CRS Reports

The Civil Service Reform Act: Due Process and Misconduct-Related Adverse Actions

Federal employees receive statutory protections that differ from those of the private sector, including more robust limits on when they can be removed or demoted. Although a number of laws apply to various aspects of the federal civil service system, the primary governing framework is the Civil Service Reform Act of 1978 (CSRA), as amended. The CSRA created a comprehensive system for reviewing actions taken by most federal agencies against their employees, and the act provides a variety of legal protections and remedies for federal employees. It also funnels review of agency decisions to the Merit Systems Protection Board (MSPB), subject to review by the United States Court of Appeals for the Federal Circuit (Federal Circuit). In addition to these statutory protections, the Due Process Clause of the Fifth Amendment requires the federal government to observe certain procedures when depriving individuals of life, liberty, or property. The CSRA’s requirement that covered employees may not be removed from federal service, except for cause or unacceptable performance, creates a constitutional property interest in continued employment. The government cannot deprive covered employees of this property interest without adhering to due process requirements. Chapter 75 of Title 5 of the U.S. Code provides various procedural protections for certain government employees subjected to major adverse actions. Those adverse actions include removal, suspensions for more than 14 days, reductions in grade or pay, and furloughs of 30 days or less. Agencies may only take a major adverse action against an employee “for such cause as will promote the efficiency of the service.” In order to sustain an agency’s decision on appeal to the MSPB, an agency must show (1) by a preponderance of the evidence that the charged conduct occurred; (2) a nexus between that conduct and the efficiency of the service; and (3) that the penalty imposed by the agency is reasonable. The MSPB has noted three circumstances in which an agency may establish a nexus between off-duty misconduct (e.g., criminal activity) and the efficiency of the service. First, in certain egregious circumstances, the type of misconduct committed by the employee creates a rebuttable presumption of a nexus. Second, an agency may show by a preponderance of the evidence that the misconduct “adversely affects the appellant’s or co-workers’ job performance or the agency’s trust and confidence in the appellant’s job performance.” Finally, the agency may demonstrate by a preponderance of the evidence that the employee’s misconduct interfered with or adversely affected the agency’s mission. The CRSA does not expressly reference “indefinite suspensions,” but agencies have routinely indefinitely suspended employees for certain behavior. The Federal Circuit and the MSPB have ruled that indefinite suspensions for disciplinary reasons that last more than 14 days qualify as major adverse actions under Chapter 75. The MSPB has recognized that an agency may indefinitely suspend an employee to further the efficiency of the service in three situations: (1) when there is reasonable cause to believe the employee has committed a crime carrying a sentence of imprisonment; (2) for certain medical reasons; and (3) when the employee’s position requires access to classified information, but that access has been suspended. A prominent recurring issue is when an agency may indefinitely suspend an employee for alleged criminal behavior occurring outside the workplace. Whether and when indefinite suspensions may be imposed on account of alleged criminal behavior may turn upon the facts relied upon by the agency when in assessing whether there is reasonable cause to believe the employee committed a crime carrying a sentence of imprisonment.

Mar 29, 2017

Farm Bill Primer: Horticulture Title Provisions

Mar 29, 2017

The President’s FY2018 Budget Request for the U.S. Department of Agriculture

Background The Trump Administration released its first budget request on March 16, 2017. Titled “America First: A Budget Blueprint to Make America Great Again,” the request for FY2018 does not have the detail of a regular budget (see CRS Report RS20752, Submission of the President’s Budget in Transition Years). The FY2018 Blueprint addresses discretionary spending only and primarily conveys information at the Cabinet level. While it highlights changes to some programs, the request remains vague about the effect on most agencies. A more detailed budget is expected in May 2017 and may provide more details, as well as the Administration’s plans for mandatory spending. Ultimately, though, Congress will determine funding levels for FY2018 through its budget and appropriations process. This report analyzes the funding request for the U.S. Department of Agriculture (USDA). It does not reflect the jurisdiction of the House and Senate Agriculture appropriations subcommittees, which exclude the Forest Service and include the Food and Drug Administration and, in the House, the Commodity Futures Trading Commission. See CRS Report R44588, Agriculture and Related Agencies: FY2017 Appropriations. While the Blueprint makes comparisons to FY2017 levels, there is currently no final FY2017 appropriation. Thus, this report may refer to FY2016 levels, which support a continuing resolution through April 28, 2017 (P.L. 114-254). U.S. Department of Agriculture In total, the Blueprint proposes a reduction of 21% (or $4.7 billion) for USDA, from $22.6 billion in FY2017 to a requested $17.9 billion for FY2018. USDA has the third largest percentage reduction among Cabinet-level departments, behind the Environmental Protection Agency (-31%) and the Department of State (-29%). USDA has the fifth largest dollar reduction, behind the Departments of Health and Human Services (-$12.6 billion), State (-$10.9 billion), Education (-$9.2 billion), and Housing and Urban Development (-$6.2 billion). The Blueprint specifically proposes to eliminate three USDA programs totaling $0.8 billion. It identifies four programs for full funding, though specific amounts are not necessarily provided. It mentions unspecified reductions to some activities and does not mention other USDA agencies at all. At least $3.7 billion of the proposed $4.7 billion reduction for USDA remains unspecified (Table 1). Proposed Elimination Water and Wastewater Loans and Grants (-$498 million in the Blueprint). This program supports construction of rural community water systems. It is about 85% of the Rural Utilities Service budget and one-sixth of all rural development funding. Rural Business Cooperative Service (-$95 million in the Blueprint). These programs provide loans and grants to foster business and employment in rural areas. McGovern-Dole International Food for Education and Child Nutrition Program (-$202 million in FY2016). This program donates U.S. agricultural products and assistance for school, maternal, and child nutrition projects in developing countries. “Fully Funded” Programs Special Supplemental Nutrition Program for Women, Infants, and Children. The Blueprint states that the $6.2 billion proposed for FY2018 would “serve all projected participants.” This is $150 million less than the FY2016 appropriation of $6.35 billion. Food Safety Inspection Service ($1.0 billion in FY2016 and implied in the Blueprint for FY2018). This agency regulates meat, poultry, and processed egg products. Agriculture and Food Research Initiative (AFRI, $350 million in FY2016 and proposed for FY2018). This flagship competitive grant program accounts for about 12% of USDA’s research budget. Wildland fire preparedness and suppression activities ($2.4 billion proposed for FY2018). These activities are shared between the USDA Forest Service and the Department of the Interior (DOI). The comparable amount for FY2017 is uncertain depending whether DOI is included and how rising spending is counted. Therefore a span of $1.9 billion to $2.5 billion represents a plausible range. Unspecified Amounts County office service center agencies that deliver programs to constituents (such as the Farm Service Agency, the National Resource Conservation Service, and Rural Development). The Blueprint proposes to reduce staffing and “encourage private sector conservation planning.” Statistical agencies (such as the National Agricultural Statistics Service and the Economic Research Service). The Blueprint proposes an unspecified reduction “while maintaining core analytical functions” such as the Census of Agriculture. Agricultural research beyond the AFRI mentioned above (such as the Agricultural Research Service and the National Institute of Food and Agriculture). The Blueprint would “continue to support” high priority areas but does not specify a funding level. Table 1. Proposed Changes to USDA in the President’s FY2018 Budget Blueprint (budget authority in billions of dollars) FY2017/CRa FY2018 request Proposed change % change Department of Agricultureb 22.6 17.9 -4.7 -21% Water and waste water loans and grants 0.50 0.0 -0.5 -100% Rural Business Cooperative Service 0.10 0.0 -0.1 -100% McGovern-Dole Food for Education 0.20c 0.0 -0.2d -100% Women, Infants, and Children program 6.35c 6.2 -0.2d -2%d Food Safety Inspection Service 1.01c 1.0e 0.0d 0%d Agriculture and Food Research Initiative 0.35c 0.35 0.0d 0%d Wildland fire preparedness and suppression 1.9 to 2.5f 2.4 -0.1 to +0.5d na Subtotal of programs mentioned 10.4 to 11.0d 10.0 -0.4 to -1.0d Remainder, unspecified across rest of USDAb 11.6 to 12.2d 7.9 -3.7 to -4.3d -32% to -35%d Source: CRS, based on Office of Management and Budget, America First: A Budget Blueprint to Make America Great Again. While the Blueprint makes comparisons to FY2017, there is no final FY2017 appropriation. Certain amounts in this column are from FY2016, which is the basis of the current continuing resolution. Excludes amounts for the Food for Peace international food aid program as in the Blueprint, and mandatory spending. FY2016 amount; see CRS Report R44588, Agriculture and Related Agencies: FY2017 Appropriations. Computed based on data in this table. Implied from the Blueprint fully funding the program. The comparable amount for FY2017 wildland fire preparedness and suppression is uncertain depending on whether the Department of Interior is included and how rising spending is counted. Therefore a range is used. Transfer of Food for Peace to Department of State Food for Peace Title II international food aid (formerly known as P.L. 480) provides primarily in-kind donations of U.S. commodities. Agricultural appropriations to USDA ($1.5 billion in FY2016) have funded the program, but it is administered by the State Department. The Blueprint intends to fund Food for Peace Title II in the State Department’s budget, which for FY2018 “allows for significant funding of humanitarian assistance, including food aid,” though it does not mention Food for Peace or specify an amount. The Obama Administration similarly proposed moving Food for Peace appropriations to State in the FY2014 budget request, which Congress did not follow.

