i.e., that it merits federal acknowledgment or recognition) establishes a government-to-government relationship between it and the United States. A positive determination under the regulations means that the group has inherent sovereign authority independent of the state in which it is located and independent of the United States, although it remains a domestic dependent nation. A group acknowledged under the regulations has continuously existed throughout history. A tribe, consequently, has sovereign immunity and may exercise jurisdiction over its territory and establish tribal courts, administer funds under the Indian Self-Determination and Education Assistance Act, establish gaming facilities under the Indian Gaming Regulatory Act, bring a land claim under the Indian Trade and non-Intercourse Act, exercise treaty hunting and fishing rights, and obtain other federal benefits and exercise their own sovereign authority, except as limited by federal law. General prohibitions or limitations also apply to federally recognized tribes. For example, possession of liquor is prohibited in Indian country absent publication of a certified liquor ordinance, and the sale of land is limited. Thus, a determination that a group is or is not a tribe is a decision with significant impacts on the group itself, federal and state governments, other Indian tribes, and non-Indians. The process set forth in 25 C.F.R. Part 83 includes procedures that the Department must follow and establishes the burden of proof for petitioners and the criteria that Indian groups must satisfy in order to be acknowledged as Indian tribes. The acknowledgment process is available to "American Indian groups indigenous to the continental United States." Only "groups that can establish a substantially continuous tribal existence and which have functioned as autonomous entities throughout history until the present" may be acknowledged. Therefore, groups that recently came together and "[s]plinter groups, political factions, communities or groups of any character that separate from the main body of a currently acknowledged tribe" may not be acknowledged. Groups that were subject to congressional termination may not use the process to be acknowledged. Finally, groups that have been through the process and failed may not re-petition for acknowledgment. The acknowledgment process begins when a group files a letter of intent, signed by the governing body of the group, requesting that the group be acknowledged. However, the review process does not begin until a group submits a documented petition. The minimum amount of time from the start of active consideration of the group's petition until a final determination is 25 months. Groups have an unlimited amount of time to file a documented petition. A documented petition must contain "thorough explanations and supporting documentation in response to all of the criteria." In 2002, the office within the Department responsible for reviewing documented petitions reported to Congress that petitions were ranging in size from 30,000 to over 100,000 pages. The Office of Federal Acknowledgment (OFA) reviews the documented petition and makes recommendations to the Assistant Secretary--Indian Affairs (Assistant Secretary). Before OFA actively considers the petition, OFA conducts a preliminary review for the purpose of providing technical assistance to the group (petitioner) so that the petitioner may supplement or revise its petition. After the petitioner responds to the technical assistance, OFA will inform the petitioner in writing of any "obvious deficiencies or significant omissions." The petitioner may supplement the petition with additional information or withdraw the petition prior to OFA's active consideration to do further work on it. Once the documented petition is completed to the petitioner's satisfaction, it is ready for active consideration by OFA. A team within OFA, generally composed of a historian, a genealogist, and a cultural anthropologist, reviews the documented petition to see if it satisfies all of the following mandatory criteria. "A criterion shall be considered met if the available evidence establishes a reasonable likelihood of the validity of the facts relating to that criterion." 25 C.F.R. Section 83.7(a) requires that the group "has been identified as an American Indian entity on a substantially continuous basis since 1900." Section 83.7(a) lists the kind of evidence of identification that is accepted. However, just about any evidence of identification as an Indian entity by someone other than a member of the group is accepted. 25 C.F.R. Section 83.7(b) requires that "a predominant portion of the petitioning group comprises a distinct community and has existed as a community from historical times until the present." Section 83.7(b) provides examples of the kind of evidence that can prove the existence as a community, including marriage patterns; social or economic relationships connecting the group; strong patterns of discrimination by nonmembers; shared sacred or ritual activities among most of the group; and cultural patterns that distinguish the group from the surrounding non-Indian population. A petitioner that can show the following is deemed to have provided sufficient evidence of community at a particular point in time: more than 50% of the members live in a geographical area exclusively or almost exclusively and the remaining members maintain consistent interaction with members of the group; at least 50% of the marriages in the group occur between members; at least 50% of the members have a distinct culture, such as a language or religion; or distinct community social institutions encompass most of the group. 25 C.F.R. Section 83.7(c) requires that "[t]he petitioner has maintained political influence or authority over its members as an autonomous entity from historical times to the present." "Political influence or authority" is defined to mean "a tribal council, leadership, internal process of other mechanism which the group has used as a means of influencing or controlling the behavior of its members in significant respects, and/or making decisions for the group which substantially affect its members, and/or representing the group in dealing with outsiders in matters of consequence." Section 83.7(c) identifies the kind of evidence that can demonstrate political influence or authority. A petitioner will be deemed to have established this criterion for a given point in time if it shows that group leaders or some other mechanism within the group allocates group resources; settles disputes among members or subgroups; exerts strong influence on the behavior of members; or organizes or influences economic subsistence efforts among the group. Any petitioner that uses one of these methods for demonstrating political influence will be deemed to have established community for that point in time. 25 C.F.R. Section 83.7(d) requires the petitioner to provide a copy of the governing document, including membership criteria. 25 C.F.R. 83.7(e) requires that the petitioner's membership consists of individuals who descend from a historical Indian tribe or from historical Indian tribes that combined and operated as a single entity. Section 83.7(e) also requires petitioners to provide membership lists. 25 C.F.R. Section 83.7(f) requires that the petitioner's membership is "composed principally of persons who are not members of any acknowledged North American Indian tribe." 25 C.F.R. Section 83.7(g) requires that the petitioner establish that "[n]either the petitioner nor its members are the subject of congressional legislation that has expressly terminated or forbidden the Federal relationship." If a petitioner can demonstrate "unambiguous previous Federal acknowledgment," the proof required for the mandatory criteria is different. The Assistant Secretary will make a determination about previous federal acknowledgment during the technical assistance review. Evidence to demonstrate previous federal acknowledgment can include treaty relations with the United States; congressional or executive denomination of the group as a tribe; or federal acknowledgment of collective interest in tribal lands or funds. The proof under the criteria changes in the following ways. First, a petitioner with previous federal acknowledgment must demonstrate identification as an Indian entity from the date of the last federal acknowledgment. Second, the petitioner needs to demonstrate only that it is presently a community. Third, the petitioner must demonstrate political influence or authority at present, as well as from the last date of federal acknowledgment, and it can use "identification by authoritative, knowledgeable external sources[] of leaders and/or a governing body who exercise political influence or authority" together with one form of evidence listed in Section 83.7(c). Alternatively, the petitioner can demonstrate identification, community, and political influence or authority from the date of last federal acknowledgment to the present. After technical assistance but before active consideration of the petition, the team within OFA reviews any petitions that it believes contains little or no evidence that establishes that its members descend from a historical Indian tribe or tribes; its members are not members of a federally recognized tribe; and it has not been the subject of congressional termination. If the evidence "clearly establishes" that the group does not meet any of those criteria, the Assistant Secretary will not review the entire petition. Rather, the Assistant Secretary will decline to acknowledge the petitioner as an Indian tribe. The Assistant Secretary has one year from the time the team begins active consideration of a petition until when he must publish a proposed finding in the Federal Register . The Assistant Secretary may suspend consideration of the petition if there are technical problems with the petition or administrative problems that temporarily prevent active consideration of the petition. The Assistant Secretary has discretion to grant a petitioner's request for suspension of consideration for good cause. Upon publication of the proposed finding, the petitioner, interested parties, and informed parties have 180 days to submit arguments and evidence to rebut or support the proposed finding. The Assistant Secretary has discretion to extend the comment period for up to 180 days for good cause. Upon request by the petitioner or an interested party, the Assistant Secretary will hold a formal hearing for the purposes of inquiring into the reasoning, analysis, and factual basis for the proposed finding. The petitioner has 60 days to respond to the comments of an interested or informed party. Depending on the extent of the comments, the petitioner's response time may be extended at the Assistant Secretary's discretion. At the end of the comment period, the Assistant Secretary consults with the petitioner and interested parties to determine "an equitable timeframe" for consideration of the materials submitted during the response period. The Assistant Secretary has 60 days from the time the team begins consideration of the arguments and evidence supporting or rebutting the proposed finding to publish a final determination in the Federal Register . The Assistant Secretary has discretion to extend this period depending on the extent of the comments received in response to the proposed finding. The final determination becomes final 90 days from publication in the Federal Register unless a request for reconsideration is filed by the petitioner or an interested party with the Interior Board of Indian Appeals (IBIA). There is an opportunity for review of the final determination if the petitioner or an interested party requests reconsideration from the IBIA within 90 days of publication of the final determination in the Federal Register . If the IBIA receives no request within 90 days, the final determination becomes a final agency action for the Department, and becomes effective 120 days after the final determination was published in the Federal Register . The Department does not defend the final determination during the reconsideration process. Rather, the petitioner and the interested parties submit briefs supporting or challenging the final determination. There are four grounds for limited independent reconsideration by the IBIA: "[T]here is new evidence that could affect the determination;" "[A] substantial portion of the evidence relied upon in the [final] determination was unreliable or was of little probative value;" The petitioner's or the Assistant Secretary's research "appears inadequate or incomplete in some material respect;" "[T]here are reasonable alternative interpretations, not previously considered, of the evidence used for the final determination, that would substantially affect the determination that the petitioner meets or does not meet one or more of the criteria." The IBIA can either affirm the Assistant Secretary's determination, if it finds that the petitioner or interested party has failed to establish, by a preponderance of the evidence, at least one of the above grounds, or vacate and remand the determination, if it finds that the petitioner or interested party has succeeded in establishing, by a preponderance of the evidence, one of the above grounds. The IBIA does not have authority to reverse the Assistant Secretary's final determination. If the IBIA affirms the final determination but finds that the petitioner or interested party has alleged other grounds for reconsideration, the IBIA must send the requests for reconsideration to the Secretary of the Interior (Secretary). The Secretary has discretion to request the Assistant Secretary to reconsider the final determination on those grounds. In considering whether to request the Assistant Secretary to reconsider, the Secretary may consider any information, including information outside the record. When the IBIA has sent the Secretary a request for reconsideration, the petitioner and interested parties have 30 days from receiving notice of the IBIA's decision to submit comments to the Secretary. If an interested party files comments opposing the petitioner's request for reconsideration, the petitioner has 15 days to respond. The Secretary has 60 days after receiving all the comments to decide whether to request the Assistant Secretary to reconsider. If the Secretary decides not to request reconsideration by the Assistant Secretary, the final determination becomes final on the date the parties are notified of the Secretary's decision. After a remand from the IBIA or a request for reconsideration by the Secretary, the Assistant Secretary has 120 days from receipt of the IBIA's decision or the request from the Secretary to issue a reconsidered determination. A reconsidered final determination becomes final and effective upon publication of the notice of the reconsidered determination in the Federal Register . In May 2014, Interior proposed a new rule for Part 83 that would comprehensively change the acknowledgment process. The preamble to the proposed rule explains that Interior issued the proposed rule in response to criticism that the acknowledgment process is too slow, expensive, inefficient, burdensome, intrusive, less than transparent, and unpredictable. Accordingly, the proposed rule would change Part 83 in an effort "to make the process and criteria more transparent, promote consistent implementation, and increase timeliness and efficiency, while maintaining the integrity of the process." The public may submit comments on the proposed rule until August 1, 2014. The proposed rule would make several changes to the criteria. First, the proposed rule would change criterion (a) from identification as an Indian entity from 1900 to the present to a narrative explaining, and proof of, tribal existence at some point in 1900 or before. Current criteria 87.3(b) and (c) require proof of community and proof of political authority from historical times to the present. Proposed criteria (b) and (c) would require proof of community and political authority from 1934 to the present "without substantial interruption." "Without substantial interruption" would be defined to mean without gaps of more than 20 years. In addition to the current bases for finding community and political authority, the proposed rule would establish as acceptable proof maintaining a state reservation by the petitioner since 1934, or the United States holding land for the petitioner at any point since 1934. For criterion (b) the current rule requires that a predominant portion of the petitioner's membership be a distinct community. The proposed rule would require that at least 30% of the petitioner's membership be a distinct community. The proposed rule would also provide that proof of boarding school attendance by petitioner's children would constitute proof of community. For criterion (e), descent from a historical tribe, the proposed rule would make three changes. First, under the current rule the term "historical" is defined to mean the later of 1789 or first non-Indian settlement or government presence in the area. The proposed rule would define historical as 1900 or before. Second, the proposed rule would change the requirement of proof that the tribe's membership descends from a historical tribe to proof that 80% of the membership descends from a historical tribe. Third, the proposed rule would establish that criterion (e) may be satisfied by a roll prepared either by Interior or at the direction of Congress, and that Interior will rely on such a roll as an accurate roll of descendants of the tribe that existed in historical times. In the absence of such a roll, the petitioner may rely on the most recent available evidence for the historical period (1900 or before). Criterion 83.7(f) requires that the petitioner is composed principally of persons who are not members of federally recognized tribes. The proposed rule would add that members of a petitioner who filed its petition by 2010 who then joined a federally recognized tribe would not count against the petitioner. Finally, criterion 83.7(g) now requires petitioners to establish that they are not subject to legislation forbidding or terminating the tribal-federal relationship. The proposed rule would shift the burden to Interior to show that Congress has forbidden or terminated the federal relationship with the petitioner. The proposed rule would make several changes to the acknowledgment process, the most significant of which are described below. Under the current practice, OFA makes recommendations to the Assistant Secretary, whom the current regulations charge with making proposed findings and final determinations. Under the proposed rule, OFA would issue proposed findings and the Assistant Secretary would make final determinations. The Assistant Secretary's decision would be final for Interior, with no consideration by the IBIA. The proposed rule would provide for consideration of the criterion in stages and provide that petitioners receiving a negative proposed finding at any stage could appeal the finding to a judge within the Office of Hearings and Appeals (OHA). The OHA judge could hold a hearing and would issue recommendations for the Assistant Secretary to consider in making the final determination. During the first stage of making proposed findings, OFA would consider criterion (e) (descent from a historical tribe). If a petitioner satisfied criterion (e), OFA would then consider criteria (a) (tribal existence), (d) (governing document), (f) (membership), and (g) (congressional prohibition or termination). Finally, if the petitioner satisfied those criteria, OFA would consider criteria (b) (community) and (c) (political authority). If a petitioner made it through all stages of review, OFA would issue a positive proposed finding. The proposed rule would provide that, in limited circumstances, petitioners that received negative final determinations under the current rule could re-petition. First, if the Assistant Secretary issued a negative final determination and the petitioner appealed to the IBIA or federal court and lost, the petitioner could re-petition if it obtained the consent of the prevailing party, if any, in those proceedings. Second, if a petitioner did not seek review by the IBIA or a federal court, or it did but there was no opposing party, a petitioner could re-petition if an OHA judge determined that the petitioner had demonstrated by a preponderance of the evidence that changes in the rules warranted a reconsideration of the final determination or that the wrong standard of proof was used in the final determination.

In 1978, the Department of the Interior (Department) adopted a final rule setting forth the process by which a group may be recognized (also acknowledged) as an Indian tribe by the Department. Prior to that time, the Department made decisions on an ad hoc basis. However, in the wake of the treaty fishing rights case United States v. Washington and eastern land claims, more groups started seeking recognition as Indian tribes, and the Department could no longer manage the recognition requests on a case-by-case basis. The acknowledgement process, codified in 25 C.F.R. Part 83, sets forth a uniform process and uniform criteria for acknowledging that groups exist as Indian tribes. The key to federal acknowledgment under the current regulations is continuous political existence of an Indian group from historical times to the present. The federal acknowledgment process does not create tribes, and it does not give groups sovereignty. Rather, it acknowledges a political entity that already exists. To do this, 25 C.F.R. Section 83.7 provides seven mandatory criteria that groups must satisfy in order to establish that they exist and have existed as an autonomous political entity. First, in order to be acknowledged, a group must establish that it has been identified as an Indian entity from 1900 to the present. Second, it must establish that it has existed as a community from historical times to the present. Third, it must establish that it has exercised political control over its members from historical times to the present. Fourth, the group must provide a copy of its governing document, including membership criteria. Fifth, the group must establish that its members descend from a historical Indian tribe or historical Indian tribes that combined and functioned as a single autonomous political entity. Sixth, the membership must be composed principally of persons who are not members of a federally recognized tribe. Finally, the group must establish that it is not the subject of congressional legislation terminating or forbidding the federal-tribal relationship. The current regulations assign responsibility to the Assistant Secretary--Indian Affairs (Assistant Secretary) to issue initial proposed findings and then final determinations. The Office of Federal Acknowledgment (OFA) makes recommendations to the Assistant Secretary on the proposed findings and the final determinations. A final determination may be appealed on limited grounds to the Interior Board of Indian Appeals. Acknowledgment as an Indian tribe means that the group becomes a federally recognized tribe with which the United States has a government-to-government relationship. This relationship makes the tribe and its members eligible for certain benefits, as well as subject to certain protections. It also means that the tribe may exercise jurisdiction over its territory and members generally free from state law, subject to limitations of federal law. After years of criticism of the acknowledgment process, the Department of the Interior has proposed several changes to the acknowledgment regulations. First, the proposed rule would change some of the criteria. Second, the proposed rule would assign responsibility for the proposed findings to OFA but keep responsibility for the final determinations with the Assistant Secretary. In rendering the proposed finding, OFA would consider the criteria in stages. Petitioners could appeal a negative proposed finding at any of the stages. The appeal would be heard by a judge within the Office of Hearings and Appeals (OHA) who would issue a recommended decision for the Assistant Secretary to consider in issuing the final determination. The Assistant Secretary's decision would be final for the Department.

The Incompatibility Clause of the U.S. Constitution states that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." This provision is generally understood to ensure the separation of powers by preventing Members of Congress from serving in two government posts at one time. The prohibition on simultaneous service in multiple offices of the government prevents the individual from exercising influence of one branch while serving in the office of another. To avoid constitutional violations under the Incompatibility Clause, Members generally are required to resign their previous offices before being seated in Congress. The Incompatibility Clause often raises questions of the propriety of Members' conduct in the context of military service, particularly service in the Armed Forces Reserves, and whether service in the Reserves would disqualify the Member from simultaneously serving in Congress. The Constitution also provides that "each House shall be the judge of the elections, returns and qualifications of its own Members." In some cases, the House and Senate have exercised their authority under this provision to determine the eligibility of their Members to hold commissions in the military, including the Reserves. The central issue in determining whether a Member may simultaneously serve in the Reserves is whether a position in the Reserves constitutes an "Office under the United States." This issue has been litigated in the U.S. Supreme Court in Schlesinger v. Reservists Committee to Stop the War . The Court resolved the case on procedural grounds, finding that the Reservists Committee did not have standing to raise the matter in court, and did not address the substantive constitutional claim. Other courts have dealt with related issues, including what positions constitute offices of the United States. Although Congress has taken action in some instances of Members' service in the military and courts have resolved some related challenges related to service in the Reserves, the issue of whether a Member may serve in Congress and the Reserves simultaneously has never been clearly resolved. The U.S. Constitution provides that "each House shall be the judge of the elections, returns and qualifications of its own Members." Thus, Congress is empowered to determine whether a Member is eligible or qualified to serve in the seat for which he or she was elected. Because the Incompatibility Clause prohibits a Member from simultaneously serving in another office of the United States, Congress has the prerogative to determine if a Member's role in another governmental capacity would disqualify him or her from serving in Congress. Congress has acted specifically with respect to individual Members' simultaneous service and generally by enacting legislation that addresses the status of Reservists in the government. Both the House and Senate, pursuant to their constitutional power to judge the qualifications of their Members, have considered the eligibility of their Members to hold commissions in the military. The precedents seem to indicate that a Member of Congress may, upon entry into the Armed Forces by enlistment, commission, or otherwise, cease to be a Member of Congress, provided the House or Senate chooses to act. Congress's enforcement of the Incompatibility Clause appears to have first occurred in the seventh Congress, when Representative John Van Ness accepted an office in the militia during the recess between the first and second sessions. The House unanimously voted in support of a resolution that Van Ness had "thereby forfeited his right to a seat as a Member of this House." The unanimous vote was apparently intended to set "the important precedent ... to exclude even the shadow of Executive influence." In some cases, however, the House or Senate has not acted. Congress has not acted in any case of an individual Representative or Senator regarding simultaneous service in the Reserves. Although there appears to be no precedent regarding such circumstances, Congress has attempted, as discussed below, to clarify the status of Members serving as Reservists through legislation. Although Congress has considered the eligibility of several individual Members on active duty specifically and may continue to do so, it has also addressed the status of Reservists by general legislation. It appears that the question of the propriety of simultaneous service of an individual in the Congress and in the Reserves may now be clarified by 5 U.S.C. SS 2105, which defines "employee" for purposes of Title 5 of the U.S. Code, which contains laws relating to government employment. Section 2105(d) provides that a Reserve of the armed forces who is not on active duty or who is on active duty for training is deemed not an employee or an individual holding an office of trust or profit or discharging an official function under or in connection with the United States because of his appointment, oath, or status, or any duties or functions performed or pay or allowances received in that capacity. Under this definition, it appears that a Member serving as a Reservist would likely not be acting in violation of the Incompatibility Clause. As a statute, SS 2105(d) cannot define the terms of the Constitution and thus would not resolve the constitutional question, but it may be used as an indication of the sense of Congress regarding the status of Reservists. Because Congress has the power to determine the qualifications of its own Members, the limitations that it has imposed on what constitutes an employee holding an office of the United States may be significant to courts considering the constitutional limitations. The central issue in the debate over the legality of simultaneous service is the definition of an office of the United States. If an appointment in the Reserves is not deemed to be an office of the United States, the Incompatibility Clause would provide no basis to prohibit simultaneous service in Congress. Some have argued that the issue of simultaneous service is nonjusticiable, meaning that the issue is not one that courts should adjudicate. Under this argument, because the Constitution gives Congress the authority to judge the qualifications of its Members, courts should not weigh in on the propriety of simultaneous service. On the other hand, the courts are empowered to interpret the meaning of the Constitution and may assert that authority to hear Reservists' cases. Direct legal challenges to simultaneous service in Congress and the Reserves have not been resolved on the merits. When the issue came before the U.S. Supreme Court in 1973 in Schlesinger v. Reservists Committee to Stop the War , as discussed below, the Court decided the case on procedural grounds and no opinion was issued on the substantive claims under the Incompatibility Clause. Courts have heard other cases under the Incompatibility Clause that did not directly challenge simultaneous service as an officer in the Reserves, including a 2005 decision by the Court of Appeals for the Armed Forces. In that case, United States v. Lane , also discussed below, the court addressed the substantive claim of whether a Member of Congress could also serve as a judge in military court proceedings under his service as a Reservist. The U.S. Supreme Court considered a challenge to simultaneous membership in the Reserves and in Congress as a violation of the Incompatibility Clause in 1973. In Schlesinger v. Reservists Committee to Stop the War , an association of officers and enlisted members of the Reserves and several individual members of the association alleged that Members of Congress who simultaneously served in the Reserves were acting in violation of the U.S. Constitution's prohibition on "holding any Office under the United States" while also serving as a Member of Congress. Although the district court held and the U.S. Circuit Court of Appeals for the District of Columbia affirmed that "Article I, Section 6, Clause 2 of the Constitution renders a member of the Congress ineligible to hold a commission in the Armed Forces Reserve during his continuance in office," the Supreme Court reversed the decision on other grounds, finding that the committee lacked standing to raise the claim. The Court's decision has limited citizens and taxpayers from raising the issue of simultaneous service in Congress and the Reserves. The Reservists Committee asserted their claims on the basis that as citizens and taxpayers, they were injured by the threat simultaneous service created for "the possibility of undue influence by the Executive Branch, in violation of the concept of independence of Congress implicit in Art. I of the Constitution." The Court held that the alleged injury was abstract, speculative, and generalized, and therefore was not a litigable matter for the courts to decide. The government raised several arguments to support the claim that simultaneous service in Congress and the Reserves did not violate the Incompatibility Clause. First, according to the government, simultaneous service in the Reserves was not the problem intended to be addressed by the Incompatibility Clause. The "intent was to avoid the possibility of improper influences upon and corruption of members of the legislative branch that could result from the power of the executive branch to appoint members to office." Furthermore, the government argued that "the minor and infrequent contacts these Reservists have with the military authorities as a result of their membership in the Reserves pose none of the dangers of domination and corruption of the legislative branch by the executive branch that the Framers sought to guard against." To support its position, the government also cited other court cases that considered the definition of offices and officers of the United States. For example, the U.S. Supreme Court has held that an employee whose "duties were continuing and permanent, not occasional or temporary" was an officer of the United States. According to the Court, "the term [office] embraces the ideas of tenure, duration, emolument, and duties." This definition was used by the U.S. Court of Claims in a case challenging the status of a Reservist. The court held that an inactive Reservist was not also an officer of the United States. The court reasoned that "an officer of the Reserve Corps has no salary or emolument of office. He is not in time of peace, except perhaps while discharging some duty to which he may have been lawfully called ..., amenable to the Army regulations or court-martial. He has no defined duties to discharge." The issue of the constitutionality of Members of Congress simultaneously serving as Reservists was again raised in 2005 in a lawsuit involving Senator Lindsey Graham, who was an officer in the U.S. Air Force Standby Reserve at the time. The Judge Advocate General of the Air Force assigned Senator Graham to act as an appellate judge on the Air Force Court of Criminal Appeals. One of the cases assigned to Senator Graham was that of an airman convicted of a drug use violation. The airman challenged the legality of Senator Graham's service on a panel of the Court of Criminal Appeals that reviewed the appeal. When the case came before the U.S. Court of Appeals for the Armed Forces (CAAF), the court limited its decision to the issue of "whether a criminal conviction and sentence, which by statute can be sustained only by an affirmative appellate decision, may be reviewed by an appellate judge who simultaneously serves as a Member of Congress." The CAAF noted that the Supreme Court has held that "the term 'officers of the United States' includes 'all persons who can be said to hold an office under the Government.'" The Supreme Court has also indicated that the distinction between officers and non-officers depends on whether the individual exercises "significant authority pursuant to the laws of the United States." The CAAF held that under this definition, military judges are officers of the United States. The court stated that "the Incompatibility Clause--which prohibits a Member of Congress from 'holding any Office under the United States'--precludes a Member from serving as an appellate judge on a Court of Criminal Appeals--an 'office' that must be filled by an 'Officer of the United States.'" The CAAF limited its decision to whether a Member of Congress could serve as a judge in the airman's proceeding. It refused to pass judgment on whether service as a Reservist constitutes "an office of the United States for purposes of qualification to serve as a Member of Congress under the Incompatibility Clause." Thus, the court left unresolved the propriety of simultaneous service in Congress and the Reserves.

The Incompatibility Clause of the U.S. Constitution states that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." This provision is generally understood to ensure the separation of powers by preventing Members of Congress from serving in two government posts at one time. The prohibition on simultaneous service in multiple offices of the government prevents the individual from exercising influence of one branch while serving in the office of another. To avoid related constitutional violations, Members generally are required to resign their previous offices before being seated in Congress. The Incompatibility Clause often raises questions of the propriety of Members' conduct in the context of military service, particularly service in the U.S. Armed Forces Reserves, and whether service in the Reserves would disqualify the Member from simultaneously serving in Congress. The Constitution also provides that "each House shall be the judge of the elections, returns and qualifications of its own Members." In some cases, the House and Senate have exercised their authority under this provision to determine the eligibility of their Members to hold commissions in the military, including the Reserves. The central issue in determining whether a Member may simultaneously serve in the Reserves is whether a position in the Reserves constitutes an "Office under the United States." This issue has been litigated in the courts and made its way to the U.S. Supreme Court in Schlesinger v. Reservists Committee to Stop the War. The Court resolved the case on procedural grounds, finding that the Reservists Committee did not have standing to raise the matter in court, and did not address the substantive constitutional claim. Other courts have dealt with related issues, including what positions constitute offices of the United States. Although Congress has taken action in some instances of Members' service in the Reserves and courts have resolved some related challenges, the issue of whether a Member may serve in Congress and the Reserves simultaneously has never been clearly resolved. This report will analyze the legal issues related to Members of Congress serving in the Armed Forces Reserves during their congressional tenure. It will discuss previous congressional action regarding Members' simultaneous service as well as federal legislation addressing the status of Reservists. It will also analyze court decisions related to challenges to simultaneous service.

Turnover of membership in the House and Senate necessitates closing congressional offices. The most common reason for departure is the expiration of a Member's term of office, but a congressional office may also become vacant due to resignation, death, or other reasons. The closure of a congressional office requires an outgoing Member of Congress, or congressional officials, in the case of a deceased Member, to evaluate pertinent information regarding staff; the disposal of personal and official records; and final disposition of office accounts, facilities, and equipment. Table 1 summarizes the numbers of Members who have left or will be leaving the House and Senate after the 112 th Congress, and in the prior 10 Congresses. The House and Senate have developed extensive resources to assist Members in closing their offices. These services are typically used at the end of a Congress, when a Member's term of service ends, but most services are available to an office that becomes vacant for other reasons. This report provides an overview of issues that may arise in closing a congressional office, and provides a guide to resources available through the appropriate support offices of the House and Senate. House office closing activities are supported by the Chief Administrative Officer (CAO), Clerk of the House, and House Sergeant at Arms. Resources related to closing a congressional office are available to House offices through the 113 th Congress transition website on the House intranet. When it becomes known that a Senate office will be closing, the Sergeant at Arms contacts that office to initiate closing support services. The Senate Sergeant at Arms provides office closing services through an Office Support Services Customer Support Analyst (CSA) assigned to each Senate office. A CSA helps coordinate an initial closing office planning meeting between the office and all Senate support offices, and it facilitates the provision of the following: office equipment inventory reports assistance with archiving documents information on closing out financial obligations information on benefits and entitlements available to a Senator after leaving office Payroll for staff of Members who are leaving office at the conclusion of a Congress typically terminates automatically on January 2. The employing authority, a Member in the case of a personal office that is closing, determines whether outgoing staff are eligible to receive a lump sum payment for any accrued annual leave. Other potential benefits, including retirement plans, post-employment life or health insurance benefits, and student loan repayment programs, are administered through the House Office of Human Resources, according to statute and chamber regulation. The office will continue to interact with former House employees on a wide range of post-employment matters, including wage and earning statements, employee benefits, and any forms that must be completed by former employees. In addition to staff procedures to support the closing of a Representative's office, the House provides certain post-employment services to departing staff, including a resume referral service to House staff who desire employment with Members-elect, provided by the CAO; individual outplacement and technical assistance, as well as job search strategies and transitional techniques to separating employees of the House, provided by the House Outplacement Services Resource Center; and help for affected employees focused on designing and developing a successful job search, provided by the Office of Employee Assistance. Staffs of Senators who will leave office when their term of office officially expires at noon on January 3 of the year in which such a term ends remain on the payroll until the close of business on January 2 of the year in which the Senator's term of office expires, unless terminated sooner. The Senate Disbursing Office addresses issues related to the termination of employment of departing staff and provides information on the available options to staff regarding post-employment insurance and retirement programs and other benefits. The Senate Placement Office provides application and referral service for professionals and support staff, and it can assist outgoing Senate employees who are seeking positions in new congressional offices. The departing staff who are interested in this service must complete an application form and be interviewed by a personnel specialist. Placement office personnel then review applications and send them to offices with matching available positions. According to the Clerk of the House, the files generated by a Member's congressional office and accumulated in the course of service in the House are the personal property of the Member. The House pays for point-to-point shipping of all official records and papers for departing Members of that chamber. Official papers are generally described as those materials that may be mailed under franking regulations. Other materials, including memorabilia, photographs, and documents that do not relate to official business, must be shipped or disposed of at the outgoing Member's expense. Guidance regarding records management is available from the Office of the Clerk. Shipping of records is carried out by the House CAO. The Senate Records Management Handbook notes that neither statute nor the standing rules of the Senate define which items constitute a Senator's papers. For management purposes, the Secretary of the Senate defines Senators' papers as "all records, regardless of physical form and characteristics, that are made or received in connection with an individual's career as a United States Senator." The manual notes that, by tradition and practice, any such records are the private property of the individual Senator. The principal exclusion from Senators' papers are committee records that are defined by statute and Senate standing rules to be records of the Senate. Senate office closing guidelines specify a detailed process for the handling of a Senator's records. The National Archives and Records Administration (NARA) provides courtesy storage facilities to Members of Congress for records created in Capitol Hill offices at the Washington National Records Center (WNRC) in Suitland, MD, and at regional storage facilities around the country for records generated in state or district offices. NARA courtesy storage expires at the conclusion of a Member's term of office. WNRC can be reached at 301-778-1650. Contact information for NARA regional facilities is available at http://www.archives.gov/locations/ . The House Office of Finance requests that contact information for each closing office be provided to expedite resolution of final payments to vendors. Closing offices must settle several accounts, with units of the Secretary of the Senate and the Sergeant at Arms, as well as other government agencies. The Senate Disbursing Office is authorized to withhold from Senators' pay, reimbursements, mileage, or expense money for delinquent indebtedness to the Senate. At the conclusion of a Congress, the Architect of the Capitol has in the past advised that departing Members must vacate their Washington, DC, offices not later than noon on December 1, of the second year of a Congress. A Departing Member Service Center has provided functional workspace for departing Members and staff once their office suites are vacated. The center is typically secured by the U.S. Capitol Police and has a central administrative facility that is staffed by CAO employees. Each departing Member office is assigned a single cubicle that can accommodate the Member and one other person at any given time. Each cubicle is equipped with a telephone, networked computer, and basic supplies. Senators may remain in their personal offices in Washington, DC, until their terms of office expire. Senators leasing federal office premises or commercial space in their home states must notify the General Services Administration (GSA) or private landlord in writing at least 30 days in advance of their intention to vacate the premises. The Sergeant at Arms requires that a copy of an intent to vacate letter be provided to his office at the same time it is provided to landlords. All office space must be vacated by the close of business on January 2 of the year in which the Senator's term expires. House Support Services (HSS) staff will begin scheduling final equipment inventories for the Capitol Hill offices of departing Members shortly after the November elections. GSA is responsible for performing the final inventory for the district office locations of departing Members. All furniture and equipment (including copiers, faxes, telecommunication systems, computers, personal digital assistants, and any other equipment used to support office operations), whether used in office settings, or in the residences of Members and staff, must be accounted for in those inventories. Representatives are allowed to purchase their chairs and desks only from the Washington, DC, inventory. In district offices, succeeding Members will receive all of the equipment and furniture items of the outgoing Member. If the succeeding Member chooses not to use office items of the departing Member, those items will then become available for purchase by the departing Member. Furnishings in a departing Senator's personal and Capitol offices remain in place. Keys for Capitol offices must be returned to Sergeant at Arms Capitol Facilities. The Asset Management Section of the Sergeant at Arms conducts an inventory of all office and information technology (IT) related equipment in closing offices. Telecommunications equipment must be returned to the Senate. Outgoing Senators may purchase select office equipment and non-historical furniture used in their Capitol Hill offices. Emergency equipment, including annunciators, escape hoods, emergency supply kits (go kits), and victim rescue units, will be inventoried by the Office of Security and Emergency Preparedness (OSEP). Outgoing Senators may purchase office furnishings from only one of their state offices at a price equal to the acquisition price less depreciation. A Member of Congress may leave office prior to the expiration of his or her term, due to resignation, death, or for other reasons. On the first business day after the death, resignation, or expulsion of a Member of the House, his or her office is renamed the Office of the ___ Congressional District of State/Territory. Pursuant to House Rule II, cl.2(i)(1), staff on payroll of the congressional office when the outgoing Member departs remain employed by the House, and carry out their duties under the supervision of the Clerk of the House until a successor is elected. Senate practice regarding the closing of the office of a Senator who leaves office prior to the expiration of his or her term of office varies according to the circumstances of the departure. In addition to the expiration of the regular term of office, the Senate Handbook notes that a Senate office might be closed due to the following categories: resignation termination of the service of a Senator who is appointed and who does not stand for election, or is defeated death of a Senator Employees in the personal office of a Senator who resigns are continued on the Senate payroll at their respective salaries for up to 60 days after the Senator leaves office, unless the Senator's term of office expires sooner. Employee duties are performed under the direction of the Secretary of the Senate. An amount equal to one-tenth of the official office expense account portion of the Senator's Official Personnel and Office Expense Account is available to the Secretary of the Senate to defray those expenses directly related to closing a Senator's office. Expenses are paid from the Contingent Fund of the Senate as Miscellaneous Items. Employees in the personal office of a Senator whose appointment is terminated are continued on the Senate payroll at their respective salaries for up to 30 days after the termination of the Senator's service, or until they have become otherwise gainfully employed, whichever is earlier. The office space in Washington, DC, and in the state of an appointed Senator must be vacated on the day preceding the swearing-in of the successor, if the Senate is in session. If the Senate has adjourned sine die, an appointed Senator who will not continue to serve in the Senate must vacate office facilities the day before a successor is certified, or 30 days after a successor has been elected, whichever is earlier. Employees in the personal office of a deceased sitting Senator are continued on the Senate payroll at their respective salaries for up to 60 days after the Senator's death, unless the Senator's term of office expires sooner. The Committee on Rules and Administration may extend this period in cases where it will take longer to close a deceased Senator's office. Employee duties are performed under the direction of the Secretary of the Senate. An amount equal to one-tenth of the official office expense account portion of the Senator's Official Personnel and Office Expense Account is available to the Secretary of the Senate to defray those expenses directly related to closing a Senator's office. Expenses are paid from the Contingent Fund of the Senate as Miscellaneous Items. The Senate Financial Clerk provides information concerning allowances for the operation of the deceased Senator's office during the 60-day period.

Turnover of membership in the House and Senate necessitates closing congressional offices. The closure of a congressional office requires an outgoing Member of Congress to evaluate pertinent information regarding his or her staff; the disposal of personal and official records; and final disposition of office accounts, facilities, and equipment. In the past several years, the House and Senate have developed extensive resources to assist Members in closing their offices. These services are most typically used at the end of a Congress, when a Member's term of service ends, but most of the services are available to an office that becomes vacant for other reasons. This report provides an overview of the issues that may arise in closing a congressional office, and provides a guide to resources available through the appropriate support offices of the House and Senate. This report, which will be updated as warranted, is designed to address questions that arise when a congressional office is closing. Another related report is CRS Report R41121, Selected Privileges and Courtesies Extended to Former Members of Congress , by [author name scrubbed].

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

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

Stormwater discharge systems are the pipes and sewer lines that carry rainwater or snow melt, but not domestic sanitary wastes, away from urban areas and commercial and industrial facilities. For many years the focus of the nation's water quality programs was on controlling pollutants associated with industr ial process wastewaters and municipal sewage discharges. More diffuse and episodic discharges (such as rainfall runoff from farm lands and urban runoff) and discharges believed to be relatively uncontaminated received less attention from policymakers and regulators. However, as the traditional sources of water pollution have become better controlled through laws and regulations, attention has increasingly focused on remaining problems that continue to prevent attainment of state and tribal water quality standards. Stormwater is one such source of pollution. For some time, it was generally believed that stormwater was largely clean, or uncontaminated. However, studies have demonstrated that this type of discharge--from rainfall and snow melt--carries with it large amounts of organic and toxic pollutants that can harm water quality, including oil and grease, heavy metals, pesticides, soil, and sediment. In urban areas, widespread residential and commercial development results in the removal of vegetation cover and building of impervious structures such as roads and parking lots. These activities may change natural drainage patterns in an area, causing higher runoff flows during wet weather events. Urbanization and the human alteration of landscapes and land uses that is associated with it have resulted in the degradation of conditions in downstream waterbodies. States report that stormwater discharges, including urban runoff, industrial activity, construction, and mining, are a significant source of surface water quality problems today. But control of stormwater discharges and other sources of wet weather pollution, including overflows from combined and separate sewer systems, is complicated because discharges generally are intermittent and are less amenable to "end of pipe" solutions than conventional industrial and municipal water pollution. Recognition of the water quality problems of stormwater runoff led Congress in 1987, when it last comprehensively amended the Clean Water Act (CWA), to direct EPA to implement a specific permit program for stormwater discharges from industrial sources and municipalities ( P.L. 100-4 ). Even before the 1987 amendments, the issue of how to regulate stormwater discharges had a lengthy history of regulatory proposals, delays, legal challenges, and court decisions. Still, EPA had been unable to devise a comprehensive and flexible administrative process for regulating stormwater discharges before requirements were legislated in 1987. In that legislation, Congress established a phased and tiered approach to permitting of stormwater discharges that fundamentally redesigned the CWA's approach to stormwater discharges. Congress recognized that EPA's difficulties in addressing sources of stormwater stemmed in part from the large number of sources potentially subject to regulation, so the 1987 legislation adopted a procedure that would enable the major contributors of stormwater pollutants to be addressed first, and remaining stormwater discharges in later phases. EPA initially issued regulations to implement Congress's legislative mandate in 1990, utilizing a series of phased requirements. Phase I applied to large dischargers: those associated with industrial activities, municipal separate storm sewer systems serving 100,000 people or more, and construction projects disturbing more than 5 acres. Smaller sources were slated for possible regulation under Phase II of the program (discussed below) and included cities and towns with separate storm sewer systems serving fewer than 100,000 people, commercial operations, and smaller construction projects. Stormwater requirements are one element of the comprehensive permit program, the National Pollutant Discharge Elimination System (NPDES), authorized in Section 402 of the act. Under the act, it is illegal to discharge pollutants from point sources (e.g., industrial plant pipes, sewage treatment plants, or storm sewers) into the nation's waters without an NPDES permit--permits are the fundamental compliance and enforcement mechanism of the law. EPA manages the NPDES stormwater program in four states (Idaho, Massachusetts, New Hampshire, and New Mexico), plus the District of Columbia and most U.S. territories, and has delegated that authority to the remaining 46 states and the Virgin Islands. An estimated 123,000 industrial facilities (twice the number of industrial sources subject to the base NPDES program) and 220 municipalities and counties were covered by the 1990 permit rules for Phase I of the program. The initial procedures and deadlines were complex and were made more confusing by subsequent deadline extensions. The 1987 CWA amendments directed delegated states (or EPA) to issue stormwater permits not later than four years after enactment of that legislation. This would have required permits to be issued by February 4, 1991, but this did not occur, in part because EPA's 1990 rule was issued 21 months after the statutory deadline. Regulated sources must comply with stormwater permits within three years of their issuance. Permits require dischargers, at a minimum, to implement pollution prevention plans, although remediation or additional treatment of runoff may also be required. Permits issued to municipalities require cities to develop, implement, and enforce a stormwater management program that addresses key areas such as public education, eliminating illicit connections to storm sewers, good housekeeping of municipal operations, and control of erosion and sedimentation from construction sites. Prior to implementation of the stormwater regulatory program, the universe of NPDES permittees nationwide was less than 70,000 industrial and municipal facilities. The addition of stormwater permittees greatly expanded this regulatory program. EPA estimates that the total number of stormwater permittees at any one time exceeds half a million--thus, NPDES stormwater permittees outnumber wastewater permittees more than five-fold. Industries that manufacture, process, or store raw materials and which collect and convey stormwater associated with those activities were required to apply for an NPDES permit under the Phase I program. Several industries were specifically identified in EPA's 1990 regulation: mining operations; lumber and wood products; paper and allied products; printing, chemical products, paints, varnishes, and lacquers; stone, clay, glass, and concrete; metals; petroleum bulk terminals; hazardous waste treatment facilities; salvage operations; and powerplants. Industrial facilities had several options to comply with these permit requirements. Chiefly, they could obtain either individual or group permits. Applications for individual facility permits were due to be submitted by October 1, 1992. For group permits (covering multiple facilities with similar stormwater discharges), a two-step process applied: submitting a list of facilities to be covered by September 30, 1991, and submitting more detailed information, such as sampling data on 10% of facilities in the group and a description of a stormwater management program, by October 1, 1992. EPA also provided a third option for industrial facilities, through a general permit procedure. A general permit is one that covers discharges from more than one facility, thus making the large number of stormwater permittees more manageable. Sources are only required to submit a Notice of Intent to be covered by a general permit, rather than the detailed application for an individual permit. EPA expected that general stormwater permits will make for a less costly and burdensome permitting process through less extensive testing and control requirements, as well as minimal monitoring and reporting. For most sources, general permits require preparation of a pollution prevention plan, and compliance with the plan six months later. EPA issued general permits for stormwater discharges associated with industrial and construction activities that disturb 5 acres or more, which apply in the four states where EPA is the permitting authority for the stormwater program. Using the EPA general permit as a model, most other states that have been delegated permitting responsibility use similar general permits to reduce the administrative burden of the industrial stormwater permit program. Congress addressed the deadlines for stormwater permitting of industrial facilities twice. Congress first extended aspects of the deadlines for group applications by industrial facilities ( P.L. 102-27 , Dire Emergency Supplemental Appropriations Act of 1991), and in the 1991 Surface Transportation Act ( P.L. 102-240 ), Congress clarified the deadlines applicable to industrial activities that are municipally owned or operated (such as airports or powerplants). Much of the controversy about stormwater requirements has focused on impacts on cities, not industrial sources. Municipalities with separate storm sewer systems (called MS4s) were subject to EPA's regulations under staggered deadlines based on the size of population served. In the 1990 Phase I regulations that apply to industrial activities, EPA also regulated discharges from medium-size and large cities (covering those with populations greater than 100,000 persons). The Phase I regulations are primarily application requirements that identify components that must be addressed in permit applications. The rules require large and medium MS4s to develop a stormwater management program, track and oversee industries facilities that are regulated under the stormwater program, conduct monitoring, and submit periodic reports. The regulations specified deadlines for these cities to provide regulators with information on legal authority over stormwater discharges and to provide detailed information on source identification and monitoring data. EPA identified 173 cities and parts of 47 urban counties as covered by Phase I. The 1987 CWA amendments exempted smaller cities (with populations of less than 100,000) from any stormwater permit requirements until October 1, 1992, and directed EPA to develop a suitable approach to address them under Phase II of the stormwater regulatory program. Because of problems in formulating a permitting strategy, EPA did not issue regulations by the 1992 deadline, nor did it meet the deadline in a one-year extension that Congress provided in P.L. 102-580 . In 1995, EPA convened an advisory committee of stakeholders to assist in developing rules by March 1, 1999, a deadline set in a judicial consent order in Natural Resources Defense Council v. EPA (Civ. No. 95-0634 PFL [DDC, Apr. 6, 1995]) that required EPA to clarify the scope of coverage and control mechanisms for the Phase II program. Based in part on extensive discussions with the stakeholder advisory committee and with another court-approved extension, EPA issued a final Phase II rule in 1999. EPA estimated that the rule would make approximately 3,000 more river miles safe for boating annually and protect up to 500,000 people a year from illness due to swimming in contaminated waters. The 1999 Phase II rule extended Phase I by requiring permits of two additional classes of dischargers on a nationwide basis: (1) operators of MS4s serving populations of less than 100,000 persons in urbanized areas as defined by the Bureau of the Census, and (2) operators of construction activities that disturb greater than 1 and less than 5 acres of land (larger construction sites are covered by the Phase I rules). Separate storm sewer systems such as those serving military bases, universities, large hospital or prison complexes, and highways are also included in the definition of small MS4. EPA estimated that 5,040 small cities are covered by Phase II, along with about 110,200 construction starts per year. Waivers from coverage are available both for small cities (those with fewer than 10,000 persons) and construction activities if the discharges are not causing water quality impairment. At the same time, additional small municipal systems and construction sites may be brought into the stormwater program on a case-by-case basis, if permitting authorities determine that they are significant contributors to water pollution. Under the 1999 rule, covered facilities were required to apply for NPDES permit coverage by March 2003 (most under a general rather than an individual permit) and implement stormwater management programs that include six minimum management controls that effectively reduce or prevent pollutant discharges into receiving waters, such as pollution prevention and eliminating illicit discharge connections for municipal operations. The rule also provided that municipally operated industrial activities not previously regulated were required to apply for permit coverage under the same schedule as other facilities covered by Phase II. In the final Phase II rule, EPA attempted to balance statutory requirements for a nationally applicable program with sufficient administrative flexibility to focus on significant water quality impairments. For example, EPA encouraged permitting authorities to use general rather than individual permits for the majority of covered dischargers. The agency's decision to not include construction sites smaller than 1 acre was based on the belief that regulating the smallest of such sites would overwhelm the resources of permitting authorities and might not yield corresponding water quality benefits. Further, EPA modified the previous Phase I rule to exclude industrial facilities that have "no exposure" of their activities (such as raw materials) to stormwater, thus reducing coverage by an estimated 76,000 facilities that have no industrial stormwater discharges. These efforts to provide flexibility notwithstanding, many regulated entities continued to criticize the scope of the stormwater program, saying that EPA had greatly underestimated the cost of the Phase II rules (projected to be $297 million annually for small cities and $505 million annually for construction activities). Cities of all sizes have complained about the costs and difficulties of complying with EPA's regulations, especially because there is no specific CWA grant or other type of assistance program to help pay for developing and implementing local stormwater programs. Many contend that cities already are burdened with numerous environmental compliance requirements and lack adequate resources to address stormwater controls in addition to drinking water, solid waste, wastewater treatment, and sludge disposal problems. Where cities need to construct or install technology to control stormwater discharges, the principal source of financial assistance is the CWA's state revolving fund (SRF) loan program that is administered by states. However, because SRF assistance is not restricted to meeting just stormwater project needs, competition for available funds for all types of eligible projects is intense. Many municipal and industrial dischargers covered by the Phase I and Phase II programs have reached the end of their initial permit terms (NPDES permits are issued for five-year terms). For permit renewals, the agency is implementing a streamlined reapplication process that will not require the extensive information collection that characterized the first round of permitting. Implementation of permits (i.e., translating permits into specific steps to manage stormwater runoff) is now the challenge for permitting authorities and permittees. According to a 2001 Government Accountability Office (GAO) report, local governments are primarily using best management practices (BMPs, sometimes called stormwater control measures, or SCMs) to prevent or slow stormwater from quickly reaching nearby waterbodies and degrading water quality, rather than requiring that stormwater be transported to treatment facilities. BMPs include nonstructural measures to minimize contaminants getting into stormwater (e.g., street sweeping) and structural practices such as detention ponds to separate contaminants from stormwater. GAO criticized EPA for not establishing systematic efforts or measurable goals to evaluate the effectiveness of the program in reducing stormwater pollution or to determine its costs, which local governments have portrayed as high. In the 1999 rules, EPA set a goal of beginning to evaluate implementation of Phase II of the program in 2012. In a 2007 report, GAO examined implementation of the stormwater regulatory program by municipalities. GAO found that implementation of both Phases I and II had been slow: nearly 11% of communities were not permitted as of 2006; and even in communities with permits, delays occurred due to litigation or other disputes. Thus, GAO reported that because many communities were still in the early stages of implementation at the time of the report, it was too early to determine the overall program burden. While EPA's regulations provide flexibility, which could limit program burden, increased burden could result if communities are required by states or EPA to expand stormwater management activities or meet more stringent specific permit conditions in the future. GAO found that EPA is not collecting complete and consistent cost and other data, which hampers assessment of program burden. The 1999 Phase II rules were challenged by environmental groups. The litigation resulted in a 2003 federal court ruling (Environmental Defense Center v. EPA, 344 F.3d 832 (9 th Cir. 2003)). The Phase II rules allowed permitting authorities to issue general permits for MS4 stormwater discharges and required regulated MS4s to submit a Notice of Intent (NOI) to be covered by the general permit. The court found that the Phase II rules failed to require review of NOIs and failed to make NOIs available to the public or subject to public hearings and directed EPA to revise the rules to correct these procedural shortcomings. Following the court's ruling, EPA issued guidance but did not propose revised rules. In 2014, the environmental groups sued EPA for failing to follow the court's nearly 12-year-old ruling. Under a settlement agreement with the environmental plaintiffs, EPA agreed to issue final revised rules by November 17, 2016. The agency issued revised MS4 rules on November 17. The new rule allows states to choose between two options for increasing scrutiny of the MS4s' compliance plants. It allows states and other authorities crafting general permits for small MS4s to either outline in the permit terms all compliance methods that are open to permittees, or set up a "two-step" process in which facilities that apply for coverage must add their compliance plans as enforceable permit terms, including a notice-and-comment process for each plan. According to EPA, the two-step general permit allows the permitting authority to establish some requirements in the general permit and others applicable to individual MS4s through a second proposal and public comment process. Most states reportedly were pleased that the final rule provides permitting authorities with flexibility, although a few states said that allowing states to choose the regulatory approach would be more time-intensive and expensive than the system under the previous MS4 rules. Environmentalists' responses to the new rule were mixed, with some supporting EPA's actions and saying that the revised rule would lead to tighter controls on MS4 permits, but others contending that the rule's flexibility would make oversight by the public more difficult. Prior to issuance of the final Phase II rule in 1999, Congress included language in EPA's FY2000 appropriation bill ( P.L. 106-74 ) directing the agency not to issue the final rule before submitting a detailed impact analysis to Congress. To meet a court-ordered deadline for the regulation, EPA released the report concurrently with the Phase II rule. In the 106 th Congress, legislation was introduced to exempt construction sites of less than 5 acres and certain above-ground drainage ditches from stormwater permitting requirements. At a 1999 Senate hearing, EPA witnesses opposed the bill, saying that above-ground drainage ditches and small construction sites are significant sources of water pollution and thus should be subject to stormwater management requirements. No further action occurred. In response to concerns about program impacts and costs, the 107 th Congress enacted legislation allowing states to use Section 319 grant funds, which are used for projects to manage nonpoint sources of water pollution, for projects or activities related to developing and implementing a Phase II stormwater program (SS301 of P.L. 107-303 ). This authority only applied to Section 319 funds in FY2003. Legislation to extend this authority beyond FY2003 was introduced in the 108 th Congress, but was not enacted. As the March 2003 Phase II deadline approached (affecting small municipalities and construction sites), EPA proposed a two-year extension of the rule for small oil and gas exploration and production facility construction sites to allow the agency to assess the rule's economic impact on that industry. EPA had initially assumed that most oil and gas facilities would be smaller than one acre in size and thus excluded from Phase II rules, but newer data indicated that up to 30,000 new sites per year would be of sizes subject to the rule. In March 2005 EPA extended the exemption until June 2006 for further study and said it would issue a specific rule for small oil and gas construction sites by that date. The postponement did not affect other industries, construction sites, or small cities covered by the 1999 rule. Under the 1987 amendments to the CWA, the operations of facilities involved in oil and gas exploration and production generally were exempted from compliance with stormwater runoff regulations (so long as the runoff is uncontaminated by pollutants), but the construction of associated facilities was not. Omnibus energy legislation enacted in the 109 th Congress ( P.L. 109-58 , the Energy Policy Act of 2005) included a provision addressing this issue. Section 323 amends the CWA to specifically include construction activities at all oil and gas development and production sites, regardless of size (including sites larger than 5 acres, previously covered by Phase I), in the law's general statutory exemption for oil and gas facilities from stormwater rules. Its intention was to exempt from the CWA all uncontaminated stormwater discharges that occur while setting up drilling operations. Oil and gas officials, who supported the provision, said that the existing EPA stormwater rules create time-consuming permitting requirements, even though the short construction period for drilling sites carries little potential for stormwater runoff pollution. Opponents argued that the provision did not belong in the omnibus energy legislation and that there is no evidence that construction at oil and gas sites causes less pollution than other construction activities, which are regulated under EPA's stormwater program. EPA promulgated a rule to implement Section 323 in 2006. The rule was criticized by some interest groups and Members of Congress who argued that EPA had exceeded its authority by broadly defining the scope of contamination that is exempted by the rule beyond the statutory language to also include stormwater discharges contaminated solely with sediment. In May 2008, a federal court held that the rule is arbitrary and capricious, and it vacated the rule. EPA petitioned the court to rehear the case, but the request was denied--thus, the exemption is no longer in effect. At the time, EPA said that it intends to issue a revised rule that would remove the 2006 rule from the Code of Federal Regulations consistent with the court vacatur and codify the statutory exemption in P.L. 109-58 , but the agency has not proposed any revisions or announced a specific schedule for doing. Legislation to repeal Section 323 was introduced in the 109 th Congress, but no further action occurred. In the 111 th Congress, legislation to repeal the exemption passed the House (the provision was Section 728 of H.R. 3534 , the Consolidated Land, Energy, and Aquatic Resources Act), but it was not enacted. In the 114 th Congress, a bill has been introduced to repeal the oil and gas exemption enacted in P.L. 109-58 . This bill, H.R. 1460 , also would direct the Secretary of the Interior to conduct a study of stormwater runoff from oil and gas operations that may result in contamination. Similar legislation was introduced in the 113 th Congress. Congress often looks to federal agencies to lead or test new policy approaches, a fact reflected in legislation passed in 2007. Section 438 of P.L. 110-140 , the Energy Independence and Security Act (EISA), requires federal agencies to implement strict stormwater runoff requirements for development or redevelopment projects involving a federal facility in order to reduce stormwater runoff and associated pollutant loadings to water resources. The legislation requires agencies to use site planning, construction, and other strategies to maintain or restore, to the maximum extent technically feasible, the predevelopment hydrology of the property. To assist agencies in meeting these requirements, EPA issued technical guidance. The guidance provides two options for meeting the performance objective of preserving or restoring the hydrology of a site: retaining the 95 th percentile rainfall event (i.e., managing rainfall on-site for storm events whose precipitation total is less than or equal to 95% of all storm events over a given period of record), or site-specific hydrologic analysis (i.e., using site-specific analysis to determine predevelopment runoff conditions). According to the guidance, using a performance-based approach rather than prescriptive requirements is intended to give site designers maximum flexibility in selecting appropriate control practices. Issuance of the guidance also fulfilled an element of an October 2009 executive order that formally assigned to EPA the responsibility to issue the Section 438 guidance, in coordination with other agencies, and to do so by December 5, 2009. In December 2010 Congress passed legislation requiring federal agencies to pay local fees for treating and managing stormwater runoff. The legislation amends CWA Section 313, which requires federal agencies to comply with all federal, state, and local water pollution control requirements as nongovernmental entities, including the payment of reasonable service charges. The issue emerged earlier in 2010 when several federal agencies announced that they would not pay stormwater fees assessed by the District of Columbia, claiming that the fees amounted to a tax that the agencies were not required to pay, because the waiver of sovereign immunity in Section 313 applies to fees and charges, but not a tax. The legislation was intended to clarify uncertainty over whether federal agencies must pay local stormwater fees. President Obama signed the legislation in January 2011 ( P.L. 111-378 ). A continuing aspect of the issue of interest in a few locations is the scope of P.L. 111-378 and whether it requires the government to pay local stormwater fees retroactively. After the Bonneville Power Administration objected to paying retroactive stormwater fees imposed by two Washington localities following passage of the federal facility amendment, the matter ended up in federal court. The government took the position in the litigation that the legislative change amounted to a redefinition of "service charges," instead of a clarification of Congress's original intent, and would only apply prospectively. In 2012, a federal district court rejected the government's position and held that the CWA amendment was merely a clarification of the statute and thus is entitled to retroactive effect. The federal government did not appeal this ruling. A similar case in Georgia was dismissed following a settlement agreement between the parties, but the settlement did not resolve lingering questions whether stormwater charges are fees for "reasonable services provided" or taxes, an issue of concern more broadly than just regarding government facilities. In 2006 EPA requested the National Research Council of the National Academy of Sciences (NRC) to conduct a review of the existing stormwater regulatory program. The resulting report, issued in 2009, called for major changes to EPA's stormwater control program that would focus on the flow volume of stormwater runoff instead of just its pollutant load. The committee observed that-- stormwater discharges would ideally be regulated through direct controls on land use, strict limits on both the quantity and quality of stormwater runoff into surface waters, and rigorous monitoring of adjacent waterbodies to ensure that they are not degraded by stormwater discharge.... Presently, however, the regulation of stormwater is hampered by its association with a statute that focuses primarily on specific pollutants and ignores the volume of discharges. The NRC report recommended that EPA adopt a watershed-based permitting system encompassing all discharges--stormwater and wastewater--that could affect waterways in a particular drainage basin, rather than individual permits that do not account for cumulative conditions from multiple sources in the same watershed. Under the proposed watershed permitting strategy, responsibility to implement watershed-based permits and control all types of municipal, industrial, and construction stormwater discharges would reside with MS4 permittees. The report criticized EPA's current approach, which leaves much discretion to regulated entities to set their own standards through stormwater management plans and to self-monitor. As a result, enforcement is difficult and variable, and information to assess the water quality benefits of the regulatory program is limited. The report also noted that adequate resources, including new levels of public funds, will likely be required to operate a more comprehensive and effective stormwater permitting program. Subsequently, EPA initiated information-gathering and public dialogue activities as a prelude to possible regulatory changes that would respond to the NRC's criticism of inconsistency in stormwater requirements nationally and embrace the report's recommendation to adequately control all sources of stormwater discharge that contribute to waterbody impairment. EPA proposed to collect data from MS4s, states, and industry entities involved in developing or redeveloping sites on the scope of the current regulatory program and management practices, as well as information on control, pollution prevention technologies, and BMPs applied to stormwater discharges from newly developed and redeveloped sites. In response to the NRC report, EPA began work to develop a rule to revise the existing stormwater regulatory program. The rule also followed a 2010 settlement agreement between EPA and environmental litigants, which called for EPA to revise existing rules "to expand the universe of regulated stormwater discharges and to control, at a minimum, stormwater discharges from newly developed and redeveloped sites." In the settlement, EPA committed to consider supplemental provisions as part of the national rule that would apply only to the Chesapeake Bay watershed, a region where municipal stormwater discharges are a significant cause of water quality impairment and are one of the only sources of pollutants with increasing loads to the Bay and its tributaries. In early 2010 EPA held a series of listening sessions across the country as part of a process seeking public comments on potential considerations for regulatory changes. The agency also sent survey questionnaires to property owners and developers, municipal sewer system authorities, state regulators, and EPA regional offices to obtain their input. Some industry groups reportedly criticized possible expansion of the current program, saying that EPA's authority to regulate stormwater does not extend to regulation of post-construction discharges. Some states also said that EPA lacks the technical knowledge to regulate stormwater across the nation, while states with comprehensive regulations, such as Florida and Maryland, demonstrate that regulation is best done at the state and local level, because of locational differences in stormwater discharges. EPA officials noted that a number of states have developed their own stormwater management programs, particularly in the Northeast, where lawsuits have pushed regulators, and also in some high-precipitation states in the Northwest. A number of commenters urged EPA to ensure that performance standards designed to reduce storm runoff be flexible so that communities can create requirements appropriate to their stormwater needs. Cost is a key issue raised by some states and municipalities concerned about the possibility of mandatory retrofit requirements that would impose a significant economic burden on cities. Some state and local government representatives--while they concerned about details of a rule--believed that a national rule would provide needed uniformity and consistency in stormwater programs across the nation. During efforts to develop a national rule, EPA explored regulatory options that would strengthen the regulatory program by establishing specific post-construction requirements for stormwater discharges from new development and redevelopment, which currently are not regulated. While MS4s are required to address stormwater discharges from new development and redevelopment in their management plans, existing rules do not include specific management practices or standards to be implemented. Other options that EPA considered included expanding the area defined as MS4s to include rapidly developing areas, devising a single set of consistent regulations for all MS4s, and requiring MS4s to address stormwater discharges in areas of existing development through retrofit practices. EPA officials said that the rule would focus on stormwater discharges from developed, or post-construction, sites, such as subdivisions, roadways, industrial facilities, and commercial buildings or shopping centers, and to seek to ensure that even after development projects are completed, runoff levels from sites are equivalent to pre-construction hydrology. The proposal, referred to as the "post-construction rule," likely would set a first-time stormwater retention performance standard to limit runoff that would otherwise enter an MS4 system. By retaining a portion of rainfall on-site, the discharge of pollutants for that volume is prevented from entering the sewer system. Requirements in the post-construction rule, once finalized, would be incorporated into MS4 permits as permits come up for renewal. The stormwater rulemaking drew some interest from Members of Congress. In 2013, Republican members of the Senate Environment and Public Works Committee urged EPA to suspend work on the rulemaking until the agency could seek meaningful input from small businesses and provide a report to Congress on the necessity for new stormwater regulations. Under the 2010 settlement with environmentalists, EPA was initially due to propose a national rule by September 2011 and complete the rule in 2014. Subsequently, the deadlines were renegotiated several times. Under the last deadline, EPA was to propose regulations by June 17, 2013, but EPA missed that deadline, and on June 18, the environmental plaintiffs notified the agency that it was in breach of the legal settlement. At that point, EPA and the plaintiffs had reached a legal impasse; EPA reportedly continued to work on the rule, while the environmental groups considered further legal action. Finalizing a rule with national application was said to be complicated by a number of analytic issues, particularly how to calculate costs and benefits of the proposal and how to incorporate flexibility, such as possibly including lengthy implementation plans for retrofit projects and allowing states with equivalent stormwater programs to regulate in lieu of EPA. In mid-March 2014, EPA announced that it would defer action on the post-construction stormwater rule and instead will provide incentives, technical assistance, and other approaches for cities to address stormwater runoff themselves. In particular, the agency said that it will leverage existing requirements to strengthen municipal stormwater permits and will continue to promote green infrastructure as an integral part of stormwater management. Although EPA discontinued development of a national stormwater rule, the agency continues to pursue some of the ideas that the rule had been expected to incorporate, such as emphasizing on-site retention of stormwater at construction sites or requiring green infrastructure, when individual MS4 permits come up for renewal. These concepts are reflected, for example, in the MS4 permit for Washington DC, issued by EPA in 2013, and EPA's 2014 proposed MS4 general permit for Massachusetts; both were crafted by EPA, which is the NPDES permitting authority in DC and Massachusetts. In the majority of states, permitting authority has been delegated to states (see page 2). In those cases, environmental groups are reportedly pursuing a permit-by-permit approach of encouraging states to strengthen the terms of new and reissued MS4 permits.