Mar 29, 2017

The Current State of DHS’s Efforts to Secure Federal Networks

Mar 28, 2017

CRS Products on the Trans-Pacific Partnership (TPP)

The Trans-Pacific Partnership (TPP) is a proposed free trade agreement (FTA) signed by the United States and 11 other Asia-Pacific countries on February 4, 2016, and would require ratification by the member countries before it can take effect. On January 30, 2017, the United States gave notice to the other signatories that it does not intend to ratify the agreement, effectively ending, at least for the time being, the ratification process in the United States and the agreement’s possible entry into force. The TPP as signed cannot enter into force without U.S. participation, due to a requirement that it must be ratified by original signatories accounting for at least 85% of the group’s gross domestic product (GDP), of which the United States alone accounts for roughly 65%. The Japanese and New Zealand legislatures passed TPP ratification bills prior to the U.S. notification of its withdrawal, and some of the signatories have expressed interest in moving forward with a similar agreement without U.S. participation. TPP Products Post U.S. Withdrawal For more information on the withdrawal and potential implications for the United States, see: CRS Insight IN10669, Moving On: TPP Signatories Meet in Chile, by Ian F. Fergusson and Brock R. Williams CRS Insight IN10646, The United States Withdraws from the TPP, by Brock R. Williams and Ian F. Fergusson CRS In Focus IF10000, TPP: Overview and Current Status, by Brock R. Williams and Ian F. Fergusson Original TPP Products Additional products on the TPP are listed below. They provide analysis of the agreement’s provisions but have not been updated to reflect the U.S. withdrawal. Please contact CRS TPP coordinators Ian Fergusson ([email protected], x7-4997) and Brock Williams ([email protected], x7-1157), or authors of the following products with questions about TPP. Reports CRS Report R44489, The Trans-Pacific Partnership (TPP): Key Provisions and Issues for Congress, coordinated by Ian F. Fergusson and Brock R. Williams. CRS Report R44278, The Trans-Pacific Partnership (TPP): In Brief, by Ian F. Fergusson, Mark A. McMinimy, and Brock R. Williams. CRS Report R44361, The Trans-Pacific Partnership (TPP): Strategic Implications, coordinated by Ben Dolven and Brock R. Williams. CRS Report R44337, TPP: American Agriculture and the Trans-Pacific Partnership (TPP) Agreement, by Mark A. McMinimy. CRS Report R44551, The Trans-Pacific Partnership (TPP): Analysis of Economic Studies, by James K. Jackson. CRS Report R42344, Trans-Pacific Partnership (TPP) Countries: Comparative Trade and Economic Analysis, by Brock R. Williams. In Focus (2-page Briefs) CRS In Focus IF10297, TPP-Trade Promotion Authority (TPA) Timeline, by Ian F. Fergusson. CRS In Focus IF10390, TPP: Digital Trade Provisions, by Rachel F. Fefer. CRS In Focus IF10393, TPP: Rules of Origin, by Vivian C. Jones, Bill Canis, and Michaela D. Platzer. CRS In Focus IF10412, TPP: Taking the Measure of the Agreement for U.S. Agriculture, by Mark A. McMinimy. CRS In Focus IF10431, TPP: Estimates of Economic Effects, by James K. Jackson. CRS In Focus IF10442, TPP: Intellectual Property Rights (IPR), by Shayerah Ilias Akhtar and Ian F. Fergusson. CRS In Focus IF10452, TPP: Labor Provisions, by M. Angeles Villarreal and Ian F. Fergusson. CRS In Focus IF10456, TPP: U.S.-Japan Issues, by Brock R. Williams et al. CRS In Focus IF10476, TPP: Investment Provisions, by Shayerah Ilias Akhtar and Ian F. Fergusson.

Mar 27, 2017

State and Local “Sanctuary” Policies Limiting Participation in Immigration Enforcement