The Environmental Protection Agency (EPA) and states implement a federally mandated program for controlling stormwater discharges from industrial facilities and municipalities. Large cities and most industry sources are subject to rules issued in 1990 (Phase I rules), and EPA issued permit rules to cover smaller cities and other industrial sources and construction sites in 1999 (Phase II rules). Because of the large number of affected sources and deadline changes that led to confusion, numerous questions have arisen about this program. Impacts and costs of the program's requirements, especially on cities, are a continuing concern. The 109th Congress enacted omnibus energy legislation (P.L. 109-58, the Energy Policy Act of 2005) that included a provision giving the oil and gas industry regulatory relief from some stormwater control requirements. In 2008, a federal court vacated an EPA rule implementing this provision. EPA intends to issue a revised rule that repeals the one that was vacated by the court and codifies the statutory exemption in P.L. 109-58, but the agency does not have a specific schedule for doing so. In the 111th Congress, the House passed a bill that included a provision that would repeal the exemption in P.L. 109-58, but the Senate took no action. Similar legislation has been introduced in the 114th Congress (H.R. 1460). Congress often looks to federal agencies to lead or test new policy approaches, a fact reflected in legislation enacted in the 110th Congress. Section 438 of the Energy Independence and Security Act (P.L. 110-140, EISA) requires federal agencies to implement strict stormwater runoff requirements for development or redevelopment projects involving a federal facility in order to reduce stormwater runoff and associated pollutant loadings. EPA has issued technical guidance for federal agencies to use in meeting these requirements. In 2009 the National Research Council issued a report calling for major changes to strengthen EPA's stormwater regulatory program, which it criticized as being inconsistent nationally and failing to adequately control all sources of stormwater discharge that contribute to waterbody impairment. In response, EPA began efforts to expand regulations and strengthen the current program with a revised rule. Agency officials said that the new rule would focus on stormwater discharges from newly developed and redeveloped, or post-construction, sites, such as subdivisions, roadways, industrial facilities, and commercial buildings or shopping centers. The rule was originally due to be proposed in 2011, but EPA missed that and several subsequent deadlines, due to analytic problems associated with developing the rule. In 2014, the agency announced that it would defer action on a national rule and instead will provide incentives, technical assistance, and other approaches for cities to address stormwater runoff themselves.

The development of super PACs is one of the most recent components of the debate over money and speech in elections. Some perceive super PACs as a positive consequence of deregulatory court decisions in Citizens United and related case SpeechNow . For those who support super PACs, these relatively new political committees provide an important outlet for independent calls for election or defeat of federal candidates. Others contend that they are the latest outlet for unlimited money in politics that, while legally independent, are functional extensions of one or more campaigns. This report does not attempt to settle that debate, but it does provide context for understanding what super PACs are and how they are relevant for federal campaign finance policy. The report does so through a question-and-answer format that emphasizes recurring public policy questions about super PACs. Now that super PACs have become established players in American elections, this updated report focuses on the background and policy matters that appear to be most relevant for legislative and oversight concerns. The report discusses selected litigation to demonstrate how those events have changed the campaign finance landscape and affected the policy issues that may confront Congress; it is not, however, a constitutional or legal analysis. Finally, a note on terminology may be useful. The term independent expenditures (IEs) appears throughout the report. IEs refer to purchases, often for political advertising, that explicitly call for election or defeat of a clearly identified federal candidate (e.g., "vote for Smith," "vote against Jones"). Campaign finance lexicon typically refers to making IEs , which is synonymous with the act of spending funds for the purchase calling for election or defeat of a federal candidate. Parties, traditional PACs, individuals, and now, super PACs, may make IEs. IEs are not considered campaign contributions and cannot be coordinated with the referenced candidate. Super PACs first emerged in 2010 following two major court rulings. As a result of the rulings, in Citizens United and SpeechNow , new kinds of PACs emerged that were devoted solely to making independent expenditures. These groups are popularly known as super PACs ; they are also known as independent-expenditure-only committees ( IEOCs ). Independent expenditures (IEs) are frequently used to purchase political advertising or fund related services (such as voter-canvassing). IEs include explicit calls for election or defeat of federal candidates but are not considered campaign contributions. IEs must be made independent of parties and candidates. In campaign finance parlance, this means IEs cannot be coordinated with candidates or parties. Determining whether an expenditure is coordinated can be highly complex and depends on individual circumstances. In essence, however, barring those making IEs from coordinating with candidates means that the entity making the IE and the affected candidate may not communicate about certain strategic information or timing surrounding the IE. The goal here is to ensure that an IE is truly independent and does not provide a method for circumventing contribution limits simply because an entity other than the campaign is paying for an item or providing a service that could benefit the campaign. Table 1 below provides an overview of how super PACs compare with other political committees and politically active organizations. In brief, super PACs are both similar to and different from traditional PACs. Super PACs have the same reporting requirements as traditional PACs, and both entities are regulated primarily by the federal election law and the FEC as political committees. Unlike traditional PACs, super PACs cannot make contributions to candidate campaigns. Super PACs' abilities to accept unlimited contributions make them similar to organizations known as 527s and some 501(c) organizations that often engage in political activity. However, while those groups are governed primarily by the Internal Revenue Code (IRC), super PACs are regulated primarily by the FEC. Unlike 527s as they are commonly described, super PACs are primarily regulated by the federal election law and regulation. Super PACs originated from a combination of legal and regulatory developments. The 2010 Citizens United decision did not directly address the topic of super PACs, but it set the stage for a later ruling that affected their developments. First, as a consequence of Citizens United , corporations and unions are free to use their treasury funds to make expenditures (such as for airing political advertisements) explicitly calling for election or defeat of federal or state candidates ( independent expenditures or IEs ), or for advertisements that refer to those candidates during pre-election periods, but do not necessarily explicitly call for their election or defeat ( electioneering communications ). Previously, such advertising would generally have had to be financed through voluntary contributions raised by traditional PACs (those affiliated with unions or corporations, nonconnected committees, or both). A second case paved the way for what would become super PACs. Following Citizens United , on March 26, 2010, the U.S. Court of Appeals for the District of Columbia held in SpeechNow.org v. Federal Election Commission that contributions to PACs that make only IEs--but not contributions--could not be constitutionally limited. Also known as independent-expenditure-only committees (IEOCs) , the media and other observers called these new political committees simply super PACs . The term signifies their structure akin to traditional PACs but without the contribution limits that bind trad itional PACs. As discussed in the next section, after Citizens United and SpeechNow , the FEC issued advisory opinions and regulations that offered additional guidance on super PAC activities. The development of super PACs is one of the most recent chapters in the long debate over political spending and political speech. Super PACs emerged quickly after the Citizens United and SpeechNow decisions and have become a powerful spending force in federal elections. Although the FEC amended its rules in 2014 to recognize super PACs, those who are concerned about the role of these groups in federal elections generally contend that more stringent regulations, or a statutory change from Congress, is necessary. In addition, super PACs can substantially affect the political environment in which Members of Congress and other federal candidates compete, as discussed later in this report. Several policy issues and questions surrounding super PACs might be relevant as Congress considers how or whether to pursue legislation or oversight. These topics appear to fall into three broad categories: the state of law and regulation affecting super PACs, transparency surrounding super PACs, and how super PACs shape the campaign environment. For those advocating their use, super PACs represent newfound (or restored) freedom for individuals, corporations, and unions to contribute as much as they wish for independent expenditures that advocate election or defeat of federal candidates. Opponents of super PACs contend that they represent a threat to the spirit of modern limits on campaign contributions designed to minimize potential corruption. Additional discussion of these subjects appears throughout this report. Thus far, Congress has not enacted legislation specifically addressing super PACs. Existing regulations and law governing traditional PACs apply to super PACs in some cases. In addition, the FEC issued rules in 2014 that recognized super PACs and reflected advisory opinions that the commission issued soon after Citizens United and SpeechNow . The FEC is responsible for administering civil enforcement of FECA and related federal election law. A December 2011 Notice of Proposed Rulemaking (NRPM) posing questions about what form post- Citizens United rules should take remained open until late 2014, reflecting an apparent stalemate over the scope of the agency's response to the ruling. In October 2014, the commission approved rules essentially to remove portions of existing regulations that Citizens United had invalidated, such as spending prohibitions on corporate and union treasury funds. These rules recognized the presence of super PACs and reflected the Citizens United and SpeechNow precedents permitting corporations (and, implicitly, unions) to make IEs and super PAC contributions. The rules did not, however, create substantially new prohibitions on or requirements for super PACs. In fact, the FEC's most substantive guidance on super PACs had already appeared in FEC advisory opinions (AOs). These AOs responded to questions posed by members of the regulated community , as those governed by campaign finance law are sometimes known, seeking clarification about how the commission believed campaign finance regulation and law applied to specific situations applicable to super PACs. Six AOs are particularly relevant for understanding how the FEC interpreted the Citizens United and SpeechNow decisions with respect to super PACs, as briefly summarized below. In July 2010, the FEC approved two related AOs in response to questions from the Club for Growth (AO 2010-09) and Commonsense Ten (AO 2010-11). In light of Citizens United and SpeechNow , both organizations sought to form PACs that could solicit unlimited contributions to make independent expenditures (i.e., form super PACs). The commission determined that the organizations could do so. In both AOs, the commission advised that while post- Citizens United rules were being drafted, political committees intending to operate as super PACs could supplement their statements of organization (FEC form 1) with letters indicating their status. The major policy consequence of the Club for Growth and Commonsense Ten AOs was to permit, based on Citizens United and SpeechNow , super PACs to raise unlimited contributions supporting independent expenditures. In June 2011, the commission approved an AO affecting super PAC fundraising. In the Majority PAC and House Majority PAC AO (AO 2011-12), the commission determined that federal candidates and party officials could solicit contributions for super PACs within limits. Specifically, the commission advised that contributions solicited by federal candidates and national party officials must be within the PAC contribution limits established in FECA (e.g., $5,000 annually for individual contributions). It is possible, however, that federal candidates could attend fundraising events--but not solicit funds themselves--at which unlimited amounts were solicited by other people. In AO 2011-11, the commission responded to questions from comedian Stephen Colbert. Colbert's celebrity status generated national media attention surrounding the request, which also raised substantive policy questions. The Colbert request asked whether the comedian could promote his super PAC on his nightly television program, The Colbert Report . In particular, Colbert asked whether discussing the super PAC on his show would constitute in-kind contributions from Colbert Report distributor Viacom and related companies. An affirmative answer would trigger FEC reporting requirements in which the value of the airtime and production services would be disclosed as contributions from Viacom to the super PAC. Colbert also asked whether these contributions would be covered by the FEC's "press exemption," thereby avoiding reporting requirements. In brief, the commission determined that coverage of the super PAC and its activities aired on the Colbert Report would fall under the press exemption and need not be reported to the FEC. If Viacom provided services (e.g., producing commercials) referencing the super PAC for air in other settings, however, the commission determined that those communications would be reportable in-kind contributions. Viacom would also need to report costs incurred to administer the super PAC. Although the super PAC subsequently terminated its operations, the AO guidance potentially remains relevant for other super PACs that might in the future operate in connection with media organizations. On December 1, 2011, the FEC considered a request from super PAC American Crossroads. In AO 2011-23, Crossroads sought permission to air broadcast ads featuring candidates discussing policy issues. American Crossroads volunteered that the planned ads would be "fully coordinated" with federal candidates ahead of the 2012 elections, but also noted that they would not contain express advocacy calling for election or defeat of the candidates. In brief, the key question in the AO was whether Crossroads could fund and air such advertisements without running afoul of coordination restrictions designed to ensure that goods or services of financial value are not provided to campaigns in excess of federal contribution limits. (As a super PAC, Crossroads is prohibited from making campaign contributions; coordinated expenditures would be considered in-kind contributions.) Ultimately, the FEC was unable to reach a resolution to the AO request. In brief, at the open meeting at which the AO was considered, independent commissioner Stephen Walter and Democrats Cynthia Bauerly and Ellen Weintraub disagreed with their Republican counterparts, Caroline Hunter, Donald McGahn, and Matthew Petersen, about how FEC regulations and FECA should apply to the request. As a result of the 3-3 deadlocked vote, the question of super PAC sponsorship of "issue ads" featuring candidates appears to be unsettled. Although deadlocked votes are often interpreted as not granting permission for a planned campaign activity, some might also regard the deadlock as a failure to prohibit the activity. As a practical matter, if the FEC is unable to reach agreement on approving or prohibiting the conduct, it might also be unable to reach agreement on an enforcement action against a super PAC that pursued the kind of advertising Crossroads proposed. Also at its December 1, 2011, meeting, the FEC considered AO request 2011-21, submitted by the Constitutional Conservatives Fund PAC (CCF), a leadership PAC. CCF and other leadership PACs are not super PACs, although the CCF AO request is arguably relevant for super PACs. Specifically, in AO request 2011-21, CCF sought permission to raise unlimited funds for use in independent expenditures, as super PACs do. The FEC held, in a 6-0 vote, that because CCF is affiliated with a federal candidate, the PAC could not solicit unlimited contributions. To the extent that the CCF request is relevant for super PACs, it suggests that leadership PACs or other committees affiliated with federal candidates may not behave as super PACs. Super PACs must follow the same reporting requirements as traditional PACs. This includes filing statements of organization and regular financial reports detailing most contributions and expenditures. In the Commonsense Ten AO, the FEC advised super PACs to meet the same reporting obligations as PACs known as nonconnected committees (e.g., independent organizations that are not affiliated with a corporation or labor union). These reports are filed with the FEC and made available for public inspection in person or on the commission's website. Super PACs and other political committees must regularly file reports with the FEC summarizing, among other things, total receipts and disbursements; the name, address, occupation, and employer of those who contribute more than $200 in unique or aggregate contributions per year; the name and address of the recipient of disbursements exceeding $200; and the purpose of the disbursement. Reporting timetables for traditional PACs, which apply to super PACs, depend on whether the PAC's activity occurs during an election year or non-election year. During election years , PACs may choose between filing monthly or quarterly reports. They also file pre- and post-general election reports and year-end reports. During non-election years , PACs file FEC reports monthly or "semi-annually" to cover two six-month periods. The latter include two periods: (1) "mid-year" reports for January 1-June 30; and (2) "year-end" reports for July 1-December 31. Super PACs also have to report their IEs. IEs are reported separately from the regular financial reports discussed above. Among other requirements, independent expenditures aggregating at least $10,000 must be reported to the FEC within 48 hours; 24-hour reports for independent expenditures of at least $1,000 must be made during periods immediately preceding elections; and independent expenditure reports must include the name of the candidate in question and whether the expenditure supported or opposed the candidate. The name, address, occupation, and employer for those who contributed at least $200 to the super PAC for IEs would be included in the regular financial reports discussed above, but donor information is not contained in the IE reports themselves. In addition, as the " Is Super PAC Activity Sufficiently Transparent? " section discusses later in this report, the original source of some contributions to super PACs can be concealed (either intentionally or coincidentally) by routing the funds through an intermediary. Since their inception in the middle of the 2010 election cycle, super PACs have raised and spent more than $2 billion. More than half that amount--almost $1.4 billion as of June 2016--went toward IEs supporting or opposing federal candidates. (Remaining amounts apparently were spent on items such as administrative expenses and nonfederal races.) Table 2 and Figure 1 below summarize super PAC receipts, disbursements, and IEs between the 2010 and 2014 election cycles. Table 3 summarizes financial activity of the 10 super PACs reporting the largest receipts and expenditures for 2014. The table reports total disbursements rather than only IEs. Therefore, it is important to note that although these entities raised and spent the most overall, other super PACs might have more direct impact on the election through higher spending on IEs that call for election or defeat of particular candidates. Some general patterns of super PAC activities have emerged since 2010, as noted briefly below. Super PACs have proliferated since they first emerged in 2010. As Figure 2 below shows, approximately 80 organizations quickly formed in response to the 2010 Citizens United and SpeechNow rulings. By 2012, 455 super PACs were active in federal elections. The figure increased to almost 700 in 2014--an increase of more than 800% in just four years. Super PAC financial activity also has increased rapidly. The first super PACs spent a total of approximately $93 million, almost $65 million of which was spent on IEs advocating for or against candidates, during the 2010 cycle. These figures are notable not only for their size, but also because most of these organizations did not operate until the summer of the election year. As Table 2 shows, super PAC fundraising and spending escalated quickly in subsequent election cycles. As would be expected, super PAC spending peaked, at almost $800 million, during the only presidential election year for which they were in operation, 2012. As of this writing in the final months of the 2016 presidential election, the pattern appears likely to continue. Partial-cycle FEC summary data show that by March 2016, super PACs already had raised more than they did during the entire 2014 cycle ($697.7 million versus $696.2 million). They also had already spent more than $529 million, including $275.6 million on IEs. By June 2016, super PACs had spent $772.7 million, including $367.8 million on IEs. Center for Responsive Politics analysis of FEC data accessed in August 2016 found more than 2,300 super PACs had raised almost $1 billion and spent almost $500 million in IEs. From the beginning, a relatively small proportion of super PACs have been responsible for most super PAC financial activity. Just 10 super PACs accounted for almost 75% of all super PAC spending in 2010. In 2012, although more than 800 super PACs registered with the FEC, only about 450 of those groups reported raising or spending funds (as shown in Figure 2 ). Furthermore, although all super PACs combined spent less than $100 million in 2010, two Republican super PACs alone--Restore Our Future and American Crossroads--each spent more than $100 million in 2012. These two groups were the only super PACs that raised or spent more than $100 million in 2012. The most financially active Democratic super PAC, Priorities USA Action, spent approximately $75 million. All other super PACs individually raised and spent less than $50 million. A small number of groups continued to dominate in 2014, when the five highest-spending super PACs alone were responsible for disbursing more than $236 million, about 35% of the total for all super PACs that election cycle. Despite some exceptions, for-profit corporations generally have not made large contributions to super PACs as some predicted they would after Citizens United . On the other hand, as discussed elsewhere in this report, for-profit corporations, unions, and other entities are widely believed to support super PACs through politically active tax-exempt organizations (e.g., 501(c)(4)s). Furthermore, some super PACs (and politically active tax-exempt organizations) have played what one group of researchers call "ephemeral" roles, in which they engage in particular races but subsequently shift their focus or cease operations altogether. Just as a small number of super PACs is responsible for most spending, relatively few donors provide super PAC funding. As noted elsewhere in this report, super PACs must report their donors, but existing reporting obligations fall to the entity receiving the contribution rather than to the contributor. As a result, there is no definitive "official" summary of all contributions from specific individuals. Media accounts and other research have reported that a small group of donors provides some of the most consequential super PAC funding. During the 2016 cycle, for example, the Washington Post reported that as of February of the election year, 41% of super PAC funds raised at that point in the cycle had come "from just 50 mega-donors and their relatives." Some super PACs with few donors (including candidate relatives) have played major roles in promoting particular candidates, especially in presidential races. In some cases, super PACs are the primary "outside" spenders in campaigns. The extent to which super PACs choose to become involved in individual races varies substantially. As Figure 3 below shows, super PACs accounted for about half of all IEs in the 2012 cycle. Super PACs were less dominant in IEs overall in 2014, but they nonetheless spent more on IEs than did political parties. In the 2016 election cycle (not shown in the figure), super PAC spending accounted for almost 84.7% of IEs made through June 30. As super PACs become increasingly common in politics--but without recognition in statute--Congress could consider conducting oversight or pursue legislation to clarify these new groups' place in federal campaigns. Super PAC activity might also be relevant for congressional oversight of the FEC as that agency continues to consider various rulemakings and reporting requirements. Looking ahead, questions about super PAC relationships with other organizations (particularly the issues of coordination and contribution limits), transparency, and their effect on future elections may be of particular interest. Super PACs address some of the most prominent and divisive issues in campaign finance policy. Most attention to super PACs is likely to emphasize their financial influence in elections, as is typically the case when new forces emerge on the campaign finance scene. Underlying that financial activity is law, regulation, or situational guidance (e.g., advisory opinions)--or the lack thereof--that shape how super PACs operate and are understood. As noted previously, despite Citizens United and SpeechNow , Congress has not amended federal election law to reflect the rise of super PACs or otherwise regulate the groups, although the FEC has issued regulations and advisory opinions based on court decisions. If Congress considers it important to recognize the role of super PACs in election law itself, Congress could amend FECA to do so. As it has generally done with other forms of PACs, Congress could also leave the matter to the FEC's regulatory discretion. The following points may be particularly relevant as Congress considers how or whether to proceed. If Congress believes that additional clarity would be beneficial, it could choose to enact legislation. This approach might be favored if Congress wishes to specify particular requirements surrounding super PACs, either by amending FECA, or by directing the FEC to draft rules on particular topics. Legislation has a potential advantage of allowing Congress to specify its preferences on its timetable. It has the potential disadvantage of falling short of sponsors' wishes if sufficient agreement cannot be found to enact the legislation. Relatively little legislation has been devoted specifically to super PACs. Table 4 below briefly summarizes relevant legislation introduced during the 114 th Congress. As an alternative to legislation, Congress could choose to defer to the FEC (or perhaps other agencies, such as the IRS or SEC) with respect to new or amended rules affecting super PACs. This approach has the potential advantage of delegating a relatively technical issue to an agency (or agencies) most familiar with the topic, in addition to freeing Congress to pursue other agenda items. It has the potential disadvantage of producing results to which Congress might object, particularly if the six-member FEC deadlocks, as it has done on certain high-profile issues in recent years. If Congress chose the rulemaking approach, providing as explicit instructions as possible about the topics to be addressed and the scope of regulations could increase the chances of the rules reflecting congressional intent. Doing so might also increase the chances that consensus could be achieved during the implementation process. Despite high-profile activity, much about super PACs remains unknown. The following points may warrant consideration as the super PAC issue continues to emerge. As noted previously, the FEC considers super PACs to be political committees subject to the requirements and restrictions contained in FECA and FEC regulations. As such, super PACs are prohibited from coordinating their activities with campaigns or other political committees (e.g., parties). Some observers have raised questions about whether super PACs were or are really operating independently or whether their activities might violate the spirit of limits on contributions or coordination regulations. The following points may be relevant as Congress assesses where super PACs fit in the campaign environment. Concerns about super PAC independence appear to be motivated at least in part by the reported migration of some candidate campaign staff members to super PACs that have stated their support for these candidates. Similarly, some super PACs reportedly have been organized or otherwise substantially supported by individuals with long-standing personal or professional connections to the candidates those super PACs support. A second source of concern may be that legally separate organizations (e.g., 501(c) tax-exempt political organizations, which are generally not regulated by the FEC or federal election law) operate alongside some super PACs. Media reports (and, it appears, popular sentiment) sometimes characterize these entities, despite their status as unique political committees or politically active organizations, as a single group. Some also question whether large contributions--that would be prohibited if they went to candidate campaigns--were essentially routed through super PACs as IEs. Donors who wish to do so may contribute to candidate campaigns in limited amounts and in unlimited amounts to super PACs supporting or opposing these or other candidates. As noted previously, super PACs must identify donors who contributed at least $200. This requirement sheds light on contributions that go directly to super PACs, but not necessarily those that go indirectly to super PACs. In particular, the original source of contributions to trade associations or other organizations that later fund IEs through super PACs could go unreported. For example, assume Company A made a contribution to Trade Association B, and placed no restrictions on how the contribution could be used. Trade Association B then used Company A's funds to contribute to a super PAC. Trade Association B--not Company A--would be reported as the donor on FEC reports. As Figure 4 below shows, an essential element in this relationship in this series of events is whether the original contribution was "made for the purpose of furthering" an independent expenditure. In practice, this means that those who do not wish their identities to be reported to the FEC could make an unrestricted donation to an intermediary organization, which then funnels the money to a super PAC. (They might also choose to donate to a politically active 501(c) entity for strategic or policy reasons, such as supporting advocacy generally, which might include contributions to super PACs.) By contrast, if a corporation, union, or individual chose to contribute directly to a super PAC, or to make IEs itself, the entity's identity would have to be disclosed to the FEC. Because super PACs are prohibited from coordinating their activities with campaigns, Congress might or might not feel that gathering additional information about super PACs' independence is warranted. Whether or not super PACs are sufficiently independent and whether their activities are tantamount to contributions could be subject to substantial debate and would likely depend on individual circumstances. Concerns about the potential for allegedly improper coordination between super PACs and the candidates they favor are a prominent aspect of debate. Some might contend that more coordination would benefit super PACs and candidates by permitting them to have a unified agenda and message, whereas others could argue that prohibiting any coordination is important to preserve independence. Candidate frustration with "outside" spending is not unique to super PACs. Indeed, uncoordinated activities by traditional PACs, parties, and interest groups are a common occurrence in federal elections. Some observers contend that the ability to coordinate should, therefore, be increased. Others, however, warn that permitting more communication between outside groups and campaigns would facilitate circumventing limits on campaign contributions. If Congress chose to limit potential coordination between super PACs and candidates or parties, it could amend FECA to supersede the existing coordination standard, which is currently housed in FEC regulations and has long been complex and controversial. Over time, some "traditional" PACs--not operating as super PACs--have adapted super PAC organizational characteristics. Specifically, in October 2011, the FEC announced that, in response to an agreement reached in a recent court case ( Carey v. FEC ), the agency would permit nonconnected PACs--those that are unaffiliated with corporations or unions--to accept unlimited contributions for use in independent expenditures. The agency directed PACs choosing to do so to keep the IE contributions in a separate bank account from the one used to make contributions to federal candidates. As such, nonconnected PACs that want to raise unlimited sums for IEs may create a separate bank account and meet additional reporting obligations rather than forming a separate super PAC. In addition to the organizational questions noted above--which may involve transparency concerns--Congress may be faced with examining whether enough information about super PACs is publicly available to meet the FECA goal of preventing real or apparent corruption. The following points may be particularly relevant as Congress considers transparency surrounding super PACs. In the absence of additional reporting requirements, or perhaps amendments clarifying the FEC's coordination rules, determining the professional networks that drive super PACs will likely be left to the media or self-reporting. In particular, relationships between super PACs and possibly related entities, such as 527 and 501(c) organizations, generally cannot be widely or reliably established based on current reporting requirements. As is the case with most political committees, assessing super PAC financial activities generally requires using multiple kinds of reports filed with the FEC. Depending on when those reports are filed, it can be difficult to summarize all super PAC spending affecting federal elections. Due to amended filings, data can change frequently. Reconciling IE reports with other reports (e.g., those filed after an election) can also be challenging and require technical expertise. Streamlining reporting for super PACs might have benefits of making data more available for regulators and researchers. On the other hand, some may argue that because super PAC activities are independent, their reporting obligations should be less than for political committees making or receiving contributions. Because super PACs (and other PACs) may file semi-annual reports during non-election years, information about potentially significant fundraising or spending activity might go publicly unreported for as long as six months. Consequently, some super PACs did not file detailed disclosure reports summarizing their late "off-year" activity until early election-year primaries are held. For example, some super PAC spending that occurred in late 2011 or late 2015 ahead of the 2012 and 2016 New Hampshire and South Carolina primaries, and Iowa caucuses, was not disclosed until well after the contests were held. Given the preceding points, a policy question for Congress may be whether the implications of the current reporting requirements represent "loopholes" that should be closed or whether existing requirements are sufficient. If additional information is desired, Congress or the FEC could revisit campaign finance law or regulation to require greater clarity about financial transactions. As with disclosure generally, the decision to revisit specific reporting requirements will likely be affected by how much detail is deemed necessary to prevent corruption or accomplish other goals. Super PACs are only one element of modern campaigns. Regular media attention to super PACs might give an overstated impression of these organizations' influence in federal elections. Nonetheless, super PACs have joined other groups in American politics, such as parties and 527 organizations, that are legally separate from the candidates they support or oppose, but whom some regard as practically an extension of the campaign. As with most campaign finance issues, whether Congress decides to take action on the super PAC issue, and how, will likely depend on the extent to which super PAC activities are viewed as an exercise in free speech by independent organizations versus thinly veiled extensions of individual campaigns.

Super PACs emerged after the U.S. Supreme Court permitted unlimited corporate and union spending on elections in January 2010 (Citizens United v. Federal Election Commission). Although not directly addressed in that case, related, subsequent litigation (SpeechNow v. Federal Election Commission) and Federal Election Commission (FEC) activity gave rise to a new form of political committee. These entities, known as super PACs or independent-expenditure-only committees (IEOCs), may accept unlimited contributions and make unlimited expenditures aimed at electing or defeating federal candidates. Super PACs may not contribute funds directly to federal candidates or parties. Super PACs must report their donors to the FEC, although the original source of contributed funds--for super PACs and other entities--is not necessarily disclosed. This report provides an overview of policy issues surrounding super PAC activity in federal elections. Congress has not amended the Federal Election Campaign Act (FECA) to recognize formally the role of super PACs. The FEC issued rules in 2014 to reflect their presence. The most substantial policy guidance about super PACs occurred through advisory opinions that the agency issued in 2010 and 2011 after the Citizens United and SpeechNow decisions. Various issues related to super PACs may be relevant as Congress considers how or whether to pursue legislation or oversight on the topic. These include relationships with other political committees and organizations, transparency, and independence from campaigns. Throughout the post-Citizens United period, relatively few bills have been devoted specifically to super PACs, although some bills would address aspects of super PAC disclosure requirements or coordination with campaigns or other groups. As of this writing, relevant legislation in the 114th Congress includes H.R. 424, H.R. 425, H.R. 430, H.R. 5494, S. 6, S. 229, S. 1838, and S. 3250. Since their inception during the 2010 election cycle, super PACs have raised and spent more than $2 billion. Although the number of these groups has increased rapidly, only a few groups typically dominate most super PAC spending. Super PACs can emerge and disappear intermittently; groups that are active one election cycle may be diminished or absent in the next. In some cases, super PACs have formed to support single candidates and have featured few donors. For those advocating their use, super PACs represent freedom for individuals, corporations, and unions to contribute as much as they wish for independent expenditures that advocate election or defeat of federal candidates. Opponents of super PACs contend that they represent a threat to the spirit of modern limits on campaign contributions designed to minimize potential corruption. This report will be updated periodically to reflect major policy developments.

The U.S. House and Senate have produced two major bills ( H.R. 2454 , the American Clean Energy and Security Act of 2009 (also known as the Waxman-Markey bill) and S. 1733 , the Clean Energy Jobs and American Power Act of 2009 (also known as the Kerry-Boxer bill)) addressing greenhouse gas (GHG) emissions associated with concerns over global Climate Change. This report summarizes and compares provisions for green jobs training and worker adaptation assistance for climate change impacts. Under a two-part subtitle for "Green Jobs & Worker Transition" (Title IV Subtitle B of H.R. 2454 , and Title III, Subtitle A of S. 1733 ), essentially identical provisions are focused (in Part I) on the development of programs to provide training and education in energy efficiency and renewable energy, and (in Part II) on providing retraining and financial assistance for workers made redundant (or whose earnings have been substantially reduced) by climate change mitigation measures. Since the provisions in both bills are so similar, this report will focus on the provisions as discussed in S. 1733 . A "Chairman's Mark" of S. 1733 was released in October 2009. Any resulting modifications to applicable areas of the original Kerry-Boxer version are discussed in the report. Reducing GHG emissions will likely require the curtailed use of fossil fuels for generating electricity, powering vehicles, and fuelling the furnaces of industrial production. Current legislation envisions an economic "price" on high-carbon fossil fuels to encourage switching to cleaner energy alternatives. Since fuel costs are often the third-highest cost component in manufacturing a product (after materials and labor), any increase in fuel costs could significantly affect the competitiveness of such products and therefore the profitability of an enterprise. Some companies may be able to adapt, finding more efficient ways to manufacture their products, while other businesses will cut labor costs. The legislative provisions examined in this report are intended to assist the development of green jobs training programs and to establish an internet-based clearinghouse for information on the green jobs industry. The provisions also seek to provide employment retraining and financial assistance for workers found to have been made redundant by climate change mitigation requirements, or those whose earnings have been significantly reduced. A summary of provisions in S. 1733 , "Clean Energy Jobs and American Power Act" Title III, Subsection A follows. Essentially the same organization and titles exist in H.R. 2454 , "American Clean Energy and Security Act," Title IV, Subtitle B, with only the section numbering differing. Green jobs training provisions in Part 1 of both bills focuses on the development of training programs in renewable energy and energy efficiency. Part 2 of both bills focuses on a new government program specifically to assist workers impacted by climate change mitigation measures. The Secretary of Education (in consultation with the Secretaries of Energy and Labor) is authorized to competitively award grants to eligible partnerships to develop programs of study in the fields of clean energy, renewable energy, energy efficiency, climate change mitigation and climate change adaptation. An eligible partnership can submit an application describing the partnership, its qualifications, area of focus, need of the labor market addressed, methodology and approach to meeting student needs, description of applied learning programs, placement of students in nontraditional fields, and description of applicant's proposed plan to consult with labor, apprenticeship and job training programs in the area for which a curriculum is proposed. Applications will be subject to a peer review process for recommendations to the Secretary for grant awards. An internet-based information and resources clearinghouse is to be established no later than 18 months after the date of enactment to aid career and technical education and job training in renewable energy by collecting and providing information on technological changes, best practices in training, and education, with an emphasis on renewable energy industry and job training program collaboration. In establishing the clearinghouse, the Secretary is to solicit information and expertise from the renewable energy industry, and institutions of higher education, technical schools, and community colleges that provide training in renewable energy. Separate sections of the clearinghouse are to focus on solar and wind energy systems, energy transmission systems, geothermal systems for energy and heating, and energy efficiency technical training. Each of these sections shall include information on basic environmental science and processes needed to understand renewable energy systems, federal government and industry resources, and points of contact. A "Green Construction Careers" demonstration project is to be established not later than 180 days after enactment. The purpose of the demonstration projects is to promote "middle class careers" and "quality employment practices" in the green construction sector on construction projects related to this act for "targeted workers" who reside in the same area as the project. The Secretaries of Education, Energy, and Labor are to evaluate the initial projects at the end of three years with an eye to identifying further projects, if they are deemed successful. Qualified pre-apprenticeship and apprenticeship programs aimed at targeted workers are to be used by contractors on the projects, or approved alternatives if contractor apprenticeship programs are outside the residence area of the project. The Government Accountability Office will report on the projects to Congress. A petition for eligibility for adjustment assistance can be filed by a group of workers, a union or other duly authorized representative of such workers, employers, or other entities acting on the behalf of such workers. The petition is to be filed simultaneously with the Secretary of Labor and the governor of the state in which the workers' employment site is located. The Secretary will publish the filing in the Federal Register and initiate an investigation to determine eligibility. The governor shall ensure that rapid response activities and appropriate core services authorized under federal law are made available to workers covered by the petition, and shall assist the Secretary by verifying such information and providing such other assistance as the Secretary may request. Workers may be eligible to apply for such assistance if: (a) they are employed in energy producing or transforming industries; industries dependent on energy industry; energy-intensive manufacturing industries; consumer goods manufacturers; or other industries determined by the Secretary to be adversely affected by any requirement of Title VII of the Clean Air Act (CAA); (b) the Secretary determines a significant number of workers become separated partially or totally from employment; (c) sales, production, or delivery of goods and services have decreased as a result of any requirement of Title VII of CAA, including the shift from fossil fuels to other sources of energy (including renewables) that results in the closing of a facility or layoff of employees at a facility that mines, produces, processes, or uses fossil fuels to generate electricity; a substantial increase in cost of energy for a manufacturing facility (not offset by assistance under title VII of CAA); or other situations the Secretary determines are adverse impacts of any requirement of Title VII of CAA. Public agency and service workers are also eligible for assistance if they are found to be adversely impacted by provisions of Title VII of CAA. The Secretary is authorized to collect such information as may be necessary to verify applications, with protection afforded to information considered confidential as noted in the section. A determination of eligibility would be due not later than 40 days after a petition was filed. Representatives of the domestic industry (including employers, union representatives or other duly authorized representatives) would be notified as to the result of a determination by the Secretary. Procedures for applying for benefits would follow certification of eligibility. Climate change adjustment assistance payments are to be made to certified, eligible workers for any week of unemployment on or after the date of certification, as long as specified conditions are met (including the circumstances of separation and length of previous employment). Workers receiving assistance payments under this section shall be ineligible to receive any other form of unemployment insurance during the period the worker is receiving climate change adjustment assistance under this section. Workers are to enroll in a training program unless circumstances exist to waive this requirement such as: a recall to work; the worker has "current marketable skills;" the worker is within two years of eligibility for old-age benefits under social security or a private pension; or the worker's health precludes participation in a training program (but such a health issue may not necessarily preclude the worker from other requirements for benefits). Climate change adjustment payments shall be equal to 70% of the average weekly wage of the worker, but are not to exceed the average weekly wage for all workers in the worker's state of residence. Such benefits are to be payable for a maximum of 156 weeks. Eligible workers will also receive information and employment services such as skills and diagnostic testing, information on financial aid and career counseling and training available locally and regionally, job vacancy listings, and information on the availability of support services such as childcare and transportation. Training would be approved for a worker if the Secretary determines that there is no suitable employment available and the worker would have a reasonable expectation of employment once trained. The worker must be qualified to take the training program (which must be available at a reasonable cost). States will receive funds for the administrative costs of the program of approximately 15% of assistance each fiscal year, and for employment services training. A state may decline such funding if it chooses. A one-time, lump sum reimbursement for job search expenses is authorized for an eligible worker up to $1,500 for workers who have completed the training program and are no longer eligible for climate change adjustment assistance. Relocation assistance is authorized (a one-time, lump sum up to three times the worker's weekly wage, not to exceed $1,500) if an eligible worker cannot secure suitable employment in the commuting areas in which the worker resides and, among other qualifiers, has a bona fide job offer in the area of relocation. Health insurance coverage for eligible workers will be continued and 80% of the premium will be paid (to the insurer) while the worker is receiving assistance under this section. The Secretary is authorized to enter into agreements with any state or state agency to meet the requirements of this part including data reporting. Each cooperating state or state agency shall advise each worker applying for benefits of procedures and deadlines, eligibility for training, benefits and climate change adjustment assistance. Adversely affected workers receiving benefits under this part are not eligible for benefits of other unemployment insurance under the laws of the state. A finding by a cooperating state agency on eligibility for benefits can only be reviewed under the laws of that state. If no agreement is in force with a state or state agency, the Secretary shall promulgate regulations for assistance under Section 312. Apprenticeship or other on-the-job training programs under this part shall not displace an employed worker, or impair an existing contract for services or collective bargaining agreement. The total amount of funds to be disbursed for the purposes of Section 312 shall not exceed the amount deposited into the Worker Transition Fund established in Section 209 of Division B. The Secretary may waive any section of this part to ensure that a member of the Armed Forces reserve serving on a period of duty (as described in the section) and who is an adversely affected worker is eligible to receive climate change assistance, training, and other benefits. A study on the circumstances of older workers is prescribed in the section. Sec. 20 8 . Energy Efficiency and Renewable Energy Worker Trainin g . An "Energy Efficiency and Renewable Energy Worker Training Fund" is to be established in the U.S. Treasury, funded by [the Environmental Protection Agency's Administrator from] auction proceeds from emission allowances. The Department of Energy's Secretary is to use these funds in accordance with section 171(e)(8) of the Workforce Investment Act of 1998. Sec. 209. Worker Transition. A separate account is to be established in the Treasury known as the "Worker Transition Fund" to receive proceeds from emissions auctions and is to be made available to carry out Part 2 of Subtitle A of Title III of Division A. Essentially, there are no differences in content between the original Kerry-Boxer version of the bill and the Chairman's Mark except for Section 313, General Provisions. In the Chairman's Mark, definition (10) was added to correct the omission of the term "industries dependent upon energy industries." A summary of differences between the House and Senate bills follows, with section numbers referring to the Senate bill (unless otherwise stated). Overall, these differences do not appear to be material. Section 313, General Provisions . In the Chairman's Mark, definition (16) defines "State" to include the District of Columbia and the Commonwealth of Puerto Rico; and the term "United States" when used in the geographic sense is defined to include such Commonwealth. This definition is not in H.R. 2454 . Section 313, General Provisions . In the Chairman's Mark, definition (20) adds citation (45 U.S.C. 351, et seq.) for the Railroad Insurance Act. This cite is not in H.R. 2454 . Section 313, General Provisions . The Spending Limit designation of where funding for the Climate Change Worker Assistance Fund is to be established in a proposed Title VII of the Clean Air Act differs with H.R. 2454 . In the Senate version, Section 209 of Division B has proceeds of allowance auctions being available pursuant to section 771(b)(5) of the CAA. The House version has amounts deposited per section 782(j) of the CAA. This appears to be a result of differences in House-Senate organization for proposed new sections of the CAA. Increased Funding for Energy Worker Training Program: Section 422 of H.R. 2454 adds another $25 million in funding to Section 171(e)(8) of the Workforce Investment Act of 1998, and establishes a separate account in the U.S. Treasury to be known as the "Energy Efficiency and Renewable Energy Worker Training Fund." Title IV of the American Recovery and Reinvestment Act of 2009 (ARRA) specifies that $100 million of the $4.5 billion made available to the U.S. Department of Energy's Office of Electricity Delivery and Energy Reliability be used for worker training. Title VIII of ARRA provides $500 million to the U.S. Department of Labor under "Training and Employment Services" for research, labor exchange, and job training projects that prepare workers for careers in renewable energy and energy efficiency. Both the House and Senate bills contain essentially the same provisions intended to provide employment retraining with a focus on jobs in renewable energy and energy efficiency in Part 1--Green Jobs, and financial assistance for workers found to have been made redundant by climate change mitigation requirements, or those whose earnings have been significantly reduced in Part 2--Climate Change Worker Adjustment Assistance. The source of funding for the provisions of Part 1, while apparently associated with the establishment of the "Energy Efficiency and Renewable Energy Worker Training Fund," is not clearly established in either bill. The term "Green Jobs" is undergoing definition at the Labor Department as to what these jobs are, and the sector or sectors they will be classified in under the North American Industry Classification System (NAICS). The NAICS is used by the federal government to collect and analyze data with regard to the U.S. economy. There is agreement that Green Jobs will relate to renewable energy and energy efficiency, but the extent to which these jobs will be exclusive to these areas is under debate as the skills and training necessary may be transferable from and to other job classifications. The level and specialization of these jobs could vary from tradesmen such as electricians and welders, to technical engineers or financial managers, and from intellectual design to maintenance workers. Part 2 of the legislation focuses on assisting workers impacted by climate change mitigation measures. Climate change mitigation may adversely affect the competitiveness of U.S. industries as legislation requiring adaptation to a low-carbon future has the potential to increase the costs of manufactured products. As such, if a group of workers can show how their current or prospective employment is impaired by such measures, then these workers may apply for climate change adjustment assistance. Assistance may include a monetary allowance while workers are retrained or otherwise seeking new jobs or seeking full employment if their work hours are reduced. The proposed legislation appears to be adaptable to the training needs of affected workers from various employment levels and backgrounds, as assistance may be provided for up to three years for eligible workers. Training for Part 1--Green Jobs seems to be focused on providing qualified workers for renewable energy construction projects, i.e., wind and solar projects, energy transmission systems, and energy efficiency jobs envisioned by the act. It is likely that while certain of these jobs will require new skills, many of these jobs can be filled by tradesmen with existing skills in electrical wiring and welding. Other skills in machining and parts fabrication may also be directly transferable. Many of these jobs may require workers to follow projects as they are won and built, and require moving on to where the jobs are. Many of these projects will be built where the renewable resources are best, and for large scale wind or solar thermal projects, this means the broad plains of the Midwest or the sunny arid desert regions of the Southwest. Funds are to be made available to states to carry out the retraining, on-the-job training, career counseling, or other employment services. The federal government may seek to audit use of funds and applicants to guard against fraud or misuse of funds. Eligible workers must be citizens or nationals of the United States, or have "satisfactory immigration status" to receive program benefits. Linkages of "apprenticeship" and "pre-apprenticeship" programs with business and industry needs must be addressed (and eventually with potential employers' needs), and secondary schools prepared to advise students on apprenticeship career options. The separate jobs retraining and assistance program envisioned by S. 1733 appears to be more comprehensive than existing workforce (such as at "One Stop Career Center") and Employee Retirement Income Security Act apprenticeship programs, perhaps raising issues of equity for unemployed workers not eligible for Climate Change Worker Adjustment Assistance. "Middle class careers" and "quality employment" are described as goals of the Green Construction careers demonstration project in Section 303. But over the longer term, higher paying, less transient jobs are more likely to come from positions in manufacturing companies rather than jobs in construction. Development of a competitive, domestic renewable energy industry which designs and produces the turbines, solar panels, and related parts and components is the likely source of these jobs, but may require a longer-term focus on the needs of future markets. More clarity may be sought with regard to the federal policies, oversight, and planning for the support or development of industries and businesses expected to absorb retrained workers. Retraining programs and climate adjustment assistance benefits are projected up to three years for eligible workers, during which time the worker may or may not be placed. The worker may then apply for a lump sum for job search assistance or relocation, or both if suitable employment is not found. At the same time, adjustment assistance to climate change-impacted industries is to be made available through allocations and auctions of emissions allowances, but such businesses are likely to downsize to survive. Growth in green industries and other sectors is assumed to provide future employment as companies look to climate change business opportunities. Coordination of government, education, and retraining providers and potential employers on one hand, and corresponding efforts to create or rebuild competitive industrial sectors on the other hand will likely be crucial if the desired economic growth and employment results are to be realized.

This report summarizes and compares provisions for green jobs training and worker adaptation assistance for climate change mitigation impacts in two recent bills: H.R. 2454, the American Clean Energy and Security Act of 2009 (also known as the Waxman-Markey bill), and S. 1733, the Clean Energy Jobs and American Power Act of 2009 (also known as the Kerry-Boxer bill). Under a two-part subtitle for "Green Jobs & Worker Transition" (Title IV Subtitle B of H.R. 2454, and Title III, Subtitle A of S. 1733), essentially identical provisions are focused (in Part I) on the development of programs to provide training and education in energy efficiency and renewable energy, and (in Part II) on providing retraining and financial assistance for workers made redundant (or whose earnings have been substantially reduced) by climate change mitigation measures. Since the provisions in both bills are so similar, this report will focus on the provisions as discussed in S. 1733. A "Chairman's Mark" of S. 1733 was released in October 2009. Any resulting modifications to applicable areas of the original Kerry-Boxer version are discussed in the report. The green jobs training provisions in Part 1 of S. 1733 focuses on the development of training programs in climate change mitigation, renewable energy and energy efficiency, the authorization of competitive grants to organizations and partnerships developed to provide relevant education, training, and an internet-based clearinghouse for general information on the programs and technologies. Part 2 of S. 1733 focuses on assisting workers impacted by climate change mitigation measures. If a group of workers can show how their current or prospective employment is impaired by climate change mitigation measures, then these workers would apply for climate change adjustment assistance. Assistance would include a monetary allowance while workers are retrained or otherwise seeking new jobs or seeking full employment if their work hours are reduced. Assistance may be provided for up to three years for eligible workers. Workers receiving assistance under Part 2 would not be eligible for any other form of unemployment insurance. The separate jobs retraining and assistance program envisioned by S. 1733 appears to be more comprehensive than existing workforce and apprenticeship programs, perhaps raising issues of equity for unemployed workers not eligible for Climate Change Worker Adjustment Assistance. More clarity may be sought with regard to the federal policies, oversight, and planning for the support or development of industries and businesses expected to absorb retrained workers. Growth in green industries and other sectors is assumed to provide future employment as companies look to climate change business opportunities. Coordination of government, education and retraining providers and potential employers on one hand, and corresponding efforts to create or rebuild competitive industrial sectors on the other hand, will likely be crucial if the desired economic growth and employment results are to be realized. "Middle class careers" and "quality employment" are described as goals of the Green Construction careers demonstration projects. But over the longer term, higher paying, less transient jobs are more likely to come from jobs in manufacturing companies rather than jobs in construction. Development of a competitive, domestic renewable energy industry which designs and produces the turbines, solar panels and related parts and components may provide these jobs, but may require a longer-term focus on the needs of future markets.

This report provides a brief analysis of Haiti's development needs. It examines the current situation in Haiti, Haiti's development needs, and what is being done by the Haitian government, the United States, and foreign donors to meet those needs. It also addresses priority areas for Haitian development. Haiti and its multilateral and bilateral donors developed an international assistance strategy, known as the Interim Cooperation Framework (ICF), to address Haiti's short-term needs following the collapse of the government of President Jean-Bertrand Aristide in February 2004. The Cooperation Framework has been extended through 2007, and is the basis from which a long term Poverty Reduction Strategy is being developed. The second part of the report uses the Interim Cooperation Framework's outline to organize statistics related to the priority needs that have been established. These statistics illustrate the challenges posed by current conditions of poverty in Haiti for achieving Haiti's development goals. Haiti's poverty is massive and deep. Over half the population (54%) of 8.2 million people live in extreme poverty, living on less than $1 a day; 76% live on $2 or less a day. Poverty among the rural population is even more widespread: 69% of rural dwellers live on less than $1 a day, and 86% live on less than $2 a day. Hunger is also widespread: 81% of the national population and 87% of the rural population do not get the minimum daily ration of food defined by the World Health Organization. In order to reach its Millennium Development Goal of eradicating extreme poverty and hunger by 2015, Haiti's Gross Domestic Product (GDP) would have to grow 3.5% per year, a goal the International Monetary Fund (IMF) says Haiti is not considered likely to achieve. Economic growth for FY2006 is estimated to have been 2.5%. Over the past 40 years, Haiti's per capita real GDP has declined by 30%. Therefore, economic growth, even if it is greater than population growth, is not expected to be enough to reduce poverty. The likelihood that economic growth will contribute to reduction of poverty in Haiti is further reduced by its enormous income distribution gap. Haiti has the second largest income disparity in the world. Over 68% of the total national income accrues to the wealthiest 20% of the population, while less than 1.5% of Haiti's national income is accumulated by the poorest 20% of the population. When the level of inequality is as high as Haiti's, according to the World Bank, the capacity of economic growth to reduce poverty "approaches zero." President Rene Preval, who was inaugurated to a five-year term on May 14, 2006, recently completed his first year in office. He outlined his government's two main missions to be building institutions as provided for in the constitution--including the new municipal posts filled by elections on December 3, 2006--and creating conditions for private investment in order to create jobs. Preval has criticized the donor community for not dispersing funds quickly enough. Some international donors have complained that Preval's government keeps changing priorities - first children's needs, then road-building, then security issues. Crime and kidnapping levels have been high, leading Preval's government and the U.N. Mission in Haiti (MINUSTAH) to focus on improving security. Plagued by chronic political instability and frequent natural disasters, the Republic of Haiti remains the poorest country in the Western Hemisphere. The United Nations designates Haiti as one of the fifty "least developed countries" in the world. "Least Developed Countries" (LDCs) [are] a category of States that are deemed highly disadvantaged in their development process..., and facing more than other countries the risk of failing to come out of poverty. As such, the LDCs are considered to be in need of the highest degree of attention on the part of the international community....the UN gives a strong signal to the development partners of these countries, and points to the need for special international support measures and concessions in their favour. Haiti has many priorities for development that are deeply interconnected. To address the persistent poverty crisis in the country, the Haitian government and the international donor community, including the United States, are implementing and developing assistance strategies that address many development needs simultaneously. In the short-term, they are trying to implement projects that will boost public and investor confidence. At the same time, the government and donors are pursuing medium-term development plans that will improve living conditions for Haiti's vast poor population and construct government institutions capable of providing services and stability. The Haitian government is working with international donors to develop a long-term poverty reduction plan. Since 2000, in response to unresolved elections disputes and questions of transparency, U.S. and other foreign donors have directed assistance through non-governmental organizations. The interim government (2004-2006) focused on macroeconomic performance. The Preval Administration has continued efforts begun by that government, maintaining fiscal discipline and implementing structural economic reforms. Now that an elected government is in place, donors are looking at how to ensure transparency as they provide funds directly to the government again. In addition, since President Preval took office in May 2006, both the new government and international donors are shifting from a short-term program to carry Haiti through a transition period to a long-term program to help reduce poverty in Haiti. Haiti and its multilateral and bilateral donors developed an international strategy for assistance to address Haiti's short-term needs in between the collapse of the government of President Jean-Bertrand Aristide and the time a new government could be elected and installed. The World Bank, the Inter-American Development Bank, the United Nations, and the European Commission convened the International Donors Conference on Haiti in July 2004. Working in conjunction with Haiti's interim government, the conference adopted the Interim Cooperation Framework (ICF), which focused on development goals in four general areas: political governance, economic governance, economic recovery, and access to basic services. At the conference, international donors, including the United States, pledged $1.2 billion from 2004 to 2006 to help Haiti rebuild its infrastructure, strengthen institutions, and improve basic services. According to the IMF, about $960 million of these funds had been disbursed as of December 2006. In July 2006, international donors pledged $750 million to bridge Haiti's budget gap and fund economic, social, and democratic reconstruction projects through September 2007. The Interim Cooperation Framework establishes priority needs and projects that fall under four broad categories. For each of these four strategic axes, the Framework provides a strategy, priority objectives, and monitoring indicators. The "Strengthen Political Governance and National Dialogue" axis addresses security, police, and disarmament; the judicial system and human rights; and the electoral process. The "Strengthen Economic Governance and Institutional Development" category promotes improved and more transparent management of public finances; strengthening the capacities of public institutions; and decentralization in favor of regional, urban, and local preparation of development strategies. The "Promote Economic Recovery" objective aims to reverse Haiti's trend of economic regress by promoting macro-economic stability; providing reliable electricity; reviving the private sector; and providing jobs and access to micro-finance. Economic Recovery programs also aim to help farmers meet their needs; improve roads and transport; and rehabilitate and protect the environment. "Improve Access to Basic Services" is the fourth axis. Because basic services are so scarce in Haiti, the priorities in this category are many. They range from immediate goals such as providing emergency humanitarian aid to more long-term goals. Health-related long-term goals include increasing the availability of potable water and lavatories; extending minimal health services and improving access to them, improving the ability to address food security, and improving solid waste management. Programs also include improving the quality of and access to education at all levels; engaging disadvantaged youth; supporting Haitian artisans; and reinforcing the media as a means of promoting pluralism and democracy. Other priorities include improving slums and the government's ability to provide social safety nets and protection. Progress has been made toward these objectives since 2004, such as the organization of elections, jobs creation, and broader access to clean water and other services. The economic policies of the strategy focused on restoring macroeconomic stability and establishing good governance practices, and had success in areas such as the preparation of budgets before the commencement of a fiscal year, and improvements in fiscal transparency. But because the emphasis was not on economic growth, results were negligible, according to the Haitian government, and Haitians did not experience an improvement in living conditions. Building on drafts created by the interim government (2004-2006), the Preval Administration produced an Interim Poverty Reduction Strategy for the years 2007-2009. This plan calls for actions to be taken with a macroeconomic framework focusing on three goals: maintain macroeconomic stability; target actions to reduce poverty; and create conditions conducive to continuous and sustainable growth driven by private initiative. The strategy notes that programs already outlined need to continue, and that the absence of a sector in this strategy does not mean that sector is not important. Partially in response to criticism that too many priorities were set forth in earlier plans, the Haitian government says this plan focuses on those sectors that can be effectively financed in the first year, considering limitations of time, and human and financial resources. The Interim Poverty Reduction Strategy defines major priorities for 2007-2009 to be infrastructure, energy, education, health and security. The government established these priorities for intervention activities: Growth favorable to the productive sectors, focusing on agriculture, industry, trade, environment, craft industries, transportation, electricity, communications, and tourism; Governance and institutional reforms, addressing justice and rule of law, fiscal transparency, modernization of the management of public affairs, deconcentration, and decentralization; and Development of social sectors, emphasizing health, HIV/AIDS, education, water, sanitation, and housing. With such low, or negative, economic growth over the last forty years, Haiti's per capita income has dropped by about 1% a year. The government does not anticipate that real economic growth alone can alleviate poverty. As a result, the government has called for growth policy that is "pro-poor," and for first priority to be given to investment projects that have social and human benefits. International donors are assisting Haiti in developing a long-term Poverty Reduction Plan to succeed the Interim Cooperation Framework. It will build on the priorities, needs, and programs already laid out in the Interim Cooperation Framework and the Interim Poverty Reduction Strategy, as well as lessons learned in implementing those strategies. An important part of this strategy, as it was with the others, is developing the final plan through a participatory process, with the overarching goal of ensuring that the interests of Haiti's most disadvantaged population are taken into account. A participatory process is also intended to strengthen democratic and governance processes by building consensus among various political and civic entities, and promoting Haitian "ownership" of the development plan. According to the Haitian government's strategy paper, the participatory process was to begin in the first quarter of 2007. A final Poverty Reduction Strategy Paper is to be submitted to the Haitian Parliament in July 2007, and implementation is to begin in October 2007. Some analysts have questioned whether Poverty Reduction Strategies (PRS) in general represent the best development strategy for a country. Poverty Reduction Strategy Papers are required to qualify for debt relief through the World Bank's Heavily Indebted Poor Country (HIPC) initiative and the IMF's Poverty Reduction and Growth Facilities. Therefore, some groups say, fulfilling requirements set by the international financial institutions drives the Poverty Reduction Strategy process, and becomes another type of conditionality, rather than the poverty reduction goals of a country like Haiti driving the formulation of debt relief and loan packages, as the PRS process was supposed to do. ActionAid, an international anti-poverty agency, argues that the World Bank and IMF's focus on poverty "is limited to lessening the social damage done by the negative impacts of their structural adjustment policy reforms...", and that alternatives or reforms to structural adjustment are generally precluded from discussion. In a review of earlier Poverty Reduction Strategies in seven countries, including Haiti, ActionAid reported that although there was general support for locally generated poverty reduction strategies, the evidence suggested there was little in-country "ownership" of the plans except among some of the bureaucracies that implement them. The study found that "important constituencies are being excluded through the consultation design or their own lack of capacity." The report also concluded that the IMF and the World Bank continued to have significant influence and control over the process and content of the Poverty Reduction Strategies themselves and their subsequent debt relief and loan packages. This influence, the report said, meant that "largely discredited adjustment instruments and targets have reappeared...," leaving the PRS susceptible to "the charge of new form, same substance, and...same impact on the working poor and excluded." Another group, the Bretton Woods Project, which monitors the World Bank and the IMF in collaboration with non-governmental organizations and researchers, says these international financial institutions should broaden their sources for development analysis, and that "Ministers from indebted countries and prominent academics have recently voiced concerns about the conflicts of interest underlying the Bank's role as analyst and lender." Some of these groups caution civil society organizations about participating in the public consultations for these Strategies. Poverty Reduction Strategies are not necessarily development strategies, they say, because the public consultation process excludes discussions of other important elements of development policy, such as trade policies, domestic and foreign investment strategies, industrial policies, deficit spending, and other issues. They suggest either broadening the scope of discussion within Poverty Reduction public consultations or supplementing them with public forums led by civil society organizations. The U.S. Agency for International Development (USAID)'s primary objective in Haiti for 2007-2009 is, "Helping to meet the basic needs of Haitian citizens." According to USAID's FY2007 Budget Justification, these basic needs include "better education and healthcare; more jobs and economic opportunities; greater access to equitably applied justice; humanitarian assistance; and institutions capable of providing these basic needs." USAID's programs are based on the objectives, strategy, and monitoring indicators established under the Interim Cooperation Framework. USAID began implementing new strategies in three areas in FY2007. Because Haiti's poor have become even more vulnerable by the complex disasters arising out of instability and insecurity, one program is aimed at protecting vulnerable populations. This program includes efforts to: (1) improve emergency preparedness and disaster mitigation; (2) protect and increase the food security of groups such as children under five years of age, and pregnant and lactating women; (3) work with vulnerable populations to increase family income and decrease food insecurity; and (4) promote stability by providing short-term employment opportunities in violence-prone areas, especially for out-of-school youth. The proposed budget for this program for FY2007 was $10.6 million in Development Assistance (DA), and $19 million in Economic Support Funds (ESF). (Congress has passed Continuing Resolutions for FY2007, and funding for FY2007 is still unclear.) The second new strategy involves democracy and governance. This program aims to strengthen civil society organizations so that they can reach out to groups traditionally excluded from the political process, and apply pressure on the Haitian government to create and implement good governance reforms. Judicial reform programs focus on improving the Justice Ministry's capacity to function; providing protection and treatment for victims of organized violence; preventing human trafficking; and providing specialized education and other opportunities for marginalized youth in Haiti's most violent areas. Other programs aim to strengthen the parliament, and help local government institutions be able to incorporate citizen input and deliver services. The proposed FY2007 budget for this program is $8 million in Development Assistance (DA), and $13 million in Economic Support Funds (ESF). The third new strategy involves education. The four elements of this program include (1) investment in primary schools to achieve equitable access to quality basic education; (2) supporting the social integration of adolescents through vocational/technical education; (3) strengthening the capacity of the Ministry of Education; and (4) increasing government oversight of education at the local level. The proposed FY2007 funding for this program is $4.6 million in Development Assistance (DA), and $6 million in Economic Support Funds (ESF). Overall, the Bush Administration requested $198 million for Haiti for FY2007. Levels for child survival and health, development assistance, and counternarcotics assistance funds decreased. HIV/AIDS funding increased as part of the President's Emergency Plan for AIDS Relief. The Administration's FY2008 request of $223 million represents increases in Economic Support Funds and HIV/AIDS funding, but decreases in all other categories of aid to Haiti from FY2006 and proposed FY2007 levels. Comparing FY2006 levels to FY2008 requested levels of aid to Haiti, ESF would increase from $49.5 million to $63.5 million; Global HIV/AIDS Initiative funding would increase from $47.3 million $83 million. Child Survival and Health would decrease from $19.8 million to $18.0 million; Development Assistance would decrease from $29.7 million to $14.8 million; Foreign Military Financing from $98,000 to $0; International Military Education and Training from $213,000 to $200,000; International Narcotics Control and Law Enforcement would decrease from $17.5 million to $9 million, and P.L. 480 food assistance would decrease from $39.5 million to $34.5 million. According to the IMF Mission Chief for Haiti, the Preval Administration has made concerted efforts to continue the strong macroeconomic performance initiated by the interim government, maintaining fiscal discipline and continuing structural economic reforms, such as passing a new organic budget law. Most analysts agree, however, that even strong macroeconomic performance will not be enough to reduce poverty in Haiti. The IMF points out that enormous political, technical, and institutional challenges must also be overcome before Poverty Reduction objectives can be achieved. The World Bank and others say that it is highly unlikely that economic growth will reduce poverty as long as Haiti's income inequality remains as high as it is--and by 2030 the income gap is expected to grow. Three factors contributing to income inequality are: a large disparity in the capacity to generate income, with the rural areas having the least capacity; access to education, which only half the population has; and whether or not a household receives remittances from abroad. Analysts say that policy aimed at reducing income inequality in Haiti should address decentralization, to provide more and better infrastructure and services throughout the country. According to the World Bank, public spending on education that is targeted toward the poor can reduce poverty in both the short- and long-term. Access to education, it says, can reduce poverty relatively quickly by increasing individual productivity and helping to shift poor people from low-paying agricultural employment to better paying jobs in the industrial and service sectors. In the long-term, the Bank says, education can increase poor children's chances of breaking out of the cycle of poverty by gaining access to formal employment. This means, however, that investment and the economy must be strong enough to create job opportunities for newly educated people. USAID defines three groups of challenges facing development efforts in Haiti: public sector institutions with little capacity to govern; a weak private sector whose growth is extremely limited by an atmosphere of insecurity; and the degradation of Haiti's natural resources, which are needed for productive economic activities. Because Haiti's current capacity is so limited, and its needs are so great, the IMF maintains that technical assistance will be crucial in making progress. According to the Haitian government, there has never been a systematic policy for poverty reduction nor a coherent program with precisely defined objectives. Haiti's limited capacity to develop plans and absorb funds, and donors' concerns over transparency of government spending continue to pose obstacles to the execution of development programs. Both donors and the Haitian government share responsibility for addressing problems with the disbursement of funds and the coordination of foreign assistance. The Preval Administration notes in its Interim Poverty Reduction Strategy Paper that the capacities of those who have a stake in the poverty reduction process are also "generally inadequate for the implementation of such a process," and calls for assistance to strengthen those stakeholders' capacities as well. USAID's Office of Transition Initiatives, which provides "fast flexible short-term assistance targeted at key political transition and stabilization needs," worked in Haiti from 2004 to 2006. Its mission identified three ingredients necessary to increase security in Haiti's most violence-prone areas: community ownership, development assistance, and rule of law, and said that all three elements must be present. It also said that programs targeted at reducing violence must address "spoilers," whether political or criminal, who want to incite disorder to promote their own interests. The Millennium Development Goal that the Haitian government agreed to in 2000 for environmental sustainability was to reverse losses by 2015. According to the IMF, this will be difficult to achieve, as losses have continued over the last decade, and environmental policies are weak. Currently, only 3.8% of total land area is forested. A weak political structure combined with ongoing political tensions, violence, massive poverty, and income inequality have made it difficult to pursue the goals of interim development and poverty reduction plans, and will do so for the successor Poverty Reduction Plan as well, if not adequately addressed. Several indices show Haiti lagging far behind countries in the region and the world in terms of development. As mentioned earlier, the United Nations designates Haiti as one of the fifty "least developed countries" in the world. The Economist Intelligence Unit ranked Haiti second-to-last in its 111-country Quality-of-Life Index. The Quality-of-Life Index uses the weighted measure of nine quality-of-life indicators to determine a country's quality-of-life score on a progressive scale from 1 to 10. With a score of 4.090, Haiti trailed behind the other 21 Latin American and Caribbean countries included in the study. The United Nations Development Program's Human Development Index (HDI) measures a country's indicators for life-span, education, and income against established goalposts, yielding a score along a progressive scale from 0 to 1. Haiti's HDI score is 0.482, behind the Latin American and Caribbean regional score of 0.795. Haiti ranked 154 th out of 177 countries (177 being the least developed), the only country in the Americas or the Caribbean to fall in the category of countries of "low human development." This section uses the Interim Cooperation Framework's outline to organize statistics related to some of the priority needs that have been established. These figures and tables put international efforts into the context of Haitian poverty, drawing a statistical overview to convey the extent of the poverty in Haiti and the obstacles that must be overcome in order for development to occur there.