The federal government is vested with the exclusive power to create rules governing which aliens may enter the United States and which aliens may be removed. However, the impact of alien migration—whether lawful or unlawful—is arguably felt most directly in the communities where aliens reside. State and local responses to unlawfully present aliens within their jurisdictions have varied considerably, particularly as to the role that state and local police should play in enforcing federal immigration law. While some states and municipalities actively participate in or cooperate with federal immigration enforcement efforts, others have actively opposed federal immigration authorities’ efforts to identify and remove certain unlawfully present aliens within their jurisdictions. Entities that have adopted such policies are sometimes referred to as “sanctuary” jurisdictions. There is no official, formal, or agreed-upon definition of what constitutes a “sanctuary” jurisdiction, and there has been debate as to whether the term applies to particular states and localities. Moreover, state and local jurisdictions might have varied reasons for opting not to cooperate with federal immigration enforcement efforts, including for reasons not necessarily motivated by disagreement with federal policies, such as concern about potential civil liability or the costs associated with assisting federal efforts. Having said that, traditional sanctuary policies are often described as falling under one of three categories. First, so-called “don’t enforce” policies generally bar the state or local police from assisting federal immigration authorities. Second, “don’t ask” policies generally bar certain state or local officials from inquiring into a person’s immigration status. Third, “don’t tell” policies typically restrict information sharing between state or local law enforcement and federal immigration authorities. This report provides examples of various state and local laws and policies that fall into one of these sanctuary categories. The report also discusses federal measures designed to counteract sanctuary policies. For instance, Section 434 of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) and Section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) were enacted to curb state and local restrictions on information sharing with federal immigration authorities. Additionally, the report discusses legal issues relevant to sanctuary policies. In particular, the report examines the extent to which states, as sovereign entities, may decline to assist in federal immigration enforcement and the degree to which the federal government can stop state measures that undermine federal objectives in a manner that is consistent with the Supremacy Clause and the Tenth Amendment. Indeed, the federal government’s power to regulate the immigration and status of aliens within the United States is substantial and exclusive. Under the doctrine of preemption—derived from the Supremacy Clause—Congress may invalidate or displace state laws pertaining to immigration. This action may be done expressly or impliedly, for instance, when federal regulation occupies an entire field or when state law interferes with a federal regulatory scheme. However, not every state or local law related to immigration is preempted by federal law, especially when the local law involves the police powers to promote public health, safety, and welfare reserved to the states via the Tenth Amendment. Further, the anti-commandeering principles derived from the Tenth Amendment prohibit the federal government from directing states and localities to implement a federal regulatory program, like immigration.

Mar 23, 2017

Congressional Redistricting Law: Background and Recent Court Rulings

In addition to various state processes, the legal framework for congressional redistricting involves constitutional and federal statutory requirements. Interpreting these requirements, in a series of cases and evolving jurisprudence, the U.S. Supreme Court has issued rulings that have significantly shaped how congressional districts are drawn and the degree to which challenges to redistricting plans may succeed. As the 2020 round of redistricting approaches, foundational and recent rulings by the Court regarding redistricting are likely to be of particular interest to Congress. This report analyzes key Supreme Court and lower court redistricting decisions addressing four general topics: (1) the constitutional requirement of population equality among districts; (2) the intersection between the Voting Rights Act and the Equal Protection Clause; (3) the justiciability of partisan gerrymandering; and (4) the constitutionality of state ballot initiatives providing for redistricting by independent commissions. The Supreme Court has interpreted the Constitution to require that each congressional district within a state contain approximately an equal number of persons. This requirement is sometimes referred to as the “equality standard” or the principle of “one person, one vote.” In several cases, the Supreme Court has described the extent to which population equality among districts is required. For congressional districts, less deviation from precise equality has been held by the Court to be permissible than is permissible for state legislative districts. In addition, congressional districts are required to comply with Section 2 of the Voting Rights Act (VRA), which prohibits any voting qualification or practice that results in the denial or abridgement of the right to vote based on race, color, or membership in a language minority. This includes congressional redistricting plans. Under certain circumstances, the VRA may require the creation of one or more “majority-minority” districts, in which a racial or language minority group comprises a voting majority. However, under the Supreme Court’s interpretation of the Equal Protection Clause of the Fourteenth Amendment, if race is the predominant factor in the drawing of district lines, then a “strict scrutiny” standard of review applies. To withstand strict scrutiny in this context, the state must demonstrate that it had a compelling governmental interest in creating a majority-minority district and the redistricting plan was narrowly tailored to further that compelling interest. These cases are often referred to as “racial gerrymandering” claims because the plaintiffs argue that race was improperly used in the drawing of district boundaries. Much of the Supreme Court’s redistricting jurisprudence has been triggered by disputes involving the intersection between requirements under the VRA and the constitutional standards of equal protection. For example, during its current term, the Court has decided one case regarding the degree to which racial considerations are permitted to impact how district lines are drawn and is considering another such case. While racial gerrymandering claims have been a recent focus of litigation, the Supreme Court is also currently considering an appeal of a case involving partisan gerrymandering. In February 2017, a state appealed a three-judge federal district court ruling that invalidated a redistricting map as an unconstitutional partisan gerrymander. This case presents the Court with an opportunity to establish a standard for determining what constitutes unconstitutional partisan gerrymandering. While leaving open the possibility that such claims may be justiciable (that is, within the scope of judicial review), to date, the Supreme Court has yet not decided on a standard for assessing such claims. Finally, a 2015 Supreme Court ruling held that the Elections Clause of the Constitution permits states to create nonpartisan independent redistricting commissions for congressional redistricting by ballot initiatives and referenda. If more states adopt similar laws, it could change the process of congressional redistricting nationwide.

Mar 23, 2017

The Federal Government’s Authority to Impose Conditions on Grant Funds

Commonly known as the Spending Clause, Article I, Section 8, Clause 1 of the U.S. Constitution has been widely recognized as providing the federal government with the legal authority to offer federal grant funds to states and localities that are contingent on the recipients engaging in, or refraining from, certain activities. However, the Supreme Court has articulated certain limitations on the exercise of this power. In its 1987 decision in South Dakota v. Dole, which arguably remains the leading case regarding the use of the federal government’s conditional spending power, the Court held that legislation enacted pursuant to the Spending Clause must be in pursuit of the “general welfare.” In addition, the Dole Court held that any conditions attached to the receipt of federal funds must: (1) be unambiguously established so that recipients can knowingly accept or reject them; (2) be germane to the federal interest in the particular national projects or programs to which the money is directed; (3) not violate other provisions of the Constitution, such as the First Amendment or the Due Process or Takings Clauses of the Fifth Amendment; and (4) not cross the line from enticement to impermissible coercion, such that states have no real choice but to accept the funding and enact or administer a federal regulatory program. The fourth of these criteria, in particular, is intended to ensure that any conditions on federal grant funds do not run afoul of the Tenth Amendment’s prohibition on the federal government’s “commandeering” of state or local governments or officials by requiring them to carry out federal programs. The power of the federal government to attach conditions to federal grants has received renewed attention due to a January 2017 executive order issued by President Trump that is intended to encourage state and local cooperation with federal immigration enforcement by withholding federal grants to nonfederal entities that have adopted “sanctuary” policies. Several jurisdictions that could be affected by the executive order have filed suit against the President and his senior officials challenging the order’s constitutionality and seeking an injunction that would bar its implementation. The plaintiffs argue, among other things, that the executive order: (1) does not comport with the restrictions on the spending power that were articulated by the High Court in Dole, and (2) violates the Tenth Amendment by compelling states and localities to enforce federal immigration law. This litigation regarding the executive order, and other legal challenges that may be filed in the future, could provide an opportunity for the federal courts to elaborate further on the federal government’s power to impose conditions on the use of federal funds.

Mar 23, 2017

International Climate Change Assistance: Budget Authority, FY2009-FY2019

Mar 23, 2017

Budget Actions in 2017

The Constitution grants Congress the power of the purse, but does not dictate how Congress must fulfill this constitutional duty. Congress has, therefore, developed certain types of budgetary legislation, along with rules and practices that govern its content and consideration. This set of budgetary legislation, rules, and practices is often referred to as the congressional budget process. There is no prescribed congressional budget process that must be strictly followed each year, and Congress does not always consider budgetary measures in a linear or predictable pattern. Such dissimilarity can be the result of countless factors, such as a lack of consensus, competing budgetary priorities, the economy, natural disasters, military engagements, and other circumstances creating complications, obstacles, and interruptions within the policymaking process. Since the budget process will vary significantly each year, it is better understood not as a definite set of actions that must occur annually, but instead as an array of opportunities for affecting the federal budget. This report seeks to assist in (1) anticipating what budget-related actions might occur within the upcoming year, and (2) staying abreast of budget actions that occur this year. It provides a general description of the recurrent types of budgetary actions, and reflects recent events that have unfolded in each category during 2017. In addition, it includes information on certain events that may affect Congress’s work on the budget, such as the President’s budget request and the Congressional Budget Office’s budget and economic outlook. The most-recent budget actions will be noted at the beginning of the report.

Mar 22, 2017

The ACA Prevention and Public Health Fund: In Brief

SUPPRESS: Section 4002 of the Affordable Care Act (ACA, P.L. 111-148, as amended), Prevention and Public Health Fund (PPHF) a permanent annual appropriation to be administered by the Secretary of Health and Human Services (HHS). PPHF was intended to support an “expanded and sustained national investment in prevention and public health programs.” (42 U.S.C. 300u-11) PPHF amounts for each fiscal year are available to the Secretary of HHS beginning October 1, the start of the respective fiscal year. Congress may explicitly direct the distribution of PPHF funds, and did so for FY2014 through FY2017. Under the ACA, the PPHF’s annual appropriation would have increased from $500 million for FY2010 to $2 billion for FY2015 and each subsequent fiscal year. Congress has amended the provision two times, using a portion of PPHF funds as an offset for the costs of other activities. 21st Century Cures Act P.L. 114-255. As with ACA in general, the PPHF has sparked some controversy. Since it was enacted in 2010, Congress has considered several proposals to repeal it and rescind any unobligated funds. One of these measures, the Restoring Americans’ Healthcare Freedom Reconciliation Act of 2015 (H.R. 3762 in the 114th Congress) was passed in both chambers. It was vetoed by President Obama, and the House failed to override the veto. The American Health Care Act (115th Congress) also would repeal and rescind. American Health Care Act (H.R. 1628) The PPHF authority directs the HHS Secretary to transfer amounts from the Fund to HHS agencies for prevention, wellness, and public health activities. Since the PPHF is already appropriated, the Administration’s annual budget sets out its intended distribution and use of PPHF funds for that fiscal year, rather than requesting the funds. For FY2010 through FY2013, the Secretary determined the distribution of PPHF funds. For FY2013 the Secretary used almost half of the available PPHF appropriation to implement ACA insurance exchanges, a funding allocation that spurred objections both from opponents of the ACA and the Fund, and supporters of the Fund and the public health programs it has bolstered. Congress has explicitly directed annual PPHF transfers since FY2014, providing most of each annual appropriation to the Centers for Disease Control and Prevention (CDC). Although the Secretary used the PPHF to fund a mix of pre-existing activities, as well as activities newly authorized under the ACA, Congress has favored funding pre-existing activities. For some activities the PPHF contribution for FY2016 made up more than half of its total funding. Examples include CDC immunization grants to states (54%) and tobacco prevention activities (60%). The CDC Preventive Health and Health Services Block Grant and the lead poisoning prevention program received 100% of their FY2016 funding from the PPHF. In addition, PPHF transfers accounted for about one-third of the funds for the Garrett Lee Smith suicide prevention grants to states, administered by the Substance Abuse and Mental Health Services Administration (SAMHSA). As part of a continuing resolution for FY2017 Congress directed the distribution of FY2017 PPHF funds. Division A of P.L. 114-254.

Mar 21, 2017

Sub-Saharan Africa: Key Issues, Challenges, and U.S. Responses

The 115th Congress and the Trump Administration are reviewing existing U.S. policies and programs in sub-Saharan Africa (henceforth, “Africa”) as they establish their budgetary and policy priorities toward the region while also responding to emerging crises. Africa-specific policy questions did not feature prominently in the 2016 U.S. presidential campaign, and the views of the Trump Administration on many U.S.-Africa policy issues remain unspecified. The Obama Administration’s Strategy Toward Sub-Saharan Africa identified its policy priorities as strengthening democratic institutions; spurring economic growth, trade, and investment; advancing peace and security; and promoting opportunity and development. Analysts continue to debate whether that Strategy reflected an appropriate mix and ranking of priorities, as well as the degree to which the Obama Administration’s actions reflected its stated goals. Congressional action on trade and electrification projects in Africa in the 114th Congress suggested some shared priorities with the Obama Administration. The Obama Administration’s efforts to promote greater private sector engagement and youth leadership in Africa won praise from various quarters. At the same time, analysts have probed whether the Obama Administration’s emphasis on building democratic institutions in Africa was matched with appropriate resource allocations, and whether President Obama’s stated support for democratic accountability was undermined by close U.S. partnerships with authoritarian-leaning states in East Africa and by a growing emphasis on security relationships. Africa is a top destination of U.S. foreign aid. Following significant increases during the George W. Bush Administration in the 2000s, civilian-administered aid levels allocated for African countries remained largely flat during the Obama Administration, reflecting overarching budgetary constraints among other considerations. The areas of emphasis nonetheless shifted in some ways, with new presidential development initiatives focusing on electrification, trade, agricultural development, and health system strengthening. U.S. military cooperation and Defense Department-administered security assistance spending in Africa also increased substantially, in line with new congressionally enacted authorities for defense spending as well as Administration-led peacekeeping and counterterrorism initiatives. The United States has long been a top bilateral donor of emergency humanitarian and disaster assistance in Africa, as well as the top financial contributor to U.N. peacekeeping operations, the majority of which are in Africa. The 114th Congress enacted several pieces of legislation that shaped U.S.-Africa policy and programs. These included the reauthorization of the African Growth and Opportunity Act (AGOA, P.L. 114-27), the Electrify Africa Act (P.L. 114-121), the Global Food Security Act (P.L. 114-195), the Eliminate, Neutralize, and Disrupt Wildlife Trafficking Act (P.L. 114-231), annual National Defense Authorization Acts (most recently, P.L. 114-328), and foreign aid and defense appropriations measures. Congress has also influenced U.S.-Africa policy through its oversight activities, and through Member statements and communications with the executive branch and African leaders. To inform further congressional consideration of U.S.-Africa policy issues and challenges, this report provides background on the following: Sub-Saharan Africa’s development and economic challenges; U.S.-Africa trade, investment, and economic cooperation; Governance, democracy, and human rights issues; Peace and security issues; and U.S. aid to Africa and other selected U.S. responses to policy challenges.