Haiti's poverty is massive and deep. Over half the population (54%) of 8.2 million people live in extreme poverty, living on less than $1 a day; 76% live on less than $2 a day. Poverty and hunger among the rural population is even more widespread. In order to reach Haiti's goal of eradicating extreme poverty and hunger by 2015, its Gross Domestic Product (GDP) would have to grow 3.5% per year, a goal Haiti is not considered likely to achieve. In the past 40 years, Haiti's per capita real GDP has declined by 30%. Therefore economic growth, even if greater than population growth, is not expected to be enough to reduce Haiti's endemic poverty. Since Haiti's 2006 elections, the new government and international donors are shifting from a short-term program to carry Haiti through a transition period to a long-term program to help reduce poverty in Haiti. Haiti and its multilateral and bilateral donors developed an international aid strategy to address Haiti's short-term needs in between the collapse of President Jean-Bertrand Aristide's government and the installation of a new, elected government. Through the Interim Cooperation Framework (ICF) international donors pledged $1.2 billion from 2004 to 2006, and $750 million more through September 2007. The ICF places priority needs and projects into four broad "axes": political governance and national dialogue; economic governance and institutional development; economic recovery; and access to basic services, with a strategy, priority objectives, and monitoring indicators for each. Building on drafts created by the interim government (2004-2006), President Rene Preval's Administration produced an Interim Poverty Reduction Strategy (PRS) for the years 2007-2009. This plan calls for actions to be taken within a macroeconomic framework focusing on three goals: maintain macroeconomic stability; target actions to reduce poverty; and create conditions conducive to continuous and sustainable growth driven by private initiative. International donors are assisting Haiti in developing a long-term Poverty Reduction Plan to build on and succeed the Interim Cooperation Framework (ICF). An important part of this strategy is developing the final plan through a participatory process, with the goals of ensuring that the interests of Haiti's most disadvantaged population are taken into account and that democratic and governance processes are strengthened. The PRS is to be completed by July 2007, and implemented beginning in October 2007. The U.S. Agency for International Development's 2007-2009 programs are based on the objectives, strategy, and monitoring indicators established under the ICF. Some critics say that the PRS process does not allow adequate country input, uses limited development analysis, and should include discussion of alternative policies and other aspects of development policy. Enormous political, technical, and institutional challenges must be overcome before Poverty Reduction objectives can be achieved. The figures in this report put international efforts into the context of Haitian poverty, drawing a statistical portrait to convey the extent of the poverty and obstacles that must be overcome in order for sustainable development to occur in Haiti. This report will not be updated.

Generally speaking, there are two types of mortgage-backed securities (MBSs). The first are those securities that are packaged and issued by government sponsored entities (GSEs) -- the Federal National Mortgage Association ("Fannie Mae") and the Federal Home Loan Mortgage Corporation ("Freddie Mac") -- and a wholly owned government corporation, the Government National Mortgage Association ("Ginnie Mae"). The second are those MBSs that are packaged and issued by private market participants (i.e., mortgage companies, savings and loans, and commercial banks), known as private label MBSs. The laws governing the issuance of these two types of MBSs are different. MBSs offered by the GSEs and Ginnie Mae are exempt from the registration requirements and ongoing disclosure obligations contained in the federal securities laws. Private label MBSs do not enjoy a blanket exemption from the federal securities laws and are classified by the Securities and Exchange Commission as a type of "asset-backed security" (ABS) that must register under the Securities Act of 1933 ('33 Act or Securities Act) or obtain an exemption and provide continuing disclosures required by the Securities Exchange Act of 1934 ('34 Act or Exchange Act). This report will provide an overview of the registration requirements for private label MBSs under the Securities Act. It also highlights the most frequently used exemptions for private label MBSs. It outlines potential liability for fraud and/or material misstatements in the required disclosures and the consequences for failure to register when required by federal securities laws. This report will not discuss reporting requirements or liability for MBSs under the Exchange Act of 1934. The Securities Act requires issuers of all types of securities to register the offering with the Securities and Exchange Commission (SEC) or to qualify for an exemption from the registration requirements. A registration statement consists of two parts: a prospectus, which must be delivered with every offer to sell the securities and contain the information outlined in Section 10 of the Securities Act, and other information which need not be provided to potential purchasers but must be on file with the SEC and available for public inspection. Failure to file a registration statement when one is required results in a violation of Section 5 of the '33 Act and strict liability under Section 12(a)(1). Sections 4 and 5 of the Securities Act require issuers of securities to register the offerings and provide prospectuses for sales that are not exempt. Sections 7 and 10 of the Securities Act prescribe the information required in the registration statements and prospectuses that are issued pursuant to offerings under Sections 4 and 5. Section 7 requires the registration statement to contain the information and documents outlined in Schedule A (15 U.S.C. SS77aa), which is the Schedule under which all issuers that are not foreign governments must file. Section 7 grants the Commission the power to prescribe rules and regulations describing the information and documents to be contained in registration statements if the Commission deems them to be "necessary or appropriate in the public interest or for the protection of investors." Pursuant to this authority, the Commission has designed registration statements, which correspond to the various types of securities and types of issuers of securities. For private label MBSs, issuers must use either registration statement Form S-1 or Form S-3. Form S-3 is the preferable registration statement type for most issuers because it is considered to be less burdensome than other types of registration statements. In order to be eligible for Form S-3, in most cases, the registrant must already have a class of securities registered pursuant to Sections 12(b) or 12(g) of the Exchange Act (15 U.S.C. SS78 l ), or be required to file reports pursuant to Section 15(d) of the Exchange Act for at least the preceding 12 months (15 U.S.C. SS78o). The Commission included this requirement under the theory that information contained in the disclosures required by these sections could be incorporated by reference into the new MBS registration, thereby reducing the work required to prepare a new MBS registration statement. The registrant must also have filed all reports required in a timely manner within the previous 12 months. If the MBS offering qualifies as an offering of investment grade securities, however, the requirements for use of Form S-3 are slightly different. A non-convertible security (such as an MBS) may qualify as an investment grade security if, at the time of sale, "at least one nationally recognized statistical rating organization ... has rated the security in one of its generic rating categories which signifies investment grade; typically, the four highest rating categories (within which there may be sub-categories or gradations indicating relative standing) signify investment grade." An offering of investment grade MBSs occurs when MBSs that qualify as investment grade are offered for cash and delinquent assets within the asset pool do not constitute 20% or more of the pool (measured in dollar volume). If the offering is an offering of investment grade MBSs, the registrant is not required to have securities registered pursuant to Sections 12(b) or 12(g) of the Exchange Act (15 U.S.C. SS78 l ) or be subject to the reporting requirements of Section 15(d) of the Exchange Act (15 U.S.C. SS78o) in order to register using Form S-3. The issuer of an offering of investment grade MBSs still must have filed all reports required in the previous 12 calendar months in a timely fashion to qualify to use Form S-3. If the MBS offering does not qualify to use Form S-3, then the offering must be registered on Form S-1, which is the form all registrants must use if they do not qualify to register on another form. Shelf-registration allows an issuer to file a registration statement and, instead of selling the securities immediately following the effective date, place the securities on a "shelf" to be sold when the issuer believes the time to be right. This is a popular method of registration for private label MBSs. Mortgage related securities, a subset of MBSs, automatically qualify for "shelf-registration." Even if the private label MBS offering in question is not a mortgage related security, the private label MBS offering may qualify for shelf-registration nonetheless. For private label MBS offerings, the securities may remain on the "shelf" for up to three years from the initial effective date. Once the company "takes down" the securities for sale, if there has been a change involving the structural features of the MBSs, credit enhancement or other aspects of the MBSs that were not described in the base prospectus, a new registration statement, or post-effective amendment may be required. Some changes do not warrant such labor intensive disclosure, however, and the changes may be described in the final prospectus filed with the SEC. If the securities have not been sold by the end of the original three-year period, another registration statement may be filed. Private label MBSs are required to file registration statements that comply with Regulation AB. Regulation AB is tailored specifically to various types of asset-backed securities (like MBSs). The Commission realized that disclosures required by other SEC regulations were not properly tailored to elicit useful information for MBS investors. Other regulations required too much information irrelevant to MBSs and little or no information about other aspects of MBSs that investors needed in order to make informed investment decisions. Therefore, Regulation AB requires more information about the assets in a particular securitized pool, delinquent assets in the pool, the structure of the transaction, the experience of the servicer of the asset pool as well as other parties involved in administering the particular asset pool at issue, and other information unique to offerings of asset-backed securities (like credit enhancements on the asset pool). Information with respect to the registrant (management of the registrant company, performance of the registrant company's stock) may be omitted for MBS offerings because this information does not necessarily inform the investor about the potential performance of the asset pool. Certain offerings of private label MBSs may be exempt from registration under the Securities Act. The most common exemptions for MBS offerings are described below. The most common exemption from registration for MBSs is the exemption for so-called "private placement offerings." Section 4(2) of the Securities Act exempts "transactions by an issuer not involving any public offering." Section 3(b) allows the Commission to exempt certain offerings, not in excess of a specified dollar amount, from registration by rule or regulation. Pursuant to its authority in these two sections, the Commission adopted Regulation D. Regulation D, found in Rules 501 through 508 under the Securities Act, provides guidance to issuers regarding which offerings would not be considered "public offerings." The issuer must file notice with the SEC of any sales pursuant to Regulation D. Under Rule 504, an issuer (except an issuer that is an investment company) may sell up to $1 million worth of private label MBSs in any 12-month period to any number of purchasers, regardless of their accreditation. No information is required to be provided to investors purchasing securities pursuant to this exemption. An issuer may sell up $5 million worth of private label MBSs in a 12 month period to any number of accredited investors and up to 35 other purchasers. Accredited investors are defined to include large, frequent market participants that are presumed to have the ability to independently obtain the information that they need. If the securities are offered to unaccredited investors, some disclosure is required under Rule 502, but a full registration statement is not required. Rule 506 is likely the most common exemption from registration for MBSs. Under this rule, an issuer may sell any amount of securities to any number of accredited investors and up to 35 so-called "sophisticated investors." In order for the unaccredited investors to be considered "sophisticated," the issuer must reasonably believe that those investors (or their representatives) are capable of evaluating the merits and risks of the securities offered. If the securities are offered to unaccredited investors, some disclosure is required under Rule 502, but a full registration statement is not required. This section exempts sales of up to $5 million from registration if the sales are made to accredited investors. To qualify for this exemption, the issuer may not publicly advertise the sale of the securities, nor may the issuer publicly solicit buyers. The issuer must also file notice with the Commission of the sale, a requirement similar to that of Regulation D. Rule 144A allows the unlimited resale of securities that were never registered pursuant to the Securities Act so long as the purchaser is a "qualified institutional buyer" (QIB). QIBs are defined as enumerated types of institutional investors (i.e., insurance companies or employee benefit plans) that own over $100 million in securities unaffiliated with the entity making the offering. Because the market for private label MBSs consists primarily of QIBs, Rule 144A is commonly used. Section 28 of the Securities Act gives the Commission the authority to, conditionally or unconditionally, "exempt any person, security, or transaction, or any class of persons, securities, or transactions, from any provision or provisions of this title or of any rule or regulation issued under this title, to the extent that such exemption is necessary or appropriate in the public interest, and is consistent with the protection of investors." The Commission, therefore, has wide discretion to create exemptions from the registration requirements of the Securities Act. Sections 11 and 12 of the Securities Act provide private causes of actions for material misstatements or omissions contained in the registration of private label MBS securities. Section 15 of the act creates liability for controlling persons. These causes of action are described in this section. Section 11 creates a private right of action for purchasers of securities issued pursuant to a false or materially misleading registration statement. To establish liability, a plaintiff must show that the registration statement, at the time it became effective, contained a material misstatement or omission. A statement is material if "an average prudent investor ought reasonably to be informed [of the information] before purchasing the security registered." For the purposes of Section 11, a statement is material if, had it been stated correctly or disclosed, it "would have deterred or tended to deter the average prudent investor from purchasing the securities in question." Because Section 11 requires an effective registration statement in order to apply, securities that are sold pursuant to an exemption from registration are not subject to liability for violations of Section 11. Liability for violations may include the difference between the amount paid for the security and the value at the time the suit is brought, or the difference between the amount paid for the security and the price at which the security was sold in the market before the suit, or the difference between the amount paid for the security and the price at which it was sold after suit, but before judgment is entered, if that amount is less than the damages representing the difference between the amount paid for the security and the value at the time the suit was brought. A number of lawsuits have been filed by investors against issuers of MBSs alleging violations of Section 11 of the Securities Act. Alleged violations include failure to comply with the underwriting standards described in the offering documents, failure to disclose true risks of default on loans, and misrepresentations that the assets backed by the securities were, in fact, "investment grade." As these cases move through the courts, issues facing the causes of action will become more clear. A claim of liability under Section 11 may always be defeated by proof that the purchaser knew of the untruth or omission at the time the security was acquired. Furthermore, if a defendant can prove that "any portion or all [of the damages suffered by the plaintiff] represents other than the depreciation in value of such security resulting from" the misstatement in the registration statement, that portion of the damages is not recoverable. In other words, if a defendant can show that it was not the misstatement or omission in the registration statement that caused the value of the shares to fall, but some other market force, the plaintiff cannot recover the loss of value represented by the extraneous influence. The issuer has absolute liability under Section 11. Section 11 allows other individuals, besides the issuer, to be sued for violations, including corporate executives and others who signed the registration statement. These defendants may assert the "due diligence" defense. For the purposes of this defense, there are two portions of a registration statement: the "expert" portions and the "unexpert" portions. For example, in MBS offerings, the portion describing the pooling and servicing agreement for the underlying asset pool is prepared and signed by experts in accounting and auditing. Defendants, other than the expert that prepared the "expert" section at issue, may assert a due diligence defense to the preparation of the expert portions if the defendants can show that, after a reasonable investigation, they "had no reasonable grounds to believe and did not believe" there to be any material misstatements or omissions in the expert portion of the registration statement. "Reasonable investigation" means that which is required of a reasonable man in the care of his own property. In other words, those who sign the registration statement are entitled to trust the experts paid to prepare the expert portions, absent any red flags. With respect to the unexpert portions (and to the expert portions for the expert charged with preparing and signing those portions), defendants may assert the due diligence defense if they can show that, after a reasonable investigation the defendants had reasonable grounds to believe and did believe that there was no material misstatement or omission. This is a higher standard than the standard described in the preceding paragraph. Those signing the registration statement are not entitled to assume all information in it is correct because they trust those who prepared the statement. The defendants must, at the least, have read the registration statement and taken into account all knowledge available to them to gauge the statements accuracy. Section 12 applies to two different scenarios, each of which may apply to the issuance of private label MBSs. Both are briefly described below. Under Section 12(a)(1), a seller is strictly liable for selling securities in violation of Section 5. To establish a claim under this subsection, a plaintiff need only show that he bought securities and that the securities were not registered. The burden is on the defendant to show that there was an exemption for the offering. Section 12(a)(2) creates liability for any person who sells securities pursuant to a prospectus or oral communication that contains a material misstatement or omission. Liability under this section is not strict liability, however. A defendant who can prove that "he did not know, and in the exercise of reasonable care could not have known of such untruth or omission" will not be held liable. A defendant may reduce his liability under 12(a)(2) to the extent that he can show the decrease in the securities' value was caused by factors other than the alleged misstatement or omission in the prospectus or oral communication. Furthermore, this section only applies to public offerings; private placements, such as those accomplished under Rules 506, are not covered. Many of the suits filed alleging violations of Section 11 in the registration and sale of MBSs, also allege violations of Section 12(a)(2). As these cases move through the courts, issues facing the causes of action will become more clear. Section 15 makes those persons or entities that, through stock ownership or other arrangement, control the persons or entities that are liable under Sections 11 and 12 jointly and severably liable for violations of those sections. This provision could become important for the purposes of private label MBS liability. Issuers of MBSs are typically specially created for the purposes of a specific offering. Therefore, in order to recover for violations of Section 11 and 12 in MBS offerings, it may be necessary to sue the persons controlling the entities making the offering. The Commission has the statutory authority to bring an action for violation of the Securities Act, as well as any violation of the rules and regulations issued by the Commission pursuant to the act. Whenever the Commission believes a person has violated or is about to violate the provisions of the Securities Act, the Commission has the power to issue a cease and desist order. Pursuant to any cease and desist order, the Commission has the authority to order accounting and disgorgement. The Commission may also bring civil or criminal actions for violations of the act. In conjunction with the enforcement described above, the Commission may bring an action for violation of Section 17 of the Securities Act. Section 17 is a general antifraud provision. It prohibits any individual, in the offer or sale of securities, from employing various means or devices of fraud. Some courts have held that there is an implied private right of action under Section 17 (similar to that of Rule 10b-5 of the Exchange Act), but the Supreme Court has yet to rule on this question.

Mortgage-backed securities that are packaged and issued by private industry participants are required to comply with the Securities Act of 1933. Issuers of so-called private label mortgage-backed securities must either register these securities pursuant to the rules the Securities and Exchange Commission has set forth, or obtain an exemption from registration. Failure to register or fall under an exemption could result in liability for the issuer and other parties involved in the offering. Furthermore, material misstatements or omissions in the offering materials may also result in liability under the Securities Act. This report will provide an overview of the Securities Act of 1933 as it may be applied to mortgage-backed securities issued by private industry participants.

Has an attorney engaged in unethical conduct when he or she secretly records a conversation? The practice is unquestionably unethical when it is done illegally; its status is more uncertain when it is done legally. The issue is complicated by the fact that the American Bar Association (ABA), whose model ethical standards have been adopted in every jurisdiction in one form or another, initially declared surreptitious recording unethical per se and then reversed its position. Moreover, more than a few jurisdictions have either yet to express themselves on the issue or have not done so for several decades. A majority of the jurisdictions on record have rejected the proposition that secret recording of a conversation is per se unethical even when not illegal. A number endorse a contrary view, however, and an even greater number have yet to announce their position. Federal and state law have long outlawed recording the conversation of another. Most jurisdictions permit recording with the consent of one party to the discussion, although a few require the consent of all parties to the conversation. Both the ABA's Code of Professional Responsibility (DR 1-102(A)(3)) and its successor, the Model Rules of Professional Conduct (Rule 8.4(b)), broadly condemn illegal conduct as unethical. They also censure attorney conduct that involves "dishonesty, fraud, deceit or misrepresentation." In 1974, the ABA concluded in Formal Opinion 337 that the rule covering dishonesty, fraud, and the like "clearly encompasses the making of recordings without the consent of all parties." Thus, "no lawyer should record any conversation whether by tapes or other electronic device, without the consent or prior knowledge of all parties to the conversation." The Opinion admitted the possibility that law enforcement officials operating within "strictly statutory limitations" might qualify for an exception. Reaction to the Opinion 337 was mixed. The view expressed by the Texas Professional Ethics Committee was typical of the states that follow the ABA approach: In February 1978, this Committee addressed the issue of whether an attorney in the course of his or her practice of law, could electronically record a telephone conversation without first informing all of the parties involved. The Committee concluded that, although the recording of a telephone conversation by a party thereto did not per se violate the law, attorneys were held to a higher standard. The Committee reasoned that the secret recording of conversations offended most persons' concept of honor and fair play. Therefore, attorneys should not electronically record a conversation without first informing that party that the conversation was being recorded. The only exceptions considered at that time were "extraordinary circumstances with which the state attorney general or local government or law enforcement attorneys or officers acting under the direction of a state attorney general or such principal prosecuting attorneys might ethically make and use secret recordings if acting within strict statutory limitations conforming to constitutional requirements," which exceptions were to be considered on a case by case basis. ... [T]his Committee sees no reason to change its former opinion. Pursuant to Rule 8.04(a)(3), attorneys may not electronically record a conversation with another party without first informing that party that the conversation is being recorded. Supreme Court of Tex as Prof essional Eth ics Comm ittee Opinion No. 514 (1996). A second group of states--Arizona, Idaho, Kansas, Kentucky, Minnesota, Ohio, South Carolina, and Tennessee--concurred, but with an expanded list of exceptions, for example, permitting recording by law enforcement personnel generally, not just when judicially supervised; or recording by criminal defense counsel; or recording statements that themselves constitute crimes, such as bribery offers or threats; or recording confidential conversations with clients; or recordings made solely for the purpose of creating a memorandum for the files; or recording by a government attorney in connection with a civil matter; or recording under other extraordinary circumstances. A third group of jurisdictions refused to adopt the ABA unethical per se approach. In one form or another the District of Columbia, Mississippi, New Mexico, North Carolina, Oklahoma, Oregon, Utah, and Wisconsin suggested that the propriety of an attorney surreptitiously recording his or her conversations where it was otherwise lawful to do so depended upon the other circumstances involved in a particular case. In 2001, the ABA issued Formal Opinion 01-422 and rejected Opinion 337 's broad proscription. Instead, Formal Op inion 01-422 concluded that: 1. Where nonconsensual recording of conversations is permitted by the law of the jurisdiction where the recording occurs, a lawyer does not violate the Model Rules merely by recording a conversation without the consent of the other parties to the conversation. 2. Where nonconsensual recording of private conversations is prohibited by law in a particular jurisdiction, a lawyer who engages in such conduct in violation of that law may violate Model Rule 8.4, and if the purpose of the recording is to obtain evidence, also may violate Model Rule 4.4. 3. A lawyer who records a conversation without the consent of a party to that conversation may not represent that the conversation is not being recorded. 4. Although the Committee is divided as to whether the Model Rules forbid a lawyer from recording a conversation with a client concerning the subject matter of the representation without the client's knowledge, such conduct is, at the least, inadvisable. There seems to be no dispute that where it is illegal to record a conversation without the consent of all of the participants, it is unethical as well. Recording requires the consent of all parties in 10 states: California, Florida, Illinois, Massachusetts, Michigan, Montana, New Hampshire, Oregon, Pennsylvania, and Washington. Only two states, Colorado and South Carolina, have expressly rejected the approach of the ABA's F ormal Opinion 01-422 since its release. Yet a number of other states have yet to withdraw earlier opinions that declared surreptitious records ethically suspect: Arizona, Idaho, Indiana, Iowa, Kansas, and Kentucky. A substantial number of states, however, agree with the ABA's F ormal Opinion 01-422 that a recording with the consent of one, but not all, of the parties to a conversation is not unethical per se unless it is illegal or contrary to some other ethical standard. This is the position of the bar in Alabama, Alaska, Hawaii, Minnesota, Missouri, Nebraska, New York, Ohio, Oregon, Tennessee, Texas, Utah, and Vermont. In four other states--Maine, Mississippi, North Carolina, and Oklahoma--comparable opinions appeared before the ABA's F ormal Opinion 01-422 was released and have never withdrawn or modified. Yet even among those that now believe that secret recording is not per se unethical, some ambivalence seems to remain. Nebraska, for example, refers to full disclosure as the "better practice." New Mexico notes that the "prudent New Mexico lawyer" hesitates to record without the knowledge of all parties. And Minnesota cautions that surreptitiously recording client conversations "is certainly inadvisable" except under limited circumstances. Although the largest block of states endorse this view, whether it is a majority view is uncertain because a number of jurisdictions have apparently yet to announce a position, for example, Arkansas, Connecticut, Delaware, Georgia, Louisiana, Nevada, New Jersey, North Dakota, Rhode Island, West Virginia, and Wyoming. Besides Rule 8.4's prohibition on unlawful, fraudulent, deceptive conduct, the Code of Professional Conduct also condemns making a false statement of material fact or law. As a consequence even when surreptitious recording is not considered a per se violation, it will be considered unethical if it also involves a denial that the conversation is being recorded or some similar form of deception. While illegality and false statements exist as exceptions to a general rule that permits surreptitious recording, evidence gathering is an exception to a general rule that prohibits such recordings. The earlier ABA opinion conceded a possible exception when prosecuting attorneys engaged in surreptitious recording pursuant to court order. Various jurisdictions have expanded the exception to include defense attorneys as well as prosecutors. Some have included use in the connection with other investigations as well. Other circumstances thought to permit a lawyer to record a conversation without the consent of all of the parties to the discussion in one jurisdiction or another include instances when the lawyer does so in a matter unrelated to the practice of law; or when the recorded statements themselves constitute crimes such as bribery offers or threats; or when the recording is made solely for the purpose of creating a memorandum for the files; or when the "the lawyer has a reasonable basis for believing that disclosure of the taping would significantly impair pursuit of a generally accepted societal good."

In some jurisdictions, it is unethical for an attorney to secretly record a conversation even though it is not illegal to do so. A few states require the consent of all parties to a conversation before it may be recorded. Recording without mutual consent is both illegal and unethical in those jurisdictions. Elsewhere the issue is more complicated. In 1974, the American Bar Association (ABA) opined that surreptitiously recording a conversation without the knowledge or consent of all of the participants violated the ethical prohibition against engaging in conduct involving "dishonesty, fraud, deceit or misrepresentation." The ABA conceded, however, that law enforcement recording, conducted under judicial supervision, might breach no ethical standard. Reaction among the authorities responsible for regulation of the practice of law in the various states was mixed. In 2001, the ABA reversed its earlier opinion and announced that it no longer considered one-party consent recording per se unethical when it is otherwise lawful. Today, this is the view of a majority of the jurisdictions on record. A substantial number, however, disagree. An even greater number have yet to announce an opinion. An earlier version of this report once appeared as CRS Report 98-251. An unabridged version of this report is available with the footnotes and attachment as CRS Report R42650, Wiretapping, Tape Recorders, and Legal Ethics: An Overview of Questions Posed by Attorney Involvement in Secretly Recording Conversation.

This report addresses the cyber-vulnerability of critical infrastructure industries which regularlyuse industrial control systems. Industrial control systems may be vulnerable to infiltration bydifferent routes, including wireless transmission, direct access to control system computers,exploitation of dial-up modems used for maintenance, or through the Internet. This report willspecifically discuss the potential for access to industrial control systems through the Internet. The vulnerability of U.S. critical infrastructure to cyber-attack and catastrophic failure was brought to light in 1997 in the report of the President's Commission on Critical InfrastructureProtection. (1) Among other concerns, the computersystems used to remotely control processequipment were highlighted as specific points of vulnerability. These systems were updated duringthe Y2K crisis, but their cyber-security generally has not been a high priority. The events ofSeptember 11, 2001 have heightened the public awareness of the nation's vulnerability to terroristattack, and a National Research Council report has identified "the potential for attack on controlsystems" as requiring "urgent attention." (2) Critical infrastructure is defined in the USA PATRIOT Act as those "systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of suchsystems and assets would have a debilitating impact on security, national economic security, nationalpublic health or safety, or any combination of those matters." (3) Several industry sectors consideredto be critical infrastructures use industrial control systems in their daily activities. These industriescould be significantly affected by a cyber-attack targeting industrial control systems such assupervisory control and data acquisition (SCADA) systems, distributed control systems, and others. The President's Commission on Critical Infrastructure Protection report stated, From the cyber perspective, SCADA systems offer some of the most attractive targets to disgruntled insiders and saboteurs intent on triggering a catastrophicevent. With the exponential growth of information system networks that interconnect the business,administrative, and operational systems, significant disruption would result if an intruder were ableto access a SCADA system and modify the data used for operational decisions, or modify programsthat control critical industry equipment or the data reported to controlcenters. (4) The most commonly discussed industrial control systems include supervisory control and dataacquisition (SCADA) systems and distributed control systems (DCS). (5) SCADA systems are oftenused for remote monitoring over a large geographic area and to transmit commands to remote assets,such as valves and switches. For example, they can be found in water utilities and oil pipelines,where they monitor flow rates and pressures. Based on the data that these systems provide, computerprograms or operators at a central control center balance the flow of material. Generally, SCADAsystems process little data internally, instead performing analysis in a more central location, but arethe primary conduits for raw data to and commands from a control center. They may be vulnerableto implantation of faulty data and to remote access through dial-up modems used for maintenance. Distributed control systems are process control systems, commonly deployed in a single manufacturing or production complex, characterized by a network of computers. DCS generallyprovide processed information to, or a series of commands from, a central location. For example,at a chemical plant, a DCS might simultaneously monitor the temperature of a series of reactors andcontrol the rate at which reactants are mixed together, while performing real time processoptimization and reporting the progress of the reaction. An attack targeting a DCS might causeextensive damage at a single facility, but might not affect more than the single site. These process control systems can be interconnected within a single industry as well. This might be the case in an infrastructure which both transports and processes material. As an example,the oil and gas infrastructures contain both processing and refining sites, as well as holding facilitiesand distribution systems. Refining and processing sites may utilize DCS in discrete locations. Thedistribution and holding facilities might be managed by a SCADA system which collected data fromand issued commands to different geographic sites from a single location. (6) Industrial control system technologies are often employed in critical infrastructure industries to allow a single control center to manage multiple sites. Industrial control systems were originallyimplemented as isolated, separate networks. (7) Theywere viewed as secure systems which protectedremote locations from being physically broken into and mistreated. For example, the establishmentof remote control systems in dams reportedly protected against unlawful release of the dammedwater, as no hand-operable valves and switches were accessible. (8) The networking of industrial control systems on a greater scale has led to increased synergy and efficiency, and, due to market needs (e.g. deregulated markets), real time information from thesesystems is increasingly important for commercial purposes. Consequently, industrial control systemsare becoming linked to corporate computer systems, potentially making them vulnerable to cyber-attack throughthe Internet. Original control systems were designed to be free standing networkswithout Internet access. Therefore, it has been necessary to add network access capabilities to theselegacy systems to integrate them into the corporate structure. This has created, in the worst cases,a labyrinth of connections which is perhaps not rigorously constructed for cyber-security or welldocumented. Many organizations, including the General Accounting Office, researchers at several Department of Energy National Laboratories, and private security and consulting companies, haveidentified systemic and specific security vulnerabilities in select process control systems. (9) Amongthese vulnerabilities are poor cyber-security practices, such as weak passwords, a lack of robustprotocols, and communication in clear text. While some vulnerabilities arise from the manner bywhich the process control system is operated, others are believed to be integral to the control systemconfiguration itself. Some industrial control systems, including legacy systems, are proprietary, and contain non-standard architectures and command syntax. This can be considered both an advantage and adisadvantage. Proprietary systems with esoteric command structures are often non-intuitive, andcould be difficult to operate by an untrained individual. Incorrect commands could cause no results,and may increase the probability that the intruder would be noticed and removed from the system.Additionally, different companies may have different command sets, even if they are both membersof the same industry, as their proprietary systems may have significantly different structures. Thus,if a hacker or terrorist successfully attacks one company, that experience may not be valuable for useat the next company. Others assert that many new control systems, as well as upgrades to legacysystems, are being assembled from commercial, off-the-shelf equipment and software, providingcommonalities across different industry sectors. They point to the needs of system maintenance andnew component integration as leading to similar control system architectures both within andbetween critical infrastructure sectors. By adopting such equipment and software, vulnerabilities thatare identified impact all sectors. The degree of integration between control system networks and publicly accessible networks is difficult to judge from the open literature. This makes assessment of the vulnerability of criticalinfrastructure industries from Internet based attack difficult to know with certainty. (10) Faced with anunclear risk, it may be difficult, from an industry perspective, to justify the additional costs ofupgrading privately-held industrial control systems to higher security standards. (11) Current off-the-shelf industrial control systems have been designed foroperational speed and functionality, ratherthan for secure operation, and therefore may not have a high degree of operational security. (12) Addition of security requirements may degrade the performance of these components belowoperating standards. Events have shown that utility control system networks may be vulnerable to cyber-based incidents. Computers at an inactive nuclear power plant in Ohio were infected by the Slammerworm in January 2003. The infection disabled some computer functionality, including monitoringsystems for portions of the power plant. (13) Also,it has been reported that other control systemcomputers have been compromised by other viruses. (14) Given the uncertain vulnerability level and the potential systemic weaknesses involved in current off-the-shelf technology, there appears to be little market incentive to directly increaseindustrial control systems security. Therefore the security systems for the corporate network, whichblock initial intrusion through the Internet, may be the sole planned protection for the industrialcontrol systems. Such an approach has been criticized, as while it may provide initial barriers tointrusion, it would not reduce any inherent vulnerabilities in the control system network. (15) Security analysts also contend that industrial control systems are less obscure now than when they were initially developed. Foreign utility companies increasingly use current commercial off-the-shelf industrialcontrol systems, increasing the international availability of systems and theirdocumentation. Due to the similarity between these systems and systems installed domestically,potential terrorists need not break into an American utility to test their plans. (16) Instead, preliminarytesting might be performed outside of the United States on equipment held in other countries. Some security analysts believe that the industrial control system vulnerability should be addressed before potentially catastrophic events occur, and that techniques for reducing thevulnerability are already known. They contend that the majority of attacks on industrial controlsystems will come through corporate networks, via the Internet. While standardized informationtechnology protection methods have not yet been developed specifically for industrial controlsystems, these analysts contend that if general network benchmark standards were uniformly appliedacross corporate networks, corporate networks vulnerability to intrusion could be reduced by 80-88%. (17) This would indirectly reduce the industrial controlsystems vulnerability to intrusion, asroutes through the corporate network would no longer be available. These benchmark standardsinclude disabling unneeded server functionality, patching known security flaws, and updatingprograms to the most recent version. Other security analysts claim that in addition to general network security, specific protection for industrial control systems must also be established. Such protection might be addressed bysuccessfully isolating the control system network from the corporate computer network or byimplementing stronger security measures at known junctions of the two networks. Such an effortmight significantly increase the difficulty of infiltrating the control system network from theInternet. (18) In contrast, control systems may have vulnerabilities unrelated to those associated with corporate networks, and may require more specific protection, including against attacks not transitingthe corporate network. (19) Protecting corporatenetworks from intrusion may not address enough ofthe vulnerable access routes into industrial control systems. Joe Weiss, Executive Consultant withKEMA Consulting, asserts that firewalls, intrusion detection, encryption, and other technology needto be developed specifically for control systems. (20) Some companies have taken aggressive steps to protect their industrial control systems, and arepossible examples for how secure industrial control systems can be established. (21) While mostsecurity experts agree that critical infrastructure industries which view secure industrial controlsystems as a priority can reduce vulnerabilities, some assert that most critical infrastructure industriesare not willing to voluntarily commit resources, time and effort into reducing these vulnerabilities. Stuart McClure, President and Chief Technical Officer of the security company Foundstone, claims,"[Industries] have fallen into the regulation trap. Unless the government regulates it, they're not yettaking [security] seriously." (22) Some critical infrastructure industry representatives are skeptical that a cyber-terror attackwould target industrial control systems. (23) Sincethere are no reported terrorist cyber-attacks ondomestic critical infrastructure industrial control systems which have caused significant, publiclyreported damage, even in cases where hackers have successfully broken into these systems, industryrepresentatives believe the cyber-threat to be low. Diane Van de Hei, executive director of theAssociation of Metropolitan Water Agencies and contact person for the water utility InformationSharing and Analysis Center (ISAC), was quoted as saying, "If we had so many dollars to spend ona water system, most of it would go to physical security." (24) Analysts have also doubted that terrorist groups will use cyber-attacks to affect critical infrastructure. They point to the lack of documented terrorism-related cyber-attacks on criticalinfrastructure as indicative of low threat probability. "It suggests that, as so many commentatorshave noted, that cyberterror or cyberattacks on infrastructure are an unlikely threat to the security ofthe United States." (25) Some critical infrastructure companies believe that the potential damage likely to be caused by a cyber-attack on control systems would be small and manageable through already existingprocedures. Since fluctuations and equipment failure are part of expected, normal business, plansand procedures for these naturally occurring events are in place. They assert that the damage causedby cyber-attack would be similar to that already routinely seen. (26) Some industry representatives emphasize that the unfamiliar and uncommon commands used in legacy industrial control systems will continue to provide as high a barrier to future destructiveattempts as it has in the past. (27) While utilityindustry leaders agree that they have been the target ofmillions of cyber-security incidents, some do not analyze the origin or method of attack. Will Evans,vice president of IT services at People's Energy Corp., reportedly claimed, "[A large utility] couldhave a million [intrusion] events that need to be analyzed. I don't think anybody has the capabilityto do that in-house." Utility industry representatives contend that the vast majority of computer intrusion events are searches for vulnerable computers in the corporate network by inexperienced hackers, and, of thedangerous minority actually performed by experienced crackers, many are focused on economicaspects of the corporate network rather than the industrial control systems network. (28) From theperspective of critical infrastructure industries, discontented employees who possess insideinformation about industrial control systems are a greater security risk than external attempts tobreach security. There is evidence that al Qaeda is interested in the vulnerabilities of the U.S. public and private utilities. The discovery in Afghanistan of a computer containing structural analysis programs fordams, combined with an increase in Web traffic relating to SCADA systems, (29) prompted theNational Infrastructure Protection Center (NIPC) to issue a warning information bulletin. (30) Ananalysis of cyber-attack data collected during the second half of 2001 showed that the corporatesystems of energy industry companies are attacked twice as often as other industries, and that a largenumber of these attacks originate from the Middle East. (31) Additionally, according to one expert,these statistics do not reflect intrusions directed at control systems which lack firewalls or intrusiondetection systems, resulting in an under-reporting of the actual number of attacks. (32) There have been examples of individuals specifically breaking into utility companies' control systems. The most notable event occurred in Maroochy Shire, Australia, where, in Spring, 2000, adiscontented former employee was able to remotely access the controls of a sewage plant anddischarge approximately 264,000 gallons of untreated sewage into the local environment. (33) In 1994,a hacker successfully broke into the computer system of the Salt River Project in Arizona and wasable to gain access to computers monitoring canals. (34) Another example, from March, 1997, occurredwhen a teenager in Worcester, MA was able to remotely disable part of the public telephoneswitching network, disrupting telephone service for 600 residents, including the fire department, andcausing a malfunction at the local regional airport. (35) Reportedly, an intrusion into the SCADAsystems of a global chemical company occurred where a former employee attempted to disablechemical operating systems at a production plant. (36) Often, it is difficult to assess from public reports to what degree a critical infrastructure industry has been breached. (37) For example, acyber-break-in at the California Independent System Operator(Cal-ISO), California's primary electric power grid operator, went undetected for 17 days in April,2001. Greg Fishman, a representative of Cal-ISO, reported the intruders "never really got close atall to our operational systems that run the grid." (38) It is not clear what information was compromisedduring the intrusion, who the perpetrators were, or what their goal in gaining access was. To date,there has been no indication that the perpetrators of this attack were able to access any sensitiveinformation or systems. The consequences of an attack on the industrial control systems of critical infrastructure couldvary widely. It is commonly assumed that a successful cyber-attack would cause few, if any,casualties, but might result in loss of infrastructure service while control was wrested from theattacker and damage repaired. For example, a successful cyber-attack on the public telephoneswitching network might deprive customers of telephone service while technicians reset and repairedthe switching network. An attack on a chemical or liquid natural gas facility's control systems mightlead to more widespread physical damage. Lower probability events include catastrophic infrastructure failure, where the failure of one part of the infrastructure leads to the failure of other parts, causing widespread effect. Such failuremight occur due to the synergistic effect of infrastructure industries on each other. A simple examplemight be an attack on electrical utilities where electricity distribution was disrupted; sewagetreatment plants and waterworks could also fail, as perhaps the turbines and other electricalapparatuses in these facilities shut down. On August 5, 2002, the faulty closure of an emergencyvalve at one of Singapore's two natural gas suppliers blocked the flow of natural gas to sevenelectrical power plants. As an immediate result, power levels dropped 30%, and even after reservepower was employed, there was still a 8% shortfall. The power outage lasted up to 90 minutes. (39) Several chemical production plants were forced to shutdown their facilities during the power outage,and required several days to restore full production. (40) Some experts warn of a cascade event, where a terrorist is able to manipulate control systems and cause catastrophic failure within an infrastructure. Cascade events can be very damaging,causing widespread utility outages. Twice in 1996, arcing between high voltage transmission linesand trees resulted in widespread power outages. On July 2, 1996, a cascade event left 2 millioncustomers in 11 states and 2 Canadian provinces without power. (41) Most service was restored within30 minutes. (42) On August 10, 1996, a similar eventcaused 7.5 million customers in seven westernstates and part of Canada to be without power for up to nine hours. (43) The August 2003 blackout of the northeastern United States and parts of Canada, also a cascade event, has been invoked as indicative of the potential effects a successful terrorist cyber-attack onelectrical utility control systems. (44) While it wasquickly determined that the power outage was notcaused by terrorism, (45) there were questionswhether control system failure, computer viruses orworms, or operator-error played roles in the outage. (46) It has been suggested by some that the Blasterworm, which had been contributing to congestion of the Internet, might have exacerbated theproblems faced by utilities leading up to the blackout event. (47) The scenario which causes the highest degree of concern among experts is the combined use of a cyber-attack on critical infrastructure in conjunction with a physical attack. (48) This use of cyber-terrorism could result in an amplification of the physicalattack's effects. An example of this mightbe a conventional bombing attack on a building combined with a temporary denial of electrical ortelephone service. The resulting degradation of emergency response, until back-up electrical orcommunication systems can be brought into place and used, could increase the number of casualtiesand public panic. Others believe that the consequences of a cyber-attack on critical infrastructure would be very limited, and that excessive focus has been given to an unsubstantiated terrorist threat. (49) Cyber-security experts who doubt the effectiveness of such an attack rangein opinion regarding an attack'simpact. Some believe that a cyber-attack on critical infrastructure control systems, while havingsome effect, would not be devastating, but rather only have minor impact. (50) For example, securitymanagers in some electric utilities reportedly believe that experience in dealing with natural disastersand power outages may translate well to recovering quickly from a cyber-attack. (51) Other believe thatthere could be significant impacts from a successful attack on control systems, but that such successwould be very unlikely. (52) Finally, some believethat while it is possible to use computers to generatehigh consequence attacks, it would be much more likely that a terrorist group would resort to asimpler conventional attack which would yield results of a similar magnitude. (53) The creation of the Department of Homeland Security has centralized within the Directorate of Information Analysis and Infrastructure Protection a number of offices related to criticalinfrastructure control system security: the Critical Infrastructure Assurance Office (CIAO), theNational Infrastructure Protection Center, the National Infrastructure Simulation and Analysis Center(NISAC), and part of the Department of Energy's Office of Energy Assurance. (54) CIAO and NIPC were created in response to Presidential Decision Directive No. 63, issued in 1998. (55) CIAO coordinated the federalgovernment's initiatives on critical infrastructure assuranceand promotes national outreach and awareness campaigns about critical infrastructure protection. NIPC was a national critical infrastructure threat assessment, warning, vulnerability, and lawenforcement investigation and response agency. Among other programs, NIPC developed theInfraGard program, which serves as a clearinghouse for information sharing and analysis formembers of critical infrastructure industries. NISAC was created in 2001 through the passage of the USA PATRIOT Act. It is charged to "serve as a source of national competence to address critical infrastructure protection and continuitythrough support for activities related to counterterrorism, threat assessment, and risk mitigation." (56) This center is to provide modeling and simulation capabilities for the analysis of criticalinfrastructures, including electricity, oil, and gas sectors. (57) It is located at Sandia NationalLaboratories and Los Alamos National Laboratory. (58) The Department of Homeland Security created a National Cyber Security Division, located in the Information Analysis and Infrastructure Protection Directorate, to identify, analyze, and reducecyber-threats and vulnerabilities; disseminate threat warning information; coordinate incidentresponse; and provide technical assistance in continuity of operations and recovery planning. (59) Thisdivision has the responsibility for implementing programs for research and development in cyber-security, usingexpertise from the Science and Technology Directorate to provide research anddevelopment functions and execution. The President's Critical Infrastructure Protection Board has released The National Strategy to Secure Cyberspace , in which a general strategic overview, specific recommendations and policies,and the rationale for these actions are presented. (60) This document addresses concerns regardingdigital control systems and SCADA networks, rates SCADA network security as a national priority,and recommends joint public/private efforts in discovering solutions to potential vulnerabilities. This strategy identifies the Department of Homeland Security, in coordination with other federalagencies, as the department responsible for developing best practices and new technologies toincrease SCADA security. Some cyber-security experts have criticized this plan, claiming thatvulnerabilities will remain because of its lack of enforcement regulations. (61) The Department of Energy's Office of Energy Assurance has also been involved in developing techniques to secure energy production and availability. (62) Part of this effort has been thedevelopment of "simple, common-sense approaches to improve the overall level of protection inSCADA and digital control networks." (63) Adocument describing a general approach to improvingcyber-security in SCADA systems has been released. (64) Department of Energy National Laboratories. The Department of Energy National Laboratories have developed a series of test bed facilities to testsecurity measures developed for critical infrastructure. The Idaho National Engineering andEnvironmental Laboratory, in conjunction with Sandia National Laboratory, are developing aSCADA test bed to help identify vulnerabilities and improve the security and stability of SCADAsystems. (65) This test bed is part of an integratedCritical Infrastructure Test Range, which includescyber security, wireless communications, power transmission, and physical security testbeds. (66) ThePacific Northwest National Laboratory has developed a Critical Infrastructure Protection AnalysisLaboratory where, among other things, the vulnerability of SCADA systems can be determined. (67) Research into advanced technologies is currently underway at Department of Energy laboratories to address process control system security. For example, Sandia National Laboratoryunder the Laboratory Directed Research and Development program has been developing securecontrol systems for the energy industry. (68) Research includes new information architectures,cryptographic methods, and information system security assessments. Much of this work arises fromneeds discovered through partnerships with systems manufacturers. While a prototype system todemonstrate proof of principle has been implemented at the Sandia National Solar Thermal TestFacility, this system has not been widely implemented in the field. (69) Similar security efforts, thoughless directly focused on industrial control systems, are being developed at both Lawrence LivermoreNational Laboratory and Los Alamos National Laboratory. The National Institute of Standards and Technology (NIST) has initiatives in industrial control system security. NIST, in conjunction with a number of industry groups, federal governmentagencies, and professional societies, have created the Process Control Security Requirements Forumto develop process control information security requirements. Through their Critical InfrastructureProtection program, the National Institute of Standards and Technology is developing informationsecurity requirements, best-practice guidelines, and test methods for the process control sector. (70) Scientists at NIST are also actively involved in many industry-standards forums. The Department of Defense, through the Combating Terrorism Technology Support program, provides support for the protection of infrastructure elements. As part of this program, encryptionalgorithms for SCADA systems are being developed and tested with the end goal of providingrecommendations to industry regarding their use. (71) The Federal Energy Regulatory Commission (FERC) is an independent regulatory agency within the Department of Energy that, among other duties, regulates interstate commerce in oil,natural gas, and electricity. FERC has published a final rule related to critical energy infrastructureinformation. In this rule, critical energy infrastructure information (CEII) is defined as: ... information about proposed or existing critical infrastructure that: (i) Relates to the production, generation, transportation, transmission, ordistribution of energy; (ii) Could be useful to a person in planning an attack on critical infrastructure;(iii) Is exempt from mandatory disclosure under the Freedom of Information Act, 5 U.S.C. 552; and(iv) Does not simply give the location of the criticalinfrastructure. (72) Whether or not information falls under the CEII categorization is initially determined by the companies submitting the information to FERC. Categorization of select information as CEII maylead to greater information sharing between industry and the federal government. The FERC has also published a notice of public rulemaking which includes cyber-security standards for the electric industry. (73) Thisproposed regulation would require the electric industry toself-certify that they are meeting minimum cyber-security standards. It has been reported that FERCwill likely adopt standards developed by the North American Electric Reliability Council in the finalversion of this regulation. (74) The final version ofthis regulation has not been issued. (75) Some industry groups have taken steps towards addressing control system security, generally as part of an overall cyber-security initiative. (76) Some groups have launched initiatives in developinginfrastructure security programs. (77) The NorthAmerican Electric Reliability Council has developeda set of minimum cyber-security standards for the electricity industry, as well as guidelines forsecuring remote access to critical electric infrastructure. (78) Another approach is to develop voluntary best-practices for process control system security. Several organizations are taking part in such initiatives. For example, the Instrument Society ofAmerica has formed a committee, ISA-SP99, to develop a series of reports on best-practices andprocedural improvements which would enhance control system security. (79) Similar efforts areunderway in other technical societies, including the Institute of Electrical and Electronics Engineersand the International Electrotechnical Commission, where working groups on process controlsystems and their security are established. Some industry groups have focused on developing near-term solutions to the legacy equipment security vulnerabilities. For example, the Gas Technology Institute has focused on developingcryptographic protection of SCADA communications and developing a mechanism for retrofittinglegacy equipment to handle these encrypted signals. (80) Other groups have increased outreach effortsto improve understanding of security issues relating to cybersecurity and process control systems. (81) The vulnerability of industrial control systems may be reduced through a range of federalactions. These include the development of standards, either voluntary or mandatory, forcybersecurity of control systems; identifying and addressing critical infrastructure interdependencies;developing encryption methods for control systems; identifying and establishing technologies toaddress existing vulnerabilities; funding long-term research into secure SCADA systems; providingfor free exchange of risk information between the federal government, private industry, and othercritical infrastructure sectors; and assessing federal activities in this area. The federal government could mandate and enforce a uniform security standard for cybersecurity of industrial control systems, or support the development of industry developed andbased standards. Because of the national importance of critical infrastructure systems, a uniformstandard might be developed, with the input of advocates, industries and the federal government,which would include the functionality necessary to protect industrial control systems, whileproviding for more secure operation. A voluntary, standards-based approach has been developed forserver operating systems with some success, and a similar mechanism might be used to developstandards for commercial off-the-shelf control systems. (82) Alternately, processes and specificationscurrently being developed through industry-led programs might be generalized across criticalinfrastructure industries and established as a voluntary standard. Critics of this approach cite themany different uses of industrial control systems in different industry sectors as making such astandard unwieldy. Some experts have expressed concerns that a mandated standard would be lesseffective than a voluntary standard, as solutions to new problems could not be implementedimmediately, but would wait for changes to the standard, and that such a standard may not beuniformly applicable across industry sectors. Others have stated that there is a need for federalrequirements to assure that appropriate attention is focused on process control system security. Identifying the dependencies between critical infrastructure sectors, the vulnerabilities that are present in information technologies in these sectors, and the possible cross-sectoral impacts of acontrol system attack may lead to a greater understanding of the scale of the control system threat. As shown by the August 2003 blackout, the loss of a single infrastructure sector, here the energysector, may have serious effects in other critical infrastructures, such as public health andtransportation. Both the Department of Homeland Security, in its role of protecting infrastructure,and the Department of Energy, in its role of ensuring a robust and reliable energy infrastructure,perform activities in determining sectoral dependencies and commonalities. Policymakers may wishto enhance current funding into SCADA security research, test bed modeling, or criticalinfrastructure vulnerability assessment to further clarify the current vulnerability. Another option would involve supporting encryption research to protect industrial control system data transfer. Encrypting the information transmitted between remote units and theircontrollers would inhibit inclusion of false information to and from industrial control systems. Current encryption technology may not be compatible due to the time required to process theencrypted data and the level of technology built into control system components. Industrial controlsystems have stringent timing requirements and tend to be built out of less computationally robustcomponents, which complicate the use of current encryption technologies. (83) While a prototypeencryption method for industrial control systems has been developed, it is still in the validationprocess (84) and is only recently being evaluated forimplementation in industry. (85) Further researchintoencryption techniques for these processes could provide efficient, market-driven technology forsecuring industrial control systems information. Some experts highlight that securing data transferdoes not assure the security of the control system itself. They assert that other routes of attack existthat do not rely on the security of the control system communications. Thus, securing thosecommunications, while lowering system vulnerability, may not be addressing the most likely threat. Further research and development into methods for retrofitting existing SCADA systems with more secure components or communications may be another method to reduce system vulnerability. This approach has been taken by researchers in both industry and federal government laboratories. While potentially addressing short term needs to reduce vulnerability, retrofit solutions are not likelyto solve inherent shortfalls in SCADA security especially with respect to the inclusion of COTSequipment potentially vulnerable to cyber attack. Critics of retrofit solutions cite high costs andpotential compatibility concerns as barriers to easy implementation of such solutions. A long term approach to limiting the vulnerability of SCADA systems is to provide further targeted investment into developing "next-generation" secure control systems. Development of asecure SCADA architecture may provide incentives to replace components in a secure manner duringthe normal replacement cycle, incrementally reducing the present vulnerability. While some arguesuch product research and development is a responsibility of private industry, others may assert thatcontrol system security is of national import, requiring enhanced federal investment. Several National Laboratories have developed complementary testbed facilities to investigate potential vulnerabilities and solutions to SCADA systems. Such testbed facilities could be used toevaluate and validate the security of commercial SCADA systems, act as a proving ground for newtechnologies, or be dedicated to the development of federal efforts in secure process control systems. The new FOIA exemptions created in the Homeland Security Act of 2002 ( P.L. 107-296 ) may provide a higher volume, freer exchange of information between the federal government andindustry, as industry may become more forthcoming about potential vulnerabilities. The CriticalEnergy Infrastructure Information category for electrical infrastructure information may provide amodel for how regulatory agencies might craft regulations protecting critical infrastructureinformation within a sector. Comments from various groups on the proposed implementation of theHomeland Security FOIA exemption have indicated that industry concern still remains over thepotential release of information given to the federal government by private industry. (86) Policymakersmay wish to inquire into whether vulnerabilities transmitted to the federal government are eventuallyreduced, and how the information being provided to the federal government is used. Policymakers may also wish to assess the effectiveness of the Department of Homeland Security in coordinating security enhancements to control systems, promoting government/industrypartnerships, and performing risk and vulnerability assessments. With the concentration ofpreviously existing agencies into the Directorate of Information Analysis and InfrastructureProtection, previous duplication of effort may be removed, but critics have suggested that difficultiesin integrating these agencies may lead to a reduction in effectiveness. Some policymakers haveexpressed concern that the priorities DHS have placed on physical and cyber-security are notappropriate for the risks involved. (87) Oversightof DHS's efforts to rectify this potential homelandsecurity vulnerability may provide insight into successful models used within critical infrastructuresectors which might be used across multiple sectors.