Mar 21, 2017

Commercial Truck Safety: Overview

More than 11 million large trucks travel U.S. roads, and almost 4 million people hold commercial driver’s licenses. In 2015, large trucks were involved in more than 400,000 motor vehicle crashes serious enough to be registered by police, with nearly 100,000 of those crashes causing injuries and around 3,600 resulting in fatalities. To address this situation, Congress has assigned the U.S. Department of Transportation (DOT)—primarily the Federal Motor Carrier Safety Administration (FMCSA)—responsibility for regulating the safety practices of commercial motor carriers and drivers. In addition, the National Highway Traffic Safety Administration (NHTSA) in DOT is responsible for the safety of the vehicles themselves through its role in setting vehicle safety standards. Truck crash, injury, and fatality rates have generally been rising since 2009 after declining over many years. This increase may be due in part to marginally skilled or inexperienced drivers entering the industry, or to higher levels of work and stress among veteran drivers, or to other factors. Two FMCSA proposals concerning driver safety have proven particularly contentious. In March 2017, FMCSA abandoned its attempt to require drivers to take a 34-hour rest period, including two consecutive early morning periods, at least once a week. The proposed “restart rule” encountered strong objections from drivers as well as motor carriers, and an FMCSA study could not confirm that the rule would lead to sufficient improvement in safety to satisfy Congress. In March 2016 FMCSA began a joint rulemaking with the Federal Railroad Administration to require that commercial drivers (or train operators) who exhibit certain risk factors be screened for obstructive sleep apnea, which interferes with sound sleep and thus increases the risk of crashes. In the past, efforts to address sleep apnea among drivers met resistance from drivers who feared they might be prohibited from driving commercial vehicles, and Congress prohibited FMCSA from addressing sleep apnea among drivers except through a formal rulemaking. FMCSA has introduced stricter training standards for new drivers, and has instituted a database intended to help prevent drivers barred from commercial driving due to convictions for driving under the influence of drugs or alcohol from bypassing the prohibition and continuing to drive. FMCSA has also barred drivers from using handheld phones or texting in order to reduce driver distraction. Motor carriers have frequently sought to increase driver productivity and reduce costs by pushing for standards allowing longer or heavier trucks. Although efforts to permit longer trucks were rejected by Congress in 2015, Congress did approve a number of exceptions and waivers to federal weight limits. FMCSA and NHTSA have jointly proposed to require that all large trucks be equipped with speed limiters, a proposal over which the trucking industry is divided. Congress also has taken an interest in FMCSA’s Compliance, Safety, and Accountability Program, which is intended to allow it to focus resources on carriers most in need of supervision from a safety standpoint. Legislation in 2015 required FMCSA to obtain external review of the system it proposes to use to measure carrier safety.

Mar 21, 2017

Collective Bargaining and the Federal Service Labor-Management Relations Statute: Selected Legal Issues

Title VII of the Civil Service Reform Act of 1978, commonly referred to as the “Federal Service Labor-Management Relations Statute” (FSLMRS), recognizes the right of most federal employees to engage in collective bargaining with respect to their conditions of employment. In 2016, 27.4% of all federal employees were members of a union. While the union membership rate for federal workers has declined slightly over the past ten years, it continues to exceed the union membership rate of 6.4% for private-sector employees. Under the FSLMRS, a labor organization becomes the exclusive representative of a collective bargaining unit following a secret ballot election in which a majority of the employees in the unit vote favorably for the union. Once selected, the union is responsible for representing the interests of all employees in the bargaining unit, even if an individual has chosen not to join the union. Unlike organized employees in the private sector, federal employees are prohibited from engaging in a strike. The FSLMRS does not permit the negotiation of matters that are specifically provided for by federal law, such as wages and retirement benefits. However, federal unions have bargained with management over a variety of other subjects, such as the availability of daycare facilities and the allocation of parking spaces. In addition, under the FSLMRS, unions may negotiate for the availability of “official time,” paid time off from assigned government duties to engage in activities related to labor-management relations. The ability to negotiate for official time has been of particular interest to Congress. Legislation that would require the reporting of official time and limit how such time is used has been introduced in the 115th Congress. This report provides background on the FSLMRS and discusses key rights afforded to federal employees and management under the statute. The report also examines the availability of official time, and reviews some of the significant official time cases decided by the Federal Labor Relations Authority (FLRA), the federal agency that administers the FSLMRS.

Mar 21, 2017

Defense Primer: The National Defense Budget Function (050)

Mar 17, 2017

Achieving a Better Life Experience (ABLE) Programs

Mar 17, 2017

Statutory, Average, and Effective Marginal Tax Rates in the Federal Individual Income Tax: Background and Analysis

Tax reform is a stated priority of the 115th Congress. In June 2016, Ways and Means Committee Republicans released the “Better Way” tax reform blueprint. The proposal seeks to make the individual income tax system “simpler, flatter, and fairer” by consolidating the number of individual income tax brackets. Looking at statutory tax rates alone, however, provides limited information regarding the simplicity or fairness of the tax system. Average tax rates and effective marginal tax rates are frequently used by economists and policy analysts to evaluate the fairness of the tax system, as well as various economic incentives created by the system. This report provides background information on alternative tax rate metrics, and discusses how these measures of the tax burden inform the tax reform debate. Under current law, there are seven statutory tax rate brackets in the federal individual income tax system. Very few taxpayers, less than 1% in 2014, face the top statutory rate. A taxpayer’s average tax rate is the percentage of total income that is paid in taxes. This metric is useful when comparing tax burdens across taxpayers, as well as certain economic incentives created by the tax system. For nearly every taxpayer, average tax rates are less than the statutory rate. A taxpayer’s effective marginal tax rate is the amount of income tax paid on the next dollar of earnings. Effective marginal tax rates are determined by statutory rates, as well as various other provisions. Effective marginal tax rates also provide information on the economic incentives created by the tax code for different taxpayers. As illustrated in this report, under the current system, statutory, average, and effective marginal tax rates can differ substantially for any given taxpayer. Since statutory tax rates provide limited information about tax burdens, questions of equity are often better addressed by using average rates. Since effective marginal tax rates do not equal statutory tax rates for a large proportion of taxpayers, statutory rates provide limited information on the incentives created by the tax code. One way to evaluate average tax rates is to examine them across the income distribution. This report uses the 2010 Internal Revenue Service (IRS) Statistics of Income (SOI) public use file, the most recent publicly available sample of individual taxpayer returns available when this report was written, to complete this analysis. When taxpayers are divided into income deciles (grouped such that there are 10 equal-sized groups of taxpayers, ranked by income), average tax rates are negative for the first four income deciles. Negative average tax rates are the result of refundable tax credits, generally provided to working families with children. For the top income decile, taxpayers with income above $123,210 in 2010, the average of the average tax rates was 13.6%. In an uncomplicated tax system, marginal tax rates would generally equal the statutory tax rate. For 46% of taxpayers in 2010, effective marginal tax rates differed from the statutory rate. Twenty-nine percent of taxpayers had an effective marginal tax rate that exceeded their statutory rate, while 16% had an effective marginal tax rate that was less than the statutory rate. Both average and effective marginal tax rates vary both across and within income groups. Average tax rates tend to rise with income, reflecting the overall progressivity of the tax system. However, the substantial variation of average tax rates within income groups illustrates that higher-income taxpayers do not necessarily face higher average tax rates. For lower- and middle-income taxpayers, family composition explains much of the difference in average tax rates for taxpayers with similar incomes. Unlike average tax rates, effective marginal tax rates do not always rise with income. The phase-ins and phaseouts associated with tax benefits for families with children mean that for these family types, effective marginal tax rates in the lower and middle parts of the income distribution are similar to those faced by taxpayers near the top of the income distribution.

Mar 16, 2017

Moving On: TPP Signatories Meet in Chile

On March 14-15, representatives from the 12 original signatories to the proposed Trans-Pacific Partnership (TPP) free trade agreement (FTA) met in Chile to discuss the future direction of regional integration efforts in the Asia-Pacific (see CRS In Focus IF10000, TPP: Overview and Current Status). China, Colombia, and South Korea were also represented. The meeting follows the Trump Administration’s January announcement of U.S. withdrawal from the TPP, which effectively ended the possibility of TPP’s entry into force in its current form (see CRS Insight IN10646, The United States Withdraws from the TPP). The United States has existing FTAs with six of the TPP countries, but not with Brunei, Japan, Malaysia, New Zealand, or Vietnam. The Trump Administration says it plans to focus its future trade efforts on possibly renegotiating and modernizing existing FTAs, beginning with the North American Free Trade Agreement (NAFTA), and then potentially pursuing new bilateral FTAs with TPP participants, particularly Japan and, possibly, other countries (see CRS Report R42965, The North American Free Trade Agreement (NAFTA)). The remaining 11 TPP signatories, many of whom expended considerable political capital in negotiating and signing the agreement, would like to build on the pact in future deliberations, though no clear path forward was announced at the meeting. The 11 countries released a statement reiterating their commitment to liberalizing international markets and advancing a rules-based trading system, and their intent to continue the discussions on the sidelines of the May APEC ministerial. Options moving forward include pursuing TPP without U.S. participation, individually proceeding with commitments in TPP, or incorporating TPP provisions into new or ongoing bilateral and regional trade negotiations. Among the Asian signatories of TPP, the ongoing 16-country-Regional Comprehensive Economic Partnership (RCEP) negotiations, which include seven TPP countries (Australia, Brunei, Japan, Malaysia, New Zealand, Singapore, and Vietnam), the six other Association of Southeast Asian Nation (ASEAN) nations (Burma, Cambodia, Indonesia, Laos, the Philippines, and Thailand), along with China, India, and South Korea, provide one such venue. Meanwhile, members of the Pacific Alliance, an existing regional integration bloc including the three Latin American countries in TPP (Chile, Mexico, and Peru) as well as Colombia, have also expressed interest in using their grouping as a platform for broader Asia-Pacific trade and economic liberalization (see CRS Report R43748, The Pacific Alliance: A Trade Integration Initiative in Latin America). In addition, the European Union (EU) has concluded, is negotiating, or has in place FTAs with all remaining TPP countries, except Brunei. Below we examine the perspectives of each remaining TPP signatory country. Australia. At the summit, Australian Trade Minister Steve Ciobo said that the TPP “is very much worth keeping alive” and that his government “see[s] merit in not letting the gains achieved through TPP slip through our fingers.” Ratification of the TPP is in the early stages of parliamentary consideration in Australia. Two committees have reported on the proposed agreement, one supporting its ratification and one recommending deferral of action until TPP’s status is clarified with other TPP parties. Meanwhile, under the existing Australia-Japan FTA, Australia exports beef to Japan at an increasingly lower tariff level than U.S. exports face (currently 27.5% vs 38.5%). Brunei Darussalam was one of the founding members of the forerunner to the TPP, the Trans-Pacific Strategic Economic Partnership (TPSEP), which is still in effect among it, New Zealand, Chile and Singapore. Canada. Despite its International Trade Minister signing the TPP agreement in February 2016, the Liberal government of Justin Trudeau never actually committed to supporting the agreement. Now it is committed to renegotiate NAFTA with the United States and Mexico, which may include some TPP provisions. Elsewhere, it is awaiting ratification by European Union member states of the Comprehensive Economic and Trade Agreement (CETA). It has begun to engage in consultations on an FTA with China and may seek to restart FTA negotiations with Japan, which were put in abeyance during the TPP negotiations. Chile. Chile, which hosted the summit, has existing FTAs with all the TPP signatories and therefore may be more interested in the regional integration aspects of TPP and a path forward involving a broad membership, possibly including China. Japan. Japan, which relies heavily on its military alliance with the United States, appears hesitant to move forward with the TPP without U.S. participation and continues to stress the agreement’s importance as a regional initiative to the Trump Administration. Having already ratified the agreement despite a politically contentious debate, particularly on agriculture commitments, Japan may face domestic challenges in revisiting those issues in future bilateral negotiations favored by the United States. For now the two governments have agreed to begin a commercial dialogue. Mexico. Along with Canada, Mexico is grappling over the contours of a proposed renegotiation of NAFTA. The country is also negotiating with the European Union to update and expand its 1995 FTA and has expressed interest in expanding the Pacific Alliance. Mexico is also reportedly keen on pursuing bilateral negotiations with TPP members including Australia, Brunei, Malaysia, New Zealand, Singapore, and Vietnam. Malaysia. The Malaysian trade minister recently stated Malaysia is not interested in joining the TPP without the United States. However, he also indicated that the Dewan Rakyat (Malaysia’s lower house of Parliament) nonetheless would consider amendments to Malaysian law necessary to bring the pact into force. Australian exporters of steel products to Malaysia have up a 20% tariff advantage over U.S. exporters due to tariff eliminations in the 2013 Australia-Malaysia FTA. New Zealand. New Zealand’s trade minister maintained “there is still life in the TPP” at the summit, while its Parliament adopted its TPP implementation bill in November 2016. Along with Australia, it plans to begin FTA talks with the European Union. A Commonwealth-centered trade and free movement area (CANZUK) is also being contemplated for New Zealand, Canada, Australia, and the United Kingdom. Peru. The Peruvian trade minister has maintained that the TPP could be changed so ratification does not depend on U.S. participation. Peru also has had discussions with China on joining RCEP and updating its bilateral FTA. Vietnam. Vietnam will not proceed with ratification of TPP at present, but its government plans to enact changes to Vietnamese law necessary to come into compliance. Vietnam has aggressively pursued an export-focused development strategy in recent years including signing FTAs with the EU and South Korea. If the concluded EU FTA with Vietnam becomes effective, EU auto exporters will have up to a 70% tariff advantage over U.S. exporters as Vietnam phases out its auto tariff over 10 years. Singapore. Singapore has FTAs with all other TPP partners save Canada and Mexico, with which it may seek to restart talks. Singapore concluded an FTA with the EU in October 2014.