Much of the U.S. critical infrastructure is potentially vulnerable to cyber-attack. Industrial control computer systems involved in this infrastructure are specific points of vulnerability, as cyber-security forthese systems has not been previously perceived as a high priority. Industry sectorspotentially affected by a cyber-attack on process control systems include the electrical, telephone,water, chemical, and energy sectors. The federal government has issued warnings regarding increases in terrorist interest in the cyber-security of industrial control systems, citing international terrorist organization interest incritical infrastructure and increases in cyber-attacks on critical infrastructure computer systems. Thepotential consequences of a successful cyber-attack on critical infrastructure industrial controlsystems range from a temporary loss of service to catastrophic infrastructure failure affectingmultiple states for an extended duration. The National Strategy for Securing Cyberspace , released in February 2003, contains a number of suggestions regarding security measures for control systems. A focus on the further integrationof public/private partnerships and information sharing is described, along with suggestions thatstandards for securing control systems be developed and implemented. The Homeland Security Act of 2002 ( P.L. 107-296 ) transferred and integrated several federal entities that play a role in cyber-security of control systems into the Department of HomelandSecurity. These entities include the Critical Infrastructure Assurance Office, the NationalInfrastructure Protection Center, the National Infrastructure Simulation and Analysis Center, andparts of the Department of Energy's Office of Energy Assurance. Additionally, the HomelandSecurity Act of 2002 created a new class of information, critical infrastructure information, whichcan be withheld from the public by the federal government. Efforts in increasing the cyber-security of control systems occur both at federal government facilities and, in critical infrastructure sectors, through industry groups. The Department of EnergyNational Laboratories, the Department of Defense, and the National Institute of Standards andTechnology all have programs to assess and ameliorate the cyber-vulnerabilities of control systems. Industry-based research into standards, best practices, and control system encryption is ongoing inthe natural gas and electricity sector. Possible policy options for congressional consideration include further development of uniform standards for infrastructure cyber-protection; growth in research into security methods for industrialcontrol systems; assessing the effectiveness of the new exemptions to the Freedom of InformationAct; and the integration of previous offices in the new Department of Homeland Security. This report will be updated as events warrant.

Insurance is regulated almost exclusively at a state level, unlike the other primary sectors of the financial services industry, banking and securities. Although the Supreme Court has ruled that Congress has the power to regulate insurance, the 1945 McCarran-Ferguson Act devolved this power to the individual states, and this was specifically reaffirmed in the 1999 Gramm-Leach-Bliley Act. It has long been recognized that some uniformity in insurance regulation is desirable as it allows greater efficiencies in the insurance market. This argument has grown stronger as insurers compete more with banks and securities firms, who do have uniform regulation, and as capital markets have become more globalized. Insurers rely increasingly on global capital markets both as a place to invest premiums that are not quickly paid out in claims and as a source of funding, particularly after a catastrophe that causes large losses. Recognizing the need for relatively standardized regulation, the individual states have developed model rules and regulations through the National Association of Insurance Commissioners (NAIC) and the National Conference of Insurance Legislators (NCOIL). Harmonization efforts by the states, however, have been hampered by the lack of authority invested in either the NAIC or NCOIL. Although both are made up of public officials, the organizations themselves are voluntary, non-governmental associations and cannot require that any states enact their models. As a consequence, there is significant variation in how different states regulate insurance and there have been various calls for Congress to act through a federal charter or some other kind of federal intervention. The recent financial crisis added an additional argument for increased federal attention to the regulation of insurance, particularly with the failure of AIG, a company that happened to be the largest surplus lines insurer in the United States. Surplus lines insurance regulation differs from other insurance regulation both in substance and in the primary focus. In regulating regular insurance transactions, much of the state's focus is on the insurer itself. States have specific requirements for financial solvency, including how much capital an insurer must hold, and how the insurer can invest this capital. In cases of insolvency, states have established guaranty funds, funded by the rest of the insurers in the marketplace, to pay off the insolvent insurer's claims. The states also regulate both the substance of an insurance policy and the price of that policy, with many states requiring specific state approval before policy terms or prices can be changed. In surplus lines insurance, states have some oversight on the solvency of insurers, generally requiring that financial information be filed by surplus lines insurers to judge whether the insurers are sufficiently capitalized. There is, however, no participation in state guaranty funds by surplus lines insurers, nor state oversight of policy terms and prices charged. Most surplus lines transactions revolve around an intermediary, typically an insurance broker, who may specialize in the unusual risks that require such coverage. Because they have relatively little oversight on surplus lines insurers themselves, the states generally focus their attention on these intermediaries in regulating surplus lines insurance. To operate as a surplus lines broker, most states require an additional license on top of the license required for insurance brokers in general. To retain this license, surplus lines brokers are required to take various steps with surplus lines transactions that are not required in regular insurance. The first step in a surplus lines transaction is generally a state-required "diligent search" of the regular insurance marketplace to establish that there is no licensed insurer available to offer the required coverage. Typically, this requirement is satisfied by having some number, usually three to five, licensed insurers decline to offer coverage with the broker being responsible for an affidavit describing the search and certifying that no coverage is available in the licensed market. In some cases, states have established lists of coverages that are almost always placed in the surplus lines market and thus are exempt from the diligent search requirements. Once the consumer's eligibility to use the surplus lines marketplace is established following whatever state rules are in place, the broker would then approach various surplus lines insurers seeking the desired coverage at a suitable price. At this point, while the consumer is outside of the regular insurance market, the states generally continue to establish standards to protect consumers against surplus lines insurers who might be unable to pay claims that are made. Some states establish a list of eligible surplus lines insurers, and state-licensed brokers are only allowed to transact with insurers on that list. Others take the opposite approach and issue a list of ineligible insurers that may not be used by state-licensed brokers. A third approach is to make the brokers responsible if a surplus lines insurer refuses or is unable to pay legitimate claims; this is seen as causing the broker to be more cautious as to which insurance companies are used. States also generally require that brokers provide specific disclosure statements to clients purchasing surplus lines insurance detailing that the insurance is not subject to the same regulatory oversight as insurance bought from state licensed insurers. All states levy specific premium taxes on insurance and generally require a licensed insurer to collect and remit these taxes as a condition of licensure. With the absence of licensure requirements on surplus lines insurers, the requirement to remit taxes is placed on the state-licensed broker. The precise amount of the tax depends on individual state laws. The situation becomes somewhat unclear, however, when the consumer, the broker, or the insured property are in different states. Such a multi-state situation requires apportioning the premium taxes among the different states. State laws, however, differ significantly not only on the amount of such taxes but also on what exactly is to be taxed and how that tax should be apportioned among the multiple states. The property/casualty insurance market has been marked by the so-called insurance cycle, a tendency to have alternating periods of high prices and short supply ("hard markets") with periods of low prices and plentiful supply ("soft markets"). The size of the surplus lines market has been significantly affected by these cycles, with surplus lines growing faster than the entire market in hard markets and more slowly in soft markets. In the past 30 years, there have been generally hard markets in four periods: the late 1970s, the middle 1980s, the early 1990s, and the early 2000s. Growth in net premiums for U.S. professional surplus lines insurers in three of these four periods has reached 70% at the peak and then dropped to nearly zero or below within a few years afterwards. In 2008, surplus lines direct premiums totaled $34.4 billion, 13.8% of the total commercial lines premiums of $249.3 billion. The surplus lines market in the United States has two large groups, AIG and Lloyd's of London, which had 23.5% and 19.7% of the market respectively. The next largest is Zurich Financial with 5.0% market share, which was followed by a number of companies in the 2% to 4% range. The 10 th -largest company had a 2.1% share, whereas the 20 th had a 1.1% market share. Senators John Sununu and Tim Johnson introduced S. 2509 on April 5, 2006, and it was referred to the Senate Banking, Housing, and Urban Affairs Committee. The committee held two hearings on general insurance regulation in July 2006 where the bill was discussed, but it did not take other action on S. 2509 . Although not directly addressing surplus lines insurance, the bill could potentially have had a significant impact on the operation of the current surplus lines market. S. 2509 would have created a federal charter for insurers and insurance intermediaries and given them the choice of operating under the federal system instead of the state system. Holders of a federal license would have been able to operate throughout the United States without separate state insurance licenses. In addition, the National Insurance Act would have preempted state laws requiring product and price approvals for federally chartered insurers. A federal charter as envisioned in S. 2509 would thus offer many of the same freedoms currently enjoyed by surplus lines insurers, namely, the ability to sell insurance across the country without individual state licenses and with product and rate flexibility. At the same time, S. 2509 would have offered the possibility of avoiding the conflicting state regulatory system that surplus lines insurers currently point to as a significant burden. Representative Ed Royce introduced H.R. 6225 on September 28, 2006. It was jointly referred to the House Committees on Financial Services and on the Judiciary. Although not identical to S. 2509 , the bill was essentially similar and would have created the same dual regulatory system with both federal and state charters available for insurers and insurance intermediaries. No committee hearings were held on H.R. 6225 . Passage of either version of the National Insurance Act of 2006, however, would not have offered a uniformly positive federal option from the viewpoint of surplus lines insurers. Unlike current state laws for surplus lines insurers, insurers with a federal charter would have been required to participate in state guaranty funds. In addition, federally chartered insurers would likely have had more stringent financial oversight than the states currently undertake with surplus lines insurers. It is difficult to predict whether large numbers of surplus lines insurers would actually opt out of the state system until the details of a federal chartering system were put in place. The largest surplus lines insurer, AIG, would seem very likely to become a national insurer, as its then-chairman testified before Congress supporting an optional federal charter in 2002. A.M. Best's 2006 survey of the surplus lines industry concluded, however, that "whether or not the National Insurance Act becomes a reality, surplus lines insurers will continue to play a major role in providing specialty coverage to commercial insurance consumers." Representative Ginny Brown-Waite, along with 16 cosponsors, introduced H.R. 5637 on June 19, 2006. It was referred to the House Financial Services Committee where hearings were held and the bill amended and reported on to the full House ( H.Rept. 109-649 ). H.R. 5637 was jointly referred to the House Judiciary Committee which held a subcommittee hearing on the bill, but took no further action. On September 27, 2006, the full House took up the bill under Suspension of the Rules and passed it 417-0. The Senate received the bill and referred it to the Banking, Housing, and Urban Affairs Committee, but took no further action. H.R. 5637 was a relatively narrow bill, aimed directly at streamlining and addressing inconsistencies in state regulation in the surplus lines insurance market. It would have done this primarily through preempting various state laws. It generally would not, however, have replaced the preempted state laws with federal standards, but instead would have done so with laws from other states or model laws of the NAIC. The bill's first two sections would have given preeminent regulatory and tax authority to the home state of the insured, preempting the tax and regulatory laws of other states who might have a claim on the insurance transaction such as the home state of the broker or the location of some of the insured risk. Thus, for example, if a company in one state were purchasing a surplus lines policy that covered some risks in another state, the only state that could collect taxes on that transaction would be the home state of that company. The bill would, however, have allowed states to require reports detailing risks that may be covered by policies from other states as well as encouraged the creation of an interstate compact to develop a uniform formula to allocate surplus lines taxes among the states. H.R. 5637 also would have preempted state laws on eligibility requirements. In general, it would have preempted any state laws that are different from the NAIC's model law on nonadmitted insurance and required states to follow the NAIC's listing of alien insurers in allowing brokers to place insurance with companies from outside of the United States. It also specifically would have preempted state diligent search requirements for surplus lines purchases by "exempt commercial purchasers" as defined in the bill. H.R. 5637 addressed reinsurance as well as surplus lines insurance. As with the surplus lines provisions, the reinsurance provisions had a similar "home state" approach to addressing inconsistencies of state regulation of reinsurance. The bill would have given preeminence to the home state of the insurer purchasing reinsurance with regard to the regulation of credit for reinsurance and other aspects of the reinsurance contract, while the home state of the reinsurer was given authority for the regulation of solvency of the reinsurer. In order for the home state to be given this primacy, the bill would have required the home state to follow NAIC standards with regard to reinsurance credit and reinsurer solvency. Representative Dennis Moore, along with 43 cosponsors, introduced H.R. 1065 on February 15, 2007; Representative Moore was a lead cosponsor of H.R. 5637 in the 109 th Congress. Representative Ginny Brown-Waite, the sponsor of H.R. 5637 , was a lead cosponsor of the H.R. 1065 . H.R. 1065 was nearly identical to the bill that passed the House in the previous Congress. The only change was to the credentials necessary to be considered a "Qualified Risk Manager," which would be required for a company to be considered an "exempt commercial purchaser." The bill was considered under Suspension of the Rules on June 25, 2007, and passed the House by voice vote. S. 929 also entitled the Nonadmitted and Reinsurance Reform Act of 2007, was introduced in the Senate on March 20, 2007, by Senators Mel Martinez and Bill Nelson. S. 929 was identical to H.R. 5637 as passed by the House during the 109 th Congress. It was referred to the Senate Banking, Housing, and Urban Affairs Committee as was H.R. 1065 once it was received in the Senate. Neither bill was acted on by the Senate in the 110 th Congress. Senators John Sununu and Tim Johnson introduced S. 40 on May 24, 2007, whereas Representative Melissa Bean and Ed Royce introduced H.R. 3200 on July 26, 2007. S. 40 / H.R. 3200 were substantially similar to S. 2509 / H.R. 6225 from the 109 th Congress. They would have created an optional federal charter for the insurance industry, potentially offering surplus lines insurers the choice of continuing to operate under the state system or to do so under the new federal system. Although S. 2509 / H.R. 6225 did not specifically address surplus lines insurance, S. 40 / H.R. 3200 included provisions doing so. In particular, S. 40 / H.R. 3200 included surplus lines insurance under the definition of an "insurance producer" and would have allowed a national agency to sell surplus lines insurance. Thus, under S. 40 / H.R. 3200 , an individual surplus lines broker or an agency specializing in surplus insurance could hold a national license and be exempt from the various requirements, such as diligent search, placed by the states on surplus lines brokers or agencies. In addition, S. 40 / H.R. 3200 would have allowed only the state in which an insured resides or maintains its principal place of business to tax a surplus lines transaction. S. 40 / H.R. 3200 would have also specifically exempted surplus lines insurers from a national guaranty fund should one be created. These bills were referred to committee, but no action was taken on them. Representative Dennis Moore introduced H.R. 2571 on May 21, 2009, along with 20 cosponsors, including lead cosponsor Representative Scott Garrett. H.R. 2571 is substantially similar to H.R. 1065 , which passed the House in the 110 th Congress. It was referred to the House Financial Services Committee and Judiciary Committee. Although neither committee marked up the bill, the House took up H.R. 2571 on September 9, 2009, under suspension of the rules and passed the bill by voice vote. Representatives Moore and Garrett also offered the language of H.R. 2571 as a floor amendment to the Wall Street Reform and Consumer Protection Act of 2009 ( H.R. 4173 ). This language was included in an en bloc amendment by Representative Barney Frank ( H.Amdt. 529 ) that passed by voice vote on December 10, 2009. H.R. 4173 passed the House on a vote of 223-202 on December 11, 2009, with the language included as Title IX. S. 1363 , which is identical to H.R. 2571 , was introduced in the Senate on June 25, 2009, by Senator Mel Martinez with three cosponsors. It was referred to the Senate Banking, Housing, and Urban Affairs Committee, which has not acted on this bill. The committee did, however, markup and order reported the Restoring America's Financial Stability Act of 2010 on March 22, 2010. Title V, Subtitle B of this bill is entitled the Nonadmitted and Reinsurance Reform Act of 2010 and contains language nearly identical to S. 1363 . The bill was reported as S. 3217 on April 15, 2010; after various floor amendments, none of which altered Title V, Subtitle B, the Senate inserted the language of S. 3217 into H.R. 4173 and passed the amended bill on a vote of 59-39. The conference report on H.R. 4173 , now titled the Dodd-Frank Wall Street Reform and Consumer Protection Act, included the Nonadmitted and Reinsurance Reform Act as Title V, Subtitle B. The House agreed to the conference report on June 30, 2010, by a vote of 237-192 and the Senate agreed to the conference report on July 15, 2010, by a vote of 60-39. President Obama signed the legislation into law as P.L. 111-203 on July 21, 2010. H.R. 1880 was introduced by Representatives Melissa Bean and Edward Royce on April 2, 2009. It was referred to the House Financial Services Committee, Judiciary Committee, and Energy and Commerce Committee. This bill includes language similar to the previous National Insurance Act of 2007 that would (1) include surplus lines insurance under the definition of an "insurance producer" and allow a national agency to sell surplus lines insurance and (2) allow only the state in which an insured party resides or maintains its principal place of business to tax a surplus lines transaction. Like previous bills, H.R. 1880 allows for the federal chartering of insurers and insurance producers and loosens some restrictions on insurance rate and form regulation, so it might have an impact on surplus lines insurance as some insurers and producers may choose to become federally chartered, rather than remaining state-chartered surplus lines insurers. The specific provisions of H.R. 1880 , however, are different than the previous National Insurance Acts, including the creation of a systemic risk regulation and the provision that some insurers might be required to become federally chartered if judged to be systemically significant.

In general, insurance is a highly regulated financial product. Every state requires licenses for insurance companies, and most states closely regulate both company conduct and the details of the particular insurance products sold in the state. This regulation is usually seen as important for consumer protection; however, it also creates barriers to entry in the insurance market and typically reduces to some degree the supply of insurance that is available to consumers. Rather than requiring consumers who may be unable to find insurance from a licensed insurer to simply go without insurance, states have allowed consumers to purchase insurance from non-licensed insurers, commonly called nonadmitted or surplus lines insurers. Although any sort of insurance could be sold by a surplus lines insurer, most such transactions tend to be for rarer and more exceptional property and casualty risks, such as art and antiques, hazardous materials, natural disasters, amusement parks, and environmental or pollution risks. Although surplus lines insurance is sold by insurers who do not hold a regular state insurance license, it is not unregulated. The sale of this insurance is regulated and taxed by the states largely through requirements placed on the brokers who usually facilitate the insurance transactions. The varying state requirements for surplus lines insurance have led to calls for greater harmonization between the states' laws and for federal intervention to promote uniformity. Such federal intervention is the central focus of the Nonadmitted and Reinsurance Reform Act of 2009 (H.R. 2571/S. 1363), which passed the House by voice vote on September 9, 2009. This act was also added as an amendment to the Wall Street Reform and Consumer Protection Act of 2009 (H.R. 4173) when it was considered on the House floor. H.R. 4173 passed the House on December 11, 2009. The Restoring America's Financial Stability Act of 2010 (S. 3217) included nearly identical language as well. This legislation was reported by the Senate Committee on Banking, Housing, and Urban Affairs on April 15, 2010, and subsequently brought to the Senate floor for consideration. On May 20, 2010, the Senate finished consideration, inserting the amended text of S. 3217 into H.R. 4173 and passing the amended H.R. 4173. The Nonadmitted and Reinsurance Reform Act language was included in the H.R. 4173 conference report, which was agreed to by the House on June 30, 2010, and by the Senate on July 15, 2010. President Obama signed the legislation, now P.L. 111-203, on July 21, 2010. Provisions aimed at harmonizing state laws regarding surplus lines insurance were also included in the National Insurance Consumer Protection Act (H.R. 1880), whose central focus is the creation of a federal charter for the insurance industry when this bill was introduced on April 2, 2009. Past Congresses have also taken up legislation on surplus lines insurance. Versions of the Nonadmitted and Reinsurance Reform Act were passed by the House in both the 109th and 110th Congresses, but the Senate did not act on surplus lines legislation in either case. Provisions on surplus lines insurance similar to those in H.R. 1880 were included in the National Insurance Act of 2007, but that bill was not acted on in the 110th Congress. This report will be updated as warranted by legislative events.

RS21055 -- NATO Enlargement Updated May 5, 2003 Congress is now considering enlargement of NATO, an issue addressed at the allied summit in Prague, in November 2002. During the last round of enlargement, the Senate voted 80-19 on April 30, 1998, in favor of admitting Poland, theCzechRepublic, and Hungary to NATO. (A two-thirds Senate majority is necessary to admit new states becauseenlargement isconsidered an amendment to the original North Atlantic Treaty.) Other members of the alliance followed suit, andthe threecountries became members in March 1999. It was the fourth time that NATO had admitted new states, withmembershipincreasing from the original 12 to 19 today. At the previous NATO summit in April 1999, the allies underscored that they were open to further enlargement. Theycreated a Membership Action Plan (MAP), outlining structured goals for candidates, such as ending the danger ofethnicconflict, developing a democratic society with transparent political and economic processes and civilian control ofthemilitary, and pledging commitment to defense budgets to build military forces able to contribute to missions fromcollectivedefense to peacekeeping. (1) At Prague, on November 21, 2002, the current members' heads of state designated the three Baltic states (Latvia, Lithuania,and Estonia), Slovenia, Slovakia, Bulgaria, and Romania, as prospective members. In 1998, the congressional debate over NATO enlargement covered such issues as costs, mission, and qualifications of thecandidates. The issue of costs has now seemingly been put to rest because entry of Poland, the Czech Republic, andHungary does not appear to have required extra U.S. funds. Most observers believe that the three countries havecontributedto stability in Europe, and have made significant political contributions to the alliance in such matters as enhancingNATO'sunderstanding of central and eastern Europe, Russia, and the Balkans, given the history of the new members'involvementwith these regions. Militarily, their contribution is less apparent; each of the three contributes forces to theNATO-led peaceoperations in the Balkans, and is building forces to defend its borders. Pentagon officials believe that Poland hasmade thegreatest strides in restructuring and modernizing its military, and that the Czech Republic and Hungary have madeconsiderably less progress. (2) It should be noted thata period of years is normally necessary to rebuild a military that has hadan authoritarian tradition and convert it to one having civilian control, purge it of old-guard elements, reform itstraining,and purchase equipment compatible with a new set of allies. There has been some sentiment that NATO should delay invitations to candidate states until democratic processes are firmlyentrenched. For example, the recent Hungarian government of Victor Orban was criticized for an ethnic "status law"thatsome interpreted as cloaking Hungarian aspirations for territory from neighboring states having Hungarianminorities. (3) Others reject such sentiments, noting that Orban was freely elected, and dismissing the status law as nothing morethan apassing example of nationalist politics before a close election. Nonetheless, it is possible that the period betweennamingcandidate states for accession negotiations at Prague in November 2002 and the moment when current NATOmembergovernments decide whether to admit those candidates (such as the vote in the U.S. Senate), could see debates overwhethereach candidate continues to meet criteria for democracy, particularly if there is an election bringing in a governmentthatmember states view as extremist. The North Atlantic Treaty does not contain a provision for expelling ordisciplining amember state. Another factor for consideration could prove to be a prospective member's efforts to persuade its people that NATOmembership is desirable. Slovenia held a referendum on March 23, 2003; 66% of those voting, 66% supportedNATOmembership, despite popular opposition to the war in Iraq that approaches 80%. No other candidate state intendsto hold areferendum on NATO membership. The essence of the current enlargement debate is over qualifications, with no apparent consensus. Of an original ninecandidates, two candidates, Albania and Macedonia, did not receive invitations at Prague. (4) Each of these countries issmall, with comparably small militaries potentially capable of specialized functions, such as transport or medicalcare, forexample, but only minimally capable of building forces able to contribute to high-intensity conflict. In the view ofsomeobservers, to adhere to the letter of the military qualifications outlined in the 1999 summit communique,requiring newmembers to contribute to missions from peacekeeping to collective defense, would be tantamount to excluding theirentry. Many participants in the debate favor different standards that, in their view, reflect the current political situation in Europe,where Russia is no longer a military threat but ethnic conflict, nationalism, and terrorism are a danger. In suchcircumstances, they contend, political stability and a modernized military at least able to contribute to border defenseand topeace operations are an appropriate standard. Secretary of State Powell seemed to suggest such a standard in hisconfirmation hearing when he stressed a need for candidates to modernize their militaries, and to strengthen theirdemocratic structures. (5) An opposing view is that NATO should first clearly define its mission, above all with an agreement on what types ofout-of-area threats, such as terrorism, proliferation, or a disruption of the flow of oil, should be met with a possiblemilitaryresponse. At that point, enlargement should be considered, with a determination about which prospective membersmightcontribute to the mission. Some observers, also hesitant about enlargement, note that the United States flew over60 percentof combat missions in the Kosovo conflict. They prefer prospective members that could relieve the U.S. burden. Yet another view is that there is no clear dichotomy between collective defense (high-intensity conflict undertaken inresponse, for example, to the attacks of September 11, 2001) and collective security (peace operations andhumanitarianassistance). In this view, countries contributing to peace operations assist in building stable societies and preventing"blackholes," such as Bosnia or Afghanistan, where terrorism may take root. Countries involved in peace operations, then,arecontributing to the prevention of terrorism, and thereby to collective defense. The terrorist attacks against the United States on September 11, 2001, are affecting the enlargement debate. A likely part ofthe enlargement debate will be how prospective members might contribute to the conflict against terrorism or actto stem theflow of weapons of mass destruction. NATO seemed partially to settle one aspect of the debate over its missionshortlyafter the attacks when member states invoked Article V, the alliance's collective defense clause, to come to the aidof theUnited States in the conflict against terrorism. Previously, the European allies had resisted any statement that ArticleVshould be invoked in an out-of-area action against terrorism. At a NATO ministerial meeting in Reykjavik in May2002, theallies agreed that they must be able "to carry out the full range of... missions, ... to field forces wherever they areneeded,sustain operations over distance and time, and achieve their objectives." (6) However, not all member states have sufficiently mobile or appropriately trained forces for the current tasks in Afghanistanand Iraq, for example. Few allies besides the United States have special forces or mobile, large-formation combatforceswith the potential to contribute meaningfully to such conflicts. At the same time, a number of allies have anintelligencecapability, transport, medical units, and political influence that might assist in such conflicts. As the terrorism conflict unfolds, current members may examine how prospective members might be able to contribute.Contributions might include political influence and support, for example in the United Nations or with Russia orMuslimstates, and not necessarily military potential. They might also examine the level of internal security in the candidatecountries and ability to control borders, disrupt terrorist financial networks or apprehend terrorist suspects on theirsoil.Elements of the MAP that emphasize an end to corruption may be increasingly underscored, given thepost-September 11importance of preventing money-laundering, and combating a black economy. The alliance experienced sharp divisions over whether to use military force against Iraq. In January 2003, Bush Administration officials applauded the decision of the 7 candidate states (and others) to sign a letter that, in general,endorsed the U.S. position on Iraq; some candidates state representatives complained that they had been bullied bytheAdministration into signing the letter. Six of the seven candidate states joined the coalition. Slovenia was theexception,but allowed overflight by U.S. and UK forces. The failure to achieve consensus in the North Atlantic Council overhow andwhether to aid Turkey in the event of an attack by Iraq exposed serious divisions in the alliance. (7) The fractious debate inthe NAC led some Administration officials and Members of Congress to raise the issue of changing NATOdecision-makingprocedures. (8) The debate over enlargement is quite different in 2001 than it was in 1998. In 1998, several European allies stronglysupported enlargement. Today, most member states couch discussion of enlargement in careful terms. Most member states agree that Slovenia is politically qualified for membership; in addition, Hungary urges Slovenia'smembership, once NATO criteria for entry are met, for strategic reasons. Hungary is not contiguous with any otherNATOstate. Slovenia's entry into the alliance would provide Hungary with a land bridge to Italy, a clear advantage givenneutralAustria's refusal during the Kosovo war to permit NATO overflights to Hungary. Slovakia is a credible candidatein someNATO capitals, given the return in September 2002 elections of key elements of its reform government. SomenorthernEuropean allies, such as Poland, strongly support membership for the Baltic states; they contend that the Baltic stateshavemet OSCE and EU political guidelines for democracy, and cite the three countries' work to build stability in theregion andto establish better relations with Russia. U.S. officials state that the Baltic states have made the most progress inmeetingMAP requirements, although there is some criticism of how Latvia has handled sensitive documents. Italy, Greece, and Turkey are strong supporters of Bulgaria's and Romania's entry. They contend that these two countriescan contribute to stability in the Balkans, where Europe's greatest security needs lie. Critics counter that RomaniaandBulgaria continue to suffer from corruption in their governing structures, and that each must make stronger effortstomodernize its military. Bulgaria has also had a succession of governments that have followed an uncertain coursetowardspolitical and economic reform. The views of the Russian government play a role in the debate. Putin's softer rhetoric against NATO enlargement since theSeptember 11 terrorist attacks has allayed concerns that his government would strongly oppose enlargement. It ispossiblethat Putin now views a unified front against terrorism, in part due to Moscow's ongoing conflict in Chechnya, asmoreimportant than potential divisions with the allies over enlargement. The Duma and much of Russia's military andintelligence bureaucracy remain adamantly opposed to enlargement, which they view as a U.S.-led effort to movea militaryalliance closer to their territory. Officials from allied states often counter such an argument by underscoring thatenlargement's purpose in large part is to ensure stability in Europe, and that the addition of new member statesprovidesstability, and therefore security, to Russia's west. Putin may also view the entry of Estonia and Latvia into NATO(and theEU, in 2004) as a means to protect Russian minorities in those countries, given NATO and EU strictures over thetreatmentof ethnic minorities. In the spring of 2003, both the Senate Foreign Relations Committee and the Senate Armed Services Committee beganhearings on enlargement. Some individual Members have expressed their views, and relevant legislation has beenintroduced. The Senate Foreign Relations Committee produced a report on enlargement, together with theResolution ofRatification (Executive Report 108-6), the instrument on which the Senate will vote to give its advice and consenttorevision of the North Atlantic Treaty. In the 107th Congress, Rep. Shimkus and others introduced H.Con.Res. 116 , which calls for NATO invitationsto the Baltic states for membership at the 2002 summit, as long as they satisfy the alliance's qualifications. It passedbyvoice vote on October 7, 2002. On October 24, 2001, legislation was introduced in both Houses supporting further enlargement. Representative Bereuterintroduced H.R. 3167 , the Freedom Consolidation Act of 2001; Speaker Hastert and others cosponsored thebill. An identical Senate bill, S. 1572 , with cosponsors including Senators Durbin, Lieberman, Lott, Lugar,andMcCain, was also introduced. The bill recalled and approved legislation of the four previous Congresses that urgedenlargement and provided funding for particular candidates. The bill designated Slovakia as eligible to receive U.S.assistance under section 203(a) of the NATO Participation Act of 1994 (title II of P.L. 103-447 ). This section givesthePresident authority to establish a program of assistance with a government if he finds that it meets the requirementsofNATO membership. In the 107th Congress, Representative Gallegly introduced H.Res. 468 , which described NATO as key to U.S.interests in Europe and encourages a continued path of improving relations with Russia. It strongly urged invitationstomembership for the 7 countries ultimately invited at Prague. It passed the House 358-9 on October 7, 2002. The Senate Foreign Relations Committee marked up the Resolution of Ratification on April 30, 2003. The Resolution isthe instrument on which the Senate will vote to give its advice and consent to admission of the candidate states. TheCommittee's report accompanying the Resolution reviews the strengths and weaknesses of the candidate states,assessingtheir political, economic, and military policies. It also reviews NATO's mission and capabilities, relations withRussia, rolein the Balkan wars, and the Prague NATO summit. Secretary of Defense Rumsfeld has stirred NATO waters by suggesting the presence of an "old" and "new" Europe, theformer consisting of such countries as France and Germany, the latter consisting of recent new members andcandidatestates. Secretary Rumsfeld has suggested that the alliance's future belongs to the United States and the "new"Europe, withthe "old" Europe increasingly marginalized. European critics, some of them in the candidate states, oppose suchacategorization, noting that Germany has the largest economy in Europe, and that only France, with Britain, has amilitaryable to move its forces considerable distances for engagement in combat. These critics express concern that adividedNATO will not be effective in confronting threats that face each member state. (9) Accession negotiations between NATO and the candidate states were completed on March 26, 2003, and the candidate stategovernments signed protocols that have been sent to the 19 member states, each of which will follow itsconstitutionalprocedures to amend the North Atlantic Treaty to admit new members. All 19 members must agree on a prospectivemember's qualifications for it to enter NATO. The Bush Administration would like for the Senate to vote onenlargementbefore that August 2003 recess. NATO hopes to admit the successful candidates in May 2004.

This report provides a brief summary of the last round of NATO enlargement. The report analyzes the key military and political issues in the debate over seven prospective members named atNATO'sPrague summit. It then provides an overview of the positions of the allies and of Russia on enlargement, citing theeffectsof the terrorist attacks of September 11, 2001, on the United States. It concludes with a discussion of recentlegislation onenlargement. This report will be updated as needed. See also CRS Report RS21354, The NATO Summit atPrague, 2002,CRS Report RL30168, NATO Applicant States: A Status Report, and CRS Report RS21510,NATO's Decision-MakingProcedure.

Funding for House committees (except for the Committee on Appropriations) follows a two-step process of authorization and appropriation. Operating budgets for all standing and select committees of the House (except for the Committee on Appropriations) are authorized pursuant to a chamber funding resolution, and funding is provided by annual appropriations in the Legislative Branch Appropriations bill and other appropriations acts. On March 17, 2017, the House adopted H.Res. 173 , providing for the expenses of certain committees of the House of Representatives in the 115 th Congress, by voice vote. The resolution authorized a total of $266.3 million for committee expenses, $132.7 million for the first session and $133.6 million for the second session. The use of committee funds is subject to chamber rules, law, and regulations promulgated by the Committee on House Administration, the Commission on Congressional Mailing Standards, and the Ethics Committee, among other House entities. These regulations may be found in a wide variety of sources, including statute, House rules, committee resolutions, the Committee Handbook, the Franking Manual, the House Ethics Manual, "Dear Colleague" letters, and formal and informal guidance. Committee funds may be used only to support the conduct of official committee business. They may not be used for personal or campaign purposes, or comingled with funds appropriated to any other source of official funds, such as the Member Representational Allowance (MRA). Information on individual committee spending is published quarterly in the Statements of Disbursement of the House . This report is organized into three sections. The first provides an overview of the committee funding process in the House and analyzes funding levels since 1996. The second reviews House floor and committee action on committee funding in the 115 th Congress. The final section provides illustrations of the rules and regulations that structure the use of committee funds, and analyzes actual committee funding spending patterns during six previous years. Contemporary funding for House committees (except for the Committee on Appropriations) follows a two-step process of authorization and appropriation. Operating budgets for all standing and select committees of the House continued or created at the beginning of a new Congress (except for the Committee on Appropriations) are authorized biennially pursuant to an omnibus committee funding resolution, and appropriations are included in the Legislative Branch Appropriations bill. Pursuant to House Rule X, clause 6, the Committee on House Administration reports an omnibus resolution to authorize the expenses of each standing and select committee of the House, except the Committee on Appropriations, for each two-year Congress. For a two-year Congress, the omnibus committee funding resolution typically specifies a dollar amount limit for each committee that shall be available for its expenses (divided between the first and second sessions), in addition to a reserve fund for unanticipated expenses. This resolution does not appropriate funds; the actual appropriation for House committee expenses is provided in the annual Legislative Branch Appropriations bill. In effect, the dollar amounts specified in the omnibus committee funding resolution limit how much of the amount appropriated for committee expenses will be available for any particular committee. In preparation for the omnibus resolution, House committees (except the Appropriations Committee) are required by regulations of the Committee on House Administration to submit an operating budget request for the two years of a Congress. The chair of each committee usually introduces a House resolution with his or her committee's proposed authorization. Typically, these actions take place during late February, with committees approving their proposed budgets at a committee organizing meeting. The individual resolutions are referred to the Committee on House Administration, which may hold hearings on each committee's request. The chair and the ranking minority Member from each committee are typically the only witnesses who testify at these hearings, giving them an opportunity to explain and defend their budgets. After completion of the hearings, the chair of the Committee on House Administration introduces the omnibus funding resolution for that two-year Congress, which, after its referral to the Committee on House Administration, serves as the legislative vehicle for committee markup. The resolution is typically reported out of committee without amendment. The omnibus resolution is usually considered by the House during March of the first session of a Congress, and agreed to with little debate. Prior to this consideration, during the first three months of each new Congress, House Rule X, clause 7, authorizes interim funding for House committees based on their authorizations from the preceding Congress. Specifically, under Rule X, clause 7, between January 3 and March 31 of an odd-numbered year, a committee is authorized to spend in a single month 9% of the committee's last annual authorization. Funding for all House committees is included in the Legislative Branch Appropriations bill. Line-item appropriations are not made for individual committees, except the Committee on Appropriations. Instead, funding is provided as a single total amount for all committees (except the Committee on Appropriations), under the heading "Committee Employees" and the subheading "Standing Committees, Special and Select," within the House account "Salaries and Expenses." Since authorizations for committee funds are made on a biennial, calendar-year basis and appropriations are made annually on a fiscal-year basis, there is no one-to-one correspondence between the authorization and the appropriations in any given year. For any individual biennial funding resolution, funds may be drawn from money appropriated in three different fiscal years ; for the 115 th Congress, the overlapping timelines of fiscal years, calendar years, and committee expense authorization periods are visualized in Figure 1 . Finally, although appropriations are made annually for House committee funding, the language typically states that the funding shall remain available until the end of the second calendar year of the current Congress. For example, in both FY2015 and FY2016, committee funds were appropriated to remain available until December 31, 2016. Clause 6(d) of House Rule X requires that "the minority party [be] treated fairly in the appointment" of committee staff employed pursuant to such expense resolutions. In recent years, the House majority leadership has encouraged its committee leaders to provide the minority with one-third of the committee staff and resources authorized in the biennial funding resolutions. Statements made by the chair and ranking Member of the Committee on House Administration at the beginning of its committee funding review in recent Congresses indicate a general consensus that all House committees should provide at least one-third minority staffing. Figure 2 shows the aggregate committee funding authorization level from 1996 to 2018, in both nominal and real dollars. Since 1996, aggregate committee funding has increased by slightly more than 68%, from $79.4 million in 1996 to $133.6 million in 2018, for an average annual increase of 3.1%. In constant dollars, however, aggregate funding has increased only 8.0% between 1996 and 2017, for an annual average real increase of less than four-tenths of 1%. The Committee on House Administration held a hearing on committee expense requests on February 15 and 16, 2017. Chairs and ranking Members from each standing and select committee (except the Committee on Appropriations) testified on their budget requests. Representative Gregg Harper, chair of the panel, indicated that the committee had "worked to strike the right balance" in providing funds for committees while remaining conscious of costs. During the hearing, the chairman and the ranking minority Member, Representative Robert Brady, reiterated the long-standing expectation that committee resources would reflect a distribution of two-thirds of the committee staff to the majority, and one-third to the minority, and a similar distribution of nonstaff resources. In their testimony, most committee chairs and ranking minority Members explicitly acknowledged mutually satisfactory arrangements had been reached regarding the distribution of committee staff and other resources. On March 7, 2017, H.Res. 173 , providing for the expenses of certain committees of the House of Representatives in the 115 th Congress, was introduced and referred to the Committee on House Administration. On March 8, 2017, the Committee on House Administration marked up H.Res. 173 , which was reported to the House by voice vote. In the second session of the 115 th Congress, on March 7 and June 26, 2018, the Committee on House Administration considered committee resolutions 115-9 and 115-19, respectively. These resolutions allocated funds from the reserve fund for unanticipated expenses, established by H.Res. 173 . In both instances, the committee agreed to the resolution by voice vote and without amendment. On March 17, 2017, the House agreed to H.Res. 173 by voice vote. The resolution authorized a total of $266.3 million for committee expenses, $132.7 million for the first session and $133.6 million for the second session. Appropriations for House standing and select committees are typically included annually in the Legislative Branch Appropriations bill. The following amounts were appropriated for the expenses of House standing committees (except for the Committee on Appropriations) in recent appropriations bills: In FY2019, $127.9 million was appropriated in H.R. 5895 , the Energy and Water, Legislative Branch, and Military Construction and Veterans Affairs Appropriations Act, 2019, to remain available until December 31, 2020. In FY2018, $127.1 million was appropriated in H.R. 1625 , the Consolidated Appropriations Act, 2018, to remain available until December 31, 2018. In FY2017, $127.1 million was appropriated in H.R. 244 , the Consolidated Appropriations Act, 2017, to remain available until December 31, 2018. In FY2016, $123.9 million was appropriated in H.R. 2029 , the Consolidated Appropriations Act, 2016, to remain available until December 31, 2016. In accordance with the regulations contained in the Committee Handbook, "Committee funds are provided to pay ordinary and necessary expenses incurred by committee Members and employees in the United States." Ordinary and necessary expenses are defined as "reasonable expenditures in support of official committee business that are consistent with all applicable Federal laws, Rules of the House of Representatives, and regulations of the Committee on House Administration." All expenditures of a committee are subject to review by its committee chair. Funding "may not be used to defray any personal, political or campaign-related expenses, or expenses related to a Member's personal office." Committees may employ permanent staff, consultants, detailees, fellows, interns, temporary and shared employees, and volunteers. The terms and conditions of employment for committee staff are determined by the committee chair. Total staff ceilings for each committee are set by the Speaker. Employees of a House committee are covered by the Congressional Accountability Act. Domestic travel including transportation, lodging, and meals (excluding alcohol) is reimbursable from committee funds. Travel expenses may not be for personal or political campaign events and may not exceed 60 consecutive days. Foreign travel is coordinated through the State Department Travel Office and is subject to House Rule X, clause 8(b)(3), whereby each Member and employee on foreign travel must submit an itemized report of expenses to the committee chair. To better understand how committees have used their authorized funds, the following sections provide an analysis of annual committee expenditures during several different legislative years. Specifically, committee expenditures are analyzed to determine (1) the percentage of each committee's annual authorization that is expended, and (2) major categories of committee spending. Data on yearly committee expenditures were compiled using the quarterly Statement of Disbursements of the House , which reports all individual House expenditures disbursed during the previous quarter. Because late-arriving bills for committee expenses may be paid for up to two years following the end of a fiscal year for which funds are appropriated, obligations incurred by a committee during a particular legislative year are often paid over the course of multiple calendar years. For example, H.R. 244 , the Consolidated Appropriations Act for Fiscal Year 2017, provided that appropriations for House committees remain available until December 31, 2018. This would suggest that financial obligations made by committees in 2017 may be paid with remaining FY2017 appropriations through the quarter ending December 31, 2020. Consequently, the total expenditures of a committee in any given legislative year are calculated using quarterly Statement of Disbursements reports from both the year in which the committee operated, as well as subsequent years. The following analysis calculates total disbursements made for legislative years 2010 through 2015, years for which House Statements of Disbursements are available electronically, and the bulk of late-arriving bills as described above have been received. In addition, data on disbursements from a sample of earlier legislative years--1997, 1998, 2003, and 2004--are analyzed in order to detect any longer-term trends in how committee funds have been used. As shown in Figure 3 , the majority of committees between 2010 and 2015 used almost all of the funds authorized to them. Specifically, approximately 55% of committees spent 95% or more of their authorization; approximately 77% of committees spent 90% or more of their authorization; and approximately 98% of committees spent 80% or more of their authorization. House spending is categorized by the standard budget object classes used for the federal government. These include personnel compensation; personnel benefits; travel; rent, communications, and utilities; printing and reproduction; other services; supplies and materials; transportation of things; and equipment. The disbursement volumes also contain a category for franked mail. Table 1 shows percentages for each object class. The largest category of spending, accounting for approximately 91% of total committee spending during the years analyzed, was for "Personnel compensation." Beyond these staff expenses, committees spent an aggregate of 3.4% of their expenditures on "Equipment," just over 2% on "Supplies and Materials," and less than 1% on travel. The use of most committee funds on personnel is consistently true both across time and across individual committees.

Funding for House committees (except for the Committee on Appropriations) follows a two-step process of authorization and appropriation. Operating budgets for all standing and select committees of the House (except for the Committee on Appropriations) are authorized pursuant to a simple resolution, and funding is provided in the Legislative Branch Appropriations bill and other appropriations acts. Subsequent resolutions may change committee authorizations. On March 17, 2017, the House adopted H.Res. 173, providing for the expenses of certain committees of the House of Representatives in the 115th Congress, by voice vote. The resolution authorized a total of $266.3 million for committee expenses, $132.7 million for the first session and $133.6 million for the second session. The use of committee funds is subject to chamber rules, law, and regulations promulgated by the Committee on House Administration, the Commission on Congressional Mailing Standards, and the Ethics Committee. Committee funds may be used only to support the conduct of official business of the committee. They may not be used for personal or campaign purposes. Information on individual committee spending is published quarterly in the Statements of Disbursement of the House. This report is organized in three sections. The first provides an overview of the committee funding process in the House and analyzes funding levels since 1996. The second reviews House floor and committee action on committee funding in the 115th Congress. The final section summarizes the rules and regulations that structure the use of committee funds, and analyzes committee spending patterns during several previous years.

The President is responsible for appointing individuals to positions throughout the federal government. In some instances, the President makes these appointments using authorities granted by law to the President alone. Other appointments are made with the advice and consent of the Senate via the nomination and confirmation of appointees. Presidential appointments with Senate confirmation are often referred to with the abbreviation PAS. This report identifies, for the 113 th Congress, all nominations to full-time positions requiring Senate confirmation in 40 organizations in the executive branch (27 independent agencies, 6 agencies in the Executive Office of the President [EOP], and 7 multilateral organizations) and 4 agencies in the legislative branch. It excludes appointments to executive departments and to regulatory and other boards and commissions, which are covered in other CRS reports. Information for this report was compiled using the Senate nominations database of the Legislative Information System (LIS) at http://www.lis.gov/nomis/ , the Congressional Record (daily edition), the Weekly Compilation of Presidential Documents , telephone discussions with agency officials, agency websites, the United States Code , and the 2012 Plum Book ( United States Government Policy and Supporting Positions ). Related Congressional Research Service (CRS) reports regarding the presidential appointments process, nomination activity for other executive branch positions, recess appointments, and other appointments-related matters may be found at http://www.crs.gov . During the 113 th Congress, President Barack Obama submitted 69 nominations to the Senate for full-time positions in independent agencies, agencies in the EOP, multilateral agencies, and legislative branch agencies. Of these nominations, 34 were confirmed, 34 were returned to the President, and 1 was withdrawn. Table 1 summarizes the appointment activity. The length of time a given nomination may be pending in the Senate varies widely. Some nominations are confirmed within a few days, others are not confirmed for several months, and some are never confirmed. For each nomination covered by this report and confirmed in the 113 th Congress, the report provides the number of days between nomination and confirmation ("days to confirm"). The mean (average) number of days elapsed between nomination and confirmation was 123.9. The median number of days elapsed was 104.0. Under Senate Rules, nominations not acted on by the Senate at the end of a session of Congress (or before a recess of 30 days) are returned to the President. The Senate, by unanimous consent, often waives this rule--although not always. This report measures the "days to confirm" from the date of receipt of the resubmitted nomination, not the original. Agency profiles in this report are organized in two parts: (1) a table listing the organization's full-time PAS positions as of the end of the 113 th Congress and (2) a table listing appointment action for vacant positions during the 113 th Congress. As mentioned earlier, data for these tables were collected from several authoritative sources. As noted, some agencies had no nomination activity during this time. In each agency profile, the first of the two tables identifies, as of the end of the 113 th Congress, each full-time PAS position in the organization and its pay level. For most presidentially appointed positions requiring Senate confirmation, pay levels fall under the Executive Schedule, which, as of January 2014, ranged from level I ($201,700) for Cabinet-level offices to level V ($147,200) for lower-ranked positions. The second table, the appointment action table, provides, in chronological order, information concerning each nomination. It shows the name of the nominee, position involved, date of nomination, date of confirmation, and number of days between receipt of a nomination and confirmation, if confirmed. It also notes actions other than confirmation (i.e., nominations returned to or withdrawn by the President). The appointment action tables with more than one nominee to a position also list statistics on the length of time between nomination and confirmation. Each nomination action table provides the average days to confirm in two ways: mean and median. Although the mean is a more familiar measure, it may be influenced by outliers, or extreme values, in the data. The median, by contrast, does not tend to be influenced by outliers. In other words, a nomination that took an extraordinarily long time might cause a significant change in the mean, but the median would be unaffected. Examining both numbers offers more information with which to assess the central tendency of the data. Appendix A provides two tables. Table A-1 relists all appointment action identified in this report and is organized alphabetically by the appointee's last name. Table entries identify the agency to which each individual was appointed, position title, nomination date, date confirmed or other final action, and duration count for confirmed nominations. In the final two rows, the table includes the mean and median values for the "days to confirm" column. Table A-2 provides summary data on the appointments identified in this report and is organized by agency type, including independent executive agencies, agencies in the EOP, multilateral organizations, and agencies in the legislative branch. The table summarizes the number of positions, nominations submitted, individual nominees, confirmations, nominations returned, and nominations withdrawn for each agency grouping. It also includes mean and median values for the number of days taken to confirm nominations in each category. Appendix B provides a list of department abbreviations. Appendix A. Summary of All Nominations and Appointments to Independent and Other Agencies Appendix B. Agency Abbreviations

The President makes appointments to positions within the federal government, either using the authorities granted by law to the President alone or with the advice and consent of the Senate. This report identifies all nominations that were submitted to the Senate for full-time positions in 40 organizations in the executive branch (27 independent agencies, 6 agencies in the Executive Office of the President [EOP], and 7 multilateral organizations) and 4 agencies in the legislative branch. It excludes appointments to executive departments and to regulatory and other boards and commissions, which are covered in other reports. Information for each agency is presented in tables. The tables include full-time positions confirmed by the Senate, pay levels for these positions, and appointment action within each agency. Additional summary information across all agencies covered in the report appears in the appendix. During the 113th Congress, the President submitted 69 nominations to the Senate for full-time positions in independent agencies, agencies in the EOP, multilateral agencies, and legislative branch agencies. Of these 69 nominations, 34 were confirmed, 1 was withdrawn, and 34 were returned to him in accordance with Senate rules. For those nominations that were confirmed, a mean (average) of 123.9 days elapsed between nomination and confirmation. The median number of days elapsed was 104.0. Information for this report was compiled using the Senate nominations database of the Legislative Information System (LIS) at http://www.lis.gov/nomis/, the Congressional Record (daily edition), the Weekly Compilation of Presidential Documents, telephone discussions with agency officials, agency websites, the United States Code, and the 2012 Plum Book (United States Government Policy and Supporting Positions). This report will not be updated.

As congressional policymakers continue to debate telecommunications reform, a major point of contention is the question of whether action is needed to ensure unfettered access to the Internet. The move to place restrictions on the owners of the networks that compose and provide access to the Internet, to ensure equal access and non-discriminatory treatment, is referred to as "net neutrality." There is no single accepted definition of "net neutrality." However, most agree that any such definition should include the general principles that owners of the networks that compose and provide access to the Internet should not control how consumers lawfully use that network; and should not be able to discriminate against content provider access to that network. What, if any, action should be taken to ensure "net neutrality" has become a major focal point in the debate over broadband, or high-speed Internet access, regulation. As the marketplace for broadband continues to evolve, some contend that no new regulations are needed, and if enacted will slow deployment of and access to the Internet, as well as limit innovation. Others, however, contend that the consolidation and diversification of broadband providers into content providers has the potential to lead to discriminatory behaviors which conflict with net neutrality principles. The two potential behaviors most often cited are the network providers' ability to control access to and the pricing of broadband facilities, and the incentive to favor network-owned content, thereby placing unaffiliated content providers at a competitive disadvantage. In 2005 two major actions dramatically changed the regulatory landscape as it applied to broadband services, further fueling the net neutrality debate. In both cases these actions led to the classification of broadband Internet access services as Title I information services, thereby subjecting them to a less rigorous regulatory framework than those services classified as telecommunications services. In the first action, the U.S. Supreme Court, in a June 2005 decision ( National Cable & Telecommunications Association v. Brand X Internet Services ), upheld the Federal Communications Commission's (FCC) 2002 ruling that the provision of cable modem service (i.e., cable television broadband Internet) is an interstate information service and is therefore subject to the less stringent regulatory regime under Title I of the Communications Act of 1934. In a second action, the FCC in an August 5, 2005 decision, extended the same regulatory relief to telephone company Internet access services (i.e., wireline broadband Internet access, or DSL), thereby also defining such services as information services subject to Title I regulation. As a result neither telephone companies nor cable companies, when providing broadband services, are required to adhere to the more stringent regulatory regime for telecommunications services found under Title II (common carrier) of the 1934 Act. However, classification as an information service does not free the service from regulation. The FCC continues to have regulatory authority over information services under its Title I, ancillary jurisdiction. Simultaneous to the issuing of its August 2005 information services classification order, the FCC also adopted a policy statement outlining the following four principles to "encourage broadband deployment and preserve and promote the open and interconnected nature of [the] public Internet:" (1) consumers are entitled to access the lawful Internet content of their choice; (2) consumers are entitled to run applications and services of their choice (subject to the needs of law enforcement); (3) consumers are entitled to connect their choice of legal devices that do not harm the network; and (4) consumers are entitled to competition among network providers, application and service providers, and content providers. Then FCC Chairman Martin did not call for their codification. However, he stated that they will be incorporated into the policymaking activities of the Commission. For example, one of the agreed upon conditions for the October 2005 approval of both the Verizon/MCI and the SBC/AT&T mergers was an agreement made by the involved parties to commit, for two years, "... to conduct business in a way that comports with the Commission's (September 2005) Internet policy statement.... " In a further action AT&T included in its concessions to gain FCC approval of its merger to BellSouth to adhering, for two years, to significant net neutrality requirements. Under terms of the merger agreement, which was approved on December 29, 2006, AT&T agreed to not only uphold, for 30 months, the FCC's Internet policy statement principles, but also committed, for two years (expired December 2008), to stringent requirements to "... maintain a neutral network and neutral routing in its wireline broadband Internet access service." In perhaps one of its most significant actions relating to its Internet policy statement to date, the FCC, on August 1, 2008, ruled that Comcast Corp., a provider of Internet access over cable lines, violated the FCC's policy statement, when it selectively blocked peer-to-peer connections in an attempt to manage its traffic. This practice, the FCC concluded, "... unduly interfered with Internet users' rights to access the lawful Internet content and to use the applications of their choice." While no monetary penalties were imposed, Comcast is required to stop these practices by the end of 2008. Comcast stated that it will comply with the order, but it has filed an appeal in the U.S. DC Court of Appeals. Separately, in an April 2007 action, the FCC released a notice of inquiry (WC Docket No. 07-52), which is still pending, on broadband industry practices seeking comment on a wide range of issues including whether the August 2005 Internet policy statement should be amended to incorporate a new principle of nondiscrimination and if so, what form it should take. On January 14, 2008 the FCC issued three public notices seeking comment on issues related to network management (including the now-completed Comcast ruling) and held two (February 25 and April 17, 2008) public hearings specific to broadband network management practices. As consumers expand their use of the Internet and new multimedia and voice services become more commonplace, control over network quality also becomes an issue. In the past, Internet traffic has been delivered on a "best efforts" basis. The quality of service needed for the delivery of the most popular uses, such as email or surfing the Web, is not as dependent on guaranteed quality. However, as Internet use expands to include video, online gaming, and voice service, the need for uninterrupted streams of data becomes important. As the demand for such services continues to expand, network broadband operators are moving to prioritize network traffic to ensure the quality of these services. Prioritization may benefit consumers by ensuring faster delivery and quality of service and may be necessary to ensure the proper functioning of expanded service options. However, the move on the part of network operators to establish prioritized networks, while embraced by some, has led to a number of policy concerns. There is concern that the ability of network providers to prioritize traffic may give them too much power over the operation of and access to the Internet. If a multi-tiered Internet develops where content providers pay for different service levels, the potential to limit competition exists, if smaller, less financially secure content providers are unable to afford to pay for a higher level of access. Also, if network providers have control over who is given priority access, the ability to discriminate among who gets such access is also present. If such a scenario were to develop, the potential benefits to consumers of a prioritized network would be lessened by a decrease in consumer choice and/or increased costs, if the fees charged for premium access are passed on to the consumer. The potential for these abuses, however, is significantly decreased in a marketplace where multiple, competing broadband providers exist. If a network broadband provider blocks access to content or charges unreasonable fees, in a competitive market, content providers and consumers could obtain their access from other network providers. As consumers and content providers migrate to competitors, market share and profits of the offending network provider will decrease leading to corrective action or failure. However, this scenario assumes that every market will have a number of equally competitive broadband options from which to choose, and all competitors will have equal access to, if not identical, at least comparable content. Despite the FCC's ability to regulate broadband services under its Title I ancillary authority and the issuing of its broadband principles, some policymakers feel that more specific regulatory guidelines may be necessary to protect the marketplace from potential abuses; a consensus on what these should specifically entail, however, has yet to form. Others feel that existing laws and FCC policies regarding competitive behavior are sufficient to deal with potential anti-competitive behavior and that no action is needed and if enacted at this time, could result in harm. The issue of net neutrality, and whether legislation is needed to ensure access to broadband networks and services, has become a major focal point in the debate over telecommunications reform. Those opposed to the enactment of legislation to impose specific Internet network access or "net neutrality" mandates claim that such action goes against the long standing policy to keep the Internet as free as possible from regulation. The imposition of such requirements, they state, is not only unnecessary, but would have negative consequences for the deployment and advancement of broadband facilities. For example, further expansion of networks by existing providers and the entrance of new network providers, would be discouraged, they claim, as investors would be less willing to finance networks that may be operating under mandatory build-out and/or access requirements. Application innovation could also be discouraged, they contend, if, for example, network providers are restricted in the way they manage their networks or are limited in their ability to offer new service packages or formats. Such legislation is not needed, they claim, as major Internet access providers have stated publicly that they are committed to upholding the FCC's four policy principles. Opponents also state that advocates of regulation cannot point to any widespread behavior that justifies the need to establish such regulations and note that competition between telephone and cable system providers, as well as the growing presence of new technologies (e.g., satellite, wireless, and power lines) will serve to counteract any potential anti-discriminatory behavior. Furthermore, opponents claim, even if such a violation should occur, the FCC already has the needed authority to pursue violators. They note that the FCC has not requested further authority and has successfully used its existing authority, in the August 1, 2008, Comcast decision (see above) as well as in a March 3, 2005, action against Madison River Communications. In the latter case, the FCC intervened and resolved, through a consent decree, an alleged case of port blocking by Madison River Communications, a local exchange (telephone) company. The full force of antitrust law is also available, they claim, in cases of discriminatory behavior. Proponents of net neutrality legislation, however, feel that absent some regulation, Internet access providers will become gatekeepers and use their market power to the disadvantage of Internet users and competing content and application providers. They cite concerns that the Internet could develop into a two-tiered system favoring large, established businesses or those with ties to broadband network providers. While market forces should be a deterrent to such anti-competitive behavior, they point out that today's market for residential broadband delivery is largely dominated by only two providers, the telephone and cable television companies, and that, at a minimum, a strong third player is needed to ensure that the benefits of competition will prevail. The need to formulate a national policy to clarify expectations and ensure the "openness" of the Internet is important to protect the benefits and promote the further expansion of broadband, they claim. The adoption of a single, coherent, regulatory framework to prevent discrimination, supporters claim, would be a positive step for further development of the Internet, by providing the marketplace stability needed to encourage investment and foster the growth of new services and applications. Furthermore, relying on current laws and case-by-case anti-trust-like enforcement, they claim, is too cumbersome, slow, and expensive, particularly for small start-up enterprises. The 110 th Congress addressed the debate over net neutrality largely within the broader issue of telecommunications reform. Then House Telecommunications and the Internet Subcommittee Chairman Markey, a strong advocate of net neutrality legislation, introduced legislation ( H.R. 5353 ) to address this issue and held a May 6, 2008 hearing on the measure. House Judiciary Chairman Conyers introduced H.R. 5994 , a bill which establishes an antitrust approach to address anticompetitive and discriminatory practices by broadband providers as a follow-up to a March 11, 2008 hearing on net neutrality held by the House Judiciary Antitrust Task Force. A stand-alone net neutrality measure ( S. 215 ) was introduced and referred to the Senate Commerce, Science, and Transportation Committee where an April 22, 2008 hearing on the "Future of the Internet" was held. No further activity was undertaken in the 110 th Congress. A consensus on this issue has not yet formed, and no stand-alone measures addressing net neutrality have been introduced in the 111 th Congress, to date. House Communications, Technology, and the Internet Subcommittee Chairman Boucher has stated that he continues to work with broadband providers and content providers to seek common ground on network management practices, and at this time, is pursuing this approach. However, the net neutrality issue has been narrowly addressed within the context of the economic stimulus package. H.R. 1 ( P.L. 111-5 ) contains provisions that require the National Telecommunications and Information Administration (NTIA), in consultation with the FCC, to establish "... nondiscrimination and network interconnection obligations" as a requirement for grant participants in the Broadband Technology Opportunities Program (BTOP). The law further directs that the FCC's four broadband policy principles, issued in August 2005, are the minimum obligations to be imposed. The NTIA has not, as of yet, issued these requirements.

As congressional policymakers continue to debate telecommunications reform, a major point of contention is the question of whether action is needed to ensure unfettered access to the Internet. The move to place restrictions on the owners of the networks that compose and provide access to the Internet, to ensure equal access and non-discriminatory treatment, is referred to as "net neutrality." There is no single accepted definition of "net neutrality." However, most agree that any such definition should include the general principles that owners of the networks that compose and provide access to the Internet should not control how consumers lawfully use that network; and should not be able to discriminate against content provider access to that network. Concern over whether it is necessary to take steps to ensure access to the Internet for content, services, and applications providers, as well as consumers, and if so, what these should be, is a major focus in the debate over telecommunications reform. Some policymakers contend that more specific regulatory guidelines may be necessary to protect the marketplace from potential abuses which could threaten the net neutrality concept. Others contend that existing laws and Federal Communications Commission (FCC) policies are sufficient to deal with potential anti-competitive behavior and that such regulations would have negative effects on the expansion and future development of the Internet. A consensus on this issue has not yet formed, and the 111th Congress, to date, has not introduced stand-alone legislation to address this issue. However, the net neutrality issue has been narrowly addressed within the context of the economic stimulus package (P.L. 111-5). Provisions in that law require the National Telecommunications and Information Administration (NTIA), in consultation with the FCC, to establish " ... nondiscrimination and network interconnection obligations" as a requirement for grant participants in the Broadband Technology Opportunities Program (BTOP). This report will be updated as events warrant.

Section 106(3) of the Copyright Act grants a copyright holder the exclusive right to distribute copies of a copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending. In addition to the general distribution right, Section 602(a) of the Copyright Act provides a copyright holder with the right to prohibit the importation into the United States of copies of a work that have been acquired outside the United States; such importation, if done without the authority of the copyright holder, is considered an infringement of the exclusive right to distribute copies of the work under SS 106. However, the Copyright Act's "first-sale" doctrine, codified at SS 109(a), provides a limitation to the copyright holder's distribution right: "Notwithstanding the provisions of section 106(3), the owner of a particular copy ... lawfully made under this title ... is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy." For example, someone who purchases a new book in a bookstore (thus constituting the "first sale" of that particular copy) becomes the owner of that physical item. He or she may thereafter distribute the book (for example, give it away to a friend or sell it to a used book store) without obtaining prior consent of the book's copyright owner. Owners of copies of a copyrighted work that have been "lawfully made under" title 17 of the U.S. Code (where the Copyright Act is codified) are thus immunized from copyright infringement liability when they transfer ownership of those copies to other individuals. As the U.S. Supreme Court has previously explained, "The whole point of the first sale doctrine is that once the copyright owner places a copyrighted item in the stream of commerce by selling it, he has exhausted his exclusive statutory right to control its distribution." Compelling public policy reasons support the Copyright Act's first sale doctrine. As the U.S. Supreme Court has noted, "The primary objective of copyright is not to reward the labor of authors, but 'to promote the Progress of Science and useful Arts.'" In accordance with this constitutional mandate, the Copyright Act balances the rights of copyright holders in their intellectual property with the public's interest in having robust ownership rights in the tangible material in which copyrighted works are fixed. By terminating the distribution right of copyright holders after the initial sale of a particular copy, owners of those copies benefit from having unrestrained alienability of personal property. So-called "gray-market" goods are products that have been manufactured and purchased abroad and thereafter imported into the United States (without the authorization of the intellectual property holder) for resale to U.S. customers (usually at discounted prices) . Also known as "parallel imports," gray-market goods are legitimate, genuine products possessing a brand name protected by a trademark and/or containing designs or other subject matter protected by copyright. These goods are usually manufactured abroad and then purchased and imported into the United States by third parties, "thereby bypassing the authorized U.S. distribution channels." U.S. retailers can sell gray-market products at cheaper prices compared to the higher domestic prices established by the manufacturer. The legal question that faced the U.S. Supreme Court in Costco Wholesale Corp. v. Omega S.A. was whether a manufacturer's right to prohibit unauthorized importation of copyrighted works is exhausted by the initial foreign sale of copies of copyrighted works that were made outside the United States. In 1998, the U.S. Supreme Court was confronted with a question reminiscent of that posed in Costco , although there is a factual difference between the cases. In Quality King Distributors, Inc. v. L' a nza Research International, Inc., a California company (L'anza) manufactured and sold shampoo and other hair care products; the products were manufactured in the United States, but were sold by L'anza both domestically and internationally. L'anza had copyrighted the labels that it affixed to its products. The prices that L'anza charged its domestic distributors were significantly higher than the prices charged to foreign distributors. L'anza's United Kingdom distributor had sold several tons of L'anza's products (affixed with the copyrighted labels) to a distributor in Malta; Quality King Distributors bought the products from the Malta distributor and imported the products for resale in the United States through retailers who were not within L'anza's authorized chain of distribution. L'anza sued Quality King for infringement of its distribution and importation rights under the Copyright Act. The district court rejected Quality King's defense based on the first sale doctrine; the Ninth Circuit Court of Appeals affirmed that judgment, noting that SS 602's ban on importation would be "meaningless" if SS 109 "were found to supersede the prohibition on importation in this case." The Supreme Court in Quality King reversed the Ninth Circuit and held that the first sale doctrine endorsed in SS 109 applies to copies of copyrighted works that are imported into the United States. In reaching this conclusion, the Court first observed that the copyright holder's distribution right granted by SS 106(3) is expressly limited by other provisions of the Copyright Act, including the first sale doctrine codified at SS 109(a). Section 602(a) provides that unauthorized importation is an infringement of the copyright holder's exclusive right to distribution under SS 106. Therefore, the Court reasoned that the rights granted by SS 602 must also be limited by the first sale doctrine. According to the Court, because SS 106(3) "does not encompass resales by lawful owners, the literal text of SS 602(a) is simply inapplicable to both domestic and foreign owners of L'anza's products who decide to import them and resell them in the United States." The Court held that the owner of goods lawfully made under the Copyright Act "is entitled to the protection of the first sale doctrine in an action in a United States court even if the first sale occurred abroad." In a concurring opinion, Justice Ginsburg identified the issue left unresolved by the Quality King opinion: This case involves a "round trip" journey, travel of the copies in question from the United States to places abroad, then back again. I join the Court's opinion recognizing that we do not today resolve cases in which the allegedly infringing imports were manufactured abroad. In making this clarification, Justice Ginsburg cited without comment two treatises on copyright law: See W. Patry, Copyright Law and Practice 166-170 (1997 Supp.) (commenting that provisions of Title 17 do not apply extraterritorially unless expressly so stated, hence the words "lawfully made under this title" in the "first sale" provision, 17 U.S.C. SS 109(a), must mean "lawfully made in the United States"); see generally P. Goldstein, Copyright SS 16.0, pp. 16:1-16:2 (2d ed. 1998) ("Copyright protection is territorial. The rights granted by the United States Copyright Act extend no farther than the nation's borders."). The facts of Costco v. Omega are relatively straightforward. The Swiss corporation Omega manufactures wrist watches in Switzerland and sells them through authorized distributors and retailers around the world. Omega engraves on the underside of its watches a small logo--an original artwork that it refers to as the "Omega Globe Design," that Omega had registered as a copyrighted work with the U.S. Copyright Office. Costco obtained authentic Omega watches from the "gray market"--from third parties that had purchased the watches from authorized Omega distributors overseas. Costco then sold the watches to U.S. customers within its California warehouse stores. While Omega had authorized the initial foreign sale of its watches, it did not authorize their importation into the United States or Costco's domestic sale of the watches. Omega sued Costco for infringing its distribution and importation rights under SSSS 106(3) and 602(a) of the Copyright Act; Costco defended itself by arguing that the first sale doctrine, SS 109(a), precludes Omega's infringement claims. Without explanation, the U.S. District Court for the Central District of California granted summary judgment to Costco on the basis of the first sale doctrine. In September 2008, the U.S. Court of Appeals for the Ninth Circuit reversed the district court, holding that the first sale doctrine does not apply to imported goods that were manufactured and first sold abroad. The appellate court reached this determination by asserting that copies of copyrighted works made and first sold outside the United States are not considered "lawfully made" within the meaning of SS 109(a); thus, these copies are not subject to the first sale doctrine, and Costco is precluded from raising such defense to Omega's infringement claims. In support of its position, Costco had argued that the Supreme Court's Quality King decision had "effectively overruled" three Ninth Circuit opinions in the 1990s that were issued before Quality King. Those earlier appellate court opinions had developed a "general rule that SS 109(a) can provide a defense against SSSS 106(3) and 602(a) claims only insofar as the claims involve domestically made copies of U.S.-copyrighted works." The Ninth Circuit in Costco determined, however, that Quality King did not directly overrule or otherwise invalidate this general rule that SS 109(a) is limited to copies legally made in the United States. Instead, the Ninth Circuit distinguished Quality King by limiting that decision to its specific facts--that of a good made in the United States that had been sold abroad and then re-imported without the consent of the copyright holder. The appellate court explained that the basis for its "general rule" was its concern that applying SS 109(a) to copies made abroad "would violate the presumption against the extraterritorial application of U.S. law." The court further opined that "[t]o characterize the making of copies overseas as 'lawful[ ] ... under [Title 17]' would be to ascribe legality under the Copyright Act to conduct that occurs entirely outside the United States, notwithstanding the absence of a clear expression of congressional intent in favor of extraterritoriality." Finally, the court stated, In short, copies covered by the phrase "lawfully made under [Title 17]" in SS 109(a) are not simply those which are lawfully made by the owner of a U.S. copyright. Something more is required. To us, that "something" is the making of the copies within the United States , where the Copyright Act applies. The Ninth Circuit also cited Justice Ginsburg's concurrence in Quality King that appeared to approve its interpretation of SS 109(a), and noted that the Quality King "majority opinion did not dispute this interpretation." The appellate court acknowledged that if its interpretation of SS 109(a) were taken to its logical extreme, a copyright holder "could seemingly exercise distribution rights after even the tenth sale in the United States of a watch lawfully made in Switzerland." However, the court explained that its earlier precedents would address this situation--those opinions had held that parties can raise the first sale defense in cases involving foreign-made copies if the copyright holder had authorized a lawful domestic sale. Because Omega had not authorized any of the domestic sales in this case, the appellate court found it unnecessary to decide whether this exception to its "general rule" had survived Quality King . On April 19, 2010, the Supreme Court granted certiorari in Costc o to consider the following issue: Under the Copyright Act's first-sale doctrine, 17 U.S.C. SS l09(a), the owner of any particular copy "lawfully made under this title" may resell that good without the authority of the copyright holder. In Quality King Distribs., Inc. v. L'Anza Research Int'l, Inc., 523 U.S. 135, 138 (1998), this Court posed the question presented as "whether the 'first sale' doctrine endorsed in SS 109(a) is applicable to imported copies." In the decision below, the Ninth Circuit held that Quality King (which answered that question affirmatively) is limited to its facts, which involved goods manufactured in the United States, sold abroad, and then re-imported. The question presented here is: Whether the Ninth Circuit correctly held that the first-sale doctrine does not apply to imported goods manufactured abroad. In its brief submitted to the Court, the petitioner Costco argued that the Ninth Circuit's distinction between goods made in the United States and those made abroad "has no basis in the Copyright Act's first sale-doctrine"; furthermore, Costco warned that the Ninth Circuit's ruling, if upheld by the Court "would have severe consequences, which Congress could not have intended, for the U.S. economy." Costco elaborated its concerns about the implications of the Ninth Circuit's interpretation of SS 109(a) that makes the first sale doctrine categorically inapplicable to goods manufactured abroad: Manufacturers that sell globally will prefer to manufacture their goods abroad because of the increased control they will gain over subsequent sales and use of their products. Conversely, retailers and consumers will be hesitant to buy or sell such products for fear of unintended liability for infringement. Moreover, by exempting goods manufactured abroad from the first-sale doctrine, the Ninth Circuit's decision gives rise to a number of other absurd outcomes unintended by Congress, including copyright infringement liability for libraries that lend foreign books or movies. The respondent Omega urged the Court to uphold the Ninth Circuit opinion and find that "a third party infringes a copyright owner's exclusive rights by importing or distributing in the United States a copy that the copyright owner made and sold overseas exclusively for distribution outside the United States." Omega argued that the act of making copies of a copyrighted work abroad, for foreign sale and distribution, is not governed by the Copyright Act--thus, such actions do not implicate any exclusive rights granted under SS 106, and these copies cannot be lawfully or unlawfully made "under this title." Omega noted that because SS 602(a)(1) applies to genuine copies of copyrighted works made abroad, Congress deliberately allowed for the segmentation of domestic and foreign markets--that is, "Congress intended to provide U.S. copyright owners the right separately to authorize foreign and domestic distribution of legitimate copies." In then-Solicitor General Elena Kagan's brief for the United States as amicus curiae that was filed regarding the petition for a writ of certiorari in Costco , the United States government argued that the Ninth Circuit's decision is consistent with Quality King and the "consensus view of the leading commentators on copyright law." While acknowledging Costco's "legitimate concerns" about the Ninth Circuit's "reasoning [that] could result in adverse policy consequences, particularly if carried to its logical extreme," the United States stated that it was unaware of any evidence that the most serious potential consequences have actually materialized. These "potential adverse policy effects that [Costco] identifies are a direct and inherent consequence of Congress's decision in 1976 to expand Section 602's ban on unauthorized importation beyond piratical copies," the government observed. This policy choice of Congress allows the differential treatment of goods made domestically and abroad. However, the government suggested that "Congress of course remains free to amend the Copyright Act in order to adjust the balance between protection of copyright holders' prerogatives and advancement of other policy objectives." The Supreme Court heard oral arguments in Costco v. Omega on November 8, 2010. Because Elena Kagan in her previous role as Solicitor General had written a brief recommending that the Court not grant the petition for writ of certiorari in the case, the new Justice Kagan recused herself in Costco . The recusal directly impacted the Court's ability to resolve the legal question posed by the case because of a 4-4 split among the participating members of the Court. On December 13, 2010, the Court issued a per curiam opinion that simply stated: "The judgment is affirmed by an equally divided Court." The Court's action in Costco upholds the Ninth Circuit's ruling but does not establish controlling precedent for other federal circuits on the question of whether the copyright law's first sale doctrine applies to goods manufactured abroad and then imported into the United States. Thus, this remains an open question outside of the Ninth Circuit. Because of the equal division of the Supreme Court in Costco , the Ninth Circuit's decision remains the law in that circuit, while other federal circuits are free to issue opinions that agree or conflict with the Ninth Circuit. The Supreme Court could revisit the legal question in a future case involving importation of gray-market goods. Also, Congress could consider legislation to clarify the relationship between the Copyright Act's SS 109(a) first sale provision and the SS 602(a)(2) importation right. A definitive judicial or legislative resolution of this legal question may continue to be of great interest to parties that are affected by the secondary markets of copyrighted goods--intellectual property owners, manufacturers, consumers, resale stores such as Costco, and online marketplaces such as eBay, Amazon.com, and Craigslist.

Section 106(3) of the Copyright Act grants a copyright holder the exclusive right to distribute copies of a copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending. In addition, SS 602(a) of the Copyright Act generally prohibits the importation into the United States, without the authority of the copyright holder, of copies of a work that have been acquired outside the United States; such importation is considered an infringement of the exclusive right to distribute copies of the work under SS 106. However, the Copyright Act's "first-sale" doctrine, codified at SS 109(a), provides a limitation to the copyright holder's distribution rights--it entitles the owner of a particular copy of a copyrighted work that has been "lawfully made under" title 17 of the U.S. Code (where the Copyright Act is codified) to sell or otherwise dispose of the possession of that copy, without the prior permission of the copyright holder. In other words, once a copyright holder agrees to sell particular copies of his work to others (constituting the "first sale" of such copies), the copyright holder may not thereafter further control subsequent transfers of ownership of those copies. At issue in Costco Wholesale Corp. v. Omega S.A. was the scope of the first sale doctrine with respect to so-called "gray-market" goods--products that have been manufactured and purchased abroad and thereafter imported into the United States for resale at often discounted prices to U.S. customers. The case involved the sale by Costco of authentic Omega watches made in Switzerland. Costco had purchased these watches (which bear a copyrighted design on their underside) from third parties that had purchased the watches from authorized Omega distributors located abroad. While Omega had permitted the initial foreign sale of its watches, it had not authorized their importation into the United States or Costco's domestic sale of the watches. Omega sued Costco for infringing its distribution and importation rights under SSSS 106(3) and 602(a) of the Copyright Act; Costco defended itself by arguing that the first sale doctrine, SS 109(a), precluded Omega's infringement claims. In September 2008, the U.S. Court of Appeals for the Ninth Circuit reversed the district court's grant of summary judgment to Costco, holding that the first sale doctrine does not apply to imported goods that had been manufactured and first sold abroad. The appellate court reached this determination by asserting that copies of copyrighted works made and sold outside the United States are not considered "lawfully made" within the meaning of SS 109(a); thus, these copies are not subject to the first sale doctrine, and Costco is precluded from raising such defense to Omega's infringement claims. In reaction to this decision, some observers expressed concern that the Ninth Circuit's interpretation of the first sale doctrine creates incentives for outsourcing, as manufacturers would desire to move production abroad of goods containing copyrighted aspects (thus avoiding the first sale doctrine's effect and providing the manufacturer with greater control over distribution of the goods). On December 13, 2010, in a one sentence per curiam decision, the U.S. Supreme Court affirmed the Ninth Circuit's judgment due to a 4-4 tie vote among the participating justices (Justice Elena Kagan had recused herself because of her involvement in the case as U.S. Solicitor General prior to becoming a member of the Court). The Court's action in Costco Wholesale Corp. upholds the Ninth Circuit's ruling but does not establish controlling precedent for other federal circuits on the question of whether the copyright law's first sale doctrine applies to goods manufactured abroad and then imported into the United States. Therefore, those federal circuits are free to issue opinions that agree or conflict with the Ninth Circuit's judgment on this matter, and the Supreme Court could revisit the legal question in a future case. Also, Congress could consider legislation to clarify the relationship between the Copyright Act's SS 109(a) first sale provision and the SS 602(a)(2) importation right.

The Environmental Protection Agency (EPA) was established in 1970 to consolidate federal pollution control responsibilities that had been divided among several federal agencies. EPA's responsibilities grew significantly as Congress enacted an increasing number of environmental laws as well as major amendments to these statutes. Among the agency's primary responsibilities are the regulation of air quality, water quality, pesticides, and toxic substances; the management and disposal of solid and hazardous wastes; and the cleanup of environmental contamination. EPA also awards grants to assist states and local governments in complying with federal requirements to control pollution, and to assist those states with the delegated authority to administer certain federal pollution control programs. Since FY2006, Congress has funded EPA programs and activities within the Interior, Environment, and Related Agencies appropriations bill. On July 19, 2011, the House Appropriations Committee reported H.R. 2584 ( H.Rept. 112-151 ) which included $27.52 billion in appropriations for FY2012 for Interior, Environment, and Related Agencies. Title II of H.R. 2584 as reported would provide a total of $7.15 billion for the EPA, $1.82 billion (20%) less than the President's FY2012 request of $8.97 billion submitted to Congress on February 14, 2011, and $1.53 billion (18%) less than the FY2011 enacted appropriation of $8.68 billion. H.R. 2584 as reported reflected a decrease for each of the EPA's eight regular appropriations accounts compared to the President's FY2012 request, and all except the Building and Facilities and the Inland Oil Spill Program accounts (the House committee-reported bill included the same level as FY2011 enacted) when compared to FY2011 enacted appropriations. Many of the federal departments and agencies included in H.R. 2584 , as reported by the House committee, generally would be funded at levels below the FY2010 and FY2011 enacted appropriations, as well as those included in the President's FY2012 request. The House-reported bill also included numerous funding modifications and restrictions for many accounts across the various departments and agencies, including several EPA accounts and program activities. Several recent and pending EPA regulatory actions have been the focus of considerable attention in Congress during hearings and markup of EPA's FY2012 appropriations, and authorizing committees have been addressing EPA regulatory actions through hearings and legislation. As reported, H.R. 2584 contained more than 30 provisions that would restrict or preclude the use of FY2012 funds by EPA for implementing or proceeding with a number of regulatory actions. Theses provisions include more than 20 provisions proposed by the subcommittee (primarily in Title IV Administrative Provisions), and eight amendments added during full committee markup. From July 25, 2011, to July 28, 2011, the House considered H.R. 2584 but did not complete debate on the bill. Concerns regarding these EPA actions continued to be raised during House floor debate and were among roughly 250 amendments considered and pending prior to suspension of floor debate on July 28, 2011. No bill to fund Interior, Environment, and Related Agencies for FY2012 has been formally introduced in the Senate. However, on October 14, 2011, the bipartisan leadership of the Senate Appropriations Subcommittee on Interior, Environment, and Related Agencies released a draft bill for FY2012 to serve as a starting point of discussions for markup. The Senate subcommittee draft recommended a total appropriation of $29.55 billion for FY2012 for Interior, Environment, and Related Agencies, including $8.62 billion for EPA under Title II of the draft. The Senate subcommittee draft did not include provisions similar to the House committee-reported bill that would restrict or preclude EPA from using FY2012 funds for implementing or proceeding with a number of regulatory actions. At the time this report was updated, EPA and other departments and agencies funded within the Interior, Environment, and Related Agencies Appropriations bill were operating under a third continuing resolution, the Consolidated and Further Continuing Appropriations Act, 2012 ( P.L. 112-55 ), which provides funding through December 16, 2011. No regular appropriations bill was enacted before October 1, 2011, the start of FY2012. As with other federal agencies funded under the 12 appropriations bills, since the beginning of FY2012 EPA had operated under continuing resolutions ( P.L. 112-33 and P.L. 112-36 ) sequentially extending funding from October 1, 2011, through November 18, 2011. If the House committee bill were enacted as reported, the provisions and amendments in Title IV would impact ongoing and anticipated EPA activities including those addressing greenhouse gas emissions, hazardous air pollutants, particulate matter emissions, permitting of new source air emissions, water quality impacts of mountaintop mining operations, management of coal ash, lead-based paint removal, environmental impacts associated with livestock operations, financial responsibility with respect to Superfund cleanup, and stormwater discharge. Further, Title V of the committee-reported bill, the Reducing Regulatory Burdens Act of 2011, included amendments to the Clean Water Act and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) in response to EPA's consideration of requiring permits under the Clean Water Act for point source discharges of pesticides in or near U.S. waters. In response to congressional interest in the level of appropriations and several of the provisions affecting EPA program activities in H.R. 2584 as reported by the House Appropriations Committee, this report highlights a number of these provisions. The information presented throughout this report is primarily an extraction of the bill language for purposes of reference and is not intended to provide a comprehensive analysis of all provisions in H.R. 2584 as reported that may directly or indirectly affect EPA programs if enacted. Only those provisions affecting EPA programs that are clearly identifiable by specific language or references in the House committee-reported bill are included in this report. The report also provides a brief summary of funding levels for EPA accounts and program activities specified in the House committee-reported bill and as recommended in the Senate subcommittee draft. The following section of this report provides an overview of funding levels for FY2012 as specified in H.R. 2584 as reported and as recommended in the Senate subcommittee draft, compared to the amounts proposed in the President's FY2012 request, and the enacted amounts for FY2010 in P.L. 111-88 and FY2011 in P.L. 112-10 . For purposes of historical comparison, Table A-1 in the Appendix of this report shows EPA enacted appropriations by account for FY2008 through FY2011. The overview of funding levels is followed by a series of tables that present a compilation of excerpts of provisions in H.R. 2584 as reported for selected EPA programs and activities that have received prominent attention during deliberations on the FY2012 appropriations. Amendments that were agreed to or failed during floor debate, as well as proposed amendments pending actions, are not included in the tables, as House floor debate was not completed. Concerns regarding EPA's FY2012 funding have generally focused on federal financial assistance for environmental cleanup of Superfund sites, wastewater and drinking water infrastructure projects, grants to assist states in implementing air pollution control requirements, and climate change research and related activities. There also has been interest in funding for geographic-specific water quality initiatives (e.g., the Great Lakes Restoration Initiative, and efforts to restore the Chesapeake Bay and Puget Sound). Since FY1996, EPA's funding has been requested by the Administration and appropriated by Congress under eight statutory accounts. Table 1 presents the FY2012 amounts as approved for EPA by the House Appropriations Committee in H.R. 2584 and those recommended in the Senate subcommittee draft, compared to the President's FY2012 budget request, and the appropriations enacted in FY2011 and FY2010 for the eight accounts that fund the agency. The table includes a brief description of the programs and activities funded within each of the EPA accounts. Note that the former name of the "Oil Spill Response" account was changed in the President's FY2012 request to "Inland Oil Spill Program" to more clearly reflect the agency's jurisdiction for oil spill response only in the inland zone. As indicated in the table, the House Appropriations Committee approved a decrease from the President's FY2012 request and the FY2011 and FY2010 enacted levels for each of the eight accounts (except the Building and Facilities account which is the same as FY2011), with most of the decrease in two accounts: Environmental Programs and Management, and State and Tribal Assistance Grants (STAG). The more than 30% reduction below the FY2011 enacted amount for the STAG account is reflected primarily in the roughly 55% reduction below FY2011 enacted appropriations (to the FY2008 level) for grants to aid states to capitalize their Clean Water State Revolving Funds (SRFs). The Drinking Water SRF also was reduced to the FY2008 level, although the magnitude of the decreases below the FY2011 enacted and FY2012 requested levels was smaller than the decreases for the Clean Water SRF. Although the House committee proposed mostly decreases for individual programs and activities funded within each of the eight appropriations accounts, there are a few examples where funding levels were maintained or increased compared to FY2011 levels. The Senate subcommittee draft proposed overall funding for EPA would also be below FY2012 requested, and the FY2011 and FY2010 enacted levels, but the decrease would not be as large as that proposed in the House committee-reported bill. The higher funding level for EPA in the Senate subcommittee draft as compared to H.R. 2584 as reported is primarily attributed to maintaining funding for the Clean Water and Drinking Water SRFs at the same level as enacted for FY2011. As indicated in the table, proposed funding for each of the EPA accounts under Title II in the Senate subcommittee draft is above the levels recommended in Title II of H.R. 2584 , with the exception of the base appropriations prior to transfers for the Hazardous Substance Superfund, the Leaking Underground Storage Tanks Trust Fund, and the Buildings and Facilities accounts. With the exception of these two accounts, funding recommended for each of the other EPA accounts would be similar to, albeit generally slightly below, FY2011 levels under the Senate subcommittee draft. House committee-reported H.R. 2584 and the Senate subcommittee draft include both increases and decreases for programs and activities below the account level for EPA, as reflected in the funding tables accompanying each proposal. In addition to the funding amounts presented by account in the table below, the "Administrative Provisions" for EPA in Title II of H.R. 2584 included a rescission of $140.0 million from unobligated balances funded through the STAG and the Hazardous Substance Superfund account. The Senate subcommittee draft included a comparable rescission of $34.0 million. Similar rescissions of unobligated balances have been included in EPA appropriations since FY2006. For FY2011, Section 1740 in Title VII of Division B in P.L. 112-10 included a rescission of $140.0 million from unobligated balances available within the STAG account only; for FY2010, P.L. 111-88 included a $40.0 million rescission of unobligated balances available from the STAG and the Hazardous Substance Superfund accounts. During the past two years, EPA has proposed and promulgated numerous regulations implementing provisions of the 12 primary federal pollution control statutes enacted by Congress. Many stakeholders and some Members of Congress have expressed concerns that the agency has been reaching beyond the authority given it by Congress and ignoring or underestimating the costs and economic impacts of proposed and promulgated rules. EPA and others counter that these actions are consistent with statutory mandates and in some cases compelled by court ruling, the pace in many ways is slower than a decade ago, and that cost and benefits are appropriately evaluated. Recently promulgated and pending actions under the Clean Air Act, in particular EPA controls on emissions of greenhouse gases and efforts to address conventional pollutants from a number of industries, have received much of the attention. Several actions under the Clean Water Act, Safe Drinking Water Act, Resource Conservation and Recovery Act (RCRA), Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and the Toxics Substance Control Act (TSCA), have also received some attention. A number of these issues were the focus of considerable debate which resulted in nearly 30 provisions included in H.R. 2584 as reported by the House Appropriations Committee. The House-reported provisions, if enacted, generally would restrict or prohibit use of funds as appropriated in the bill for certain EPA regulatory actions. As not all the terms and activities contained within the provisions are explicitly defined in H.R. 2584 , the scope of the effects of many of the provisions are subject to interpretation and therefore neither definitions or potential impacts are inferred in this report. Both House committee-reported H.R. 2584 and the Senate subcommittee draft contain five similar administrative provisions setting terms and conditions for certain EPA activities under the "Environmental Protection Agency Administrative Provisions" following the proposed funding for each of the appropriations accounts in Title II of each of the proposals. The Senate subcommittee draft included one additional administrative provision that would authorize EPA to transfer funding from any of its eight accounts to fund emergency response actions for oil spills, if the Inland Oil Spill Response account is insufficient to finance these costs. The funds transferred from other accounts would be reimbursed by payments administered by the U.S. Coast Guard from the Oil Spill Liability Trust Fund. The more controversial provisions regarding several EPA programs and regulations were contained in the "General Provisions" in Title IV of H.R. 2584 . Additionally, Title V of the House committee-reported bill, the Reducing Regulatory Burdens Act of 2011, included amendments to the Clean Water Act and the Federal Insecticide, Fungicide, and Rodenticide Act in response to EPA's consideration of requiring permits under the Clean Water Act for point source discharges of pesticides in or near U.S. waters. Title V of H.R. 2584 is identical to provisions contained in H.R. 872 as passed by the House March 31, 2011. The Senate subcommittee draft did not include those provisions that would restrict or preclude the use of FY2012 funds for certain EPA actions, as were contained in Title IV and Title V of House committee-reported H.R. 2584 . Tables 2 through 8, which follow, identify those provisions in the House committee-reported bill that the Senate subcommittee did not include in its draft. The provisions included in H.R. 2584 presented in the following tables are categorized in this report by general program areas, that is, air quality and climate change, water quality, and waste management. Related provisions that are under the jurisdiction of agencies other than EPA are listed separately in Table 8 . The tables contain information about the provisions including the associated sections of the bill, and those that were amendments adopted during full-committee markup if applicable. H.R. 1 , the FY2011 Full-Year Continuing resolution passed by the House February 19, 2011, included more than 20 provisions that would have similarly restricted and prohibited the use of FY2011 funds to implement EPA regulatory activities. These provisions were not included in the final FY2011 appropriations law ( P.L. 112-10 ) enacted April 15, 2011. Those provisions contained in H.R. 2584 as reported that are similar or the same as provisions included in H.R. 1 as passed by the House February 19, 2011, are denoted in the first column of each of the following tables. Since FY1996, EPA's appropriations have been requested by the Administration and appropriated by Congress within eight statutory appropriations accounts. Table A-1 identifies the amounts for the appropriations enacted by Congress for FY2008 through FY2011 for these accounts. The table identifies transfers of funds between these accounts, and funding levels for several grant program areas within the State and Tribal Assistance Grants (STAG) account that have received more prominent attention during these fiscal years. The enacted amounts presented in Table A-1 are based on most recent information available from House, Senate, or conference committee reports accompanying the annual appropriations bills that fund EPA.

The Environmental Protection Agency (EPA) and other federal departments and agencies funded within the Interior, Environment, and Related Agencies Appropriations bill are currently operating under a continuing resolution (P.L. 112-55), which runs through December 16, 2011, while the debate over FY2012 appropriations continues. In July 2011, the House Appropriations Committee reported H.R. 2584 (H.Rept. 112-151) with $27.52 billion in appropriations for FY2012 for Interior, Environment, and Related Agencies. Title II of H.R. 2584, as reported, would provide a total of $7.15 billion for EPA, $1.82 billion (20%) less than the President's FY2012 request of $8.97 billion, and $1.53 billion (18%) less than the FY2011 enacted appropriation of $8.68 billion. In addition to funding levels for the various EPA programs and activities, H.R. 2584 as reported included more than 25 provisions that would restrict or preclude the use of FY2012 funds by EPA for implementing or proceeding with a number of recent and pending EPA regulatory actions. Nearly 250 amendments, including several regarding EPA, were under consideration during floor debate which was suspended on July 28, 2011. No companion bill for FY2012 appropriations has been formally introduced in the Senate. However, on October 14, 2011, the bipartisan leadership of the Senate Appropriations Subcommittee on Interior, Environment, and Related Agencies released a draft bill for FY2012 to serve as a starting point of discussions for markup. The Senate subcommittee draft, which recommended $8.62 billion for EPA, did not include those provisions that would restrict or preclude the use of FY2012 funds for certain EPA actions, as were contained in the House committee-reported H.R. 2584. Several EPA regulatory actions have received considerable attention during House and Senate oversight committee hearings, appropriations committee hearings, and House floor debate on the FY2012 appropriations. The provisions included in H.R. 2584 as reported, and many of the House floor amendments (considered and pending), cut across the various environmental pollution control statutes' programs and initiatives, such as those that address greenhouse gas emissions, hazardous air pollutants, particulate matter emissions, permitting of new source air emissions, water quality impacts of mountaintop mining operations, management of coal ash, lead-based paint removal, environmental impacts associated with livestock operations, financial responsibility with respect to Superfund cleanup, and stormwater discharge. Further, Title V of the House committee-reported bill, the Reducing Regulatory Burdens Act of 2011, included significant amendments to the Clean Water Act and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) in response to EPA's consideration of requiring permits under the Clean Water Act for point source discharges of pesticides in or near U.S. waters. To date, House floor debate on H.R. 2584 has not been completed. This report summarizes funding levels for EPA accounts and certain program activities as proposed in H.R. 2584 as reported by the House Appropriations Committee, and in the Senate subcommittee draft. Selected provisions regarding EPA program activities extracted from the House committee-reported bill are also presented. Only those provisions that are clearly identifiable by specific language or references contained in the bill are included. No comparable provisions were identified for the Senate subcommittee draft. Amendments that were voted on and pending during initial House floor debate at the end of July 2011 are not included.

This report provides a side-by-side comparison of three bills and two proposals-- H.R. 6566 , H.R. 6670 , H.R. 6709 , H.R. 6899 (the House Leadership Proposal), and the Senate Draft Proposal--which address oil and gas development in the outer continental shelf (OCS). None of the bills has passed its respective chamber. The text below provides background on the issues. The side-by-side table gives a description of selected sections of the bills. President Bush announced on June 18, 2008, that he would like to open areas of the Outer Continental Shelf (OCS) for oil and gas development currently under presidential and congressional moratoria (discussed in more detail below). The President stated that he would lift the executive branch moratoria only after Congress did so legislatively. But, on July 14, 2008, President Bush reversed his position and lifted the executive ban on the OCS imposed in 1990 by President George H.W. Bush. Senator John McCain, among others, has called on Congress to lift the offshore drilling moratoria as well. Further, the Administration proposes to begin planning its next five-year leasing program that would, if approved, be implemented as early as 2010--two years ahead of schedule. The proposed new five-year program would supersede the current five-year leasing program from 2007-2012. The Administration argues that a new five-year lease program beginning in 2010 would allow any newly opened OCS areas (if the congressional moratoria is lifted this year) to be offered in a lease sale sooner than if they remained on their current schedule. Since the President lifted the executive ban, members of Congress have introduced legislation that would lift the congressional prohibition (in part or completely) against leasing and development of oil and natural gas in the OCS. The legislation section of this report summarizes several of those bills, including the House Leadership proposal ( H.R. 6899 ). Many in Congress, however, oppose lifting the offshore ban. They argue that there are still several million acres leased onshore and offshore but not yet producing and that production from these lands could increase U.S. oil supply. On September 16, 2008, the House passed H.R. 6899 by a vote of 236-189 and defeated an alternative bill, H.R. 6709 , by a vote of 191-226. How much oil could be brought into production in the short-term (from non-producing leased lands or those under the moratoria) and its impact on price is uncertain. An attempt to lift the offshore moratoria with an amendment to the FY2009 Interior, Environment, and Related Agencies Appropriations bill during the House subcommittee markup was defeated by a vote of 6-9. Meanwhile, on June 26, 2008, under suspension of the rules (which requires a two-thirds majority for passage), the House defeated a measure ( H.R. 6251 ) that would have increased rental fees on non-producing oil and gas leases, and denied new federal leases to those not diligently developing the leases they have. Oil and gas leasing has been prohibited on much of the outer continental shelf (OCS) since the 1980s. Congress has enacted OCS leasing moratoria for each of fiscal years 1982-2006 in the annual Interior and Related Agencies Appropriations bill (now the Interior and Environment and Related Agencies Appropriations bill), allowing leasing only in the Gulf of Mexico (except near Florida) and parts of Alaska. President George H.W. Bush in 1990 issued a presidential directive ordering the Department of the Interior (DOI) not to conduct offshore leasing or preleasing activity in areas covered by the annual legislative moratoria until 2000. In 1998, President Clinton extended the offshore leasing prohibition until 2012. Proponents of the moratoria contend that offshore drilling would pose unacceptable environmental risks and threaten coastal tourism industries, whereas supporters of expanded offshore leasing counter that more domestic oil and gas production is vital for the nation's energy security. The Outer Continental Shelf Lands Act of 1953 (OCSLA), as amended, provides for the leasing of OCS lands in a manner that protects the environment and returns revenues to the federal government in the form of bonus bids, rents, and royalties. OCSLA requires the Secretary of the Interior to submit five-year leasing programs that specify the time, location, and size of the areas to be offered. Each five-year leasing program entails a lengthy multistep process that includes environmental impact statements. After a public comment period, a final proposed plan is submitted to the President and Congress. The latest plan went into effect July 1, 2002. Public hearings for the 2007-2012 leasing program are underway. States and interest groups are filing comments on future lease sale areas for the 2007-2012 leasing program. States with energy development off their shores in federal waters have been seeking a larger portion of the federal revenues generated in those areas. They particularly want more assistance for coastal areas that may be most affected by onshore and near-shore activities that support offshore energy development. Proponents of these proposals look to the rates at which funds are given to jurisdictions where onshore energy development occurs on federal lands within those jurisdictions. Coastal destruction has received more attention in Louisiana--especially hard-hit by hurricanes in 2005--where many square miles of wetlands have been lost to the ocean each year. Widespread energy-related development is thought to contribute to coastal losses. Currently, the affected states receive some revenue directly from offshore oil and gas leases in federal waters under section 8(g) of OCSLA and under the Gulf of Mexico Energy Security Act of 2006. P.L. 109-432 . This is in contrast to the 50% share of direct revenues to states that have onshore federal leases within their boundaries. Opponents point out the budget implications that would result from such a loss of federal revenues.

This report provides a side-by-side comparison of three bills and two proposals, each of which addresses oil and gas development in the outer continental shelf (OCS). None of the bills has passed its respective chamber. One of the proposals, H.R. 6899, the "Comprehensive American Energy Security and Taxpayer Protection Act," is expected to come to the House floor the week of September 15, 2008. The moratoria on oil and gas leasing in much of the OCS has become a major issue in Congress and also in the Presidential campaign. This report describes the background of OCS leasing and the various positions taken by proponents and opponents of leasing. It then compares the provisions of three bills that have been introduced with reported summaries of the House proposal and the Senate proposal, the "New Energy Reform Act of 2008." On September 16, 2008, the House passed H.R. 6899 by a vote of 236-189 and defeated an alternative bill, H.R. 6709, by a vote of 191-226.

There are dozens of temporary tax provisions in the Internal Revenue Code (IRC), many of which had expired at the end of 2014. Recent legislation has extended certain expiring provisions, and, in some cases, made temporary provisions permanent. The American Taxpayer Relief Act (ATRA; P.L. 112-240 ), signed into law on January 2, 2013, reduced tax policy uncertainty by permanently extending most of the tax cuts first enacted in 2001 and 2003 and permanently indexing the alternative minimum tax (AMT) for inflation. ATRA, however, did not eliminate uncertainty in the tax code. Under ATRA, a number of provisions that had been allowed to expire at the end of 2011 or 2012 were temporarily extended through 2013. Most of the provisions that expired at the end of 2013 were retroactively extended for one year, through 2014, in the Tax Increase Prevention Act of 2014 ( P.L. 113-295 ). The Consolidated Appropriations Act, 2016 ( P.L. 114-113 ), signed into law on December 18, 2015, either made permanent or temporarily extended all tax provisions that had expired at the end of 2014. Collectively, temporary tax provisions that are regularly extended by Congress rather than being allowed to expire as scheduled are often referred to as "tax extenders." Many of these "tax extender" provisions have been temporarily extended multiple times. The research tax credit, for example, was extended 16 times since being enacted in 1981, before being modified and made permanent in P.L. 114-113 . Most of the temporary tax provisions that had expired at the end of 2014 were previously extended more than once. In the 114 th Congress, much of the debate on tax extenders focused on whether expired tax provisions should be made permanent, or temporarily extended. In P.L. 114-113 , all expired tax provisions were extended, either temporarily or by being made permanent. Making a number of expired provisions permanent reduced uncertainty in the tax code, by reducing the number of temporary provisions scheduled to expire. However, as not all expired provisions were made permanent, there are still a number of tax extenders set to expire at the end of 2016. Debate in the second half of the 114 th Congress may address whether the provisions set to expire at the end of 2016 should be extended. This report provides a broad overview of the tax extenders. Additional information on specific extender provisions may be found in other CRS reports, including the following: CRS Report R43510, Selected Recently Expired Business Tax Provisions ("Tax Extenders") , by [author name scrubbed], [author name scrubbed], and [author name scrubbed]; CRS Report R43688, Selected Recently Expired Individual Tax Provisions ("Tax Extenders"): In Brief , by [author name scrubbed] and [author name scrubbed]; CRS Report R43517, Recently Expired Charitable Tax Provisions ("Tax Extenders"): In Brief , by [author name scrubbed] and [author name scrubbed]; CRS Report R43541, Recently Expired Community Assistance-Related Tax Provisions ("Tax Extenders"): In Brief , by [author name scrubbed]; and CRS Report R43449, Recently Expired Housing Related Tax Provisions ("Tax Extenders"): In Brief , by [author name scrubbed]. The Consolidated Omnibus Appropriations Act, 2016 ( P.L. 114-113 ) contained, as Division Q, the Protecting Americans from Tax Hikes Act of 2015 (PATH Act). The PATH Act either temporarily extended or made permanent all tax provisions that had expired at the end of 2014. Further, the PATH Act also made permanent the enhanced child tax credit, the enhanced American Opportunity Tax Credit, and the enhanced earned income tax credit, which were scheduled to expire in 2017. The PATH Act also included a two-year moratorium on the medical device excise tax. Division P of P.L. 114-113 also contained tax-related provisions, including changes to and a two-year moratorium on the high-cost employer-sponsored health coverage excise tax, a one-year moratorium on the annual fee on health insurance providers, extensions of tax credits for wind renewable power facilities and solar energy, and changes to the Section 199 deduction for independent oil refineries. The Tax Increase Prevention Act of 2014, passed late in the 113 th Congress, extended expiring tax provisions for one year, retroactively through 2014. Other legislation considered in the 113 th Congress proposed a two-year extension--the Expiring Provisions Improvement Reform and Efficiency (EXPIRE) Act ( S. 2260 ). Legislation was also considered that would have made certain expiring provisions permanent--see, for example, the Jobs for America Act ( H.R. 4 ) and the America Gives More Act of 2014 ( H.R. 4719 ). Tax reform legislation introduced in the 113 th Congress, the Tax Reform Act of 2014 ( H.R. 1 ), proposed to make permanent certain provisions that are currently part of the tax extenders, including the research and experimentation (R&D) tax credit and increased expensing allowances for certain businesses allowed under Internal Revenue Code (IRC) Section 179. In the 114 th Congress, the House had passed legislation that would permanently extend certain expired provisions (America's Small Business Tax Relief Act of 2015 [ H.R. 636 ], State and Local Sales Tax Deduction Fairness Act of 2015 [ H.R. 622 ], America Gives More Act of 2015 [ H.R. 644 ], and American Research and Competitiveness Act of 2015 [ H.R. 880 ]). The Tax Relief Extension Act of 2015 ( S. 1946 ), as reported by the Senate Committee on Finance, would have extended the temporary provisions that expired at the end of 2014 for two years, making the provisions available for the 2015 and 2016 tax year. S. 1946 would have extended all temporary tax provisions that expired at the end of 2014, as well as one provision that expired at the end of 2013. The tax code presently contains dozens of temporary tax provisions. In the past, legislation to extend some set of these expiring provisions has been referred to by some as the "tax extender" package. While there is no formal definition of a "tax extender," the term has regularly been used to refer to the package of expiring tax provisions temporarily extended by Congress. Oftentimes, these expiring provisions are temporarily extended for a short period of time (e.g., one or two years). Over time, as new temporary provisions have been routinely extended and hence added to this package, the number of provisions that might be considered "tax extenders" has grown. There are various reasons Congress may choose to enact temporary (as opposed to permanent) tax provisions. Enacting provisions on a temporary basis, in theory, would provide Congress with an opportunity to evaluate the effectiveness of specific provisions before providing further extension. Temporary tax provisions may also be used to provide relief during times of economic weakness or following a natural disaster. Congress may also choose to enact temporary provisions for budgetary reasons. Examining the reason why a certain provision is temporary rather than permanent may be part of evaluating whether a provision should be extended. There are several reasons why Congress may choose to enact tax provisions on a temporary basis. Enacting provisions on a temporary basis may provide an opportunity to evaluate effectiveness before expiration or extension. However, this rationale for enacting temporary tax provisions is undermined if expiring provisions are regularly extended without systematic review, as is the case in practice. In 2012 testimony before the Senate Committee on Finance, Dr. Rosanne Altshuler noted that an expiration date can be seen as a mechanism to force policymakers to consider the costs and benefits of the special tax treatment and possible changes to increase the effectiveness of the policy. This reasoning is compelling in theory, but has been an absolute failure in practice as no real systematic review ever occurs. Instead of subjecting each provision to careful analysis of whether its benefits outweigh its costs, the extenders are traditionally considered and passed in their entirety as a package of unrelated temporary tax benefits. While most expiring tax provisions have been extended in recent years, there have been some exceptions. For example, tax incentives for alcohol fuels (e.g., ethanol), which can be traced back to policies first enacted in 1978, were not extended beyond 2011. The Government Accountability Office (GAO) had previously found that with the renewable fuel standard (RFS) mandate, tax credits for ethanol were duplicative and did not increase consumption. Congress may choose not to extend certain provisions if an evaluation determines that the benefits provided by the provision do not exceed the cost (in terms of foregone tax revenue). Tax policy may also be used to address temporary circumstances in the form of economic stimulus or disaster relief. Economic stimulus measures might include bonus depreciation or generous expensing allowances. Disaster relief policies might include enhanced casualty loss deductions or additional net operating loss carrybacks. Other recent examples of temporary provisions that have been enacted to address special economic circumstances include the exclusion of mortgage forgiveness from taxable income during the recent housing crisis, the payroll tax cut, and the grants in lieu of tax credits to compensate for weak tax-equity markets during the economic downturn (the Section 1603 grants). It has been argued that provisions that were enacted to address a temporary situation should be allowed to expire once the situation is resolved. Congress may also choose to enact tax policies on a temporary basis for budgetary reasons. If policymakers decide that legislation that reduces revenues must be paid for, it is easier to find resources to offset short-term extensions rather than long-term or permanent extensions. Additionally, by definition the Congressional Budget Office (CBO) assumes under the current law baseline that temporary tax cuts expire as scheduled. Thus, the current law baseline does not assume that temporary tax provisions are regularly extended. Hence, if temporary expiring tax provisions are routinely extended in practice, the CBO current law baseline would tend to overstate projected revenues, making the long-term revenue outlook stronger. In other words, by making tax provisions temporary rather than permanent, these provisions have a smaller effect on the long-term fiscal outlook. Temporary tax benefits are a form of federal subsidy that treats eligible activities favorably compared to others, and channels economic resources into qualified uses. Extenders influence how economic actors behave and how the economy's resources are employed. Like all tax benefits, extenders can be evaluated by looking at the impact on economic efficiency, equity, and simplicity. Temporary tax provisions may be efficient and effective in accomplishing their intended purpose, though not equitable. Alternatively, an extender may be equitable but not efficient. Policymakers may have to choose the economic objectives that matter most. Extenders often provide subsidies to encourage more of an activity than would otherwise be undertaken. According to economic theory, in most cases an economy best satisfies the wants and needs of its participants if markets allocate resources free of distortions from taxes and other factors. Market failures, however, may occur in some instances, and economic efficiency may actually be improved by tax distortions. Thus, the ability of extenders to improve economic welfare depends in part on whether or not the extender is remedying a market failure. According to theory, a tax extender reduces economic efficiency if it is not addressing a specific market failure. An extender is also considered relatively effective if it stimulates the desired activity better than a direct subsidy. Direct spending programs, however, can often be more successful at targeting resources than indirect subsidies made through the tax system such as tax extenders. A tax is considered to be fair when it contributes to a socially desirable distribution of the tax burden. Tax benefits such as the extenders can result in individuals with similar incomes and expenses paying differing amounts of tax, depending on whether they engage in tax-subsidized activities. This differential treatment is a deviation from the standard of horizontal equity, which requires that people in equal positions should be treated equally. Another component of fairness in taxation is vertical equity, which requires that tax burdens be distributed fairly among people with different abilities to pay. Most extenders are considered inequitable because they benefit those who have a greater ability to pay taxes. Those individuals with relatively less income and thus a reduced ability to pay taxes may not have the same opportunity to benefit from extenders as those with higher income. The disproportionate benefit of tax expenditures to individuals with higher incomes reduces the progressivity of the tax system, which is often viewed as a reduction in equity. An example of the effect a tax benefit can have on vertical equity is illustrated by two teachers who have both incurred $250 in classroom-related expenses and are eligible to claim the above-the-line deduction for expenses. Yet the tax benefit to the two differs if they are in different tax brackets. A teacher with lower income, who may be in the 15% income tax bracket, receives a deduction with a value of $37.50, while another teacher, in the 33% bracket, receives a deduction value of $82.50. Thus, the higher-income taxpayer, with presumably greater ability to pay taxes, receives a greater benefit than the lower-income taxpayer. Extenders contribute to the complexity of the tax code and raise the cost of administering the tax system. Those costs, which can be difficult to isolate and measure, are rarely included in the cost-benefit analysis of temporary tax provisions. In addition to making the tax code more difficult for the government to administer, complexity also increases costs imposed on individual taxpayers. With complex incentives, individuals devote more time to tax preparation and are more likely to hire paid preparers. Dozens of temporary tax provisions had expired at the end of 2014, all of which were extended in P.L. 114-113 (see Table 1 ). Most of these provisions have been extended as part of previous "tax extender" legislation. For the purposes of this report, provisions that expired in 2014 have been classified as belonging to one of four categories: individual, business, charitable, or energy. The following sections provide additional details. Table 1 also includes information on the cost of the extension in P.L. 114-113 , as enacted. All six of the individual tax extender provisions that expired at the end of 2014 had previously been extended as part of tax extenders legislation. The longest-standing individual extender provision is the above-the-line deduction for classroom expenses incurred by school teachers. This provision was first enacted on a temporary basis in 2002 and has regularly been included in tax extender packages. The above-the-line deduction for classroom expenses was made permanent in P.L. 114-113 . Other individual provisions that have been extended more than once include the deduction for state and local sales taxes, the above-the-line deduction for tuition and related expenses, the deduction for mortgage insurance premiums, and the parity for the exclusion of employer-provided mass transit and parking benefits. The deduction for state and local sales taxes and the provision providing parity for the exclusion of employer-provided mass transit and parking benefits were also made permanent in P.L. 114-113 . All of the business provisions that expired at the end of 2014 had previously been extended at least once, most more than once. Long-standing provisions that expired at the end of 2014 include the research tax credit, the rum excise tax cover-over, the Work Opportunity Tax Credit, the Qualified Zone Academy Bond (QZAB) allocation limitation, and the active financing exception under Subpart F. The New Markets Tax Credit, first enacted in 2000 to promote investment in low-income communities, also expired at the end of 2014. Bonus depreciation and enhanced expensing allowances, which are often viewed as economic stimulus measures, also expired at the end of 2014. A number of business-related extender provisions were made permanent in P.L. 114-113 , including the research tax credit, enhanced expensing under Section 179, and the active financing exception under Subpart F. Other provisions, including the New Markets Tax Credit and bonus depreciation, were given longer-term extensions, through 2019. Table 1 provides additional information on which business tax extenders were made permanent, extended through 2019, or extended through 2016. The four charitable provisions that expired at the end of 2014 have previously been extended multiple times. All four provisions were also made permanent in P.L. 114-113 . The provision providing an enhanced deduction for noncorporate businesses donating food inventory was first enacted in response to Hurricane Katrina in 2005. The remaining charitable provisions were first enacted as part of the Pension Protection Act of 2006 ( P.L. 109-280 ). The longest-standing energy-related provision that expired at the end of 2014 is the renewable energy production tax credit (PTC). The PTC was extended for two years, through 2016, as part of P.L. 114-113 . P.L. 114-113 extended the PTC for wind through 2019, with a phase-down starting in 2017. Several of the temporary energy-related tax provisions that expired at the end of 2014 were first enacted as part of the Energy Policy Act of 2005 (EPACT05; P.L. 109-58 ). These include the credit for construction of energy efficient new homes, the deduction for energy efficient commercial buildings, and the credit for nonbusiness energy property (also known as the tax credit for energy efficiency improvements for existing homes). Certain tax incentives for alternative technology vehicles and alternative fuel vehicle refueling property were also first included in EPACT05. These provisions were all extended through 2016 in P.L. 114-113 . The alternative motor vehicle credit for qualified fuel cell vehicles also expired at the end of 2014. This provision was introduced as part of EPACT05, and was originally set to expire December 31, 2014, when first introduced. EPACT05 incentives for other alternative motor vehicles--including hybrids, alternative fuel, and advanced lean-burn technology vehicles--expired at earlier dates. The credit for two-wheeled plug-in electric vehicles expired at the end of 2013, and was not extended as part of P.L. 113-295 , but would be extended in the Tax Relief Extension Act of 2015 (S. 1946). The credit was first enacted as part of the American Recovery and Reinvestment Act (ARRA; P.L. 111-5 ) and was extended once previously by the American Taxpayer Relief Act (ATRA; P.L. 112-240 ). Both the alternative motor vehicle credit for qualified fuel cell vehicles and the credit for two-wheeled plug-in electric vehicles were extended through 2016 in P.L. 114-113 . As discussed above, Congress has regularly acted to temporarily extend expired or expiring tax provisions. In addition to temporarily extending expired provisions, P.L. 114-113 also made certain provisions permanent. As a result, the cost of the tax extenders in P.L. 114-113 was higher than the cost of other tax extenders proposals considered in the 114 th Congress that would not have included permanent extensions. In total, the extensions of tax extenders in P.L. 114-113 , is estimated to reduce federal revenues by $628.8 billion between 2016 and 2025. Of that cost, nearly one-third ($202.1 billion) is attributable to extensions of provisions that were scheduled to expire in 2017 (the reduced earnings threshold for the refundable portion of the child tax credit; the American Opportunity Tax Credit; and modifications to the earned income tax credit) and the two-year moratorium on the medical device excise tax. Thus, the cost of extending the "tax extender" provisions listed in Table 1 is an estimated $426.8 billion between 2016 and 2025. Of the total cost of the tax extenders in P.L. 114-113 , $559.5 billion, or 89% of the total cost, is associated with permanent extensions. The estimated cost of permanent extension of provisions listed in Table 1 (provisions that had expired in 2014 and were made permanent in P.L. 114-113 ) is $361.4 billion. Of the total cost of tax extenders in P.L. 114-113 , a small portion, $17.7 billion (or less than 3%) was for the two-year extension of provisions that had expired in 2014 through 2016. Before P.L. 114-113 was passed, legislation was considered in the House in the 114 th Congress that would have made permanent certain temporary tax provisions. Cost of temporary as opposed to permanent extension has, in the past, been one consideration in the debate surrounding the extension of temporary tax provisions. The Senate Finance Committee reported legislation in 2015, the Tax Relief Extension Act of 2015 ( S. 1946 ), that would retroactively extend expired tax provisions, for two years, through 2016. The JCT estimated that extending tax extenders, as proposed in S. 1946 , would have reduced revenue by $97.1 billion between 2016 and 2025. S. 1946 also included several revenue raising provisions, which brought the cost of the proposal to $96.9 billion. Neither of these figures include macroeconomic effects. With macroeconomic effects included, the cost of extending expired provisions, as proposed in S. 1946 , was $86.6 billion over the 10-year budget window. According to the JCT, extending certain expired provisions affecting businesses, particularly the provision allowing businesses to expense 50% of investments, is expected to increase economic growth in the near term. Thus, the cost estimate when macroeconomic effects are included is less than the cost estimate that does not incorporate macroeconomic effects. Since S. 1946 is projected to increase the federal debt, part of the gain in economic growth from extending expired business-related provisions would be expected to be offset by higher interest rates, which tend to slow economic growth. The net effect of JCT's macroeconomic analysis, however, was increased economic growth within the budget window, leading to a lower cost estimate for S. 1946 . The Congressional Budget Office (CBO) provides estimated costs of extending all tax provisions scheduled to expire before 2025 (see Table 2 ). The estimates below reflect information provided before the recent extensions enacted in P.L. 114-113 . CBO's estimates can be viewed as the cost of a long-term extension. According to CBO's estimates, over the 2016 to 2025 budget window, extending all expiring tax provisions would reduce revenues by $897.9 billion; extending bonus depreciation would cost $223.6 billion and extending Section 179 expensing would cost $60.8 billion; and extending expansions to the child tax credit, the earned income tax credit, and the American Opportunity Tax Credit currently scheduled to expire at the end of 2017 would cost $202.8 billion. Of the 70 tax provisions set to expire before the end of 2025 in CBO's estimates, 52 had expired at the end of 2014. Thus, most of the revenue cost associated with extending expiring provisions is for provisions that were either extended or made permanent in P.L. 114-113 . Since tax extender provisions are assumed to expire as scheduled by CBO, their extension--even if expected by policymakers--is not included in CBO's current law revenue baseline. As a result, CBO's revenue projections are higher than actual revenue levels that are likely to occur. Consequently, projected budget deficits under the current law baseline are smaller than actual deficits that are likely to occur. The cost of providing a short-term extension, as is typical in "tax extenders" legislation, is less than the cost of extending expiring provisions through the budget window, as is done by CBO for the purposes of constructing the alternative fiscal scenario baseline. The CBO scores presented here, some might argue, provide a more accurate measure of the overall or long-term budget impact of temporary tax provisions. The Joint Committee on Taxation (JCT) scores accompanying extenders legislation reflect the budget impact of the temporary extension relative to current law. If expiring provisions are temporarily extended, the 10-year revenue cost may be less than the cost in year 2015, as many of the expired provisions are tax deferrals, or timing provisions. Bonus depreciation is one example of a timing provision, where the short-term cost of extension is greater than the long-term or budget window cost. The one-year extension of bonus depreciation enacted as part of the Taxpayer Relief Act of 2014 ( P.L. 113-295 ) cost an estimated $1.2 billion over the 10-year budget window; however, the one-year revenue loss of the same provision in 2015 was $45.3 billion, with much of the cost recovered in the later years in the budget window. Bonus depreciation was extended through 2019 in P.L. 114-113 , at a cost of $11.3 billion over the 10-year budget window. The cost in 2016 is estimated to be $90.6 billion, with much of the estimated revenue cost in 2016, 2017, and 2018, recovered later in the budget window. As a timing provision, bonus depreciation shifts cost recovery forward, resulting in revenue losses in earlier years, with part of that revenue loss recovered in later years. In contrast to a temporary extension, making bonus depreciation permanent would cost $223.6 billion over the 10-year budget window (see Table 2 ). As discussed above, the tax extenders legislation that was passed in December 2015, as part of P.L. 114-113 , made permanent a number of temporary tax provisions, while temporarily extending other expired tax provisions. Earlier in the 114 th Congress, the House had considered proposals to make permanent certain expired tax provisions. Legislation was also reported out of the Senate Committee on Finance that would temporarily extend expired tax provisions. During the 113 th Congress, the House had also considered legislation to make permanent certain expired tax provisions. Before P.L. 114-113 was signed into law, there was other action on extenders in the 114 th Congress. The Senate Finance Committee reported the Tax Relief Extension Act of 2015 ( S. 1946 ), which would retroactively extend expired tax provisions for two years, through 2016. The House had passed legislation to make permanent eight of the temporary tax provisions that expired at the end of 2014 (see Table 3 ). America's Small Business Tax Relief Act of 2015 ( H.R. 636 ) would have made permanent the enhanced expensing allowances under Section 179 and also included the text from bills that would extend expired S corporation provisions (the Permanent S Corporation Built-in Gains Recognition Period Act of 2015 [H.R. 629] and the Permanent S Corporation Charitable Contribution Act of 2015 [H.R. 630]). Three expired charitable provisions were part of the America Gives More Act of 2015 ( H.R. 644 ): (1) the enhanced deduction for contributions of food inventory; (2) the provision allowing for tax-free distributions from Individual Retirement Accounts (IRAs) for charitable purposes; and (3) the special rules for contributions of capital gain real property for conservation purposes. The American Research and Competitiveness Act of 2015 ( H.R. 880 ) would have modified and made permanent the research tax credit. Legislation had also passed the House that would have made permanent the option to deduct state and local sales taxes in lieu of state and local income taxes ( H.R. 622 ). Taken together, these eight measures would have cost $317.5 billion over the 10-year budget window, excluding potential macroeconomic effects. In addition to the proposals to make permanent expired tax provisions that were passed in the House, the Committee on Ways and Means had reported other legislation during the 114 th Congress that would have made permanent other expired provisions (see Table 3 ). During the 113 th Congress, various bills were considered to either extend or make permanent certain tax extender provisions. Ultimately, a one-year "tax extenders" bill was passed and enacted late in the year (the Tax Increase Prevention Act of 2014 [P.L. 113-295] was signed into law on December 19, 2014). Earlier in the year, the Senate Finance Committee had reported a two-year extenders package, the Expiring Provisions Improvement Reform and Efficiency (EXPIRE) Act ( S. 2260 ). The EXPIRE Act proposed extending most expiring provisions for two years, through 2015. The House also considered legislation to make certain expiring tax provisions permanent during the 113 th Congress. As noted in Table 3 , the House passed legislation that would have made permanent nine provisions that are currently part of the tax extenders. Taken together, permanently extending these nine provisions would have reduced revenues by an estimated $511.4 billion over the 10-year budget window. Six of these nine provisions were included in the Jobs for America Act ( H.R. 4 ), which also passed the House in the 113 th Congress. Three other charitable-related provisions were passed as part of the America Gives More Act of 2014 ( H.R. 4719 ). The Committee on Ways and Means reported legislation during the 113 th Congress that would have made two additional international-related extender provisions permanent, although this legislation was not considered in the full House. Several provisions that had expired at the end of 2013 were not extended as part of the Tax Increase Prevention Act of 2014 ( P.L. 113-295 ). Two of these provisions would have been extended in the EXPIRE Act, but were not included in P.L. 113-295 : the health coverage tax credit and the credit for electric-drive motorcycles and three-wheeled vehicles. Both of these provisions have been extended in subsequent legislation. The health coverage tax credit had not been extended as part of past "tax extenders" legislation. The health coverage tax credit was first enacted, without an expiration date, as part of the Trade Act of 2002 ( P.L. 107-240 ). A January 1, 2014, termination date was enacted as part of an act to extend the Generalized System of Preferences in 2011 ( P.L. 112-40 ). The health coverage tax credit was modified and retroactively extended through December 31, 2019, as part of the Trade Preferences Extension Act of 2015 ( P.L. 114-27 ), signed into law on June 29, 2015. The other provision that was not extended in P.L. 113-295 , but would have been extended by the EXPIRE Act, was the credit for electric-drive motorcycles and three-wheeled vehicles. In recent years, a number of incentives have been available for various alternative technology vehicles. There are currently incentives available for plug-in electric vehicles. Incentives for most other alternative technology vehicles have expired. The credit for two-wheeled electric plug-in vehicles was extended through 2016 in P.L. 114-113 . Two other energy-related provisions were not extended past their January 1, 2014, termination date: the placed-in-service date for partial expensing of certain refinery property and the credit for energy efficient appliances. The EXPIRE Act did not propose extending either of these provisions. Two disaster-related provisions that expired at the end of 2013--one that provided tax-exempt bond financing authority for facilities in the New York Liberty Zone and another related to the replacement period for nonrecognition of gain for areas damaged by the 2008 Midwestern storms--were not extended in P.L. 113-295 . The EXPIRE Act also did not include an extension for these disaster-related provisions.