Mar 16, 2017

Sanctuary Jurisdictions and Select Federal Grant Funding Issues: In Brief

On January 25, 2017, President Donald J. Trump issued Executive Order (EO) 13768, “Enhancing Public Safety in the Interior of the United States.” Among other things, the EO raises questions regarding whether, and to what extent, federal agencies will withhold federal grant funds that would have otherwise been awarded to a designated “sanctuary jurisdiction.” Under the EO, the Secretary of Homeland Security (Secretary) is directed to designate a jurisdiction as a sanctuary jurisdiction at his discretion, and to the extent consistent with law, for those jurisdictions found to have willfully refused to comply with 8 U.S.C. 1373, “Communication between government agencies and the Immigration and Naturalization Service.” Among other things, the EO raises questions regarding potential restrictions of federal grant funding for sanctuary jurisdictions. This report discusses several questions that might be raised regarding the implementation of the executive order by federal grant-making agencies (also known as “federal awarding agencies”) and the impact on federal grant funding for designated sanctuary jurisdictions. Because of the complexity of implementing a centralized policy such as the EO through the decentralized structure of federal grants administration practices, there is uncertainty in determining the impact of the EO on federal grant funding for sanctuary jurisdictions. This could be affected by the discretion exercised by the Attorney General and the Secretary in defining a “federal grant,” determining which programs are exempted because of providing necessary funding for law enforcement purposes, and determining what constitutes a “sanctuary jurisdiction.” The impact of the EO on federal grant funding could also be affected by how federal grant awarding agencies utilize discretion in administering the grant programs, including review of eligibility and conditioning federal grant awards.

Mar 16, 2017

Pension Benefits for United Mine Workers of America Retirees

Mar 15, 2017

Previewing a 2018 Farm Bill

Congress periodically establishes agricultural and food policy in an omnibus farm bill. The 115th Congress faces reauthorization of the 2014 farm bill—the Agricultural Act of 2014 (P.L. 113-79, H.Rept. 113-333)—because many of its provisions expire in 2018. The 2014 farm bill is the most recent omnibus farm bill. It was enacted in February 2014 and succeeded the Food, Conservation, and Energy Act of 2008 (P.L. 110-246, “2008 farm bill”). In recent decades, the breadth of farm bills has steadily grown to include new and expanding food and agricultural interests. The 2014 farm bill contains 12 titles encompassing farm commodity revenue supports, farm credit, trade, agricultural conservation, research, rural development, energy, and foreign and domestic food programs, among other programs. Provisions in the 2014 farm bill reshaped the structure of farm commodity support, expanded crop insurance coverage, consolidated conservation programs, reauthorized and revised nutrition assistance, and extended authority to appropriate funds for many U.S. Department of Agriculture (USDA) discretionary programs through FY2018. When the 2014 farm bill was enacted, the Congressional Budget Office (CBO) estimated that the total cost of mandatory programs would be $489 billion over the five years FY2014-FY2018. Four titles accounted for 99% ($483.8 billion) of anticipated farm bill mandatory program outlays: nutrition, crop insurance, conservation, and farm commodity support. The nutrition title, which includes the Supplemental Nutrition Assistance Program (SNAP), comprised 80% of the total, with the remaining 20% mostly geared toward agricultural production across other titles. Traditionally, a primary focus of omnibus farm bills has been commodity-based revenue support policy—namely, the methods and levels of federal support provided to agricultural producers. The 2014 farm bill amended U.S. farm safety net programs by expanding crop insurance provisions and modifying counter-cyclical support while eliminating direct payments to growers of grains, cotton, and peanuts. Upland cotton was removed from eligibility for participation in the new revenue support programs as part of compliance with a World Trade Organization dispute settlement case with Brazil. Instead, cotton producers were offered an insurance-like support program that protects against within-season revenue shortfalls. Another major change involved dairy: Previous support programs were replaced with a new insurance-like margin program that insures against shortfalls in the difference between milk prices and feed costs. Most farm program proponents agree that the new cotton and dairy programs have performed ineffectively and are likely to see proposals for change. Other farm interest groups, however, continue to point to competing policy priorities—covering a range of equity concerns across the entire farm sector—and call for enhanced support for small and medium-sized farms, specialty crops, organic agriculture, local and regional food systems, healthy and nutritious foods, research, conservation, and rural development, among others. One of the principal drivers of a new farm bill debate will be the federal budget. According to CBO estimates, if ongoing programs were to continue under current law, mandatory farm bill spending by the four largest titles—nutrition, crop insurance, farm commodity programs, and conservation—is projected to be about $435 billion over the next five years (FY2018-FY2022), with domestic nutrition assistance accounting for nearly 77% of the total. This compares with actual costs for the first three years of the 2014 farm bill and projections for its last two years, which suggest that these four titles may cost $456 billion over FY2014-FY2018.

Mar 15, 2017

Health Benefits for United Mine Workers of America Retirees

Mar 15, 2017

The American Health Care Act (AHCA)

In January 2017, the House and Senate adopted a budget resolution for FY2017 (S.Con.Res. 3), which reflects an agreement between the chambers on the budget for FY2017 and sets forth budgetary levels for FY2018-FY2026. S.Con.Res. 3 also includes reconciliation instructions directing specific committees to develop and report legislation that would change laws within their respective jurisdictions to reduce the deficit. These instructions trigger the budget reconciliation process, which may allow certain legislation to be considered under expedited procedures. The reconciliation instructions included in S.Con.Res. 3 direct two committees in each chamber to report legislation within their jurisdictions that would reduce the deficit by $1 billion over the period of FY2017 through FY2026. In the House, the Committee on Ways and Means and the Energy and Commerce Committee are directed to report. In the Senate, the Committee on Finance and the Committee on Health, Education, Labor, and Pensions are directed to report. On March 6, 2017, the Committee on Ways and Means and the Energy and Commerce Committee independently held markups. Each committee voted to transmit its budget reconciliation legislative recommendations to the House Committee on the Budget. Combined, these two bills are referred to as the American Health Care Act (AHCA). The House Committee on the Budget is scheduled to mark up the AHCA on March 16, 2017. The AHCA includes a number of provisions that would repeal or modify parts of the Patient Protection and Affordable Care Act (ACA; P.L. 111-148, as amended) and a number of provisions that do not specifically relate to aspects of the ACA. This report contains three tables that, together, provide an overview of the AHCA provisions. Table 1 includes provisions that apply to the private health insurance market, Table 2 includes provisions that affect the Medicaid program, and Table 3 includes provisions related to public health and taxes. Each table contains a column identifying whether the AHCA provision is related to an ACA provision (e.g., whether it repeals an ACA-related provision). The Congressional Budget Office (CBO) and the staff of the Joint Committee on Taxation (JCT) estimate that the AHCA would reduce federal deficits by $337 billion over the period FY2017-FY2026. With respect to effects on health insurance coverage, CBO and JCT project that, in FY2018, 14 million more people would be uninsured under the AHCA than under current law and, in FY2026, 24 million more people would be uninsured.

Mar 14, 2017

Science and Technology Issues in the 115th Congress

Science and technology (S&T) have a pervasive influence over a wide range of issues confronting the nation. Public and private research and development spur scientific and technological advancement. Such advances can drive economic growth, help address national priorities, and improve health and quality of life. The constantly changing nature and ubiquity of science and technology frequently create public policy issues of congressional interest. The federal government supports scientific and technological advancement directly by funding and performing research and development and indirectly by creating and maintaining policies that encourage private sector efforts. Additionally, the federal government establishes and enforces regulatory frameworks governing many aspects of S&T activities. This report briefly outlines an array of science and technology policy issues that may come before the 115th Congress. Given the rapid pace of S&T advancement and its importance in many diverse public policy issues, S&T-related issues not discussed in this report may come before the 115th Congress. The selected issues are grouped into 9 categories: Overarching S&T Policy Issues, Agriculture, Biomedical Research and Development, Defense, Energy, Environment and Natural Resources, Homeland Security, Information Technology, Physical and Material Sciences, and Space. Each of these categories includes concise analysis of multiple policy issues. The material presented in this report should be viewed as illustrative rather than comprehensive. Each section identifies CRS reports, when available, and the appropriate CRS experts to contact for further information and analysis.