In the past, Congress has regularly acted to extend expired or expiring temporary tax provisions. Collectively, these temporary tax provisions are often referred to as "tax extenders." Fifty-two temporary tax provisions expired at the end of 2014. All of these provisions were either temporarily or permanently extended as part of the Consolidated Appropriations Act, 2016 (P.L. 114-113), signed into law on December 18, 2015. Unlike previous tax extenders legislation, P.L. 114-113 made a number of provisions permanent, and provided longer-term extensions for other provisions. This report provides a broad overview of the tax extenders. Congress had previously addressed tax extenders toward the end of the 113th Congress. The Tax Increase Prevention Act of 2014 (P.L. 113-295), signed into law on December 19, 2014, made tax provisions that had expired at the end of 2013 available to taxpayers for the 2014 tax year. The law extended most (but not all) provisions that had expired at the end of 2013. Most of the provisions in P.L. 113-295 had been included in previous "tax extender" packages. There are several reasons why Congress may choose to enact tax provisions on a temporary basis. Enacting provisions on a temporary basis provides legislators with an opportunity to evaluate the effectiveness of tax policies prior to expiration or extension. Temporary tax provisions may also be used to provide temporary economic stimulus or disaster relief. Congress may also choose to enact tax provisions on a temporary rather than permanent basis due to budgetary considerations, as the foregone revenue from a temporary provision will generally be less than if it were permanent. The provisions that expired at the end of 2014 are diverse in purpose, including provisions for individuals, businesses, the charitable sector, and energy-related activities. Among the individual provisions that expired are deductions for teachers' out-of-pocket expenses, state and local sales taxes, qualified tuition and related expenses, and mortgage insurance premiums. On the business side, under current law, the research and development (R&D) tax credit, the work opportunity tax credit (WOTC), the active financing exceptions under Subpart F, the new markets tax credit, and increased expensing and bonus depreciation allowances will not be available for taxpayers after 2014. Expired charitable provisions include the enhanced deduction for contributions of food inventory and provisions allowing for tax-free distributions from retirement accounts for charitable purposes. The renewable energy production tax credit (PTC) expired at the end of 2014, along with a number of other incentives for energy efficiency and renewable and alternative fuels. As discussed in this report, many of these provisions were made permanent in P.L. 114-113. Additional information on specific extender provisions may be found in other CRS reports, including the following: CRS Report R43510, Selected Recently Expired Business Tax Provisions ("Tax Extenders"), by [author name scrubbed], [author name scrubbed], and [author name scrubbed]; CRS Report R43688, Selected Recently Expired Individual Tax Provisions ("Tax Extenders"): In Brief, by [author name scrubbed] and [author name scrubbed]; CRS Report R43517, Recently Expired Charitable Tax Provisions ("Tax Extenders"): In Brief, by [author name scrubbed] and [author name scrubbed]; CRS Report R43541, Recently Expired Community Assistance-Related Tax Provisions ("Tax Extenders"): In Brief, by [author name scrubbed]; and CRS Report R43449, Recently Expired Housing Related Tax Provisions ("Tax Extenders"): In Brief, by [author name scrubbed].

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

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

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

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

Daniel Ortega was a leader of the Sandinista National Liberation Front (FSLN) when it overthrew the corrupt and repressive Somoza family dictatorship in 1979. When the pro-Soviet Sandinistas gained control of the government and pursued increasingly radical social policies, including redistribution of land and wealth, the United States backed opposition "contras" who launched an eight-year war (1982-1990) against the government. About 30,000 Nicaraguans died in the war. As President from 1985-1990, Ortega's administration was marked by improved education and healthcare on the one hand, and charges of corruption and authoritarian tendencies on the other. As part of the Central American Peace Plan, Ortega's Sandinista government agreed to internationally monitored democratic elections in February 1990, which he lost and peacefully ceded to Violeta Chamorro. Ortega also ran for President and lost in 1996 and 2001. Because he came in second place, however, Nicaraguan law gave him a seat in the National Assembly, where he has served as an opposition leader. He ran for President again in 2006 and won. Since 1990 Nicaragua has developed democratic institutions and a framework for economic development. Progress has been made in social and economic reforms. Nonetheless, significant challenges remain: Nicaragua is still very poor, the second poorest nation in the western hemisphere. Its institutions are weak and often corrupt. In 2003, former President Arnoldo Aleman (1997-2002) was prosecuted by the Administration of President Enrique Bolanos (2002-2007) for embezzling about $100 million in public funds while in office. The effort was particularly notable because Bolanos and Aleman not only belonged to the same political party, the conservative Liberal Constitutional party (PLC), but Bolanos also served as Aleman's Vice-President until he stepped down to run for President. Aleman was sentenced to 20 years in prison for fraud and money-laundering. In December 2006 U.S. federal officials seized $700,000 in certificates of deposit they said were bought for Aleman with Nicaraguan government funds. Nonetheless, Aleman continues to control the Liberal party. His supporters have tried continually to secure his release and an amnesty. He has served his term under increasingly lax terms, and was released under very broad terms in March 2007 after Ortega took office. The 2006 elections followed more than a year of political tensions among then-President Bolanos, the leftist Sandinista party, and allies of rightist former President Aleman. Aleman and Ortega, once longtime political foes, negotiated a power-sharing pact ("El Pacto") in 1998 that has since defined national politics. Their parties passed laws making it difficult for other parties to participate in elections, and otherwise facilitated an alternating of terms between their two parties. Their ongoing influence made governing increasingly difficult for President Bolanos, who had limited legislative support. In 2004, renegotiation of the pact included a demand for Aleman's release. In October 2004 the Organization of American States (OAS) sent a special mission to Nicaragua to encourage all parties to preserve and follow democratic order there. In January 2005, the two parties adopted a series of constitutional amendments that transferred presidential powers to the legislature, and further divided up government institutions as political patronage, moves the Central American Court of Justice ruled illegal. During the height of tensions, President Bolanos invoked the OAS Inter-American Democratic Charter, and the OAS sent several high-level delegations to help negotiate a solution. Negotiations in October 2005 considerably reduced tensions and provided for President Bolanos, who had been isolated by his anti-corruption efforts against Aleman, to serve the remainder of his term, which expired in January 2007. Ortega announced he was breaking the power-sharing pact between his party and the PLC that had hampered Bolanos' ability to govern. After Ortega's announcement, the legislature passed reforms such as the passage of the 2006 budget, the first-ever tax code, local government transfers, and financial administration reforms. Ortega and Bolanos then agreed to postpone the implementation of the constitutional amendments at the root of the tensions. Politics remained volatile in 2006, but for a different reason, as attention shifted to national elections held on November 5, 2006. The FSLN and PLC still control many state institutions, however, including the electoral authority, and opposition parties and others expressed concern that the two parties would use those posts to manipulate the electoral outcome. Concerns remain that the two parties will use their dominance of state institutions to manipulate state power in their favor. Three elements were key to Ortega's victory: a change in Nicaraguan electoral law, an effective political machine, and a divided opposition. The Sandinistas negotiated a change in the electoral law with then-President Aleman's party eliminating the requirement that a candidate gain 45% of the vote to avoid a run-off election. The new law requires that a presidential candidate win either 40% of valid votes, or 35% of the vote plus at least 5% more votes than the second-place candidate in order to win in a first round. Failing that, a run-off vote between the top two candidates is held. Many observers saw this lowering of the threshold as part of the Pact alternating power between the PLC and FSLN. The lower percentage required to win in the first round facilitated the election of Ortega, whose support in the previous three presidential elections had hovered around 40%. Analysts believed Ortega felt it was critical he win in a first round, because the opposition would unite against him in a second round. Ortega won only 37.9% of the vote, but was able to avoid a run-off vote because he was 9.6% ahead of the next closest candidate, Eduardo Montealegre of the Nicaraguan Liberal Alliance (ALN). Ortega also had the advantage of an extremely well-disciplined party. Critics say he forced out members seeking reform, and made the party into a platform for his personal ambitions. In addition, Ortega ensured through his position as opposition leader in the legislature and through the Pact that FSLN loyalists were firmly entrenched throughout various government agencies. According to polls prior to the vote, about 60% of voters said they would not vote for Ortega. This held true in the final vote, but the opposition was divided in 2006 among four candidates. In the 2001 presidential elections, Ortega received 40% of the vote, but faced a united opposition and lost. Montealegre, who gained 28.3% of the vote, is a Harvard-educated banker and former finance minister. He says he offered to run as the vice presidential candidate for the conservative Constitutional Liberal party (PLC) party to prevent further splintering of the opposition. When Aleman refused to remove himself from the political scene, however, Montealegre split from the PLC, formed the ALN, and advocated continued political reform. He was regarded by many as the U.S.-favored candidate. Montealegre's second place position garnered him a seat in the legislature. The PLC then came in third place with 26.2% for candidate Jose Rizo, an ally of Aleman and critic of President Bolanos. Edmundo Jarquin registered a distant fourth place at 6.4%. Jarquin, an economist who worked at the Inter-American Development Bank, became the presidential candidate of the center-left Sandinista Renewal Movement (MRS) when nominee Herty Lewites died suddenly in July 2006. The son-in-law of former President Violeta Chamorro (1990-1997), Jarquin chose popular singer and composer Carlos Mejia Godoy as his running mate. The two candidates are prominent former Sandinistas who left the FSLN in opposition to Ortega and in favor of political reform, joining other like-minded former Sandinistas in the splinter party, the MRS. Eden Pastora, another disaffected one-time Sandinista leader, won less than half a percent of the vote as head of the Alternative for Change (AC) party. The 90-member National Assembly was also elected. No party won an outright majority. The FSLN has 38 seats, the PLC 25, the ALN 22, and the MRS 5. Pastora's AC won no seats. Voters also chose 20 members of the Central American parliament in the November 5 elections. The United States provided $15.3 million to support the 2006 elections in Nicaragua. Critics accused both U.S. officials and Venezuelan President Hugo Chavez of trying to influence the election's outcome. The U.S. embassy was criticized for making critical remarks, such as alluding to Ortega and Rizo as "two corrupt bosses." After U.S. officials voiced their opposition to Ortega, support for him increased. U.S. Ambassador Paul Trivelli, asserting a right to express his opinion, rejected calls to stop commenting on the elections. A prominent figure in the Iran-Contra scandal was also accused of interfering in the elections. Oliver North, a former Reagan Administration aide who manipulated the funding of the Nicaraguan contras by selling arms to Iran, appeared in Nicaragua to support Rizo's candidacy. Ambassador Trivelli, who has criticized Rizo's PLC as undemocratic and corrupt, publicly distanced himself from North, saying North spoke only as a private citizen, not for the U.S. government. Other analysts were baffled by North's position: while condemning Ortega as the worst thing that could happen to Nicaragua, he backed the candidate whose party was essentially governing with Ortega through a political pact. Critics say Chavez was indirectly supporting Ortega's campaign by providing fertilizer and oil to certain municipalities under favorable terms through Sandinista-dominated organizations. The Venezuelan state oil company signed the agreement to supply oil at preferential rates and with a deferred payment schedule, for example, with the Nicaraguan Association of Municipalities, a predominantly Sandinista association of mayors, rather than with the Nicaraguan government. Regional elections were held on the Atlantic Coast earlier in the year, on March 5, 2006. According to the State Department, problems there included voter identification card distribution, errors in the voter registry, lack of voter education, inadequate voting materials, and poorly trained electoral officials. Domestic and international observation groups were seen as essential to ensuring the transparency and credibility of the regional elections, and later, for the national elections as well. Most of the problems experienced at the regional level were evident at the national level. A non-governmental group providing electoral support expressed concern that more than a third of Nicaraguans could have been disenfranchised in the November elections, a number that could have affected the outcome of the elections. An audit by a Nicaraguan election observation group, Ethics and Transparency, revealed a high rate of errors on voter registry lists, and only about 28% of voters participated in a drive to verify and correct the lists. Concern over the elections was due in large part to the fact that the FSLN and PLC controlled many state institutions, including the electoral authority. As a result of the 2000 power-sharing pact, the electoral council in charge of running the elections consisted of three PLC members, three FSLN members, and a consensus president chosen by the two parties. International and domestic observation groups pressed the government to address problems during the pre-election process such as a high rate of errors on voter registry lists, and difficulty getting voter identification cards needed to vote. The OAS found that 200,000 citizens still did not have the cards less than a month before the elections, and told the government to issue them. Some 18,000 observers monitored the elections. International observer missions, such as those from the OAS and the European Union, concluded that the irregularities that occurred did not affect the outcome. The observer missions generally agreed with the conclusion reached by the OAS electoral observer mission, that the election was "peaceful and orderly, had a massive turnout and took place in accordance with the law." FSLN leader Daniel Ortega was inaugurated President on January 10, 2007 for a five-year term Over the years, Ortega has changed his image from Marxist revolutionary and protagonist in a proxy Cold War battle with the United States to a practicing Catholic preaching peace and reconciliation. The other candidates presented themselves as a vote against Ortega, and some warned of a return to forced conscription and food shortages if he were re-elected. Although the opposition together garnered over 60% of the vote, it was divided among four candidates, and Ortega was able to win with less than 40% of ballots cast. What Ortega's government positions on many issues will be is unclear, as he still has not provided coordinated policy plans for major areas such as the economy, energy, or poverty reduction. Conversations between Ortega and U.S. officials, including President Bush, indicate both sides are seeking a cooperative relationship. Nonetheless, since taking office, Ortega has continued to vacillate between populist, anti-U.S. rhetoric, and pragmatic reassurances that his second administration will respect private property and pursue free-trade policies. His cabinet appointments include both Sandinista loyalists and supporters of a free market economy. He has close ties with Venezuelan President Hugo Chavez, who advocates a leftist, populist alliance in the Americas to counter U.S. influence in the region. Venezuela is reportedly providing Nicaragua with energy assistance--including research into constructing an oil refinery in Nicaragua--and promising sizeable development assistance. But Ortega's Vice President Jaime Morales, spokesman for the anti-Sandinista contras during the 1980s, has resumed talks with the International Monetary Fund, of which Chavez is highly critical, regarding a new Poverty Reduction and Growth Facility plan. The Ortega Administration says it seeks a plan which will place greater emphasis on social priorities than previous plans. The amendments passed and then postponed by the previous legislature, in which Ortega was opposition leader of the FSLN, would have transferred significant executive powers, including controlling Cabinet appointments, to the legislature in February 2007. The new legislature voted in January 2007 to postpone them again, however, for another year, until January 2008. Montealegre, now serving as head of the opposition, said he advocated postponing them in part because implementing them as they are now would give control of new institutions and more patronage jobs to the FSLN and the PLC. The legislature established a commission for constitutional reforms that will look at the reforms currently on hold, plus others being proposed. The ALN is advocating a provision barring presidential reelection. The FSLN says it supports unlimited presidential re-election. The Ortega Administration also proposed in January a bill that would create "people's councils" and give direct control of the police to the President. The National Assembly approved the bill, but weakened Ortega's proposals. Critics feared the people's councils resembled defense committees that operated during the 1980s Sandinista government and reportedly acted as spies and enforcers of FSLN doctrine. The new councils will have less power and more of a consulting role under the new law. The bill that passed gave Ortega greater control over the police, but not as much as he had proposed. In March 2007 the Ortega government released former President Aleman from the conditions of his parole, allowing him to travel freely throughout the country. Many critics see this as evidence that he still operates under the power-sharing pact with Ortega, and believe that his release was a reward for contributing to the split in his party and facilitating Ortega's election. Aleman said he would like to be president again. Some Members of Congress have criticized the Administration's reduced levels of some funding to Latin America, including to Nicaragua. The Administration proposes to reduce aid to Nicaragua by 40%, from $47.583 million in FY2006 to $29.375 million in 2008, a decrease of $18.2 million. The Administration notes, however, that it has supported forgiveness of Nicaraguan debts, and is providing significant amounts of aid through the Millennium Challenge Account (MCA) (see " Development and Poverty Reduction ," below). The Administration's five-year MCA agreement of $175 million represents $35 million per year. Some analysts argue that the Administration had said MCA funds would be in addition to traditional aid provided mostly through the U.S. Agency for International Development (USAID), not instead of it. In its Congressional Budget Justification for FY2008, the Administration describes 2008 as a "critical year for Nicaragua," as Ortega--who the Administration says still controls the "anti-democratic 'pact'" with former President Aleman--completes his first year in office and the implementation of CAFTA-DR "hopefully hits its stride." Programs seeking to promote good governance and maximize the benefits of the U.S.-Dominican Republic-Central America Free Trade Agreement (CAFTA-DR) would be significantly reduced under this proposal. Programs to promote "Governing Justly and Democratically" would be cut by more than 50%, from $10 million to $4 million. Programs promoting "Economic Growth" would be reduced by about a third, from $17.3 million to $11.3 million. "Investing in People" programs, focusing on education, and environmental protection and social safety nets related to CAFTA-DR, would be cut by a third, from $18.6 million to $11.7 million. Aid under two smaller groups of programs would increase. Peace and security programs would increase from $1.3 million to $2.2 million. These programs would include reducing the threat posed by excess weapons and improving civilian control over the military. Humanitarian assistance to improve disaster preparedness and mitigation would increase from $0.0 to $200,000. Between 1990 and August 2006, the United States forgave $389.7 million in Nicaraguan debt. As of December 31, 2005, Nicaragua owed the U.S. $20.5 million. In March 2007, the Inter-American Development Bank approved 100% debt relief for several countries, including $984 million in debt relief for Nicaragua. The Bush Administration supported the decision. Nicaragua is the second poorest nation in the hemisphere, rating only above Haiti. Nicaragua's poverty is widespread and acute. Some social indicators have shown little or no improvement since 1993. According to a recent World Bank report, overall poverty declined in Nicaragua between 1993 and 2001, but more than two-thirds of the rural population continue to live in poverty. The official unemployment rate is about 12%, with another 35% underemployed, though estimates vary. In 2005, the Bush Administration signed a five-year, $175 million agreement with Nicaragua under the Millennium Challenge Account to promote rural development. The programs are focusing on the regions of Leon and Chinandega. According to the Bush Administration, the MCA projects will reduce poverty and spur economic growth by reducing transportation costs and improving access to markets for rural communities; increasing wages and profits from farming and related enterprises in the region; and increasing investment by strengthening property rights. Ortega has not yet stated the policies his government proposes to achieve his stated goal of ending poverty. He did, however, say that the United States should pay at least $300 million to support former "contras" whom the Reagan Administration funded to fight Ortega's first government in the 1980s. The rebels seek housing, land, and credits. The top U.S. priority in Nicaragua, according to the Administration's FY2008 budget request, is "strengthening and consolidating democracy." U.S. programs in the requested "Governing Justly and Democratically" component of U.S. aid would support the structural reform of government institutions to make them more transparent, accountable and professional; combat corruption; and promote the rule of law. They also aim to increase citizen advocacy and the role of the media in order to "blunt" Nicaragua's caudillo-style political practices. In January 2007, the legislature passed a bill proposed by President Ortega concentrating political power in the executive branch and another delaying implementation of constitutional changes which would have given more power to the legislature until January 2008. A commission for constitutional reforms will reexamine the passed package and look at new reform proposals from all the parties. The FSLN has suggested it will propose a reform to allow unlimited presidential re-elections. Current law allows re-election, but only in non-consecutive terms. U.S. officials have also expressed concern regarding improving respect for human rights. According to the State Department's 2006 Human Rights report, released in March 2007, civilian authorities generally maintained effective control of security forces, but there were some reports of human rights abuses involving the police. The most significant human rights abuses included harsh prison conditions; widespread corruption in and politicization of government entities, including the Office of Human Rights Ombudsman, the judiciary, and the Supreme Electoral Council. According to Amnesty International, the inadequate response by authorities to high levels of violence against women was a major concern. Violence against children was also a concern expressed by human rights reports. Journalists were harassed and abused. Human rights problems related to labor issues include widespread child labor and violation of worker rights in free trade zones. Human rights and other groups expressed concern over the National Assembly's passage of a law in October 2006 that made abortion illegal and punishable by imprisonment even when done to save a pregnant woman's life, or the pregnancy is a result of rape or incest, conditions under which abortion had been legal since 1893. International organizations, including the UN, criticized the legislature for passing the bill during the highly politicized period just before the presidential elections. The Sandinistas, who had previously supported a woman's right to abortion, supported the penalization of abortion. Many observers saw the move as an effort by the party to garner Catholic votes for Ortega. In January human rights activists asked the Supreme Court to declare the law unconstitutional on grounds that it violates fundamental rights and principles. The National Assembly approved the U.S.-Dominican Republic-Central America Free Trade Agreement (CAFTA-DR) in October 2005 and passed related intellectual property and other reforms in March 2006. It went into effect on April 1, 2006. CAFTA-DR supporters say the agreement will promote economic growth, create jobs, and increase exports to the United States. In 2005, Nicaraguan exports to the United States were $275 million; they increased almost 40 percent in the second quarter of 2006 following the introduction of CAFTA-DR-related tariff reductions. U.S. imports to Nicaragua totaled $522 million, and also are expected to increase under the pact. President Ortega has said he will honor the CAFTA-DR agreement. Immigration is a contentious area in U.S.-Nicaraguan relations. In December 2005, the U.S. House of Representatives passed a bill ( H.R. 4437 ) that would make unlawful presence in the United States a criminal, rather than a civil offense. In January 2006, Nicaragua joined the Mexican and other Central American governments in criticizing such efforts to toughen immigration laws and in demanding guest-worker programs and other immigration reforms. The 2000 U.S. census reported about 220,000 Nicaraguans living in the United States. Of those, 21,000 were estimated to be "unauthorized." In late February 2006, the Department of Homeland Security extended Temporary Protected Status (TPS) for about 4,000 eligible Nicaraguans living in the United States until July 5, 2007. During his March 2007 trip to Latin America, President Bush said he would support new legislation to give legal status to millions of undocumented immigrants through temporary worker programs, and said he would seek its passage through Congress by August 2007. Resolution of property claims by U.S. citizens has been a contentious area in U.S.-Nicaraguan relations for decades, since the Sandinista regime expropriated property in the 1980s. The Nicaraguan government has gradually settled many claims through compensation since 1995, including the claims of 4,400 U.S. citizens. About 760 claims registered with the U.S. embassy remain unresolved. Nicaragua passed a law creating a new Property Institute that could lead to the dismissal of property claim lawsuits arising from Sandinista-era expropriations. The law is part of the constitutional reform package now on hold until January 2008. The Bush Administration suspended military assistance to Nicaragua in March 2005. It resumed providing assistance in October 2005 after an agreement was reached to destroy an arsenal of anti-aircraft missiles the Administration says constitutes a possible terrorist threat. The National Assembly also promised to schedule debate on a law authorizing the missiles' destruction. After being held up for many months, the bill was suddenly brought up for a vote on July 13, 2006. Sandinista legislators walked out in protest. PLC and ALN legislators passed a bill lowering the threshold needed to approve the destruction of weaponry to a simple majority. They did not, according to the U.S. embassy, vote on the destruction of the missiles, which the current government will not consider unless it is linked to a reduction of military strength throughout Central America. Nicaragua and the United States are participating in regional security efforts. Nicaragua hosted a meeting of hemispheric defense chiefs in October 2006; then-U.S. Secretary of Defense Donald Rumsfeld participated. Defense officials at the Eighth Central American Security Conference held in April 2007 discussed regional initiatives regarding security issues such as organized crime and transnational trafficking in small arms, drugs, and humans. Congress has also expressed concern over improving civilian control over defense policy. USAID peace and security programs include efforts to reduce the threat posed by excess weapons and improve civilian control over the military. Nicaragua is a significant sea and land transshipment point for cocaine and heroin being shipped from South America primarily to the United States and Canada, according to the State Department's 2007 Narcotics Control Report. Trafficking has been mostly through the Atlantic coast, which is geographically and culturally isolated from the rest of the country. In response to increased law enforcement efforts there, however, traffickers shifted their operations in 2006 to the Pacific coast, where the State Department estimates that three-fourths of drug trafficking now occurs. Its report said the Nicaraguan government "is making a determined effort to fight both domestic drug abuse and the international narcotics trade, despite an ineffectual, corrupt, and politicized judicial system." The Ortega Administration has promised to participate in counternarcotics efforts, and called on the United States to do more to combat trafficking.

Sandinista leader and former President Daniel Ortega was inaugurated to a five-year term as President on January 10, 2007. Three elements were key to Ortega's victory in the November 2006 presidential election: a change in Nicaraguan electoral law, an effective political machine, and a divided opposition. Ortega won only 37.9% of the vote, but was able to avoid a run-off vote because he was ahead of the next closest candidate, Eduardo Montealegre of the Nicaraguan Liberal Alliance (ALN), by more than the 5% required by law. Montealegre, who gained 28.3% of the vote, was regarded by many as the U.S.-favored candidate. His second place position garnered him a seat in the legislature. The Liberal Constitutional party (PLC) then came in third place with 26.2% for candidate Jose Rizo, an ally of the corrupt former President, Arnoldo Aleman. Critics accused both U.S. officials and Venezuelan President Hugo Chavez of trying to influence the election's outcome. Ortega was a leader of the Sandinista National Liberation Front (FSLN) when it overthrew the Somoza family dictatorship in 1979. When the pro-Soviet Sandinistas gained control of the government the United States backed opposition "contras" who launched an eight-year war (1982-1990) against the government. Ortega's government agreed to democratic elections in February 1990, which he lost. Since 1990 Nicaragua has developed democratic institutions and a framework for economic development. Nonetheless, significant challenges remain: Nicaragua is still very poor, the second poorest nation in the western hemisphere. Its institutions are weak and widely viewed as corrupt. In his first three months in office, Ortega has continued to vacillate between anti-U.S. rhetoric and pragmatic reassurances that his second administration will respect private property and pursue free-trade policies, as he did during his campaign. Ortega and U.S. officials have indicated that both sides are seeking a cooperative relationship, however. There is debate among some Members and the Administration over what the appropriate level and focus of U.S. aid to Nicaragua should be. The Administration says its top priority in Nicaragua is consolidating democratic processes, including reforming the judicial system, implementing good governance, and combating corruption. Another issue is promoting development and poverty reduction; the Millennium Challenge Account compact between the two countries focuses on reducing rural poverty through road-building, increased wages, and strengthening property rights. Supporting the U.S.-Central America-Dominican Republic Free Trade Agreement (CAFTA-DR) is the dominant trade issue; President Ortega has said he will honor the agreement. Resolution of property claims by U.S. citizens and immigration are contentious areas in U.S.-Nicaraguan relations. Other issues in U.S.-Nicaraguan relations include improving respect for human rights, improving civilian control over defense policy, the state of Nicaraguan missiles, and increasing Nicaragua's capacity to combat transnational crimes such as narcotics trafficking. This report will not be updated.

The Corporation for Public Broadcasting (CPB) was incorporated in 1967 as a private nonprofit corporation under the authority of the Public Broadcasting Act of 1967 (P.L. 90-129). CPB funding promotes public television and radio stations and their programs. These CPB-funded stations reach virtually every household in the United States. CPB is the largest single source of funding for public television and radio programming. Most CPB-funded television programs are distributed through the Public Broadcasting Service (PBS), created in 1969 by CPB. CPB-funded radio programs are distributed primarily through National Public Radio (NPR), created in 1970 by CPB. Both PBS and NPR are private, not-for-profit corporations. The number of radio and television public broadcasting stations supported by CPB increased from 270 in 1969 to 1,495 in 2016, of which 364 are television stations. Public broadcasting stations are run by universities, nonprofit community associations, state government agencies, and local school boards, all of which are licensed by the FCC. CPB is a nonprofit private corporation and is guided by a nine-member board of directors. These directors are appointed by the President with the advice and consent of the Senate. The directors serve for staggered six-year terms. The current chairman is Lori Gilbert, reappointed by President Obama and confirmed by the Senate in August 2013. CPB's principal function is to receive and distribute the federal appropriation in accordance with the Public Broadcasting Act, supporting qualified public radio and television stations and funding national content. Seventy percent of the federal appropriation is used to provide Community Service Grants (or CSGs) to stations that meet specified eligibility criteria. CPB exercises minimum control of program content and other activities of local stations, and is prohibited from owning or operating any of the primary facilities used in broadcasting. In addition, it may not produce, disseminate, or schedule programs. The current president and CEO of CPB is Patricia de Stacy Harrison, appointed by the board of directors in June 2005. Approximately 15% of public television and 10% of radio broadcasting funding comes from the federal appropriations that CPB distributes. However, among individual public broadcasting stations, the amount of federal dollars that contributes to a station's annual budget depends on the funds it receives from nonfederal sources; the number and extent of broadcast transmitters required to service its coverage area; the extent to which a station is serving rural areas and minority audiences; and whether or not it is a television or radio station. While federal funding for CPB primarily comes from the Departments of Labor-Health and Human Services-Education appropriations bill as a separate entry under the "Related Agencies" section of that bill, it may receive other sources of funding from the federal government. For example, on September 8, 2015, CPB and PBS received a five-year Ready to Learn (RTL) grant from the Department of Education's Office of Innovation and Improvement, which supports the development of educational television and digital media targeted at preschool and early elementary school children. According to the CPB, for the last year data are available, the RTL grant was funded for FY2016 at $25.741 million. The CPB received approximately $18 million, and Twin Cities Public Television received the rest of the grant. Under RTL, CPB receives the grant money and then partners with PBS for RTL content production. PBS was created by CPB in 1969 to operate and manage a nationwide (now satellite) program distribution system interconnecting all the local public television stations, and to provide a distribution channel for national programs to those public television stations. Although PBS does not produce programs for its members, it aggregates funding for the creation and acquisition of programs by and for the stations, and distributes programs through its satellite distribution system. Paula Kerger became the sixth and current president and CEO of PBS in March 2006. For radio, a different division of responsibilities was established. CPB created National Public Radio (NPR) in 1970 as a news-gathering, production, and program-distribution company governed by its member public radio stations. Unlike its public television counterpart, NPR is authorized to produce radio programs for its members as well as to provide, acquire, and distribute radio programming through its satellite program distribution system. NPR Inc., located in Washington, DC, provides these administrative operations. On July 2014, Jarl Mohn became the current president and CEO of NPR. After the firing of Juan Williams, a news analyst for NPR, in October 2010, NPR Inc. announced that its board of directors had accepted several recommendations to provide greater clarity and transparency for its code of ethics regarding NPR employees. These include reviewing and updating of policies and training with respect to the role of NPR journalists appearing on other media outlets, reviewing and defining their roles (including those of news analysts) in a changing news environment, and encouraging a broad range of viewpoints to reflect the diversity of NPR's national audiences. At the same time these recommendations were announced, Ellen Weiss, vice president of news for NPR, resigned; it was also announced that Vivian Schiller, then president and chief executive at NPR, would not receive a bonus for 2010. On March 9, 2011, Ms. Schiller resigned, over continued scrutiny and criticism over NPR's handling of an incident regarding Ronald Schiller (no relation) in a taped interview. These incidents brought intense scrutiny to NPR from public policymakers. NPR currently employs 828 people, and has an operating budget of $193 million. There are 1,076 stations broadcasting NPR programming; of these 116 are non-NPR members. Approximately 42 million people listen to NPR stations weekly; 3.7 million users download NPR podcasts weekly. The Obama Administration requested a $445 million appropriation for CPB submitted in its FY2017 budget request. The vehicle that is used to provide appropriations to CPB is the Departments of Labor-Health and Human Services-Education bill. On June 9, 2016, the Senate Appropriations Committee approved, 29-1, S.Rept. 114-274 , the FY2017 Labor-HHS-Education Appropriations bill. Among its provisions is $445 million for CPB in 2019. On May 5, 2017, President Trump signed P.L. 115-31 , the Consolidated Appropriations Act of 2017, which maintained FY2017 funding for CPB through the rest of the fiscal year. On May 23, 2017, the Trump Administration released its FY2018 budget request. It calls for the elimination of federal funding for CPB for FY2018 and beyond; however, $30 million is requested for the orderly closeout of federal funding for CPB in FY2018. (For funding levels, see Table 1 .) From the last year of available information, the U.S. public broadcasting system--comprised of the national public radio and television stations--reported total revenue of $3.05 billion in FY2015. According to CPB, for public broadcasting revenue by source, CPB funds made up 14.6% of the total; another 1.2% came from federal grants and contracts. The remaining 84.3% was raised from nonfederal sources (including individuals, businesses, foundations, state and local governments, and educational institutions). The largest single income source (31.0% in FY2015) came from membership. Federal appropriations which go through CPB to the individual public radio and television stations generally are designated as unrestricted federal funds. CPB distributed $69.31 million in FY2014 funding to public radio stations that qualify for its Community Service Grant program. However, member stations also pay NPR fees for content and programming; some contend that federal grant money is supporting part of the revenue streams back to NPR Inc. A history of CPB appropriations is presented in Table 1 . Additional information on both NPR and PBS funding may be obtained at their respective websites ( http://www.npr.org and http://www.pbs.org , respectively). There was significant legislative interest and activity regarding federal funding for CPB from the end of the 111 th Congress through the 112 th Congress. During the 111 th Congress, Representative Lamborn (CO) introduced H.R. 5538 , a bill that would have eliminated federal funding for CPB after FY2012. This bill was referred to the House Committee on Energy and Commerce. During the "lame duck" period of the 111 th Congress in November 2010, Representative Lamborn sought to have his bill considered for floor action in the House, but this action was defeated by a vote of 239-171. In response, Representative Earl Blumenauer (OR) defended public broadcasting by stating that "National Public Radio is one of the few areas where the American public can actually get balanced information." On January 5, 2011, Representative Lamborn introduced H.R. 68 (To amend the Communications Act of 1934 to prohibit Federal funding for the Corporation of Public Broadcasting after FY2013) and H.R. 69 (To prohibit Federal funding of certain public radio programming, to provide for the transfer of certain public debt, and for other purposes). The first bill, like its predecessor H.R. 5538 , would have eliminated federal appropriations for CPB when its two-year advanced funding ends. The second bill would have prohibited federal funding to organizations incorporated for specified purposes related to (1) broadcasting, transmitting, and programming over noncommercial educational radio broadcast stations, networks, and systems; (2) cooperating with foreign broadcasting systems and networks in international radio programming and broadcasting; (3) assisting and supporting such noncommercial educational radio broadcasting pursuant to the Public Broadcasting Act of 1967; or (4) acquiring radio programs from such organizations. In effect, it would have prohibited any individual public radio station from using federal funding to engage in transactions with NPR Inc. Both bills were referred to the House Committee on Energy and Commerce. On January 11, 2011, NPR Inc. responded to the two bills by stating, in part: "The proposal to prohibit public radio stations from using CPB grants to purchase NPR programming interjects federal authority into local station program decision-making. Furthermore, restrictions on the authority of CPB--a Congressionally chartered, independent, nonprofit organization--to make competitive grants to NPR, or any other public broadcasting entity, is misguided." Other legislation was introduced addressing federal support for public broadcasting. On January 7, 2011, Representative Kevin Brady introduced H.R. 235 (Cut Unsustainable and Top-Heavy Spending Act of 2011 or the CUTS ACT), which provided that all unobligated balances held by the CPB that consist of federal funds be rescinded and no federal funds appropriated hereinafter shall be obligated or expended. On January 24, 2011, Representative Jim Jordan introduced H.R. 408 (Spending Reduction Act of 2011), which would have reduced federal spending by $2.5 trillion through FY2021 in part by eliminating the CPB. On March 15, 2011, Representative Lamborn introduced H.R. 1076 , a bill to prohibit the funding of National Public Radio and restrict the use of federal funds for member stations to acquire NPR broadcasting content. The House Rules Committee passed H.Res. 174 , which permitted H.R. 1076 to go directly to the floor and, without any points of order or amendments, be open to one hour of debate before a full vote in the House of Representatives. H.R. 1076 passed the House 228-192, and was referred to the Senate. No further action was taken on this bill. Other proposals in the 112 th Congress addressed federal funding for public broadcasting. On January 20, 2011, the Republican Study Group, a conservative caucus comprised of 100 Members of Congress, released its list of proposed budget cuts, including elimination of CPB's appropriations starting in FY2012. At the same time, Representative Ryan (WI), the chairman of the House Committee on the Budget for the 112 th Congress, proposed a new continuing resolution that would have set the rest of the FY2011 budget at FY2008 levels (excluding defense, homeland security, and veterans' programs). In the 113 th Congress, several bills were introduced addressing the Corporation for Public Broadcasting, National Public Radio, the Public Broadcasting System, and issues related to these institutions and their funding. H.R. 2597 , a bill To Prohibit Federal Funding of National Public Radio and the Use of Federal Funds to Acquire Radio Content (Lamborn), was introduced on July 5, 2013, and was referred to the House Subcommittee on Communications and Technology of the Energy and Commerce Committee. As the title indicates, this bill would have eliminated all direct federal funding for NPR as well as federal funding to sell or acquire NPR-based programming content. H.R. 2647 , the Emergency Information Improvement Act of 2013 (Higgins), was introduced on July 10, 2013, and referred to the House Subcommittee on Economic Development, Committee on Public Buildings and Emergency Management. The bill would have revised disaster relief law to include public broadcasting facilities, among other provisions. On July 11, 2013, S. 1284 , the Departments of Labor, Health and Human Services, and Education and Related Agencies Appropriations Act, 2014 (Harkin), was introduced and placed on the Senate Legislative calendar. In this bill, the congressional request for CPB in FY2016--the forward two-year appropriation--was $45 million. This bill was incorporated into H.R. 3547 , the Consolidated Appropriations Act of 2014, and signed into law on January 17, 2014 ( P.L. 113-76 ). FY2019 appropriations for CPB were addressed in both the House and Senate FY2017 Labor-HHS-Education bills ( S. 3040 , H.R. 5926 ); both the House and the Senate approved a $445 million funding level for CPB. However, there is a Continuing Resolution for FY2017, P.L. 114-254 , which was signed into law by President Obama on December 9, 2016. The Trump Administration has requested zero funding for CPB in FY2018. On January 30, 2017, Representative Lamborn introduced H.R. 726 (A Bill To Prohibit Federal Funding of National Public Radio and the Use of Federal Funds to Acquire Radio Content) and H.R. 727 (To Amend the Communications Act of 1934 to Prohibit Federal Funding for the Corporation for Public Broadcasting After Fiscal Year 2019). Both bills were referred to the House Energy and Commerce Committee's subcommittee on Communications and Technology . In an age of multiple cable channel options, digital radio, and computerized digital streaming, some ask whether there is a need for federal appropriations to support public broadcasting. The array of commercial all-news radio and radio talk shows, many of which are also streamed on the Internet, provides various sources of news and opinion. Supporters of public broadcasting argue that public radio and television broadcasters, free of commercial interruption, provide perhaps the last bastion of balanced and objective information, news, children's education, and entertainment in an era of a changing media landscape. Still others contend that public broadcasting has lost much of its early impact since the media choices have grown so much over the last several decades and that the federal role in public broadcasting should be reevaluated as well. Supporters of public broadcasting contend that public radio and public television provide education and news to many underserved parts of the American population. Public broadcasters may provide this service to an underserved and less commercially attractive population that commercial broadcasters do not address. For example, PBS broadcasting for children includes lessons in reading, counting, and spelling, subjects not normally found on commercial broadcasts. According to NPR Inc., approximately 90% of public radio stations provide local newscasts, airing both newscast and non-newscast content (primarily in weekday drive times and especially during morning drive time). About half of all public radio stations carry local news during the weekends, says NPR, and 74% of stations are producing and inserting stories into their programming. On June 20, 2012, the CPB released a report, Alternative Sources of Funding for Public Broadcasting Stations. The report was undertaken in response to language in the Military Construction and Veterans Affairs and Related Agencies Appropriations Act of 2012 directing the CPB to provide a report to congressional appropriations committees on alternative sources of federal funding for public broadcasting stations. ( H.R. 2055 , P.L. 112-74 ). The report, undertaken by the consulting firm of Booz & Company, provides several alternative or new funding options for public broadcasting stations, with possible benefits as well as liabilities for each option. Five options considered by Booz & Company are television advertising, radio advertising, retransmission consent fees, paid digital subscriptions, and digital game publishing. In addition, 14 current sources of revenue streams already employed by public broadcasting, ranging from merchandise licensing to mobile device applications, were also analyzed as options to replace federal funding for public broadcasting. Booz & Company found "there is simply no substitute for the federal investment" in public broadcasting and that "Ending federal funding for public broadcasting would severely diminish, if not destroy, public broadcasting service in the United States." The report concludes that if the existing public broadcasting structure were commercialized, the new revenue streams would not offset the loss of federal funding, and that many public broadcasters would have to deviate from their statutory service mission or compete for advertising with established commercial broadcasters in a difficult economic environment. Still, some critics contend that the report substantiates criticisms of the public broadcasting model: required to compete with commercial television and radio broadcasters that also provide news and entertainment, many public broadcasters could not adapt to a changing media world that provides multiple sources of information and entertainment. For these critics, if many public broadcasters struggle to operate with budget deficits even with federal funding available, what does that say about the need and viability of these stations in a multimedia world, or the ability of their audiences to sustain this business model going forward? Several important issues are facing congressional policymakers as they address federal appropriations for all forms of public broadcasting. On the most fundamental level, many question the 1967 law that created the national public broadcasting system and whether the federal government should be in the "business" of providing general appropriations to CPB every year since 1969. They ask: is this still a relevant and appropriate role of the federal government? On a second level, some may contend that in an era of spiraling federal deficits, in which many (if not all) federal expenditures are being reexamined, appropriations for CPB should be reduced if not eliminated. Underlying this position are concerns that the federal role, once so clear in 1967, has been eclipsed in a multimedia Internet age; concerns that the size and scope of the federal government budget deficit requires significant cutbacks in many areas; and allegations that public broadcasting is not objective, balanced, or free of an ideological slant. These questions revolve around whether federal funding for public broadcasting should be continued at its current level; whether the funding should be modified or reduced; whether the arrangement between the federal funding process and public broadcasting should be changed; or whether federal funding for public broadcasting should be eliminated. Public broadcasting retains its strong supporters. Most federal appropriations go through CPB to directly support member stations of NPR, PBS, and other independent affiliates. Since, according to NPR, federal funding to supplement administrative functions amounts to less than 2% of its annual budget, some may question whether such a small amount is worthy of congressional action to eliminate federal funding. As indicated in Table 1 , CPB has consistently received increasing federal appropriations since 1969. Some would contend that this demonstrates a general consensus among congressional policymakers that there is a federal role in public broadcasting. In addition, public support of public radio and television broadcasting generally has been consistent as well. Supporters of a public broadcasting network system contend that local programming content is not determined by NPR Inc., or PBS, and that most content is local, serving community needs. Balanced against concerns about the role of the federal government in public broadcasting, as well as strong pressure to reduce federal spending, these issues will likely continue to be of interest to federal policymakers.

The Corporation for Public Broadcasting (CPB) receives its funding through federal appropriations; overall, about 15% of public television and 10% of radio broadcasting funding comes from the federal appropriations that CPB distributes. CPB's appropriation is allocated through a distribution formula established in its authorizing legislation and has historically received two-year advanced appropriations. Congressional policymakers are increasingly interested in the federal role in supporting CPB due to concerns over the federal debt, the role of the federal government funding for public radio and television, and whether public broadcasting provides a balanced and nuanced approach to covering news of national interest. It is also important to note that many congressional policymakers defend the federal role of funding public broadcasting. They contend that it provides news and information to large segments of the population that seek to understand complex policy issues in depth, and in particular for children's television broadcasting, has a significant and positive impact on early learning and education for children. On June 20, 2012, the Corporation for Public Broadcasting released a report, Alternative Sources of Funding for Public Broadcasting Stations. The report was undertaken in response to the conference report accompanying the Military Construction and Veterans Affairs and Related Appropriations Act of 2012 (incorporated into the Consolidated Appropriations Act, FY2012, H.R. 2055, P.L. 112-74). The CPB engaged the consulting firm of Booz & Company to explore possible alternatives to the federal appropriation to CPB. Among its findings, the report stated that ending federal funding for public broadcasting would severely diminish, if not destroy, public broadcasting service in the United States. The two-year advanced appropriations process for CPB means that in any given year congressional policymakers are considering what the CPB appropriations will be two years from that time. So as Congress continues to consider funding for the FY2017 fiscal year, that deliberation would include CPB funding for FY2019. On June 9, 2016, the Senate Appropriations Committee voted 29-1 to approve S.Rept. 114-274, the FY2017 Labor-HHS-Education Appropriations bill. Included in this report is $445 million for CPB in FY2019. On May 5, 2017, President Trump signed P.L. 115-31, the Consolidated Appropriations Act of 2017, which maintained FY2017 funding for CPB through the rest of the fiscal year. On May 23, 2017, the Trump Administration released its FY2018 budget request. It calls for the elimination of federal funding for CPB for FY2018 and beyond; however, $30 million is requested for the orderly closeout of federal funding for CPB in FY2018.

The admission of refugees to the United States and their resettlement here are authorized by the Immigration and Nationality Act (INA), as amended by the Refugee Act of 1980. The 1980 Act had two basic purposes: (1) to provide a uniform procedure for refugee admissions; and (2) to authorize federal assistance to resettle refugees and promote their self-sufficiency. The intent of the legislation was to end an ad hoc approach to refugee admissions and resettlement that had characterized U.S. refugee policy since World War II. Under the INA, a refugee is a person who is outside his or her country and who is unable or unwilling to return because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. In special circumstances, a refugee also may be a person who is within his or her country and who is persecuted or has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Excluded from the INA definition of a refugee is any person who participated in the persecution of another. The Bureau of Population, Refugees, and Migration (PRM) of the Department of State (DOS) coordinates and manages the U.S. refugee program, and U.S. Citizenship and Immigration Services (USCIS) of the Department of Homeland Security (DHS) makes final determinations about eligibility for admission. Refugees are processed and admitted to the United States from abroad. Separate provision is made in the INA for the granting of asylum on a case-by-case basis to aliens who are physically present in the United States or who arrive in the United States and who meet the definition of a refugee. After one year in refugee status in the United States, refugees are required to apply to adjust to lawful permanent resident (LPR) status. By law, the annual number of refugee admissions and the allocation of these numbers by region of the world are set by the President after consultation with Congress. Each year, the President submits a report to Congress, known as the consultation document , which contains the Administration's proposed worldwide refugee ceiling and regional allocations for the upcoming fiscal year. Following congressional consultations on the Administration's proposal, the President issues a Presidential Determination setting the refugee numbers for that year. Table 1 shows refugee admissions ceilings and regional allocations for FY2008-FY2019. The U.S. refugee program was greatly impacted by the terrorist attacks of September 11, 2001. In the aftermath of those attacks, a review of refugee-related security procedures was undertaken, refugee admissions were briefly suspended, and enhanced security measures were implemented. As a result of these and other factors, refugee admissions, which had totaled about 70,000 in FY2001, plunged to historically low levels in the years following the attacks. In FY2002, for example, actual admissions totaled 27,131. Admissions subsequently rebounded, as shown in Table 1 , exceeding 70,000 in each of FY2009 and FY2010. As also shown in Table 1 , however, there were significantly fewer admissions in FY2011 (56,424) and FY2012 (58,238). The FY2013 consultation document attributed the shortfalls in refugee arrivals in FY2011 and FY2012 largely to new security requirements. Refugee admissions increased in FY2013, and the FY2014 consultation document offered the following explanation for the increase: Refugee arrivals in FY 2013 are up sharply from the previous two years thanks to the concerted efforts of the many partners involved in U.S. resettlement... This success was made possible in part by better synchronization of security and medical checks for refugee families as well as investments in [the United Nations High Commissioner for Refugees'] ability to refer refugees from the Middle East and Africa. In FY2013, FY2014, and FY2015, refugee admissions fell just under each year's 70,000 ceiling. The FY2016 refugee ceiling was 85,000, and actual admissions that year were just below that number. The refugee ceiling for FY2017 was set at 110,000 by President Barack Obama. However, President Donald Trump issued two successive executive orders in January 2017 and March 2017 that "proclaim[ed] that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States." The March 2017 executive order, which revoked its predecessor, also directed the Secretary of State and the Secretary of Homeland Security to suspend the refugee admissions program for a period of 120 days. During the 120-day period, the Secretary of State, in conjunction with Secretary of Homeland Security, was tasked with reviewing refugee admissions procedures. On June 26, 2017, the U.S. Supreme Court ruled that, pending the resolution of ongoing litigation concerning the lawfulness of the March 2017 executive order, the provisions establishing the FY2017 50,000 refugee admissions limit and the 120-day refugee program suspension could take effect for all individuals except for those "who can credibly claim a bona fide relationship with a person or entity in the United States." The 120-day suspension was in effect from June 26, 2017, until its expiration on October 24, 2017. Actual refugee admissions in FY2017 totaled 53,716. During the suspension of the refugee admissions program, President Trump set the FY2018 refugee ceiling at 45,000, lower than the ceiling for any prior year. The FY2018 consultation document explained that DHS had decided to prioritize the processing of asylum cases over refugee cases that year: Delays in the timely processing of asylum applications are detrimental to legitimate asylum seekers. Furthermore, while a series of security checks are initiated when an asylum application is filed, lingering backlogs can be exploited and used to undermine the security and integrity of the country's asylum system. As such, in considering how to allocate its available resources for humanitarian work in FY 2018, DHS/USCIS is prioritizing adjudication of asylum cases to address this growing backlog, while still providing a portion of its resources to continue refugee processing activities. On October 24, 2017, President Trump issued another executive order on refugee admissions. It provided for the resumption of the refugee admissions program subject to certain conditions. The executive order referenced "special measures" that would be applied to "certain categories of refugees whose entry continues to pose potential threats to the security and welfare of the United States." It also indicated that the Secretary of State and the Secretary of Homeland Security would continue to "assess and address any risks posed by particular refugees." To this end, the executive order directed the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, to determine within 90 days of the date of the order, and annually after that, whether any steps taken to address the risks posed by the admission of any category of refugees should be modified or terminated. The order further authorized the Secretary of Homeland Security to implement any such modifications or terminations. A DOS fact sheet issued the same day as the executive order explained that DOS, DHS, and the Office of the Director of National Intelligence had "concluded that additional in-depth review is needed with respect to refugees of 11 nationalities previously identified as potentially posing a higher risk to the United States." According to the fact sheet, admissions of prospective refugees from these 11 unspecified countries would occur on a case-by-case basis during the 90-day review period specified in the executive order. In January 2018, DHS announced that as a result of the 90-day review it was putting in place "additional security enhancements and recommendations to strengthen the integrity of the U.S. Refugee Admissions Program," including the following: Additional screening for certain nationals of high-risk countries. Administering the [U.S. Refugee Admissions Program] in a more risk-based manner when considering the overall refugee admissions ceiling, regional allocations, and the groups of applicants considered for resettlement. A periodic review and update of the refugee high-risk country list and selection criteria. According to the DHS announcement, these measures "are designed to keep nefarious and fraudulent actors from exploiting the refugee program to enter the United States." Refugee admissions for FY2018 totaled 22,491, about half the FY2018 ceiling of 45,000. These FY2018 admissions represented the lowest annual level of refugee arrivals in the United States since the establishment of the U.S. refugee admissions program in 1980. The refugee ceiling for FY2019 is 30,000. The FY2019 consultation document offered the following explanation for setting the refugee ceiling at that level, the lowest in the history of the refugee admissions program: This ceiling takes into account the operational realities associated with security measures to protect national security and public safety, as well as the need to conduct credible fear screenings of aliens seeking asylum at our borders and address the backlog of affirmative asylum cases. On October 4, 2018, President Trump signed the Presidential Determination setting the FY2019 worldwide refugee ceiling and regional allocations. The FY2019 refugee ceiling is 30,000, the same as proposed in the FY2019 consultation document. As shown in Table 1 , the FY2019 refugee ceiling of 30,000 is allocated among the regions of the world. The regional allocations are intended to cover previously approved refugees in the pipeline as well as new cases. Unlike in some past years, there is no unallocated reserve in FY2019. An unallocated reserve is to be used if, and where, a need develops for refugee slots in excess of the allocated numbers. Unallocated numbers have been used regularly in recent years (see Table 1 ). The FY2019 consultation document, unlike its predecessors, does not identify the nationalities of the refugees expected to be resettled in the United States. Instead, it describes uncertainty surrounding the home countries of FY2019 refugee arrivals: Given the lengthy processing required, it is likely that refugees referred to [U.S. Refugee Admissions Program] will not be admitted to the United States until a subsequent year. It is therefore impossible to determine exactly which countries will be the sources of refugees admitted to the United States in FY 2019. The FY2019 regional allocations can be compared to FY2018 and FY2017 regional admissions levels, as follows: Africa has been allocated 11,000 refugee admissions numbers for FY2019. FY2018 admissions totaled 10,459; FY2017 admissions totaled 20,232. East Asia's FY2019 allocation is 4,000. FY2018 admissions totaled 3,668; FY2017 admissions totaled 5,173. Europe and Central Asia have a combined FY2019 allocation of 3,000 refugee admissions. FY2018 admissions for this region totaled 3,612; FY2017 admissions totaled 5,205. The FY2019 allocation for Latin America and the Caribbean is 3,000. FY2018 admissions totaled 955; FY2017 admissions totaled 1,688. The Near East/South Asia allocation for FY2019 is 9,000. FY2018 admissions totaled 3,797; FY2017 admissions totaled 21,418. PRM is responsible for processing refugee cases. Generally, it arranges for a nongovernmental organization (NGO), an international organization, or U.S. embassy contractors to manage a Resettlement Support Center (RSC) that assists in refugee processing. RSC staff conduct pre-screening interviews of prospective refugees and prepare cases for submission to USCIS, which handles refugee adjudications. Refugee processing is conducted through a system of three priorities for admission. These priorities provide access to U.S. resettlement consideration, and are separate and distinct from whether such persons qualify for refugee status. Priority 1 covers refugees for whom resettlement seems to be the appropriate durable solution, who are referred to the U.S. refugee program by the United Nations High Commissioner for Refugees (UNHCR), a U.S. embassy, or a designated NGO. Such persons often have compelling protection needs, and may be in danger of attack or of being returned to the country they fled. All nationalities are eligible for this priority. Priority 2 covers groups of special humanitarian concern to the United States. It includes specific groups that may be defined by their nationalities, clans, ethnicities, or other characteristics. Unlike Priority 1 cases, individuals falling under Priority 2 are able to access the U.S. refugee program without a UNHCR, embassy, or NGO referral. Some P-2 programs, such as the program for certain former Soviet nationals (see " Lautenberg Amendment and Specter Amendment "), process applicants in their country of origin . Some Priority 2 groups are processed outside their country of origin. These include Burmese in refugee camps in Thailand. Another P-2 group, Iraqis associated with the United States, is eligible for in-country processing in Iraq as well as processing outside that country. Priority 3 covers family reunification cases. Refugee applications under Priority 3 are based upon an affidavit of relationship (AOR) filed by an eligible relative in the United States. The Priority 3 program is limited to designated nationalities. For FY2019, Priority 3 processing is available to nationals of 15 countries. Individuals falling under Priority 3, like those falling under Priority 2, are able to access the U.S. refugee program without a UNHCR, embassy, or NGO referral. The Priority 3 program has changed over the years. Since FY2004, qualifying family members have been the spouses, unmarried children under age 21, and parents of persons who were admitted to the United States as refugees or granted asylum. In October 2008, the U.S. refugee program stopped accepting applications under Priority 3. Earlier in 2008, processing of Priority 3 cases was suspended in certain locations in Africa "due to indications of extremely high rates of fraud in claimed family relationships identified through pilot DNA testing." The Priority 3 program resumed in October 2012 with a new AOR form and requirement for DNA evidence of certain claimed biological parent-child relationships. To file an AOR, the U.S.-based relative must be at least age 18 and must file within five years of being granted asylum or admitted to the United States as a refugee. The Secretary of DHS has discretionary authority to admit refugees to the United States. USCIS is responsible for adjudicating refugee cases. To be eligible for admission to the United States as a refugee, an individual must meet the INA definition of a refugee, not be firmly resettled in another country, be determined to be of special humanitarian concern to the United States, and be admissible to the United States. In the past, the majority of refugee adjudications were conducted by USCIS officers on temporary duty from domestic asylum offices. Today, these adjudications are handled by USCIS officers in the Refugee Corps. To be admitted to the United States, a prospective refugee must be admissible under immigration law. The INA sets forth various grounds of inadmissibility, which include health-related grounds, security-related grounds, public charge (i.e., indigence), and lack of proper documentation. Some inadmissibility grounds (public charge, lack of proper documentation) are not applicable to refugees. Others can be waived for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest. Of particular relevance to the admission of refugees are certain health-related and security-related grounds of inadmissibility. Under the INA health-related grounds of inadmissibility, an alien who is determined, in accordance with Department of Health and Human Services (HHS) regulations, to have a communicable disease of public health significance is inadmissible. In past years, human immunodeficiency virus (HIV) infection was defined to be one of these diseases, although HIV-infected refugees could apply for a waiver. In 2008, Congress amended the INA to eliminate the reference to HIV infection as a health-related ground of inadmissibility. And effective January 4, 2010, the Centers for Disease Control and Prevention (CDC) of HHS amended its regulations on the medical examination of aliens to remove HIV infection from the definition of a "communicable disease of public health significance." The CDC further amended its regulations on the medical examination of aliens, effective March 28, 2016, to revise the definition of a "communicable disease of public health significance" and make other changes to the health screening process. Since 1990, the security-related grounds of inadmissibility in the INA have expressly included terrorism-related grounds. Over the years, the terrorism-related grounds have been amended to lower the threshold for how substantial, apparent, and immediate an alien's support for a terrorist activity or organization may be for the alien to be rendered inadmissible. Among the current terrorism-related grounds, an alien is generally inadmissible for engaging in terrorist activity if he or she gives any "material support," such as a safe house, transportation, communications, or funds, to a terrorist organization or any of its members or to a person engaged in terrorist activity. The Secretary of State or the DHS Secretary, after consultation with the other and the Attorney General, may exercise discretionary waiver authority over certain terrorism-related grounds of inadmissibility. Both the Secretary of State and the Secretary of DHS have used this authority to grant exemptions from the terrorism-related inadmissibility grounds to certain categories of individuals and for certain types of support. The Consolidated Appropriations Act, 2008, specified groups that, for purposes of the INA terrorism-related grounds of inadmissibility, are not to be considered terrorist organizations on the basis of past acts. Thus, a prospective refugee who was a member of, or provided support to, one of these groups would not be inadmissible on the basis of those actions. More broadly, the Consolidated Appropriations Act expanded the discretionary authority of the Secretary of State and the Secretary of DHS to grant waivers of the terrorism-related grounds of inadmissibility generally. Measures subsequently enacted in 2008 and 2014 limited the application of the INA's terrorism-related provisions with respect to other specific groups. To be admissible to the United States under the INA security-related grounds of inadmissibility discussed above, a prospective refugee must clear all required security checks. According to an August 2018 USCIS fact sheet on refugee security screening: USCIS has the sole discretion to approve an application for refugee status and only does so after it has obtained and cleared the results of all required security checks for the principal applicant, as well as any derivative family members included on their case. Just as DOS commonly denies visas, USCIS also routinely denies refugee cases, including for reasons of national security. The fact sheet summarizes the security screening process, as follows: [U.S. Refugee Admissions Program] screening includes both biometric and biographic checks, which occur at multiple stages throughout the process, including immediately after the preliminary RSC interview, before a refugee's departure to the United States, and on arrival in the U.S. at a port of entry. The March 2017 executive order issued by President Trump called for a review of U.S. refugee admissions processes to determine what additional procedures were needed to ensure that prospective refugees did not pose threats to the United States. The October 2017 executive order noted that the results of that review would, among other benefits, "enhance the ability of our systems to check biometric and biographic information against a broad range of threat information contained in various Federal watchlists and databases." (For further information about these executive orders, see " Refugee Admissions .") The FY2019 consultation document noted that prospective refugees "undergo more thorough screening than ever before." It further explained: The U.S. government has increased the amount of data it collects on refugee applicants, and more applicants now are subject to higher levels of security screening. The "Lautenberg Amendment" was originally enacted as part of the FY1990 Foreign Operations Appropriations Act. It required the Attorney General to designate categories of former Soviet and Indochinese nationals for whom less evidence would be needed to prove refugee status, and provided for adjustment to permanent resident status of certain Soviet and Indochinese nationals granted parole after being denied refugee status. To be eligible to apply for refugee status under the special provision, an individual had to have close family in the United States. Applicants under the Lautenberg standard were required to prove that they were members of a protected category with a credible, but not necessarily individual, fear of persecution. By contrast, the INA requires prospective refugees to establish a well-founded fear of persecution on an individual basis. The Lautenberg Amendment has been regularly extended in appropriations acts, although there have often been gaps between extensions. The Consolidated Appropriations Act, 2004, in addition to extending the amendment through FY2004, amended the Lautenberg Amendment to add a new provision known as the "Specter Amendment." The Specter Amendment required the designation of categories of Iranian nationals, specifically religious minorities, for whom less evidence would be needed to prove refugee status. The Consolidated Appropriations Act, 2018, extended the Lautenberg Amendment through September 30, 2018. As of the date of this report, the Lautenberg Amendment has not been enacted for FY2019. The HHS Office of Refugee Resettlement (ORR), within the Administration for Children and Families (ACF), administers a transitional assistance program for temporarily dependent refugees, asylees, Cuban/Haitian entrants, and other specified humanitarian groups. Since its establishment in 1980, the refugee resettlement program has been justified on the grounds that the admission of refugees is a federal decision, entailing some federal responsibility. Unlike immigrants who enter through family or employment ties, refugees are admitted on humanitarian grounds, and there is no requirement that they demonstrate economic self-sufficiency. For FY2018, the Consolidated Appropriations Act, 2018, which included appropriations for the Departments of Labor, HHS, and Education, and related agencies, provided $1.865 billion for ORR programs. This funding was supplemented by transferred funds from within HHS, for final FY2018 funding of $2.051 billion. Table 2 details refugee resettlement funding for FY2009-FY2018. ORR-funded refugee assistance activities include transitional and medical services, social services to help refugees and other specified humanitarian groups (referred to collectively as "refugees" below) become socially and economically self-sufficient, and targeted assistance for impacted areas. As indicated in Table 2 , the refugee social services, targeted assistance, and preventive health programs have been combined into the refugee support services program. Transitional/cash and medical services accounts for a greater portion of the ORR annual budget than any other activity for refugees. (Several of the ORR programs--unaccompanied alien children, victims of trafficking, and victims of torture--are not refugee programs.) In most cases, this assistance is administered by states and provided in the form of refugee cash assistance (RCA) and refugee medical assistance (RMA). RCA and RMA are intended to help needy refugees who are ineligible to receive benefits from mainstream federal assistance programs. This assistance is currently available for eight months after entry. RMA benefits are based on the state's Medicaid program, and RCA payments are based on the state's Temporary Assistance for Needy Families (TANF) payment to a family unit of the same size. The ORR program was significantly affected by the 1996 welfare reform act and subsequent amendments. Prior to this legislation, refugees who otherwise met the requirements of federal public assistance programs were immediately and indefinitely eligible to participate in them just like U.S. citizens. Now, refugees are subject to time limits. Table 3 summarizes the time limits on refugee eligibility for four major public assistance programs.

A refugee is a person fleeing his or her country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Typically, the annual number of refugees that can be admitted into the United States, known as the refugee ceiling, and the allocation of these numbers by region are set by the President after consultation with Congress at the start of each fiscal year. For FY2019, the worldwide refugee ceiling is 30,000. The FY2019 regional allocations are, as follows: Africa (11,000), East Asia (4,000), Europe and Central Asia (3,000), Latin America/ Caribbean (3,000), and Near East/South Asia (9,000). This 30,000 ceiling is the lowest annual ceiling since the establishment of the U.S. refugee admissions program in 1980. Refugee admissions in FY2018 totaled 22,491, the lowest annual level of refugee arrivals in the United States in the history of the refugee admissions program. The Bureau of Population, Refugees, and Migration (PRM) within the Department of State (DOS) coordinates and manages the U.S. refugee program. Generally, PRM arranges for a nongovernmental organization, an international organization, or U.S. embassy contractors to manage a Resettlement Support Center that assists in refugee processing. Overseas processing of refugees is conducted through a system of three priorities for admission. Priority 1 comprises cases involving persons facing compelling security concerns. Priority 2 comprises cases involving persons from specific groups of special humanitarian concern to the United States (e.g., Iranian religious minorities). Priority 3 comprises family reunification cases involving close relatives of persons admitted as refugees or granted asylum. The Department of Homeland Security's (DHS's) U.S. Citizenship and Immigration Services (USCIS) is responsible for adjudicating refugee cases. To be eligible for admission to the United States as a refugee, an individual must meet the definition of a refugee, not be firmly resettled in another country, be determined to be of special humanitarian concern to the United States, and be admissible to the United States. The Department of Health and Human Services' Office of Refugee Resettlement (HHS/ORR) administers a transitional assistance program for temporarily dependent refugees, Cuban/Haitian entrants, and others. For FY2018, the Refugee and Entrant Assistance account was funded at $2.051 billion.

The Florida Everglades is a unique network of subtropical wetlands that is now half its original size. The federal government has had a long history of involvement in the Everglades, beginning in the 1940s with the U.S. Army Corps of Engineers constructing flood control projects that shunted water away from the Everglades. Many factors, including these flood control projects and agricultural and urban development, have contributed to the shrinking and altering of the wetlands ecosystem. Federal agencies began ecosystem restoration activities in the Everglades more than 15 years ago, but it was not until 2000 that the majority of restoration activities became coordinated under an integrated plan. With the Water Resources Development Act of 2000 (WRDA 2000; P.L. 106-541 ), Congress approved the Comprehensive Everglades Restoration Plan (CERP) as a framework for Everglades restoration. The legislation authorized $700 million for the federal share of appropriations for initial projects. According to the process established in WRDA 2000, additional Everglades projects are to be presented to Congress for authorization as their planning is completed. Once authorized, the projects will be eligible to receive federal appropriations, but must also receive appropriations from the State of Florida in order to be completed. In WRDA 2007 ( P.L. 110-114 ), three additional projects were authorized. Indirectly related to combined federal and state work under CERP is a subset of Everglades restoration projects being undertaken by the state. These projects may contribute to Everglades restoration, but are not formally credited toward non-federal requirements under CERP. The River of Grass acquisition by the State of Florida is the most recent of these "non-CERP" projects by the state. It involves a proposed land acquisition agreement by the South Florida Water Management District (SFWMD) to purchase large tracts of land south of Lake Okeechobee from the U.S. Sugar Corporation. The goal of the purchase is to acquire lands that will improve water quality and help regulate outflows from Lake Okeechobee. Under the plan, SFWMD would remove U.S. Sugar land from cultivation for sugarcane and citrus farming, and use it to move, store, and treat water flowing south to the Everglades. This proposal is of interest to Congress because it could affect the state's ability to contribute funding under CERP and, as a result, has the potential to alter the schedule of work on some CERP projects. The River of Grass land acquisition dates to mid-2008, and has been revised on multiple occasions since then. In June 2008, Florida Governor Charlie Crist and the U.S. Sugar Corporation announced that the State of Florida would pursue purchasing all of the firm's agricultural lands and assets (including 187,000 acres of farmland and additional associated sugar and citrus processing facilities) at a cost of $1.75 billion. The acquired sugarcane and citrus farmland around Lake Okeechobee would be used to store and treat water flowing south toward the Everglades and eventually into Florida Bay. Based on subsequent real estate evaluations, a slightly scaled-back version of the original proposal (180,000 acres) was approved by the SFWMD Governing Board in December 2008, at an estimated cost of $1.34 billion. The land acquisition would be financed by the sale of bonds issued by SFWMD, which would be repaid from a portion of the property taxes collected by the 16 counties that comprise SFWMD. Under Florida law, these bonds are subject to judicial review to determine whether they serve a "valid public purpose." In May 2009, SFWMD announced an amended proposal that further scaled back the original proposal. (See Table A-1 .) Under the amended proposal, SFWMD would purchase 40% of the lands originally envisioned (i.e., 73,000 acres) for $536 million. Notably, U.S. Sugar would lease back some of the land sold to SFWMD for a minimum of seven years, with provisions that would allow this arrangement to be extended for up to 20 years. SFWMD would have the option to acquire the other 107,000 acres included in the initial plan at a fixed price per acre during the first three years, and at the appraised market value during the next seven years. As a result of a combination of factors, including ongoing financial difficulties, SFWMD announced in August 2010 a second amended purchase agreement. This purchase, which proposes to scale down the River of Grass acquisition yet again, was approved by the SFWMD Governing Board on August 12, 2010. Under the revised agreement, SFWMD will purchase 26,800 acres immediately at a cost of $197 million. (See Figure A-2 .) The acreage consists primarily of sugarcane and citrus acreage in Hendry and Palm Beach Counties, and the majority of it will be leased back to U.S. Sugar Corporation until restoration projects can be fully designed. The remainder of the land from the initial proposed purchases (153,200 acres) would be available for optional purchases over a 10-year period. In contrast to previous versions of the acquisition, this land would be bought directly with SFWMD funds, and will not be funded through bonds. Since late 2008, opponents have filed objections in state court to the bonds initially issued by SFWMD. These opponents claim that SFWMD did not have authority to finance the transaction because the acquisition is not a "valid public purpose." A major sugar producing firm, Florida Crystals, has argued that the purchase gives an unfair advantage to its main competitor at taxpayer expense. Additionally, the Miccosukee Tribe of Indians, whose reservation lies south of U.S. Sugar lands, has argued that SFWMD is not financially able to meet the terms of the deal, which does not provide public benefits in the form of Everglades restoration. Supporters, including SFWMD and some environmental groups, argue that the land acquisition is in the public interest and will contribute significantly toward ecosystem restoration goals. On April 7, 2010, the Florida Supreme Court heard arguments from all sides on the opponents' appeal of an earlier court ruling that limits the amount of bonds the District could issue. The court's final decision could affect the latest version of the land acquisition, which will not be finalized until October 11, 2010. Several questions have been raised regarding previous versions of the proposed land acquisition by the State of Florida. Some questions center on the potential advantages and disadvantages of the land sale for restoring the Everglades, the effect of the land acquisition on Florida's role in implementing restoration projects under CERP, and the overall effect of the land acquisition on reducing excessive phosphorus in the ecosystem. Proponents of the land purchase point out several restoration benefits that they expect to result from the land acquisition. As currently proposed, the purchase would eventually take approximately 42 square miles of land in the Everglades Agricultural Area (EAA) out of production. This land was chosen for its high value and ability to contribute to other restoration goals. For instance, the 17,900 acres proposed for purchase in Hendry County are noted by SFWMD to be in the C-139 basin, an area with historically high phosphorus loads. Once this land is taken out of production, lower phosphorus inputs into the ecosystem are expected. Lands taken over by SFWMD could also be used to enlarge stormwater treatment areas that mitigate phosphorus outflows coming from Lake Okeechobee. If storage structures are built on this land at some point in the future, they could allow for increased flexibility to manage water during floods and droughts, as well as for ecosystem restoration. There are several concerns associated with the proposed land acquisition. These concerns range from the location and continuity of the land parcels to the timing and benefits of the purchase itself. Most of the remaining 26,800 acres that currently are planned for purchase are in two tracts south of Lake Okeechobee, with approximately 86% of the original acreage proposed for purchase in 2008 remaining under cultivation for the foreseeable future. (See Figure A-2 .) The fragmentation of land parcels may make it difficult to achieve some of the broader restoration objectives, including the original objective to restore a flow-way south to Everglades National Park that replicates the historical flow of the "River of Grass." Additionally, some contend that the land proposed for purchase is infested with canker (typically a microbial disease that affects the woody tissue of plants), rendering it useless for restoration. Some also note that potential benefits of the land purchase in restoring the Everglades are tempered by potential delays in land transfers and the initiation of actual restoration projects. Some have pointed out that under the terms of the deal proposed with U.S. Sugar, the majority of the land proposed for immediate purchase under the River of Grass acquisition will actually stay in production. Any delay in removing this land from cultivation and beginning restoration projects will lower the overall restoration value of the land, as the current effects of farming would continue. For example, a 10-year schedule could delay freeing up land for restoration projects until 2020, after most other restoration activities are expected to be well underway. Concerns about delays in restoration and a desire for near-term progress are shared by many stakeholders. According to the National Research Council (NRC), delays in restoring the Everglades are affecting the state of the ecosystem and closing opportunities for restoration. The NRC emphasized that "unless near-term progress is made, the Everglades ecosystem may experience irreversible losses to its character and function." Some question the effect of the proposed land acquisition on the implementation of CERP. The proposed acquisition by the State of Florida is not being carried out under CERP, and according to SFWMD, the purchase will not be credited toward the 50:50 state/federal cost share mandated under CERP. While SFWMD has publicly argued for the overall benefits of the land transfer for Everglades restoration, it has not directly linked the land purchase to any existing CERP projects, and it is unclear if the purchase is intended to benefit any future CERP projects. Some contend that the current purchase (and any future purchase of option lands) could affect other Everglades restoration projects, including those federal projects that require a non-federal cost-sharing partner under CERP. In 2008, the state suspended construction on the A-1 reservoir, a CERP storage reservoir in the EAA. The decision to abandon the project along with the announcement of the original proposed River of Grass purchase caused some to conclude that the River of Grass land acquisition was replacing a CERP project, and the suspension of construction on the reservoir was at issue in a recent lawsuit before the U.S. District Court in Miami. In his March 2010 ruling in this case, Judge Federico Moreno ordered that the A-1 reservoir project be reinstated. This ruling may further constrain financing for other restoration projects. Some also note that the land purchase could indirectly affect other CERP projects by creating a funding shortfall for these projects. State funding for all restoration activities, including CERP, is expected to decline in the coming years. In light of this, some have questioned whether the proposed funding for the land acquisition deal might be better spent on CERP projects. For instance, some have noted that the L-8 reservoir (a CERP project) may be a potential item for reduction. Significantly, state funding decisions for these projects will not be finalized until the end of the current fiscal year in September 2010. It is unknown whether the state will be able to fund its cost-share requirements for all ongoing CERP projects in FY2011. Some are concerned about the effect of the proposed land acquisition on phosphorus loading into the Everglades ecosystem. As discussed earlier, the proposed land acquisition has the potential to reduce phosphorus entering the Everglades ecosystem if stormwater treatment areas are constructed and sugar and citrus farms are taken out of production. The treatment areas would capture nutrient-rich outflow and runoff from agricultural areas and Lake Okeechobee itself, thereby reducing loads into other parts of the ecosystem. The state notes that some of the areas proposed for acquisition are known for previously having high nutrient loads. However, it is unclear if the 26,800 acres currently planned for purchase are strategically located to maximize phosphorus reduction. The ability of land to reduce phosphorus depends on its proximity to flows out of Lake Okeechobee, as well as other factors. Additionally, if purchasing the land delays other restoration projects intended to reduce phosphorus, phosphorus loads might not meet previously set targets. For example, the A-1 reservoir, discussed above, is intended to capture releases of water from Lake Okeechobee and reduce phosphorus input into the Everglades ecosystem. Delaying or abandoning this project could affect phosphorus mitigation. The proposed land acquisition is an investment in restoration that may be realized over a longer time horizon than many restoration projects that are currently planned or under construction, including federally authorized CERP projects. The impact of the land acquisition on other Everglades restoration projects will depend on budgetary decisions made in late September 2010, which could potentially reduce or delay state funding for some CERP projects. Near-term delays resulting from any funding reductions for CERP projects could affect the Everglades ecosystem, including those efforts pertaining to phosphorus mitigation and planned water storage capacity. Congress may have to decide whether currently planned CERP activities should be reconsidered in light of these circumstances.

The Florida Everglades is a unique network of subtropical wetlands that is now half its original size. The federal government has had a long history of involvement in the Everglades, beginning in the 1940s with the U.S. Army Corps of Engineers constructing flood control projects that shunted water away from the Everglades. Many factors, including these flood control projects and agricultural and urban development, have contributed to the shrinking and altering of the wetlands ecosystem. Federal agencies began ecosystem restoration activities in the Everglades more than 15 years ago, but it was not until 2000 that Congress integrated the majority of restoration activities under an integrated plan, known as the Comprehensive Everglades Restoration Plan (CERP). The River of Grass acquisition is a proposed land acquisition by the State of Florida, which has the potential to affect the implementation of CERP. The proposal is to purchase tracts of land south of Lake Okeechobee from the U.S. Sugar Corporation. The state argues that the purchase would reduce phosphorus loads and help restore the historic north-south flow of water from Lake Okeechobee to the Everglades. Initially, acquisition of 187,000 acres was announced by Florida Governor Charlie Crist and subsequently approved by the South Florida Water Management District (SFWMD) in December 2008. Since then, the original proposal has been downsized on multiple occasions, both in terms of the size of the purchase and the purchase price. Most recently, a revised land purchase agreement was announced and approved by the SFWMD in August 2010. SFWMD now proposes a direct cash purchase of 26,800 acres, or approximately 14% of the original purchase proposed by the governor in 2008. The purchase would cost SFWMD $197 million. Questions have been raised regarding the proposed acquisition. Some of these questions center on potential positive and negative consequences of the land purchase agreement. These include the effectiveness of the land acquisition in reducing nutrient loads that are detrimental to the Everglades and in restoring historic flows, as well as the effect of the initiative's funding requirements on Florida's other restoration projects, including projects with a non-federal cost share requirement under CERP. Since state funding for CERP activities is expected to decline in the coming years, some have questioned whether the proposed funding for the land acquisition deal might be better spent on CERP projects. The impact of the land acquisition on CERP and other Everglades restoration projects will depend in part on budgetary decisions to be made by the state in late September 2010, which could potentially reduce or delay state funding for some CERP projects. Near-term delays resulting from any funding reductions for CERP projects may be of interest to Congress, as they would affect the overall federal effort to restore the Everglades ecosystem under CERP.

The U.S. Supreme Court's decisions regarding the nature of the people's right to "keep and bear arms," as guaranteed in the Second Amendment to the U.S. Constitution, has focused some interest in the extent to which firearms are protected from the reach of creditors under either federal or state laws. State laws that protect certain property from creditors' claims generally are designed to apply in non-bankruptcy contexts, but may also be used in bankruptcy. Federal law also protects certain property from creditors' claims in bankruptcy. Additionally, a debtor in bankruptcy may be able to avoid liens against exempt property if a lien impairs the exemption and is either a judicial lien or a nonpossessory, nonpurchase-money security interest. Legislation introduced in the 112 th Congress, similar to legislation passed by the House in the 111 th Congress, would have allowed a specific federal exemption for firearms and would include firearms in the definition of household goods whose exemptions could be protected from impairment by liens. A number of states provide their own exemptions for firearms. The provisions of these states are provided in Table 1 . Section 522 of the U.S. Bankruptcy Code addresses the extent to which an individual debtor may elect to exempt equity in certain property from becoming part of the bankruptcy estate. Property exempted from the bankruptcy estate is not available to satisfy creditors. Among the exemptions explicitly provided in the Bankruptcy Code--the federal exemptions--are a homestead exemption in the amount of $21,625, a vehicle exemption in the amount of $3,450, and exemptions for jewelry, tools of the trade, and household goods. There is also a "wildcard" exemption of $1,150 that can also be applied to any property so long as the federal exemptions are available to the debtor. To the extent allowed under state law, the Bankruptcy Code permits debtors to choose between using the federal exemptions or those available under applicable state law. This is an "either/or" choice--debtors are not allowed to choose to use some state exemptions and some federal exemptions. When a petition is filed jointly by husband and wife or when the individual cases of a husband and wife are ordered to be jointly administered, each spouse must choose the same set of exemptions. However, debtors in many states have no choice to make because their state law prohibits the use of the federal exemptions. These federal exemptions are available to debtors only to the extent they are not prohibited by the applicable state. Puerto Rico, the District of Columbia, and 17 states allow debtors to choose between federal and state exemptions. In 2012, Virginia became the thirteenth state to provide some protection from creditors for debtors' firearms. The conditions for exempting firearms vary among the relevant states. Some states specify the number of firearms that may be exempted without regard to the value of the firearms. Other states limit the exemption to one firearm and further limit the claimed exemption by either the value of the firearm or the aggregate value of the statutorily exempt property in which the firearm is included. Oregon allows an exemption for one pistol as well as one rifle or shotgun, but limits the total exemption value of the two firearms to no more than $1,000. Several states put no limit on the number of firearms that may be exempted so long as the total value of the firearms, when aggregated with the value of certain other property is less than a specific amount. In these states, there is generally a limit to the value of each firearm. One state, Oklahoma, allows an unlimited number of firearms to be exempted so long as the total value of the firearms, alone, is no more than $2,000. In most of the states, the exemption is not controlled by the way in which the firearm is used. Several states, however, exempt only guns that are for personal use. Three of these specify that the firearms are to be "held primarily for the personal, family, or household use of [the debtor]." Oregon law specifies that the firearms must be "for the own use and defense of the citizen." Only one state, Louisiana, requires that the exempted firearm be used for business purposes. Both Montana and Nevada exempt "all arms ... required by law to be kept by any person" in addition to the one gun, selected by the debtor, that each allows. H.R. 1181 , the Protecting Gun Owners in Bankruptcy Act of 2011, was introduced on March 17, 2011, in the 112 th Congress. The bill paralleled an earlier bill passed by the House in the 111 th Congress, but not voted on by the Senate. The bill would have provided a firearms exemption that could be used in bankruptcy by a debtor who opted to use federal rather than state exemptions and was allowed to do so by the relevant state's law. The bill would have amended Section 522(d) of the Bankruptcy Code to add an exemption for the debtor's aggregate interest-up to a total value of $3,000--"in a single rifle, shotgun, or pistol or any combination thereof." The addition of this exemption would not have reduced the amount allowed for any other type of exemption under Section 522. Additionally, the bill would have amended Section 522(f)(4)(A) to include firearms in the definition of "household goods." As with the exemption for firearms, this provision would have applied to any number or combination of rifles, shotguns, and pistols so long as the aggregate value was no more than $3,000. Inclusion of firearms in the definition of household goods would not have increased the exemption available for firearms, but it would have allowed debtors to avoid liens that are nonpossessory, nonpurchase-money security interests on those firearms, under Section 522(f)(1)(B), as they are currently able to avoid such liens on other household goods. The bill would not have changed the maximum value of household goods whose liens could be avoided in bankruptcy. The last major action on the bill was referral to the Subcommittee on Courts, Commercial and Administrative Law for the House Judiciary Action. Currently, there has been no legislation introduced in the 113 th Congress that would provide a federal exemption under the Bankruptcy Code for firearms.

The U.S. Supreme Court's decisions regarding the nature of the people's right to "keep and bear arms," as guaranteed in the Second Amendment to the U.S. Constitution, has focused some interest on the extent to which firearms are protected from the reach of creditors under either federal or state laws. State laws protecting certain property from creditors' claims may be used both in and outside of the bankruptcy context. Federal law may also protect certain property from creditors' claims in bankruptcy. Although a number of states have provisions explicitly shielding firearms from the claims of creditors, there is currently no such provision in the U.S. Bankruptcy Code (title 11). In the 111th Congress, legislation was passed in the House (H.R. 5827) that would have provided an explicit federal exemption in bankruptcy for a debtor's aggregate interest, up to $3,000, "in a single rifle, shotgun, or pistol, or any combination thereof." The bill also included the means for protecting firearms by including them-subject to the same value and type restrictions-in the definition of "household goods" for which nonpossessory, nonpurchase-money security interest liens could be avoided in bankruptcy. Similar legislation was introduced in the 112th Congress: the Protecting Gun Owners in Bankruptcy Act of 2011 (H.R. 1181). The Bankruptcy Code generally provides two options for claiming exemptions in bankruptcy-either the exemptions provided in 11 U.S.C. Section 522(d) or the exemptions available under state law. However, debtors may only choose to use the federal exemptions in Section 522(d) if their state specifically authorizes them to do so. Because the proposed federal exemption for firearms would be included in Section 522(d), debtors whose states do not authorize them to use the Section 522(d) exemptions would not benefit from the proposed change in exemptions. They might, however, benefit from the inclusion of firearms in the definition of household goods, because they could then have the option of freeing those firearms from liens that were based on a nonpossessory, nonpurchase-money security interest. There is great variety in the extent of the protection from creditors the states provide for firearms. The majority of states provide no explicit protection. Among the 13 states that provide protection, the conditions for providing that protection vary. Some states limit the exemption by both the number and value of the firearms; some do not limit the number but may limit either the value of each firearm or the aggregate value of all. Other states specify the type of firearms that can be exempted. In most states that allow an exemption for firearms, the exemption is not dependent upon the way in which the firearm is used. Several states, however, exempt only guns that are for personal use, and one state requires that the firearm be used for business purposes.

This report provides a summary and analysis of selected provisions of S. 1733 , the Clean Energy Jobs and American Power Act. The topics covered include electric power and incentives for the development of natural gas technologies. The report also compares those provisions with counterparts, if any, in H.R. 2454 , the American Clean Energy and Security Act. Other aspects of S. 1733 and H.R. 2454 are covered in additional CRS reports. These reports are available in the climate change section of the CRS website, located at http://crs.gov/Pages/subissue.aspx?cliid=2645&parentid=2522 . The remainder of this report is divided into the following sections: Electric Power and Natural Gas Technologies. Electric Power Transmission and Related Technologies Subtitle H of Division A has two sections dealing with the use of low carbon emitting energy technologies. Section 181, Clean Energy and Accelerated Emission Reduction Program , directs the EPA administrator to "establish a program to promote dispatchable power generation projects that can accelerate the reduction of power sector carbon dioxide and other greenhouse gas emissions" (emphasis added). The term "dispatchable" is not defined in the bill, but would normally refer to power generating units that can be run at-will by system operators. In this sense a natural gas, nuclear, or coal unit is dispatchable while a wind or solar plant is not, because wind and solar generation is dependent on weather and diurnal conditions. The EPA administrator is directed to establish rules within 90 days of enactment for providing incentives to dispatchable power projects that generate 300,000 gigawatt-hours (Gwh) of electricity annually. To put this generation target in context, a reasonably large power plant with a capacity of 500 megawatts (i.e., 0.5 gigawatts) that operates the equivalent of 85% of the time would generate 3,723 Gwh annually. Therefore it would take about 81 of these 500 Mw plants to meet the goal of generating 300,000 Gwh annually under this program. To qualify for incentives, an eligible project must produce emissions of greenhouse gases (GHG) that are below the 2007 average emissions per megawatt-hour (Mwh) by the United States electric power sector, according to the following schedule ( Table 1 ): The bill speaks to reductions in the emissions of all GHG released by power plants, but information is readily available only for power plant carbon dioxide emissions (CO 2 is, in any event, the predominant GHG in the electric power sector). Table 2 , below, shows average CO 2 emission per Mwh for the electric power sector as a whole in 2007, the 2007 values for several specific combustible fuel sources, and estimated emissions for new natural gas plants. These estimates, which include no carbon controls, show that only new high efficiency natural gas plants can meet the reduction targets of 25% for 2010 to 2020 and 40% for 2021 to 2025. It does not appear that any combustible fuel source can meet the 65% target which begins in 2026 without carbon controls. Nuclear power is a dispatchable option which could meet these targets since carbon emissions are essentially zero. Geothermal power has very small emissions per Mwh ( Table 2 ) and is dispatchable, but with current technology plants are limited to small installations in the western United States. Another alternative could be to link wind or solar power with electricity storage, creating a combined system which could be dispatched as needed However, current electricity storage technologies are limited by cost, technical, and environmental factors. In allocating incentives the administrator is to give priority to projects with one or more of the following characteristics: Power generation and energy storage projects intended to integrate variable renewable electricity sources, such as solar and wind power, into the grid. Power generation projects with carbon capture and sequestration that do not qualify for other aid under S. 1733 . Projects that achieve the greatest reduction in GHG emissions per dollar of incentive payment. Several features of Section 181 are unspecified or unclear. These include: The total dollar amount and form of the incentives. By what point in time projects must enter service to qualify for incentives. Whether the emission reduction target varies for a project over time. For example, assume a project enters service in 2010 and must therefore meet the 25 percent reduction in GHG emission goal ( Table 1 ). If the project is still operating in 2021 to 2025, does it have to further reduce emissions to meet the 40% reduction target that begins in that period in order to continue to receive incentives, or does the higher target only apply to new units that enter service during that period? The bill states that "Not later than 3 years after the date of enactment of this Act, the Administrator shall provide incentives for eligible projects that generate 300,000 gigawatt-hours of electricity per year." It is not clear from this language if the Administrator must make all awards within three years of enactment, or must merely begin making awards by that deadline. Section 182 of Subtitle H, Advanced Natural Gas Technologies , would establish two programs for accelerating the deployment of advanced natural gas technologies. Under one program, for "Natural Gas Electricity Generation Grants," the EPA Administrator "may provide" (but apparently is not required to provide) research and development grants "to support the deployment of low greenhouse-gas-emitting end-use technologies, including carbon capture and sequestration technologies, for natural gas electricity generation." Under the second program, for "Natural Gas Residential and Commercial Technology Grants," the Administrator is directed to establish a grant program for research, development, demonstration, and deployment of low GHG emitting end-use technologies for the commercial and residential sectors. Grants can be made to private or municipal utilities, research and development establishments, and other types of businesses. Although these programs are under the direction of the EPA, the Secretary of Energy is the official directed to report to the Congress every 180 days on the status and results achieved by these programs. There are no directly comparable provisions in H.R. 2454 . Section 175 of Subtitle H of H.R. 2454 does provide for a government program to help develop and demonstrate high efficiency natural gas burning combustion turbines, for use in combined cycle power plants. The section directs the Secretary of Energy to carry out a multiyear, multiphase program of research, development, and technology demonstration that ultimately will lead to gas turbine combined cycle efficiency of 65%. H.R. 2454 contains several provisions relating to electric power transmission that have no counterparts in S. 1733 . These provisions are briefly summarized below. For more detail see CRS Report R40643, Greenhouse Gas Legislation: Summary and Analysis of H.R. 2454 as Passed by the House of Representatives , coordinated by [author name scrubbed] and [author name scrubbed]. Subtitle F of Title I of H.R. 2454 deals with transmission planning and permitting. The subtitle provides for the following in respect to transmission planning: Establishes a national transmission planning policy, which states that transmission planning "should facilitate the deployment of renewable and other zero-carbon and low-carbon energy sources for generating electricity to reduce greenhouse gas emissions while ensuring reliability, reducing congestion, ensuring cyber-security, minimizing environmental harm, and providing for cost-effective electricity services throughout the United States...." Directs the Federal Energy Regulatory Commission to define electric transmission planning principles, based on the national policy, which can be used by planning entities. FERC is to facilitate coordination between state, regional, and industry transmission planning entities. In respect to permitting, the bill grants FERC new federal siting and permitting authority within the Western Interconnection. This authority to supersede state permitting decisions applies only to proposed transmission projects that meet certain criteria, including interstate projects "identified as needed in significant measure to meet demand for renewable energy." H.R. 2454 includes several provisions aimed at supporting development and installation of smart grid technologies (see Title I, Subtitle E). The bill would direct the Department of Energy and Environmental Protection Agency to identify products that could be cost-effectively equipped with smart grid capability. The legislation would also direct the Federal Trade Commission to initiate a rulemaking to determine whether smart grid information, such as potential dollar savings to the consumer, should be added to ENERGY GUIDE product labels. (ENERGY GUIDE is an existing federal program for labeling energy efficient products.) The legislation would establish requirements for electric power retailers to reduce their peak loads using smart grid and other energy efficient technologies; and would modify an energy efficiency public information program authorized by the Energy Policy Act of 2005 (EPACT05) to make it into a smart grid and energy efficiency information program. H.R. 2454 would also modify an EPACT05 energy efficiency appliance rebate program to add appliances with smart grid capabilities. Additionally, H.R. 2454 would require state regulatory authorities and self-regulating power suppliers (such as municipal utilities) to consider implementing standards intended to ensure that utility smart grid systems would be compatible with plug-in electric drive vehicles. Section 152 of Subtitle F of H.R. 2454 provides for net metering of federal agencies. Net metering is a ratemaking concept intended to encourage the development of "distributed generation" (i.e., electricity generated at the customer's site, possibly, but not necessarily, using renewable energy). Net metering is intended to make distributed generation more economical by requiring the utility that supplies electricity to a facility to also take any electricity generated by that facility, such as from rooftop solar panels or an on-site diesel generator. The ultimate utility bill to the facility is reduced by the amount of electricity supplied to the power company. Section 152 amends the Public Utility Regulatory Policies Act of 1978 to require state regulatory authorities to consider ordering utilities under their jurisdiction to implement net metering for federal facilities. It also requires non-regulated utilities (such as many municipal utilities) to make the same evaluation. The net metering standard must be adopted if it is consistent with state law and is found by the controlling regulatory authority to be "appropriate." Section 153 of Subtitle F would amend EPACT05 to provide for incentives for the development and construction of transmission lines and related facilities using currently non-commercial technology. The categories of technology include "advanced electric transmission property" (essentially high-efficiency underground transmission lines and associated equipment), "advanced electric transmission manufacturing plant" (plants that manufacture the "advanced electric transmission property"), and "high efficiency transmission property" (essentially high-efficiency overhead transmission lines and associated equipment). All three categories of technology would be added to the list of technologies qualifying for the new loan guarantee program added to EPACT05 by the American Recovery and Reinvestment Act of 2009. Additionally, "advanced electric transmission property" and "advanced electric transmission manufacturing plant" only would be added to the original loan guarantee program included in EPACT05. This program was originally created to support the development of low carbon and other advanced energy technologies.

This report provides a summary and analysis of selected provisions of the chairman's mark of S. 1733, the Clean Energy Jobs and American Power Act. The topics covered include electric power and incentives for the development of natural gas technologies. The report also compares those provisions with H.R. 2454, the American Clean Energy and Security Act. In S. 1733, Subtitle H of Division A has two sections dealing with the use of low carbon emitting energy technologies. Section 181, Clean Energy and Accelerated Emission Reduction Program, directs the EPA administrator to "establish a program to promote dispatchable power generation projects that can accelerate the reduction of power sector carbon dioxide and other greenhouse gas emissions" (emphasis added). The term "dispatchable" is not defined in the bill, but would normally refer to power generating units that can be run at-will by system operators, such as natural gas, nuclear, or coal units. Several features of Section 181 are unspecified or unclear, including the total dollar amount and form of the incentives, whether the emission reduction target for a specific project would change over time, and the deadline for making incentive awards. Section 182 of Subtitle H, Advanced Natural Gas Technologies, would establish two grant programs for accelerating the development of advanced natural gas technologies in the power generation, commercial, and residential sectors. No parts of H.R. 2454 are directly comparable to sections 181 and 182 of S. 1733. Closest in intent is Section 175 of Subtitle H of H.R. 2454, which provides for a government program to help develop and demonstrate high efficiency natural gas burning combustion turbines, for use in combined cycle power plants. H.R. 2454 has several provisions relating to electric power transmission that have no counterparts in S. 1733. These provisions of H.R. 2454 involve transmission planning and permitting; development and deployment of smart grid technologies; requirements for electric utilities to reduce peak demand; net metering for federal agencies; and incentives for transmission technology development. These elements of H.R. 2454 are summarized in this report and discussed in more detail in CRS Report R40643, Greenhouse Gas Legislation: Summary and Analysis of H.R. 2454 as Passed by the House of Representatives, coordinated by [author name scrubbed] and [author name scrubbed].

Any legislative plan needs a thorough definition of the problem to be addressed and an explanation of what the appropriate solution might be. Solutions may include legislation, regulation, or media attention. A clearly defined issue makes the determination of the themes for developing the message and promoting the solution easier to explain to colleagues, supporters, opponents, constituents, and the press. Next, a time line for solving the problem should be determined. Is this a one-session, or one-Congress, or longer-term project? Is it one event or a coordinated series of events? Should the event(s) be held in the Member's district or state, in Washington, or throughout the country? Prior to beginning work on the solution, an in-depth determination of the extent of the problem needs to be undertaken. For example, is the problem limited to one district, state, or region, or is it nationwide? Should the solution address the specific issue or the policy in general? Consultation with local and state officials, community leaders, and constituents is integral at this stage. Discussions in Washington may include committee and subcommittee leaders, the party leadership, think tanks, and interest groups. One of the most important decisions is whether to conduct an "inside" or "outside" strategy, or possibly a combination of the two. Inside strategy entails work within the legislative process only, that is, legislation, hearings, committee and floor amendments, floor debate, and conference consideration. Advocates may or may not be involved in any of this activity. An outside strategy calls for advocates to generate mail, press, and office visits, often to force an inside strategy to occur. A combined strategy includes using Dear Colleague letters, coordinated one-minute or special order speeches, Member-to-Member lobbying, and group press conferences. What criteria are used to determine success? Political success? Press attention? Legislative success? Other? What is the duration of the project: one event, one session of Congress, two years, or longer? Are there other projects on this topic already underway? If so, should the Member conduct an independent project, or join forces? Does the political party or state of other Members involved influence the decision? Should it? Has the project ever been tried in the past? If yes, what Members tried it? What was the result? Is the project still needed? Are there lessons to be learned from the earlier attempt? What other Members, committees, or party leaders should be involved? What advocates should be involved? Which advocates will support, and which will actively oppose, the initiative? Is legislation the appropriate remedy for the problem? Will a free-standing measure be necessary, or is there a vehicle to which an amendment can be offered? Should the Member introduce the legislation alone or seek original cosponsors? Should those cosponsors be bipartisan? Should they be of the same "type," for example, women, philosophy, state and region, or district demographics, serving on the same committee? Should a companion measure be introduced in the other chamber? Should Dear Colleague letters be sent prior to introduction? Should they be sent periodically throughout the process identifying status? When should the legislation be introduced, for example, opening day, first or second session, a specific time of year? What should the legislation be titled? Is there a useful acronym to be found to assist in publicizing the legislation? Should a particular number be reserved, for example, H.R. or S. 2020 relating to eye care? Should a working group be created? Staff only or Members only? What role should the party leadership play? What of committee leadership? What type of coalitions should be created? If legislation is being considered on the issue (not necessarily the Member's measure), should the Member testify at hearings? Are there others the Member would recommend as witnesses? If a measure is being marked up, should the Member offer an amendment, assuming the Member serves on the committee? If not, should an ally offer an amendment on the Member's behalf? Should one-minute speeches or special order speeches be made to keep pressure on the committee or chamber and to maintain press visibility? How often and who should be included? Should a Rules Committee (House only) strategy be devised? Should opponents' strategy be monitored? If regulation is the appropriate solution, has the agency or executive branch been consulted? What is the appropriate timing? Should letters be written to the President? A Cabinet Secretary? Which advocates should be contacted? At what stage should they be included? What role should the advocates play--research, letters to Members, media appearances, briefings? Should a coalition of several groups be created? Dear Colleague letters One-minute or special order speeches Staff working group Member working group Speak on floor during consideration of related measure Press conferences News releases Op-ed pieces Syndicated columnists Editorial support, local and national TV or radio interviews Blogs Social media Determine time line for target dates for all activities Determine periodic dates to review progress and reassess strategy Meet with party campaign committees to discuss how project could help candidates. Can state or local officials be given a role in promoting the project? Action plans embody the strategies employed to achieve goals. The office's strategic plan should not only identify specific steps, but also the person(s) (including the Member) responsible for each step. It is also useful to include deadlines for completing action on each step. Periodic meetings to review progress on the plan may prove useful in keeping the project on track. Usually each person in the office, whether they have specific responsibility for parts of the plan, should be provided a copy of the plan. Identify appropriate executive branch agency(s). Meet with agency staff to review present programs and discuss legislative options. Meet with advocates to discuss problem and possible solutions. Determine if other legislation has already been introduced. Work with legislative counsel to draft legislation (or amendments). Obtain CBO cost estimate. Send out draft for comment to advocates, district and state leaders, constituents, others. Send out Dear Colleague letters. Determine appropriate Members to cosponsor legislation. Work with other chamber for companion legislation. Create staff working group after identifying other Members to be involved. Meet with committee and party leadership. Hold briefings on issue, for staff and Members. Develop local and national press strategy. Develop social media strategy. Introduce legislation after determining most advantageous time. Hold field hearing. Hold town hall meetings in district/state. Seek opportunities, in committee, on floor, in district/state, in press, to publicize initiative.

The Congressional Research Service frequently receives inquiries about legislative planning. Legislative and office action plans are often used by congressional offices for almost every significant project, from organizing an extensive conference in the district or state to introducing and guiding legislation. A major action plan requires a firm understanding of the project's goal, a research strategy, and a time line for completing the project. This report presents some of the factors usually considered in preparing an action plan. The information is provided in three sections. The first provides an overview that lays out summary considerations. The second raises questions to consider in preparing an outline for a project. The third details a sample action plan.

On July 6, 2006, a United States District Court ruled that former Representative Tom DeLay, who had earlier won the Republican primary nomination for Congress from the 22 nd District of Texas, could not have his name substituted on the general election ballot by the Republican party even if Mr. DeLay had changed his legal residence and voluntarily withdrew from the race. That decision was upheld on appeal by the United States Court of Appeals, and a request to stay the opinion was denied by Justice Scalia of the United States Supreme Court. In Ohio, a different result ensued a month later when Representative Robert Ney, who had won the Republican party nomination in an earlier May primary, formally announced his withdrawal from the race on August 14, 2006. In that instance, the Republican party in Ohio was permitted to have a "special primary" to nominate another candidate for the general election (although some questions had surfaced as to whether one of the candidates would be eligible to run in the primary and general election because of Ohio's "sore loser" law.) In Connecticut, the defeated candidate for the Democratic party nomination in the August 2006 primary, incumbent Senator Joseph Lieberman, appears to be able to be on the ballot either as an "independent" or nominee of a minor party in the general election in November, although a similar ballot position for the general election for one who had lost a party nominating primary would be barred in numerous states (including Ohio) because of the application of their so-called "sore loser" laws. Several years earlier, on September 30, 2002, former Senator Robert Torrecelli, the Democratic nominee for the United States Senate from New Jersey, voluntarily withdrew from the Senate race and, even at that late date, a new candidate was allowed to be chosen by the Democratic party in New Jersey and to have his name appear on the November ballot. Meanwhile in Missouri, the Democratic nominee for the United States Senate in the 2000 election, former Governor Mel Carnahan, died in a plane crash on October 16, 2000, three weeks before the general election, was not able to be substituted for, and continued to have his name on the ballot in the November general election. When the deceased candidate received the most votes in the ensuing election, a "vacancy" was declared and the acting Governor, under the 17 th Amendment and Missouri law, chose a temporary replacement until the next statewide election to fill the remainder of the term. This report will examine federal law and constitutional provisions to explain the seeming disparity in treatment concerning the placing and substitution of candidates names on the ballot for federal offices. In the course of this discussion, the report will analyze what have generally been characterized as "ballot access" issues in the states. Initially, it should be noted that under our federal system, an interesting division of jurisdiction occurs in the case of elections to the United States Congress. In the first instance, the terms of federal congressional offices and the qualifications of candidates eligible for federal offices are established and fixed by the United States Constitution, and are unalterable by the Congress itself or by any state unilaterally. The Constitution expressly provides, however, in the so-called "times, places and manner" clause, that the individual states have the general authority to administer congressional elections within their jurisdictions. Furthermore, the states, within constitutional parameters, have the authority to set the qualifications to vote for those federal offices at these elections. As to the final results of the election and seating in Congress, the Constitution provides that each House of Congress has the authority to be the final judge of the results of those congressional elections held in the states, and to judge the three constitutional qualifications for office (age, citizenship, and inhabitancy in the state when elected) of the Members-elect presenting themselves for membership in the institution. The states' authority over election administration and procedures for congressional elections is set out at Article I, Section 4, clause 1, of the United States Constitution, and provides as follows: 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. Under this express constitutional authority of the states to regulate the "times, places and manner" of congressional elections, the states may promulgate regulatory and administrative provisions dealing with the mechanics and procedures of the elections for congressional office which are held within their jurisdictions. This procedural and administrative authority has been found to extend to such things as, for example, the form of the ballots, the positioning of candidates' names and party affiliations on the ballot, voting procedures and mechanics, counting votes and certifying winners, and the nominating and/or petition process generally, including the authority to enact reasonable requirements and regulations for a candidate's name to appear on the ballot--that is, so-called "ballot access" requirements for major party, new party, and independent candidates. In discussing the breadth of the legislative authority in the states over the conduct of federal elections, the Supreme Court explained as follows: The subject matter is the "times, places and manner of holding elections for Senators and Representatives." It cannot be doubted that these comprehensive words embrace an authority to provide a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns.... It is this authority of the states over the ballot, the structure of the ballot, and concerning so-called "ballot access" requirements for political party nominees, new party nominees, and independent candidates, that has led to the varying and different treatment and requirements for placement, removal and/or substitution of a candidate's name on the ballot, depending on the state in which the congressional election is to be held. Since these matters are generally subjects of state law, within the parameters and requirements of the United States Constitution, it is the application of the particular state law that may result in a different outcome of a withdrawal of a congressional candidate who has won a major party nomination in a primary in Texas, as opposed to a withdrawal and substitution of a party-nominated candidate for Congress in Ohio or in New Jersey, the death of a nominated candidate in Missouri, or the ability to be on the ballot in Connecticut as an independent or the nominee of a new party in a general election after losing a party primary for the same office. Although the state legislatures have broad authority under the United States Constitution concerning the procedures for federal elections within their jurisdictions, the constitutional provision expressly provides a superceding, residual authority within the Congress to legislate different provisions for federal elections held in the states. This residual authority in Congress has been found to be as extensive and complete as the state legislatures' authority over such elections within their respective jurisdictions. After discussing the breadth and extent of the states' authority over election procedures for federal office, the Supreme Court explained the authority of Congress over such elections: This view is confirmed by the second clause of Article I, section 4, which provides that "the Congress may at any time by law make or alter such regulations," with the single exception stated. The phrase "such regulations" plainly refers to regulations of the same general character that the legislature of the State is authorized to prescribe with respect to congressional elections. In exercising this power, the Congress may supplement these state regulations or may substitute its own. It may impose additional penalties for the violation of state laws or provide independent sanctions. It 'has general supervisory power over the whole subject.' Ex parte Seibold, 100 U.S. 371, 387; Ex parte Yarbrough, 110 U.S. 651, 661; Ex parte Clark, 100 U.S. 399; United States v. Mosely, 238 U.S. 383, 386; Newberry v. United States, 256 U.S. 232, 255. Despite the broad, residual and superceding authority of Congress in this area, Congress has not extensively exercised this power with respect to the procedures for federal elections in the various states. Congress has, it may be noted, legislated in this area, for example, in 1872 to assure that there will be a uniform date for the election of Representatives and Senators throughout all of the states (the Tuesday immediately following the first Monday in November in the particular, applicable even-numbered election years), and has legislated a detailed system for regulating, reporting and disclosing the campaign finances of candidates to federal office. However, as a policy matter, and under Article I, Section 4, clause 1, Congress has traditionally allowed the states, within the framework of the federal constitutional and statutory mandates, to exercise the substantive control over the procedures and administrative details of elections within their own respective jurisdictions (and the states have then often further devolved immediate administrative and supervisory control over many election procedures to local and county authorities within their jurisdictions). This policy has generally recognized the principle that because of the varying political cultures, practices, and traditions across the nation, and from state-to-state, that operational authority over most of the election mechanics is more appropriately left to the states and localities. Thus, as shown by the recent instances regarding candidate-substitutions on the ballot for the United States House of Representatives and the United States Senate, the particular procedural laws of the state in question govern the resolution of the issue. In Texas, the courts looking at the matter of the attempted withdrawal of and replacement for former Representative Tom DeLay on the ballot for the United States House of Representatives from the 22 nd district of Texas, interpreted a Texas election law, in light of the United States Constitution's qualifications requirements, to find that former Representative Tom DeLay could not be replaced on the ballot by the Republican party after Mr. DeLay had won the nomination at a primary election. To prevent what has been described as the "gaming" of the nomination system with the use of so-called "straw" candidates, "stalking horses" or "place-holder" candidates, Texas law currently provides that when parties nominate candidates by primary election, one party is not permitted to later replace a candidate so nominated, unless the candidate is not "eligible" for the office. Since "eligibility" for the office of Representative in the United States Congress is established in and governed exclusively by the provisions of the United States Constitution--and those provisions require only that the candidate be 25 years of age, a citizen of the United States for seven years and, at the time of election, be an inhabitant of the state from which elected--Mr. DeLay was found not to be, at the time of the decision, "ineligible" under the United States Constitution for the congressional seat, and thus could not be replaced on the ballot under Texas law. In Ohio, however, after the withdrawal of a nominated candidate, the election laws of the State of Ohio permit the political party to name a substitute, or if the candidate withdraws at least 80 days before the general election, to have a "special election" primary to nominate a substitute. So although Representative Ney withdrew from the congressional election race in Ohio at an even later date than did former Representative DeLay in Texas, a special primary was allowed to be held in Ohio to substitute a name on the ballot as the Republican party's nominee for the general election for Representative. Similarly, in New Jersey, the state election laws provided for a specific procedure for the replacement of candidates who withdrew up to 50 days before an election, but the courts found that the state statute did not necessarily preclude party substitution for a withdrawn candidate closer to the election if the administrators of the election certified that the substitution could be made without significant disruption to election procedures. In Missouri, however, the Democratic nominee for United States Senator died in a plane crash so close to the November 2000 general election, on October 16, 2000, that the deadline under Missouri law for finalizing the ballot and programming machines had passed; the party therefore could not substitute another candidate, and the deceased candidate's name was left on the ballot. "Ballot access" rules and provisions in the states, the processes by which candidates are certified to have their names appear on the ballot and programmed into voting machines, are generally promulgated by states in an attempt to prevent the proliferation of frivolous candidates, ballot overcrowding and voter confusion, election fraud, and to facilitate generally proper election administration. While those interests of the state are certainly legitimate and significant, ballot access procedures must, under constitutional principles of the First and Fourteenth Amendments, provide a reasonable and not-impermissibly discriminatory method for new party and independent candidates to qualify for the ballot. That there may be different methods or "tracks" to the ballot, or differing requirements to have one's name placed on the ballot, depending on whether one is the nominee of a major political party, a minor or new party, or an independent candidate, is not necessarily constitutionally impermissible, as long as such methods do not "unfairly or unnecessarily burden" new party or independent candidates. In examining state laws which treat different candidates differently as far as ballot access, the courts will not always apply "heightened scrutiny" to determine if the hurdles imposed on new, minor or independent candidates by election procedures are, on balance, permissible. If the state laws impose only what are found to be "reasonable, nondiscriminatory restrictions" on the protected rights affected, then the regulations and procedures of the state would be upheld when they are sufficiently related to the legitimate state interests asserted. However, when the restrictions on rights are considered to be "severe," then the regulation in question "must be narrowly drawn to advance a state interest of compelling importance." The Supreme Court explained the analytic framework it employs for state regulations which work to limit access to the ballot and thus impact associational rights of voters, political parties, candidates, and their supporters: When deciding whether a State election law violates First and Fourteenth Amendment associational rights, we weigh the "character and magnitude" of the burden the State's rule imposes on those rights against the interests the State contends justify that burden, and consider the extent to which the State's concerns make the burden necessary. [citations omitted] ... Regulations imposing severe burdens on plaintiffs rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting review, and a State's "important regulatory interests," will usually be enough to justify "reasonable nondiscriminatory restrictions." Additionally, reasonable "ballot access" procedures, including filing requirements, filing deadlines, a show of qualifying support by new or minor party or independent candidates, "sore loser" laws and other restrictions on cross-filing and multiple candidacies, have been found generally to be within the state's purview to "regulate[ ] election procedures " to serve the state interest of "protecting the integrity and regularity of the election process....," and when found to be within the state's administrative authority over election procedures, were not deemed to be impermissible "additional qualifications" for federal office, even though they may create certain procedural hurdles or requirements which a candidate must overcome to be placed on the ballot. The distinction between permissible, procedural "ballot access" regulations by the states, such as the "sore loser" laws and the requirements for independents or new party candidates to demonstrate some level of support (such as a certain number of signatures on a petition) to appear on a ballot, as opposed to prohibited "additional qualification" requirements added by the states was explained by the Supreme Court in U.S. Term Limits, Inc.: The provisions at issue in Storer and our other Elections Clause cases were thus constitutional because they regulated election procedures and did not even arguably impose any substantive qualification rendering a class of potential candidates ineligible for ballot position. They served the state interest in protecting the integrity and regularity of the election process, an interest independent of any attempt to evade the constitutional prohibition against the imposition of additional qualifications for service in Congress. And they did not involve measures that exclude candidates from the ballot without reference to the candidate's support in the electoral process. In California, the statutory scheme upheld by the Supreme Court, in Storer v. Brown, supra, worked to prevent a ballot position to an independent candidate not only if that candidate had run in and been defeated in a primary election of a political party (a so-called "sore loser" provision), but also if that person had "voted in the immediately preceding primary" or "had a registered affiliation with a qualified political party at any time within one year prior to the immediate preceding primary election." This so-called "disaffiliation" requirement, along with the "sore loser" provision, were found by the Supreme Court to further important and compelling state interests: A candidate in one party primary may not now run in that of another; if he loses in the primary, he may not run as an independent; and he must not have associated with another political party for a year prior to the primary.... The direct primary in California is not merely an exercise or warm-up for the general election but an integral part of the entire election process, the initial stage in a two-stage process by which the people choose their public officers. It functions to winnow out and finally reject all but the chosen candidates. The State's general policy is to have contending forces within the party employ the primary campaign and primary election to finally settle their differences. The general election ballot is reserved for major struggles; it is not a forum for continuing intraparty feuds. The provision against defeated primary candidates running as independents effectuates this aim, the visible result being to prevent the losers from continuing the struggle and to limit the names on the ballot to those who have won the primaries and those independents who have properly qualified. The people, it is hoped, are presented with understandable choices and the winner in the general election with sufficient support to govern effectively. Section 6830(d)(Supp. 1974) carries very similar credentials. It protects the direct primary process by refusing to recognize independent candidates who do not make early plans to leave a party and take the alternative course to the ballot. It works against independent candidates prompted by short-range political goals, pique, or personal quarrel. It is also a substantial barrier to a party fielding an "independent" candidate to capture and bleed off votes in the general election that might well go to another party. ... California apparently believes with the Founding Fathers that splintered parties and unrestrained factionalism may do significant damage to the fabric of government. The Federalist, No. 10 (Madison). In a somewhat similar vein, the Supreme Court upheld a Minnesota statute which prohibits, as do the laws of many other states, a candidate from appearing on the ballot as the candidate of more than one political party, often referred to as "fusion" candidacies. While the Court noted some potential burden on the First and Fourteenth Amendment rights of association and speech of a political party and its supporters in such anti-fusion laws, the Court found the burdens to be "not severe," as the laws "do not restrict the ability of the New Party and its members to endorse, support, or vote for anyone they like," nor do they "directly limit the party's access to the ballot." As such, the Court found that the state's interests "to reduce election- and campaign-related disorder," and the interests put forward by the state of "avoiding voter confusion, promoting candidate competition (by reserving limited ballot space for opposing candidates), preventing electoral distortions and ballot manipulations, and discouraging party splintering and 'unrestrained factionalism,'" were sufficient state interests promoted by this ban. Certain states have statutory provisions that have become known as "sore loser" laws. "Sore losers" have been described by one United States Court of Appeals as follows: "'Sore losers' are candidates who lose a major party primary but insist on running on a minor party ticket" or as an independent in the general election. The laws in several states now prohibit one who has run and lost in a primary, from obtaining a place on the ballot in the general election as an independent or as a minor party candidate. In early state litigation, in 1902, a Minnesota statutory scheme preventing an unsuccessful congressional candidate at a primary election from having his name printed on the general election ballot as an independent for the same congressional office was upheld against a challenge that it created an additional qualification to office, as long as the candidate could run in a write-in campaign. Similarly, in 1934 a Nebraska Supreme Court ruled that a candidate who was defeated in the primary election for the office of Governor could not by petition have his name printed on the general election ballot even for another office, that of United States Senator, since the statutory scheme preventing those defeated at the primary from being on the ballot in the general election did not create an additional qualification for congressional office. In the only case found voiding a "sore loser" law's application to a congressional candidate, the North Dakota Supreme Court in 1942 ruled that the state statute was inapplicable to congressional candidates on the basis that it impermissibly created an additional qualification for congressional office. The clear trend in litigation in federal courts has been favorable to state "sore loser" laws as a species of "ballot access" provisions that help states maintain the integrity of the nominating and election process by preventing "interparty raiding," carrying "intraparty feuds" into the general election, "unrestrained factionalism," ballot clutter, and voter confusion. In Williams v. Tucker , a three-judge federal district court upheld the provisions of the Pennsylvania election code which worked to require a candidate to choose between a primary nomination or an independent petition route to the general election, and which barred both state and federal candidates who lost in the primary election from running again in the general election as independent candidates. The court in Williams v. Tucker relied significantly on the Supreme Court decision and reasoning in Storer v. Brown , in justifying certain state regulations on the nomination, ballot, and general election procedures. The court there found that the laws in question, "which have the combined effect of preventing a candidate defeated in the primary from obtaining a position on the general election ballot as the candidate of a political body, do not for this reason violate the first amendment or the equal protection clause of the fourteenth amendment." As part of the administrative duties involving ballot access, preparation and printing of the ballots, a state must by necessity, because of the exigencies of time and duties, limit or establish a time-frame or deadline by which the ballot must be "set" or finalized, that is, a reasonable time before the general or primary election when no more candidates may be placed on the ballot or programmed into the voting machines. Courts have noted that states have a "compelling interest" in setting deadlines and in finalizing the ballot "so that general election ballots can be properly and timely prepared and distributed." One of the consequences of not having a "set" ballot at some reasonable point prior to an election (and of allowing last-minute changes in the candidates on the printed ballot and on voting machines), would be the disenfranchisement of military and other absentee voters, since such last-minute changes would not allow sufficient time before election day to prepare, print, mail out and then to receive back by mail new absentee ballots with such changes. As found by one federal court, with an election a "mere five weeks away" even if plaintiffs had prevailed on the merits of their arguments against their exclusion from the ballot, the court would have still refused to require the state to change its ballots by including petitioners' names, since the court recognized the overriding administrative necessities of deadlines to insure "time available for election officials to complete their election preparations" before the election. The court noted the "risk [of] substantial disruption of the electoral process" that could ensue by changing a ballot after the state-established administrative deadline for finalization of those ballots, and noted the "tight schedule" of election officials, and the myriad duties and responsibilities that are valid administrative reasons for reasonable deadlines for finalizing ballots: Last minute voter registration, processing of many absentee ballot requests, supervising the printing of voting machine ballots, sample ballots, tally sheets, and instruction sheets, instruction classes for election judges and clerks [ footnote : mailing of absentee ballots and classes for election judges and clerks have already begun], final preparation of voter lists and signature cards, and distribution of voting machines and supplies remain to be accomplished before [the] November [election]. Courts have thus been loathe to require or allow parties to force changes to ballots close to an election, that is, at the "eleventh hour," with an election "close at hand," or with "the imminence of election," because of "the potential for seriously disrupting the State's electoral process." With an election "less than three weeks away," a federal court refused to require the changing of a ballot to add petitioners' names, even on a strong First Amendment showing by petitioners, since "much of the ballot and voting machine preparation" had already taken place, and there needed to be a balancing and a proper weight given to the state's needs and interests in an "orderly" election, including the prevention of the "possible disenfranchisement of absentee and military voters caused by eleventh hour changes to the ballot." Justice Marshall, on circuit, turned down on October 1 a request to order names to be printed on a ballot for an upcoming November election citing, among other reasons, the state's concern for the potential "chaotic and disruptive effect upon the electoral process," since the "Presidential and overseas ballots have already been printed; some have been distributed. The general absentee ballots are currently being printed." The filing deadline and requirement for finalizing the ballots are among the reasons that a political party might not be allowed under state procedures to substitute a nominee on the ballot after a particular time prior to an election. This is often the reason that a candidate who died or withdrew shortly before an election would still have his or her name on the ballot and programmed into voting machines, at the time of the election. States interpreting their own statutes might show differing degrees of leniency as to such deadlines, particularly, as in the case of the United States Senate election in New Jersey in 2002, if election administrators attest that the change can be implemented in the time remaining before the election without significant disruption or disenfranchisement of absentee voters. Overly long filing deadlines for parties and candidates, particularly with respect to the deadlines established for the collection of signatures on petitions for new, minor party or independent candidates, might also be used, however, as a device or method to burden or to improperly keep those candidates off of the ballot. Recent cases have affirmed that some filing deadlines, particularly when combined with stringent signature requirements for petitions, may unfairly burden the First and Fourteenth Amendment rights of rights of voters and the parties and candidates that they support. In Ohio, all political parties are required by the Ohio Constitution to nominate their candidates by a primary election. Furthermore, all minor parties (parties which receive less than 5% of the vote) are required by statute to file a petition with the Secretary of State--containing signatures of 1% of the total votes cast in the previous election--120 days in advance of the required state primary. In presidential election years, with the presidential primary being moved from May to the first Tuesday in March, a minor party would have to garner signatures and submit a petition to participate in a primary for the November election almost one full year before that November general election. Under these circumstances, and considering the track record of the State of Ohio (which the court indicated had the fewest minor party candidates for President of any of the most populous states), the combination of such laws and requirements was found in a recent decision to have imposed a "severe" burden on the associational rights of the voters seeking to associate with this party, as well as a severe burden on the party seeking support and the placement of its candidates on the ballot, which was not justified by any countervailing, compelling state interest. The court there noted: "Deadlines early in the election cycle require minor political parties to recruit supporters at a time when the major party candidates are not known and when the populace is not politically energized." Among the requirements differing from major party candidates that a state may impose upon new, minor, and independent candidates as a condition to appearing on the ballot, is that the candidate show some "modicum of support" by the electorate, in the interest in weeding out frivolous candidates and cluttering the ballot with multiple candidates, leading to voter confusion. In Green Party of Arkansas v. Daniels , the United States District Court in Arkansas, in August of 2006, found that restrictive petition requirements for new parties to have their candidates appear on the ballot (signatures totaling 3% of the number of votes for Governor or presidential elector--which would be 24,171 signatures--as compared to only 10,000 for independent candidates) would burden the "rights of individuals to associate for the advancement of political beliefs, ... the right of qualified voters, regardless of political persuasion to cast their votes effectively" and the "right of citizens to create and develop new political parties." The court there determined that these burdens were not justified by a "narrowly drawn" recognition scheme that served "a compelling state interest." The court found from the history of ballot access by new party and independent candidates in Arkansas, that the 10,000 signature requirement would suffice to meet the state's asserted interests and needs: The 10,000 signature threshold is a sufficient modicum of support to serve the state's interest in avoiding cluttered ballots and the evidence shows quite clearly that the three percent requirement is much higher than necessary as it imposes a severe burden under the First and Fourteenth Amendments on the associational rights of the Green Party and the candidates who are plaintiffs in this case because they cannot get on the ballot otherwise. In New Mexico, a statutory scheme was upheld by the United States District Court of New Mexico in a decision released September 18, 2006. The New Mexico statutory scheme in question provided for a two-step petition requirement for new parties to have their candidates appear on the ballot. In the first step, a political party seeking recognition as a "minor political party" must file a petition containing signatures from at least one-half of one percent of the total votes cast for the office of Governor of New Mexico (or President of the United States) at the preceding election in New Mexico. After the party is certified, the party may then nominate candidates for public office as prescribed in the party's rules, and must then certify the names of candidates by the second Tuesday in July,--and with such certification provide another petition for each candidate with signatures of one percent of the total votes cast for the office of Governor of New Mexico (or President of the United States) at the preceding election. The Libertarian Party in New Mexico filed the original petition to be recognized as a "minor political party," but did not file the petitions required at the second step for its candidates to appear on the ballot, but rather filed a law suit claiming that the two-step petition process violated the First and Fourteenth Amendment rights of association and speech of its party, its members and candidates. The court there, focusing primarily (as did the complaint) on the second, 1% signature requirement, did not believe that the "character and magnitude" of the burdens imposed on new and minor parties, their candidates and supporters, were severe enough to overturn the requirements. The court noted that the Supreme Court in the past has allowed petition requirements of between 1% of the total vote cast for Governor in the preceding election (in Texas), and, in Georgia, up to 5% of the number of voters eligible to vote in the last election for the office in question. In this case the court found that the second petition requirement of a 1% showing of support legitimately supported the goals of the state "avoiding overloaded ballots and frivolous candidacies, which in turn diminish victory margins, contribute to the cost of conducting elections, confuse and frustrate voters, increase the need for burdensome runoffs, and may ultimately discourage voter participation and in the electoral process." As to the dual petition requirements taken together, the court conceded that "it is more burdensome for a political organization to obtain the necessary signatures" for becoming a minor party, and then shortly thereafter having to obtain signatures for its list of candidates. However, the court concluded that on the whole "the burdens are still substantially less than the burdens imposed by schemes previously upheld by the Supreme Court." The court concluded: The State has separate interests in ensuring support for a political party and ensuring a modicum of support for a particular candidate nominated by that party. The fact that these two petitions may, under certain circumstances, occur in the same election cycle does not create a sufficient burden to outweigh the important State interests served by the requirements. In some cases a court may look not only to the number of petition signatures required for a candidate to be placed on the ballot, or to the length of time before an election that a petition must be filed by new, minor, or independent candidates, but may also look to the totality of circumstances in finding unnecessary burdens on the First and Fourteenth Amendment rights of supporters, voters, parties, and candidates. In Lee v. Keith , decided on September 18, 2006, the United States Court of Appeals for the Seventh Circuit found the Illinois statutory scheme for independent candidates to be overly burdensome, and not a narrowly drawn provision which advances the state interests asserted. The statutory scheme for independents to be on the ballot for the State General Assembly required nominating petitions to be filed 92 days before the March primary for that office, or 323 days before the November general election, required the obtaining of signatures from voters equaling 10% of the vote in the last general election (raised in 1979 from 5%), and disqualified anyone who signs such a petition for an independent candidate from voting in the primary. As noted by the court, since one year from the institution of these requirements (1980), "not a single independent candidate for state legislative office has qualified for ballot access." The court concluded in that case: When measured by comparison to the ballot access requirements in the other 49 states or by the stifling effect they have had on independent legislative candidacies since their inception, the combined effect of Illinois' ballot access requirements for independent General Assembly candidates falls on the "severe" end of this sliding scale.... Because Illinois' ballot access requirements combine to severely burden the rights of candidates and voters to launch and support independent candidacies, they must by "narrowly drawn" to advance s "compelling" state interest.... We conclude that these ballot access requirements, in combination, severely burden First and Fourteenth Amendment rights and are not narrowly drawn to advance Illinois's interest in avoiding the political instability of party splintering and excessive factionalism and the ballot clutter of frivolous candidacies. We do not question that these are important state interests; they have long been recognized as such.... But the Supreme Court has also observed that the interest in political stability "does not permit a State to completely insulate the two-party system from minor parties' or independent candidates' competition and influence," ... and that is effectively what Illinois has done.

In July of 2006 federal courts ruled that former Representative Tom DeLay, who had earlier won the Republican primary nomination for Congress from the 22nd District of Texas, could not have his name substituted on the general election ballot by the Republican party even if Mr. DeLay had changed his legal residence and voluntarily withdrew from the race. In Ohio, however, a different result ensued a month later when Representative Robert Ney, who had won the Republican party nomination in an earlier May primary, formally announced his withdrawal from the race on August 14, 2006, but was permitted to be replaced through a "special primary" to nominate another candidate. In Connecticut, the defeated candidate for the Democratic party nomination in the August 2006 primary, incumbent Senator Joseph Lieberman, appears to be able to be on the ballot either as an "independent" or nominee of a minor party in the general election in November, although a similar ballot position for the general election for one who had lost a party nominating primary would be barred in numerous states (including Ohio) because of the application of their so-called "sore loser" laws. Several years earlier, on September 30, 2002, former Senator Robert Torrecelli, the Democratic nominee for the United States Senate from New Jersey, voluntarily withdrew from the Senate race and, even at that late date, a new candidate was allowed to be chosen by the Democratic party in New Jersey and to have his name appear on the November ballot. Meanwhile in Missouri, the Democratic nominee for the United States Senate in the 2000 election, former Governor Mel Carnahan, died in a plane crash on October 16, 2000, three weeks before the general election, was not able to be replaced on the ballot, received the most votes in the ensuing election, and the "vacancy" created was filled by a temporary replacement named by the Governor. It is the constitutional authority of the states in the United States Constitution, at Article I, Section 4, clause 1, concerning the "times, places, and manner" of federal elections, which allows the states to promulgate their own laws, rules and regulations regarding the ballot, the structure of the ballot, and concerning so-called "ballot access" requirements for political party nominees, new party nominees, and independent candidates, that has led to the varying and different treatment and requirements for placement, removal and/or substitution of a candidate's name on the ballot, depending on the state in which the congressional election is to be held. This report discusses the extent of the states' authority over the procedures of federal elections, examines the limitations placed by the courts on the ability of the states to limit or regulate "ballot access," that is, the requirements of minor or new party candidates, or independent candidates, to have their names printed on the ballot and programmed into voting machines, and analyzes the new cases on ballot access that have been handed down by the Federal courts in recent months.

A "grand coalition" government of Germany's two largest parties, the Christian DemocraticUnion/Christian Socialist Union (1) (CDU/CSU) and the Social Democrats (SPD) led by CDUcandidate Angela Merkel took office on November 22, 2005, after the two parties worked out anagreement on a coalition governing program. The German federal election of September 18, 2005,had produced no clear winner or direction for the next government. Some see this government asshort-lived and unlikely to succeed, while others believe that only such a coalition has the combinedstrength to implement potentially painful but needed economic and social benefits reforms, assumingthat it can overcome partisan politics. Foreign policy is likely to play a secondary and lesscontentious role, given the press of domestic business and a general consensus on most internationalissues. The atmosphere of U.S.- German relations has already improved since the Merkelgovernment took office, as reflected by the successful first official visit of Chancellor Merkel toWashington on January 13, 2006. On May 22, 2005, German Chancellor Gerhard Schroeder surprised his country byannouncing that he would seek early federal elections in September 2005, a year ahead of schedule. His decision followed the resounding defeat suffered by his Social Democrats (SPD) in the stateelection in North Rhine-Westphalia, a traditional SPD stronghold. (2) This was the most recent ina string of state election losses that had given the Christian Democratic Union (CDU) oppositionfirm control of the German Bundesrat (upper house of parliament). The sluggish economy,persistently high unemployment, as well as concern about welfare and labor reforms, both enactedand planned, were widely seen as principal reasons for the SPD defeat. Early elections are rare in Germany because the German Basic Law (Constitution) makes itvery difficult for the Bundestag (lower house of parliament) to be dissolved. Only the President candissolve parliament and only after a vote of no confidence in the government. German PresidentHorst Kohler set new elections for September 18, 2005 after the Bundestag held a vote of noconfidence in the government which the Chancellor himself initiated on July 1, 2005. Before theelection was held, the decision was reviewed and approved by the German Constitutional Court. The election gave no party the necessary majority with its preferred coalition partner. Although the Christian Democratic Union/Christian Social Union (CDU/CSU) got the most votesby a slim margin, it had an unexpectedly weak showing compared to pre-election polls and in lightof the general disgruntlement with the previous government. Analysts attributed the weak showingto the fact that voters were deeply skeptical of whether a CDU/CSU government could accomplishmore than its predecessor and were also worried about some of the CDU reform ideas. Accordingto official results, the CDU/CSU received 35.2 percent of the vote, barely beating out the SocialDemocrats (SPD) with 34.3 percent of the vote. This left neither party in a position to form agovernment with just its most likely coalition partner. The Free Democratic Party (FDP) actuallydid better than expected with 9.8 percent of the vote and ahead of the Greens who received 8.1percent. The new Left Party, a union of east German former communists and a breakaway factionof the SPD, received 8.9 percent of the vote, enough to be seated as a faction in the Bundestag. Theformer communist party (PDS) did not achieve the 4 percent threshold to gain seats in theBundestag. Voter turnout was 77.7 percent, slightly less than in the 2002 election. (3) Table 1. Major Party vote percentages in the last three GermanFederal Elections

A "grand coalition" government of Germany's two largest parties, the Christian DemocratUnion/Christian Socialist Union (CDU/CSU) and the Social Democratic Party (SPD) led by CDUcandidate Angela Merkel took office on November 22, 2005, after the German federal election ofSeptember 18, 2005, had produced no clear winner. Some experts believe that the coalition will befragile, short lived, and will accomplish little with each side trying to gain political advantage overthe other. Such negative expectations are not shared by other analysts who believe that only sucha large coalition can implement potentially painful but needed economic and social reforms,assuming that it can overcome partisan politics. The most difficult and crucial areas on which the coalition must cooperate if the governmentis to succeed involve social and economic policy. Government success will be important, not justfor Germany, but also for Europe and global economic health. Experts believe that Angela Merkel,as Chancellor, wants to speed domestic social and economic reforms. It is not clear whether she willhave broader domestic support to do so, especially among the SPD base. Many observers expect more continuity than change in German foreign policy under the"grand coalition" government. On most issues, the CDU/CSU and the SPD are not far apart.Germany is expected to continue to give priority to multilateral approaches to solving internationalproblems. Many expect Chancellor Merkel to balance traditional strong Franco-German cooperationwithin the EU with closer ties to the United Kingdom, and other countries such as Italy, Spain, andPoland. She is expected to pursue European integration as a corollary rather than in opposition to thetransatlantic partnership. U.S. officials and many experts hope for improvement in U.S.-German bilateral relationsunder the Merkel-led government. Merkel has given priority to reducing the strains in transatlanticrelations, as well as improving negative German public opinion regarding the United States. The newGerman government is unlikely to fundamentally change the German stand on Iraq, meaning thatit will provide some financial and training assistance outside Iraq, but no military personnel on theground. It is likely to continue to take a lead in efforts to stabilize Afghanistan. Chancellor Merkelis expected to continue Germany's domestic and international efforts to combat terrorism. TheUnited States, Germany, and the EU are working together to oppose Iran's development of nuclearweapons. Chancellor Merkel has indicated that she will not support a lifting of the EU armsembargo against China, which the United States also opposes. A number of differences are likelyto continue even under the Merkel government, such as on the treatment of terror suspect prisoners,extra-judicial "renditions," environmental policy, and the International Criminal Court. ChancellorMerkel's first official visit to Washington and her talks with President Bush on January 13, 2006,were designed to demonstrate that a new positive chapter had opened in bilateral relations, althoughdifferences were discussed candidly. The two leaders agreed on most points, including the urgencyof addressing Iran's nuclear ambitions. This report will be updated.

The JTRS program originated in the mid-1990s and was intended to replace the 25 to 30families of radio systems used by the military -- many of which could not communicate with eachother -- with software-based radios that could operate across the entire radio frequencyspectrum. (1) JTRS isintended to permit the Services to operate together in a "seamless" manner via wireless voice, video,and data communications through all levels of command, including direct access to near real-timeinformation from airborne and battlefield sensors. (2) Described as a "software-defined radio" JTRS is envisioned tofunction more like a computer than a conventional radio and is to be upgraded and modified tooperate with other communications systems by the addition of software as opposed to redesigninghardware - a more costly and time-consuming process. DOD also asserts that in "many cases, asingle JTRS radio with multiple waveforms (3) can replace many separate radios, simplifying maintenance" andthat because JTRS is "software programmable, they will also provide a longer functional life" (4) with both features offeringpotential long-term cost savings. It is also planned that JTRS will be interoperable with currentDOD radio systems, the Pentagon's Global Information Grid, (5) and the communicationssystems of selected allied nations. (6) JTRS has been characterized by the Army as a key complementary enabler of the FCSnetwork that would enable FCS sensors and combat systems to acquire and engage targets at adistance as well as preventing them from being engaged by enemy systems. (7) To a significant extent, theArmy has linked progress in the development of a number FCS subsystems to progress in the JTRSprogram. The JTRS program was originally broken into five "clusters' with each cluster having aparticular Service "lead." Table 1. JTRS Clusters a. Form factor radios are essentially miniaturized radios that soldiers would carry, as well as radios for weight and power-constrained platforms -- such as FCS Unattended Ground Sensors andIntelligent Munitions. In early 2004, DOD merged Clusters Three and Four into a single program -- the Airborne,Maritime, and Fixed Station Program (AMF JTRS) -- jointly managed by the Navy and the Air Force-- because studies suggested that developing the clusters together would result in a more efficientprocurement process and a better overall product. (8) All JTRS Clusters are being developed concurrently and there isno requirement that one cluster is completed before another cluster can be developed. Because theFCS program is heavily dependent on Clusters One and Five, this report will address only issuesinvolving these two clusters being developed by the Army. (9) Developmental. JTRS has experienced a numberof developmental difficulties to date. Some of the more notable difficulties are discussed in thefollowing sections. Size and Weight Constraints and Limited Range. According to a Government Accountability Office (GAO) report: To realize the full capabilities of the WidebandNetworking Waveform, (10) including transmission range, the Cluster One radio requiressignificant amounts of memory and processing power, which add to the size, weight, and powerconsumption of the radio. The added size and weight are the results of efforts to ensure the electronicparts in the radio are not overheated by the electricity needed to power the additional memory andprocessing. Thus far, the program has not been able to develop radios that meet size, weight, andpower requirements, and the current projected transmission range is only three kilometers -- wellshort of the 10-kilometer range required for the Wideband Networking Waveform ... The ClusterOne radio's size, weight, and peak power consumption exceeds helicopter platform requirements byas much as 80 percent. (11) The inability to meet these fundamental design and performance standards has raisedconcerns that Cluster One may not be able to accommodate additional waveforms (current plan isfor Cluster One to have four to eight stored waveforms) as intended and that it may be too bulky orheavy to fit into the stringently weight and size-constrained FCS Manned Ground Vehicles(MGVs) (12) as well asthe Army's helicopter fleet. Some are concerned that to meet these physical requirements, the Armymay significantly "dumb down" Cluster One performance specifications. (13) According to the Army,however, it continues to make progress in terms of reducing Cluster One's weight and size and inincreasing its transmission range, however incorporating all of the desired waveforms into ClusterOne is proving to be difficult. (14) Cluster Five radios were also reportedly experiencing similarsize, weight, and power difficulties - difficulties more pronounced as some Cluster Five versions aresupposed to weigh no more than one pound. (15) Current reports on Cluster Five progress appear to be moreoptimistic than Cluster One. General Dynamics reports that they have been able to achieve systemscompatibility between Cluster Five units and three other key FCS components, the Non-Line of SightLaunch System, the Unattended Ground Sensor, and the Intelligent Munitions System. (16) DOD convened a mini-Defense Acquisition Board (17) (DAB) for the Cluster Oneprogram on October 11, 2005 and, according to one report, plans to hold another review onNovember 21, 2005. (18) Information concerning the October 11 review was not publically released and there is some renewedconcern that the Cluster One program is in trouble. Another report suggests that the airborne versionof Cluster One, despite significant re-engineering, still exceeds weight limitations. (19) The issue appears to bethat Boeing has had difficulty reducing the radio's weight below 66 kilograms - with 52 kilogramsbeing the maximum allowable weight for the airborne version of Cluster One. (20) According to Boeingofficials, it would be possible to achieve the 52 kilogram weight limit but it would require significantdesign changes to a design that is already well established and not easily changed. (21) Despite this difficulty,certain aspects of the Cluster One program have shown improvement - according to Boeing officials- with the first version of the Wideband Networking Waveform apparently operational on someversions of Cluster One. (22) Security. Security for JTRS has emerged as asignificant developmental difficulty. According to one expert, one of the program's biggest problemsis security, "namely encryption, as JTRS encryption is software-based and is, therefore, vulnerableto hacking." (23) Computer security experts generally agree that software used for any purpose is vulnerable, as nocurrent form of computer security offers absolute security or information assurance. According toGAO, JTRS will be required to operate applications at multiple levels of security and in order tomeet this requirement, developers will have to not only account for traditional radio securitymeasures but also computer and network security measures. (24) In addition, NationalSecurity Agency (NSA) (25) security concerns about JTRS interface with radio systems ofU.S. allies, and the requirement for JTRS to be interoperable with DOD's Global Information Grid(GIG), are also expected to pose developmental challenges. (26) One such security-relatedchallenge is that DOD's Global Information Grid will also interface with the Internet, which bringswith it a whole additional set of security concerns for JTRS. (27) Interoperability with Legacy Radio Systems. Somehave expressed concerns that the goal of making JTRS "backward compatible" with legacy radiosmay be technologically infeasible. (28) Reportedly, early program attempts at cross-banding (29) to synchronize incompatible legacy radio signals proved to be too complex and current Army efforts are focusingon using the Wideband Networking Waveform to link with legacy radio frequencies. (30) One report suggests thatwhile the Wideband Networking Waveform can receive signals from legacy radios, legacy radioscannot receive signals from JTRS and to rectify this situation, the Army is looking at using 19different waveforms to facilitate JTRS transmissions to legacy systems. (31) Incorporating up to 19different waveforms into a JTRS radio has the potential to significantly increase memory andprocessing power requirements which, in turn, could drive up JTRS size, weight, and powerrequirements. Recently, the Joint Staff asked the Services to prioritize JTRS waveforms and theArmy reportedly identified four waveforms as initial priorities for FCS and other complementaryprograms. (32) Cluster One Stop Work Order. On April 25, 2005,DOD issued a "Show Cause" letter to Boeing- the lead contractor for JTRS Cluster One - stating thatit was considering cancelling the contract for the first phase of Cluster One due to Boeing's "anticipated failure to meet cost, schedule, and performance requirements." Shortly after thisdecision, work on Cluster Five was also partially suspended, due in part to developmental problems,changing technical requirements, and a contract award protest, and also because progress in ClusterFive was heavily leveraged against progress on Cluster One. (33) As a result of the workstoppage, DOD lifted its requirement for Services to obtain a DOD waiver before purchasingnon-JTRS radios and the Services were authorized to purchase legacy radios, such as the SingleChannel Ground and Airborne Radio System (SINCGARS), which has been in service since the1980s. (34) JTRS Alternatives. Some analysts suggest that thereare alternatives to JTRS that are already commercially available. Companies such as HarrisCorporation -- a Cluster One team member - produces a software-defined radio (Falcon IIAN/PRC-117F(C)) and Thales -- a Cluster Five team member and the lead contractor for SOCOM'sCluster Two radio -- both produce software-defined radios that are already in use in the field. (35) It should be noted,however, that these software-defined radios currently in use only run a subset of the current forcewaveforms, and the Wideband Networking Waveform and Soldier Radio Waveform -- both FCSprogram requirements -- would not be available on these radios. (36) Another possible solutioncould be to use existing software-defined radios and to acquire a commercial wideband system suchas WiMax (37) -- anon-line-of-sight commercial broadband networking technology that could be modified for militaryuse. (38) Experts suggestthat a system such as WiMax could provide the military with more bandwidth and enhancedover-the-horizon mobile communications. (39) The Army asserts, however, that if a system such as WiMax wasadopted for use, that it would require NSA certification not unlike current certification efforts forJTRS. (40) The greaterbandwidth and over-the-horizon mobile features of WiMax could address concerns that FCS mightnot have sufficient bandwidth and the perceived over-reliance on unmanned aerial vehicles (UAVs)and other airborne platforms - which are subject to hostile fire and weather constraints - to retransmitJTRS signals over extended distances. Boeing Retains Cluster One Contract. On July 19,2005, the Army reportedly decided to keep Boeing as the Cluster One lead contractor but wouldcontinue to assess the program's progress. (41) No details were publically released as to why the Army decidedto keep Boeing as the lead contractor but some suggest that it was not because Boeing demonstratedprogress in correcting noted design deficiencies, but instead because Boeing had a strong legal caseagainst the Army if the Army had decided to terminate its contract with Boeing. Work on ClusterFive radios - which, unlike Boeing, was never formally suspended by DOD - has continued in areasthat were not dependent on Cluster One technologies and General Dynamics has reportedly madeprogress in addressing size and power concerns raised by GAO in their report. (42) Experimentation. In October 2005, the Armyinitiated what it calls "Experiment 1.1" to test elements of the FCS network - including JTRS. (43) The experiment, slatedto run through early 2006, is to test other network components including the System of SystemsCommon Operating Environment (SOSCE) (44) and Networked Battle Command Systems. (45) The intent is to test thenetwork inside of formations and down to the soldier level and also to link sensors to soldiers andvarious FCS items in preliminary stages of development such as unmanned aerial vehicles (UAVs),unmanned ground vehicles (UGVs) and unattended munitions systems. Because manned groundvehicles are not yet developed, network items - including JTRS- are to be placed in surrogatevehicles (modified High Mobility Multi-Wheeled Vehicles -- HMMWVs). These vehicles are to use early developmental models of the Cluster One radio. The programmanager for FCS, Brigadier General Charles Cartwright, expects to receive 42 "pre-engineering"development models of Cluster One in December 2005 and also plans on using Cluster Five unitsin Experiment 1.1 -- and, possibly, a second "Experiment" -- in 2006. (46) The Army has a number of specific objectives for Experiment 1.1 including: FCS risk mitigation; Support the development of the Army's modular force Brigade Combat Teams(BCTs); (47) Gain knowledge to support further development of FCScapabilities; Provide information that could lead to program improvements and perhapsmore rapid development, and To show the progress and maturity of the FCS program and the FCS networkin an operational environment. (48) Given these objectives, it is not unreasonable to assume that the early development models of JTRSCluster one will undergo considerable experimentation and testing. If this is the case, theexperiment's results could potentially have significant ramifications for the future of the Cluster Oneprogram, particularly if Cluster One's performance fails to meet the Army's expectations. Spin Out One. The Army's FCS program consistsof four "spin outs" -- formerly known as spirals -- that will introduce FCS technologies and systemsto the current force. These fielding spin outs are slated to occur in 2008, 2010, 2012, and 2014 toan experimental brigade and then two years later to the rest of the Army. The first spin out of FCStechnology in 2008 is to emphasize improved munitions and sensors connected in an initial versionof network capabilities. (49) These network capabilities are thought to include Clusters Oneand Five, Wideband Networking Waveform, Warfighters Information Network-Tactical(WIN-T), (50) and theSystem of Systems Common Operating Environment (SOSCOE). In Spin Out One, Clusters One andFive are planned to be used in conjunction with other FCS systems such as Unattended GroundSensors (UGS), the Intelligent Munitions System (IMS), and the pre-production model of theNon-Line of Sight Cannon (NLOS-C). GAO asserts that "it is unlikely that Cluster One radios will be available for the first spiral[now referred to as spin out] of the FCS network, slated for FY2008 and that Cluster Five radiosmight not be available for the first spiral." (51) Some reports suggest that JTRS program progress is being made,particularly in the Cluster Five program where technology workarounds necessitated by the ClusterOne stop work order, have helped Cluster Five to "achieve a degree of compatibility" with other FCScomponents due to be tested in Spin Out One. (52) If, however, Cluster One and Five are not available by 2008,reports suggest that the Army is planning to use pre-production models and/or surrogate softwaredefined radios of lesser capabilities in their place. (53) On July 28, 2005 the JTRS program underwent a Defense Acquisition Board (DAB) reviewand although results have not been publically disclosed, the Secretary of the Army, Francis Harvey,reportedly acknowledged that DOD would restructure the entire JTRS program. (54) In August, the JTRS JointProgram Executive Office (JPEO) submitted a proposal to DOD which details how it would manageall JTRS Cluster efforts (as opposed to the management structure depicted in Table 1) with the intentof achieving near-term success by delivering usable capabilities to the field now, while pursuing thelong term goal of fielding a complete interoperable software defined radio over time. (55) Preceding the JTRSprogram restructuring, Boeing and Science Applications International Corporation (SAIC) -- whoserve as lead systems integrators for the entire 18 system FCS program -- announced in June 2004that Cluster One and Five programs would be restructured to better meet the needs of the FCSprogram. (56) Whilesupporters suggest that this restructuring might help to focus JTRS development efforts and providedefinitive design guidance to JTRS developers, critics say that this is just another in a series ofprogram "restructurings" -- the Army added two years of additional effort and $458 million toCluster One in December 2004 to address developmental problems (57) -- for a program that startedin 1999 and "has a long ways to go before it can be used in military operations." (58) According to GAO, (59) the Cluster One program is expected to cost $15.6 billion todevelop and acquire over 100,000 Cluster One radios and $8.5 billion to develop and acquire over300,000 Cluster Five radios, and the Army has reportedly requested $156.7 million in FY2006 forJTRS. (60) Cost growthfor Cluster One has been of significant concern as noted by GAO: Since the program entered systems development in2002, the contractor has overrun cost estimates by $93 million - nearly 28 percent above what wasplanned. Although the program attempted to stabilize costs by adding approximately $200 millionto the contract in January 2004, costs continued to grow steadily thereafter. In addition, thecontractor has increasingly fallen behind schedule and has had to devote more resources thanoriginally planned. In January 2005, the prime contractor estimated that the total costs for the ClusterOne radio and waveform development would be $531 million more than what was originallybudgeted, reaching $898 million at completion. However, according to program officials, sincecontract award, the prime contractor has not demonstrated strong cost estimating and costmanagement techniques, and it is difficult to estimate with any confidence what the overall programis likely to cost. (61) Given this history of cost overruns and the inability to forecast and manage program costs,some say a strong case could be made to permanently stop work on Cluster One while still in theProduct Development and Demonstration Phase of development, and transfer program elements thatshow promise to another developer already in the JTRS program or a developer not in the programbut with demonstrated communications systems proficiency. The Senate passed its version of the FY2006 Defense Authorization Bill ( S. 1042 ) on November 15. A conference agreement on the Defense Appropriations Bill( H.R. 2863 ) has been delayed in part because the House has not formally appointedconferees. Both the Senate and House Reports recommend cuts for the entire JTRS program and theArmy's JTRS programs are addressed in the following sections: Senate - In its report on the FY2006 Defense Authorization Bill (62) the Senate AppropriationsCommittee voiced its support for JTRS and the ongoing JTRS review by DOD's Program ExecutiveOffice (PEO) but noted "the Army's Cluster 1 program faces significant technical challenges" furthernoting that "these challenges could impact the program efforts in the Navy and Air Force." TheAppropriations Committee also called for a DOD assessment and a revised JTRS program plan tobe provided to the defense committees. Committee recommended adjustments for the Army'sprograms are in Table 2 . Table 2. Army JTRS Senate-Recommended Adjustments --FY2006 Defense Appropriations ($ thousands) House -- The House Appropriations Committee Report on the FY2006 DefenseAppropriations bill (64) while critical of the Army's Cluster One and Five programs recommended fully funding waveformdevelopment and funding to continue hardware development. The House also calls for a detailedDOD report on JTRS to the House Armed Service Committee. Appropriations Committeerecommended adjustments for the Army's programs are in Table 3 . Table 3. Army JTRS House-Recommended Adjustments --FY2006 Defense Appropriations ($ thousands) a. Includes requested amounts for JTRS waveform development and Program Management Office activities and Cluster One and Five hardware development. JTRS aviation development andintegration amounts are not included in JTRS program total. b. This reduction is for the integration of aircraft (helicopter) versions of JTRS Cluster One units. With these House and Senate figures, it is unlikely that a conference committee would fullyfund the JTRS program; actual recommended program cuts for the FY2006 Defense Appropriationsbill are pending the outcome of a conference. It is unclear how these yet-to-be-determined programcuts would impact not only the Cluster One and Five programs, but also how they would impact theoverall FCS program. Following a House-Senate conference report, the Army would likely issuean assessment on how the cuts impact both the JTRS and FCS programs. The Viability of the Cluster One Program. Whileboth Clusters One and Five have experienced a number of developmental difficulties, it appears thatthe Cluster Five program has "divorced" itself from Cluster One through technological workaroundsand has achieved a degree of program success reportedly having achieved compatibility with anumber of FCS systems. Cluster One, however, seems to be progressing to a lesser extent with itsfirst "test" likely to be in Experiment 1.1 later on in 2005. The performance of Cluster One in thisexperiment might prove to be a useful metric to help decision- makers determine if the Cluster Oneprogram is a viable one or if another course of action should be pursued. Although not believed tobe included in Experiment 1.1, the airborne version of Cluster One might warrant furtherexamination. It appears that in order for the airborne version to meet the weight limit of 52 kilogramsthat significant capability trade offs may be required to this system that is already in the advancedphases of development - likely resulting in additional delays and significantly increased costs. Given this situation, Congress might review the Army's performance expectations for ClusterOne during Experiment 1.1 testing. Will Cluster One's performance impact on the Army's decisionto continue with what some call a "troubled program" or will the Army opt to stick with ClusterOne's developers no matter what the outcome, and attempt to rectify identified deficiencies throughadditional funds and further program delays? Another issue that might be considered forcongressional review is the state of the airborne version of Cluster One. Some suggest that theprogram has reached an impasse due to aircraft weight and size constraints, and that the only wayto meet these requirements is to redesign the system into a significantly less-capable version -- acourse of action that could further delay the program and carry with it significant cost implications. Security. Congress may decide to examine theissue of security in greater detail. According to GAO, in addition to a requirement to change JTRShardware to accommodate processing and memory capacity upgrades for enhanced security, thecurrent design of JTRS has been judged by the National Security Agency as: Not sufficient to meet security requirements to operatein an open networked environment. Specifically, particular versions of JTRS radios will be used byallied and coalition forces, requiring the Army to release specific source code of the softwarearchitecture to these forces. To address the release, the National Security Agency has requiredchanges to the security architecture. (65) Although GAO expresses security concerns about JTRS use by allied and coalition forces,it is not readily apparent how pervasive a problem security is for JTRS and other components of theFCS network. Given the stated security challenges of software-defined radios, it is conceivable thateven if Cluster One and Five can meet the Army's communications and data transmissionrequirements, that security deficiencies might preclude the operational employment of Clusters Oneand Five. It can be argued that network security would take on an even a more significant role in FCSthan compared to the Army's current force. FCS Manned Ground Vehicles -- lighter and less heavilyarmored than the M-1 Abrams and M-2 Bradleys that they are intended to replace -- would relyextensively on situational awareness provided through the FCS Network for their survivability.Furthermore, this network-provided situational awareness would have a significant impact on FCS'sability to engage enemy forces beyond line-of-sight. Given this significant reliance on the FCSNetwork for survivability and for target acquisition and engagement, potential adversaries might seekto identify and exploit security weaknesses in the FCS network -- including JTRS -- as a means toattack FCS units. One potential adversary -- China -- has "likely established information warfareunits to deploy viruses to attack enemy computer systems and networks" and China's "recentexercises have incorporated offensive [computer] operations, primarily as first strike against enemynetworks." (66) Apotential scenario for consideration is that if an adversary obtained FCS-related source code, theycould engineer a virus that could be introduced into the FCS network and computers. While somemay consider this an improbable scenario, the reported recent discovery by Russian security expertsof the first known computer virus spread by cell phone networks suggests otherwise. (67) The Army is not unaware of these security challenges and notes that network security andinformation assurance are an "ever growing priority, regardless of FCS development." (68) As part of this recognition,the Army FCS program conducts bi-monthly information assurance architecture developmentreviews with the Army staff sections responsible for Intelligence (G-2) and Information andCommunications (G-6) and the National Security Agency and Office of the Secretary ofDefense. (69) JTRS Alternatives. With its history ofdevelopmental difficulties, program delays, and additional costs, some suggest that the JTRS ClusterOne program might be a candidate for cancellation. In this view, Congress might opt to explorealternatives to Cluster One with the Army and DOD. A possible starting point for such a reviewmight be an examination of software-defined radios already in service within the U.S. military orcommercially available through other manufacturers. Some critics argue that the military shouldadopt commercially available and emerging telecommunications technology. One example of sucha technology is third- generation cellular technologies that encompass streaming video, nettedcommunications, and data and voice communications over Internet provider networks. (70) While proponentsmaintain that third-generation cellular could exceed JTRS performance capabilities, critics of thecommercial approach note that these technologies need to be ruggedized, customized to fit onspecific vehicles and systems, and require specialized encryption, and therefore the "off the shelfapproach" might be equally as expensive as developing JTRS. After a thorough technical andcost-based evaluation of these and other JTRS alternatives, some project the best course of actionmay be to continue Cluster One development as currently planned.

The Joint Tactical Radio System (JTRS) is a Department of Defense (DOD) program thatwould play a significant role in the U.S Army's proposed Future Combat System (FCS) program. (For a more detailed description of the FCS program see CRS Report RL32888 , The Army's FutureCombat System(FCS): Background and Issues for Congress , by [author name scrubbed].) JTRS,envisioned as a family of software programmable radios, has been described as the "backbone" ofthe FCS and is intended to link the 18 manned and unmanned systems that would constitute FCS.Two JTRS sub-programs managed by the Army -- Cluster One and Cluster Five -- have experienceddevelopmental difficulties, delays, and cost overruns which calls into question their viability. Thisreport will be updated on a periodic basis.

Passage of the Unlawful Internet Gambling Enforcement Act (UIGEA) in 2006 as Title VIII of the SAFE Port Act represented the culmination of legislative consideration that began with the recommendations of the National Gambling Commission published in a 1999 report. The legislative history of UIGEA indicates that Congress wanted the law, in part, to address the perceived problem of foreign Internet gambling operations that made their services available to U.S. customers. UIGEA prohibits anyone "engaged in the business of betting or wagering" from knowingly accepting checks, credit card charges, electronic transfers, and similar payments in connection with unlawful Internet gambling. UIGEA expressly excludes from the definition of the term "business of betting or wagering" the services of financial institutions as well as communications and Internet service providers that may be used in connection with the unlawful bet; however, such entities may nonetheless incur liability under UIGEA if they are directly engaged in the operation of an Internet gambling site. A violation of UIGEA is subject to a criminal fine of up to $250,000 (or $500,000 if the defendant is an organization), imprisonment of up to five years, or both. In addition, upon conviction of the defendant, the court may enter a permanent injunction enjoining the defendant from making bets or wagers "or sending, receiving, or inviting information assisting in the placing of bets or wagers." Any person or entity that violates UIGEA and its implementing regulations may also be subject to civil and regulatory enforcement actions. For example, the Attorney General of the United States or a state attorney general may bring civil proceedings to enjoin a transaction that is prohibited under UIGEA. However, UIGEA expressly limits the instances when the attorneys general may bring a civil suit against financial institutions and Internet service providers, as follows: they may only bring a civil proceeding against financial institutions to block transactions involving unlawful Internet gambling (unless the institution is directly involved in an unlawful Internet gambling business, in which case criminal prosecution is available). The attorneys general may also initiate civil proceedings against Internet service providers under UIGEA only to block access to unlawful Internet gambling sites or to hyperlinks to such sites under limited circumstances. UIGEA's definition of "unlawful Internet gambling" does not specify what gambling activity is illegal; rather, the statute relies on underlying federal or state gambling laws to make that determination--that is, UIGEA applies to an Internet bet or wager that is illegal in the place where it is placed, received, or transmitted: The term "unlawful Internet gambling" means to place, receive, or otherwise knowingly transmit a bet or wager by any means which involves the use, at least in part, of the Internet where such bet or wager is unlawful under any applicable Federal or State law in the State or Tribal lands in which the bet or wager is initiated, received, or otherwise made. However, this statutory definition expressly exempts certain intrastate and intratribal Internet gambling operations, including state lotteries and Indian casinos that operate under state regulations or compacts. To qualify for the intrastate exception under UIGEA, a bet must (1) be made and received in the same state; (2) comply with applicable state law that authorizes the gambling and the method of transmission including any age and location verification and security requirements; and (3) not violate various federal gambling laws. The intratribal exception is similar, but slightly different. Compliance with the various federal gambling laws remains a condition and there are also similar security, age, and location verification requirements. Intratribal gambling, however, may involve transmissions between the lands of two or more tribes and need not be within the same state. UIGEA further defines the term "bet or wager" to mean "the staking or risking by any person of something of value upon the outcome of a contest of others, a sporting event, or a game subject to chance, upon an agreement or understanding that the person or another person will receive something of value in the event of a certain outcome." The statutory definition includes lottery participation, gambling on athletic events, and information relating to financing a gambling account, but a "bet or wager" does not include the following: securities transactions; commodities transactions; over-the-counter derivative instruments; indemnity or guarantee contracts; insurance contracts; bank transactions (transactions with insured depository institutions); games or contests in which the participants do not risk anything but their efforts; or certain fantasy or simulation sports contests. UIGEA leaves in place questions as to the extent to which the Interstate Horseracing Act curtails the reach of other federal laws, an issue that was at the center of World Trade Organization (WTO) litigation. The statute instructs the Secretary of the Treasury and the Board of Governors of the Federal Reserve, in consultation with the Attorney General, to issue implementing regulations within 270 days of passage. On September 1, 2009, a federal appeals court ruled that UIGEA is not unconstitutionally vague. The Interactive Media Entertainment & Gaming Association had filed a lawsuit alleging that UIGEA was facially unconstitutional, and sought to enjoin the enforcement of the act and its regulations. The U.S. Court of Appeals for the Third Circuit disagreed with Interactive's assertion that UIGEA was void for vagueness because of the lack of an "ascertainable and workable definition" of the statutory phrase "unlawful Internet gambling": The Supreme Court has explained that a statute is unconstitutionally vague if it "fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement." United States v. Williams, 128 S. Ct. 1830, 1845, 170 L. Ed. 2d 650 (2008).... We reject Interactive's vagueness claim. The Act prohibits a gambling business from knowingly accepting certain financial instruments from an individual who places a bet over the Internet if such gambling is illegal at the location in which the business is located or from which the individual initiates the bet. 31 U.S.C. SSSS 5362(10)(A), 5363. Thus, the Act clearly provides a person of ordinary intelligence with adequate notice of the conduct that it prohibits. The appellate court noted that UIGEA "itself does not make any gambling activity illegal," but rather, the definition of "unlawful Internet gambling" references federal and state laws related to gambling. Therefore, the court suggested that "to the extent that [there is] a vagueness problem, it is not with the Act, but rather with the underlying state law." UIGEA calls for regulations that require "each designated payment system, and all participants therein, to identify and block or otherwise prevent or prohibit restricted transactions through the establishment of policies and procedures" reasonably calculated to have that result. On October 4, 2007, the Board of Governors of the Federal Reserve System and the Treasury Department (the Agencies) issued proposed regulations implementing UIGEA. The proposal invited commentators to suggest alternatives and critiques before the close of the comment period on December 12, 2007. The proposal offered to exempt substantial activities in those payment systems in which tracking is not possible now and in which it may ultimately not be feasible. It also noted that the two Agencies felt that they have no authority to compel payment system participants to serve lawful Internet gambling operators. After taking into consideration the public comments on the proposed rule and consulting with the Department of Justice (as required by the UIGEA), the Agencies adopted a final rule implementing the provisions of the UIGEA; the rule was effective January 19, 2009, with a compliance date of June 1, 2010 (originally December 1, 2009). The final rule identifies five relevant payment systems that could be used in connection with, or to facilitate, the "restricted transactions" used for Internet gambling: Automated Clearing House System (ACH), card systems, check collection systems, money transmitting business, and wire transfer systems. The rule defines a "restricted transaction" to mean any transactions or transmittals involving any credit, funds, instrument, or proceeds that the UIGEA prohibits any person engaged in the business of betting or wagering from knowingly accepting, in connection with the participation of another person in unlawful Internet gambling. However, the rule does not provide a more specific definition of the term "unlawful Internet gambling;" instead, it restates the UIGEA's definition. While the Agencies expect that card systems will find that using a merchant and transaction coding system is "the method of choice" to identify and block restricted transactions, the Agencies felt that the most efficient way for other designated payment systems to comply with the UIGEA is through "adequate due diligence by participants when opening accounts for commercial customers to reduce the risk that a commercial customer will introduce restricted transactions into the payment system in the first place." The rule directs participants in the designated systems, unless exempted, to "establish and implement written policies and procedures reasonably designed to identify and block or otherwise prevent or prohibit restricted transactions," and then provides non-exclusive examples of reasonably compliant policies and procedures for each system. Participants may comply by adopting the policies and procedures of their payments system or by adopting their own. Participants that establish and implement procedures for due diligence of their commercial customer accounts or commercial customer relationships will be considered in compliance with the regulation if the procedures include the following steps: 1. At the establishment of the account or relationship, the participant conducts due diligence of a commercial customer and its activities commensurate with the participant's judgment of the risk of restricted transactions presented by the customer's business. 2. Based on its due diligence, the participant makes a determination regarding the risk the commercial customer presents of engaging in an Internet gambling business. Such a determination may take one of the two courses set forth below: a. The participant determines that the commercial customer presents a minimal risk of engaging in an Internet gambling business (such as commercial customers that are directly supervised by a federal functional regulator, or an agency, department, or division of the federal government or a state government), or b. The participant cannot determine that the commercial customer presents a minimal risk of engaging in an Internet gambling business, in which case it must obtain a certification from the commercial customer that it does not engage in an Internet gambling business. If the commercial customer does engage in an Internet gambling business, the participant must obtain: (1) documentation that provides evidence of the customer's legal authority to engage in the Internet gambling business and a written commitment by the commercial customer to notify the participant of any changes in its legal authority to engage in its Internet gambling business, and (2) a third-party certification that the commercial customer's systems for engaging in the Internet gambling business are reasonably designed to ensure that the commercial customer's Internet gambling business will remain within the licensed or otherwise lawful limits, including with respect to age and location verification. 3. The participant notifies all of its commercial customers that restricted transactions are prohibited from being processed through the account or relationship, "through a term in the commercial customer agreement, a simple notice sent to the customer, or through some other method." Of the five payment systems, a "card system" as understood by the regulations is one that settles transactions involving credit card, debit card, pre-paid card, or stored value product and in which the cards "are issued or authorized by the operator of the system and used to purchase goods or services or to obtain a cash advance." Merchant codes are a standard feature of the system which permits the system to identify particular types of businesses. There are no card system exemptions from the regulations' requirements. Examples of reasonably compliant policies and procedures feature due diligence and prophylactic procedural components. The standards involve screening merchants to determine the nature of their business, a clause prohibiting restricted transactions within the merchant agreement, as well as maintaining and monitoring a business coding system to identify and block restricted transactions. "Money transmitting businesses" are entities such as Western Union and PayPal that are in the business of transmitting funds. They too are without exemption from the UIGEA implementing regulations. Examples of acceptable policies and procedures for money transmitting businesses feature procedures to identify the nature of a subscriber's business, subscriber agreements to avoid restricted transactions, procedures to check for suspicious payment patterns, and an outline of remedial actions (access denial, account termination) to be taken when restricted transactions are found. The regulations contain exemptions in varying degrees for the other payment systems. In essence, because of the difficulties of identifying tainted transactions, they limit requirements to those who may deal directly with the unlawful Internet gambling businesses. In the case of "check collection systems," the coded information available to the system with respect to a particular check is limited to information identifying the bank and account upon which the check is drawn, and the number and amount of the check. Information identifying the payee is not coded and a "requirement to analyze each check with respect to the payee would substantially ... reduce the efficiency of the check collection system." Consequently, the final rule exempts all participants in a particular check collection through a check collection system except for "the first U.S. institution to which a check is transferred, in this case the institution receiving the check deposit from the gambling business" --namely, the depository bank. Banks in which a payee deposits a check are covered by the regulations as are banks which receive a check for collection from a foreign bank. The rule offers examples for both circumstances. In the case of a check received from a foreign bank, examples of a depositary bank's reasonably compliant policies and procedures are procedures to inform the foreign banking office after the depositary bank has actual knowledge that the checks are restricted transactions (such actual knowledge being obtained through notification by a government entity such as law enforcement or a regulatory agency). In the purely domestic cases, examples of reasonably compliant policies and procedures would include (1) due diligence in establishing and maintaining customer relations sufficient to identify the nature of a customer's business, and to provide for a prohibition on tainted transactions in the customer agreement, and (2) remedial action (refuse to deposit a check; close an account) should a tainted transaction be unearthed. "Wire transfer systems" come in two forms. One involves large volume transactions between banks; the second, customer-initiated transfers from one bank to another. Like the check collection systems, under current practices only the recipient bank is in a realistic position to determine the nature of the payee's business. The Agencies sought public comments on whether additional safeguards should be required of the initiating bank in such cases but ultimately decided to exempt all but the bank receiving the transfer. Banks that receive a wire transfer (the beneficiary's bank) are covered by the regulations, and examples of reasonably compliant policies and practices resemble those provided for check collection system participants: know your customer, have a no-tainted transaction customer agreement clause, and have a remedial procedure (transfer denied; account closed) when tainted transactions surface. The "Automated Clearing House System" (ACH) is a system for settling batched electronic entries for financial institutions. The entries may be recurring credit transfers such as payroll direct deposit payments or recurring debit transfers such as mortgage payments. The entries may also include one time individual credit or debit transfers. Banks periodically package credit and debit transfers and send them to a ACH system operator who sorts them out and assigns them to the banks in which the accounts to be credited or debited are found. Participants are identified not according to whether they are transferring credits or debits but according to which institution initiated the transfer, i.e., originating depository financial institutions (ODFI) and receiving depository financial institutions (RDFI). The final rule exempts all participants processing a particular transaction through an ACH system, except for the RFDI in an ACH credit transaction, the ODFI in an ACH debit transaction, and the receiving gateway operator that receives instructions for an ACH debit transaction directly from a foreign sender. These entities are not exempt under the theory that in any tainted transaction they will be in the best position to assess the nature of the business of the beneficiary of the transfer and to identify and block transfers to unlawful Internet gambling operators. The ACH system operator, ODFIs in a credit transaction and RDFIs in a debit transaction are exempt from the regulations, however. The examples of ACH system reasonably compliant policies and procedures are comparable to those for check collection and wire transfer systems: in purely domestic cases, know your customer, have a no-tainted transaction customer agreement clause, have a remedial procedure (disallow origination of ACH debit transactions; account closed) when tainted transactions surface; in the case of receiving transfers from overseas, know your foreign gateway operator, have a no-tainted transaction agreement, have a remedial procedure (ACH services denied; termination of cross-border relationship) when tainted transactions surface. The Agencies explained that U.S. participants processing outboun d cross-border credit transactions (ACH credits and wire transfers) are exempted "because there are no reasonably practical steps that a U.S. participant could take to prevent their consumer customers from sending restricted transactions cross-border." The Agencies explained that there is insufficient information to allow U.S. participants to identify and block restricted transactions in cross-border ACH credit transactions and sending wire transfers abroad. Good faith compliance with UIGEA and its regulations insulates U.S. financial firms that participate in designated payment systems from both regulatory and civil liability. Regulatory enforcement is the responsibility of the Federal Trade Commission and the "federal functional regulators" within their areas of jurisdiction, that is, the Governors of the Federal Reserve, the Comptroller of the Currency, the Federal Deposit Insurance Commission, the Office of Thrift Supervision, the National Credit Union Administration, and the Securities and Exchange Commission. The enactment of UIGEA had an immediate impact on Internet gambling activities. For example, NETeller, a payment processing company based in the Isle of Man that reportedly processed more than $10 billion in gambling proceeds between U.S. customers and offshore Internet gambling business from 1999 to 2007, entered into a deferred prosecution agreement with the U.S. Department of Justice under which it agreed to discontinue U.S. operations, cooperate with investigators, and to pay the U.S. $136 million in sanctions and to return an additional $96 million to U.S. customers. Several offshore Internet gambling companies sought similar agreements after the enactment of UIGEA. A number of large banking institutions, which underwrote the initial public offers for offshore Internet gambling companies on the London stock exchange, were the targets of grand jury subpoenas as well. Some Internet gambling companies, however, were undeterred by the new federal law and attempted to rely on fraudulent methods to circumvent UIGEA's prohibitions. Yet despite their efforts to evade UIGEA, several of these companies have faced prosecution and been forced to shut down their operations. For example, on April 15, 2011, the U.S. Attorney for the Southern District of New York announced the unsealing of an indictment of 11 defendants, including the founders of the three largest Internet poker websites (Poker Stars, Full Tilt Poker, and Absolute Poker), that charged them with a variety of federal offenses including bank fraud, conspiracy, violating UIGEA, money laundering, and operating an illegal gambling business. For example, the offshore Internet poker companies allegedly "arranged for the money received from U.S. gamblers to be disguised as payments to hundreds of non-existent online merchants purporting to sell merchandise such as jewelry and golf balls," thereby tricking U.S. banks and credit card issuers to process their payments. In addition, the indictment also accused the Internet poker companies of "persuad[ing] the principals of a few small, local banks facing financial difficulties to engage in [payment] processing in return for multi-million dollar investments in the banks." As part of this enforcement action, the Federal Bureau of Investigation seized five Internet domain names that were used by the poker companies to host their illegal poker games; such domain name seizure "effectively shuttered their doors." Since passage of UIGEA in 2006, there have been several attempts to repeal the law or loosen its restrictions, although no such legislation has been enacted. Several bills have been introduced in the 112 th Congress that would allow for lawful, government-regulated Internet gambling activities. Such legislative proposals have been supported by Members of Congress who have criticized the current Internet gambling restrictions for being, in their view, ineffective at stopping Internet gambling by millions of Americans, an infringement on individual liberty, and a lost opportunity to collect billions of dollars in tax revenue, among other things. Some interest groups also endorse legislation that would regulate, rather than prohibit, Internet gambling because they believe it would help protect American consumers (adults and minors) from the risks of fraud and other financial and societal costs associated with online gambling. What follows is a brief description of the bills in the 112 th Congress that would authorize and regulate some forms of Internet gambling. The Internet Gambling Regulation, Consumer Protection, and Enforcement Act ( H.R. 1174 ) is a bill introduced by Representative John Campbell. H.R. 1174 would establish a licensing regime under which Internet gambling operators may lawfully accept bets or wagers from individuals located in the United States. Under the bill, the Secretary of the Treasury would have full regulatory authority over the Internet gambling licensing program, including the power to approve, deny, renew, or revoke licenses to operate an Internet gambling facility. In addition, the Secretary of the Treasury would have the power to delegate his authority to "qualified State and tribal regulatory bodies" for the purposes of regulating the operation of Internet gambling facilities by licensees and determining the suitability of applicants to obtain a license. Qualified state or tribal authorities would also be allowed to enforce any requirement of the act that is within their jurisdiction. In addition, H.R. 1174 would establish specific standards and requirements for Internet gambling licensees to satisfy, including the following: 1. Establishing safeguards to verify that the customer placing a bet or wager is of legal age as defined by the law of the state or tribal area in which the individual is located at the time the bet or wager is placed. 2. Requiring mechanisms that verify that the customer placing a bet or wager is physically located in a jurisdiction that permits Internet gambling. 3. Ensuring the collection of all taxes relating to Internet gambling from customers and from any licensee. 4. Maintaining safeguards to combat fraud, money laundering, and the financing of terrorism. 5. Maintaining safeguards to protect the customer's privacy and security. 6. Establishing safeguards to combat compulsive Internet gambling. 7. Maintaining facilities within the United States for processing of bets or wagers made or placed from the United States. 8. Certifying that they have not committed an intentional felony in violation federal or state gambling laws. 9. Verifying that their customers are not delinquent on their child support. Indian tribes and states may opt out of the Internet gambling regime if they provide notice to the Secretary of the Treasury; Indian tribes must give notice within 90 days after enactment of the Internet Gambling Regulation, Consumer Protection, and Enforcement Act, while each state has a longer period of time to decide whether to opt-out--a period starting from the enactment of H.R. 1174 and ending on the date on which the state's legislation has conducted one full general legislative session. Therefore, customers located within Indian tribes and states that elected to opt out would be prohibited from engaging in Internet gambling activities, and licensees would be responsible for blocking access to those customers. The Director of the Financial Crimes Enforcement Network, within 120 days after the bill's enactment, would be required to submit to the Treasury Secretary a list of "unlawful Internet gambling enterprises" that identifies any person who has violated UIGEA more than 10 days after the date of the bill's enactment; such a list is to be posted on the Department of the Treasury website for public access and also distributed to "all persons who are required to comply with" the regulations promulgated by the Federal Reserve and the Treasury Department. Another provision of H.R. 1174 provides safe harbor from liability for financial institutions that process transactions for licensees, unless they had knowledge that the specific financial activities or transactions are conducted in violation of federal or state laws. H.R. 1174 prohibits licensees from accepting credit cards as a form of payment with respect to Internet gambling. The bill also expressly states that no licensee may accept bets or wagers on sporting events, with the exception of pari-mutuel racing as permitted by law (such as horse racing and greyhound racing). In addition, the bill would exempt from the new regulatory regime Internet gambling conducted by any state or tribal lottery authority. Representative Jim McDermott introduced a companion bill to Representative Campbell's licensing legislation, the Internet Gambling Regulation and Tax Enforcement Act of 2011 ( H.R. 2230 ). This bill would establish a licensing fee regime within the Internal Revenue Code for Internet gambling operators; it essentially creates a tax on online gambling deposits. H.R. 2230 would require each licensee to pay a monthly Internet gambling license fee in an amount equal to 2% of all funds deposited by customers during that month. According to Representative McDermott, this fee "would never be imposed on a land-based casino. It would level the playing field between online operators and brick-and-mortar gambling operations which are more expensive to run." In addition, the bill provides revenue incentives for states and Native American tribes, as states and tribal authorities have the option of accepting from licensees, on a monthly basis, an online gambling fee "equal to 6 percent of all deposited funds deposited by customers residing in each State or area subject to the jurisdiction of an Indian tribal government." Acceptance of this fee by the state or tribal government relieves the licensee from any obligation to pay any other fee or tax to the state or tribal government relating to online gambling services. Introduced by Representative Joe Barton, the Internet Gambling Prohibition, Poker Consumer Protection, and Strengthening UIGEA Act of 2011 ( H.R. 2366 ) would legalize and regulate interstate Internet poker only, as opposed to other forms of Internet gambling that would be permitted under Representative Campbell's bill. Under H.R. 2366 , anyone wishing to operate an online poker website would need to obtain a license from "qualified" state or tribal gambling oversight commissions. Such state or tribal agencies would need to be approved by a new Office of Internet Poker Oversight that the bill establishes within the U.S. Department of Commerce. The new federal Office of Internet Poker Oversight would be responsible for ensuring that qualified state or tribal agencies comply with the requirements under the act and would have the power to investigate and take appropriate remedial action against them. H.R. 2366 specifies a range of minimum standards for state and tribal agencies to satisfy in order for them to be permitted to participate in the licensing program. The bill also sets forth several standards that qualified state and tribal agencies must apply in determining whether a party should be issued an Internet poker facility license. Like Representative Campbell's bill, H.R. 2366 allows states and Indian tribes to "opt out" of the license regime; in order to do so, the state's governor or the principal chief of the Indian tribe would need to inform the Secretary of Commerce of the "nature and extent" of the limitation on bets or wagers with respect to Internet poker that would apply to any person who resides in that state or who is located in the particular tribal land, respectively. H.R. 2366 also would require an Internet poker facility, in order to obtain a license, to demonstrate to the qualified state or tribal agency that it maintains certain safeguards and mechanisms that, among other things, (1) ensure that the person placing the bet or wager is at least 21 years of age or older; (2) ensure that the person is physically located in a jurisdiction that allows such bets or wagers; and (3) prevent fraud, money laundering, and terrorist financing. The federal Wire Act, 18 U.S.C. 1084, prohibits the use of interstate telephone facilities by those in the gambling business to transmit bets or gambling-related information. Early federal prosecutions of Internet gambling generally charged violations of the Wire Act. However, one federal appeals court concluded that the Wire Act applies only to sports gambling, while a subsequent district court concluded that it applies to non-sports gambling as well. The U.S. Department of Justice's Criminal Division has consistently maintained that the Wire Act applies not only to sports wagering but can also be applied to other forms of interstate gambling, including non-sports Internet gambling. Such an expansive view of the Wire Act by the Justice Department dissuaded state governments from expressly authorizing and implementing Internet gambling within their jurisdictions. However, in late 2011, in response to a request by the states of Illinois and New York for an opinion regarding whether their proposed use of the Internet to sell lottery tickets to in-state adults would violate the Wire Act, the Justice Department's Office of Legal Counsel (OLC) reversed its interpretation of the Wire Act, opining that "interstate transmissions of wire communications that do not relate to a 'sporting event or contest,' 18 U.S.C. SS1084(a), fall outside the reach of the Wire Act." Some observers predict that this change in position will cause "an explosion of poker, instant lotteries and casino games on the Internet, run or licensed by the states." In addition, because of the OLC's opinion, states may be able to enter into compacts with one another to operate online gambling across state lines. Most states prohibit any gambling that they do not expressly permit. All states except Hawaii and Utah authorize some form of gambling by their residents, such as lotteries, bingo, card games, slot machines, or casinos. Seven states (Illinois, Indiana, Louisiana, Montana, Oregon, South Dakota, and Washington) expressly outlaw Internet gambling. However, in light of growing state budget deficits and state legislators' desire to find ways of raising revenue without increasing taxes, several states are considering measures that would legalize, license, and tax Internet gambling within their borders. Such legalization would take advantage of UIGEA's "intrastate exemption" provision; states also no longer need to be concerned about prosecution under the Wire Act for enacting such laws due to the recent Department of Justice OLC opinion. In April 2011, the District of Columbia authorized the District's lottery commission to offer games of skill or chance including poker via the Internet in the District of Columbia, becoming the first jurisdiction in the nation to legalize intrastate Internet gambling. However, after some D.C. lawmakers criticized the apparently covert manner in which online gambling was approved (it was a late-night amendment to a budget law that received no public debate or hearings before passage), the Council of the District of Columbia voted to repeal the law in February 2012. In June 2011, Nevada amended its state law to allow certain gaming licensees to conduct Internet gambling operations, effective upon passage of federal authorizing legislation or United States Justice Department notification that federal law permits such activity. In late December 2011, the Nevada Gaming Control Board approved regulations to allow Internet poker within its borders, becoming the first state to do so. On March 4, 2011, the governor of New Jersey vetoed a bill that would have permitted intrastate Internet gambling, based in part on concerns that the New Jersey constitution limits casino gambling to within the boundaries of Atlantic City and also the uncertainty regarding the applicability of the federal Wire Act. A bill is currently progressing through the New Jersey legislature to permit Atlantic City casinos to take bets from gamblers via the Internet. The Utah legislature passed a bill, signed by the Utah governor on March 19, 2012, that specifically prohibits Internet gambling within its borders and also provides for the state to opt-out of the federal licensing regime that would be created by H.R. 1174 , the Internet Gambling Regulation, Consumer Protection, and Enforcement Act, should Congress pass the law. Iowa directed its state racing commission to study and report on "the creation of a framework for the state regulation of intrastate Internet poker." The report, issued in December 2011, concluded that intrastate online poker could be conducted safely and would raise revenue of $3 million to $13 million per year. The Iowa senate in March 2012 approved a measure that allows the state's casinos and racetracks to offer Internet poker.

The Unlawful Internet Gambling Enforcement Act (UIGEA) seeks to cut off the flow of revenue to unlawful Internet gambling businesses. It outlaws receipt of checks, credit card charges, electronic funds transfers, and the like by such businesses. It also enlists the assistance of banks, credit card issuers and other payment system participants to help stem the flow of funds to unlawful Internet gambling businesses. To that end, it authorizes the Treasury Department and the Federal Reserve System (the Agencies), in consultation with the Justice Department, to promulgate implementing regulations. The Agencies adopted a final rule implementing the provisions of the UIGEA, 73 Federal Register 69382 (November 18, 2008); the rule was effective January 19, 2009, with a compliance date of June 1, 2010. The final rule addresses the feasibility of identifying and interdicting the flow of illicit Internet gambling proceeds in five payment systems: card systems, money transmission systems, wire transfer systems, check collection systems, and the Automated Clearing House (ACH) system. It suggests that, except for financial institutions that deal directly with illegal Internet gambling operators, tracking the flow of revenue within the wire transfer, check collection, and ACH systems is not feasible at this point. It therefore exempts them from the regulations' requirements. It charges those with whom illegal Internet gambling operators may deal directly within those three systems, and participants in the card and money transmission systems, to adopt policies and procedures to enable them to identify the nature of their customers' business, to employ customer agreements barring tainted transactions, and to establish and maintain remedial steps to deal with tainted transactions when they are identified. The final rule provides non-exclusive examples of reasonably designed policies and procedures to prevent restricted transactions. The Agencies argued that flexible, risk-based due diligence procedures conducted by participants in the payment systems, in establishing and maintaining commercial customer relationships, is the most effective method to prevent or prohibit the restricted transactions. Some Members of Congress have criticized the current Internet gambling restrictions for being, in their view, ineffective at stopping Internet gambling, an infringement on individual liberty, and a lost opportunity to collect tax revenue, among other things. The 112th Congress has held several hearings concerning Internet gambling and related issues, and several bills have been introduced that would allow for lawful, government-regulated Internet gambling activities. The legislation includes H.R. 1174 (Internet Gambling Regulation, Consumer Protection, and Enforcement Act), which would establish a licensing program administered by the U.S. Treasury Secretary under which Internet gambling companies may legitimately operate and accept bets or wagers from individuals located in the United States; H.R. 2230 (Internet Gambling Regulation and Tax Enforcement Act of 2011), which would establish a licensing fee regime within the Internal Revenue Code for Internet gambling operators; and H.R. 2366 (Internet Gambling Prohibition, Poker Consumer Protection, and Strengthening UIGEA Act of 2011), which would create an office within the U.S. Department of Commerce responsible for overseeing qualified state agencies that issue licenses to persons seeking to operate an Internet poker facility. Several state legislatures are also considering measures that would legalize, license, and tax Internet gambling within their borders, taking advantage of a UIGEA provision that exempts intrastate Internet gambling from its applicable scope. A recent change in the U.S. Department of Justice's position regarding the federal Wire Act that now interprets that statute as prohibiting sports betting only (and not interstate transmission of other types of gambling) has also helped encourage state initiatives to legalize intrastate, and possibly even interstate, online gambling.