Mar 14, 2017

Senate Judiciary Committee Hearings for Supreme Court Nominations: Historical Overview and Data

After a President submits a Supreme Court nomination to the Senate, the Judiciary Committee assumes the principal responsibility for investigating the background and qualifications of each Supreme Court nominee. Since the late 1960s, the Judiciary Committee’s consideration of a Supreme Court nomination typically has consisted of three distinct stages—(1) a pre-hearing investigative stage, followed by (2) public hearings, and concluding with (3) a committee decision as to whether to recommend approval of the nomination by the full Senate. This CRS Insight provides an historical overview of the second stage of this process—public hearings on nominations submitted to the Senate. As of this writing, the Senate Judiciary Committee is set to begin hearings on March 20, 2017, on the nomination of Judge Neil Gorsuch to fill the vacancy on the Court created by the death of Justice Scalia on February 13, 2016. Hearings for Supreme Court Nominations Since 1949 Supreme Court nominations from 1949 to 2016 routinely received public confirmation hearings before either the Senate Judiciary Committee or a Judiciary subcommittee (for a discussion of the nature of such hearings prior to 1949, see CRS Report R44236). From the nomination of Tom Clark in 1949 through the nomination of Merrick Garland in 2016, 33 of 37 Supreme Court nominations (or 89%) received hearings. Of the 33 nominations that received hearings, 28 were approved by the Senate, 3 were rejected in up-or-down votes by the Senate, and 2 were later withdrawn by the President (with one of the two being withdrawn after the Senate failed to invoke cloture on the nomination). During this same period, as shown by Table 1, there were four nominations that did not receive hearings before the Senate Judiciary Committee. One nomination did not receive a hearing because it was made for the first time by a President less than a month before the final adjournment of the 83rd Congress (the Harlan nomination). Mr. Harlan was renominated at the beginning of the 84th Congress and hearings were held on that nomination. Another two nominations did not receive hearings because they were withdrawn by the President prior to the scheduled start of confirmation hearings (the Roberts and Miers nominations). Mr. Roberts, however, was renominated for the Chief Justice position and received hearings for that nomination. The most recent nomination not to receive a hearing, the nomination of Merrick Garland by President Obama, is the second nomination to the Court since 1949 for which no hearings were scheduled (hearings had been scheduled for the Roberts and Miers nominations prior to both nominations being withdrawn by the President). The Garland nomination is, however, distinct from the nomination of Mr. Harlan in 1954 in that Mr. Harlan’s nomination was resubmitted in 1955, hearings were held on that nomination, and Mr. Harlan was subsequently confirmed by the Senate. Table 1. Supreme Court Nominations That Did Not Receive a Judiciary Committee Hearing (1949—2016) Nominee Nomination Date Were Hearings Scheduled? What Was Outcome of the Nomination? John Harlan Nov. 9, 1954 No hearings were scheduled. Nomination not acted upon by the Senate within the 23 days from the nomination being made by President Eisenhower to the adjournment of the 83rd Congress.a John Roberts, Jr. Jul. 29, 2005 Hearings scheduled to begin Sept. 6, 2005. Nomination withdrawn by President G.W. Bush on Sept. 6, 2005.b Harriet Miers Oct. 7, 2005 Hearings scheduled to begin Nov. 7, 2005. Nomination withdrawn by President G.W. Bush on Oct. 28, 2005. Merrick Garland Mar. 16, 2016 No hearings were scheduled. Nomination was returned to President Obama on Jan. 3, 2017. Source: Congressional Research Service Notes: Mr. Harlan was renominated by President Eisenhower during the 84th Congress on January 10, 1955. For Mr. Harlan’s second nomination, he received hearings on Feb. 24-25, 1955. Mr. Harlan was later confirmed. Following the death of Chief Justice Rehnquist on Sept. 3, 2005, Mr. Roberts’s nomination for the O’Connor seat was withdrawn and he was renominated on Sept. 6, 2005, for the vacant Chief Justice position. For that particular nomination, hearings began on Sept. 12, 2005. Mr. Roberts was later confirmed. Time from Nomination to Committee Hearings Overall, for the 33 Supreme Court nominations from 1949 through 2010 that received a committee hearing (not including the upcoming hearing for Judge Gorsuch), the average number of days from nomination by a President to the commencement of hearings by the Judiciary Committee was 28.8 days. In more recent decades, however, the average has been longer—specifically, since 1975, the average number of days from nomination to the start of hearings was 39 days. While the average was 28.8 days, there has been variation in the number of days from when a nomination was made by a President to when the Judiciary Committee held hearings on the nomination. Specifically, from 1949 to 2010, the number of days from nomination to the first day of committee hearings ranged from a minimum of 6 days to a maximum of 82 days. As shown by Figure 1, 13 nominations during this period (or 39%) received a committee hearing within two weeks of being made by a President. Another 8 nominations (24%) received a committee hearing from 15 to 30 days of being made by a President. Of the remaining nominations, 4 (12%) received hearings 31 to 45 days after being made by a President; 5 (15%) had hearings 46 to 60 days after being made; and 3 (9%) nominations had hearings more than 60 days after being made by a President. The nomination of Judge Gorsuch is not reflected in the statistics above but is included in Figure 1. As shown by the figure, the number of days from his nomination to the announced date of his first committee hearing (47 days) is similar to the length of time from nomination to first committee hearing for other recent nominees to the Court (i.e., Justices Sotomayor, Kagan, and Alito). Figure 1. Number of Days from Date of Nomination to Date of First Committee Hearing (1949—2017) / Source: Congressional Research Service Note: The date of nomination used to calculate the numbers reported in Figure 1 is the date the nomination was formally received in the Senate.

Mar 13, 2017

The Marijuana Policy Gap and the Path Forward

Under federal law, the cultivation, possession, and distribution of marijuana are illegal, except for the purposes of sanctioned research. States, however, have established a range of laws and policies regarding marijuana’s medical and recreational use. Most states have deviated from an across-the-board prohibition of marijuana, and it is now more so the rule than the exception that states have laws and policies allowing for some cultivation, sale, distribution, and possession of marijuana—all of which are contrary to the federal Controlled Substances Act (CSA). As of March 2017, nearly 90% of the states, as well as Puerto Rico and the District of Columbia, allow for the medical use of marijuana in some capacity. Also, eight states and the District of Columbia now allow for some recreational use of marijuana. These developments have spurred a number of questions regarding their potential implications for federal law enforcement activities and for the nation’s drug policies as a whole. Thus far, the federal response to state actions to decriminalize or legalize marijuana largely has been to allow states to implement their own laws on marijuana. The Department of Justice (DOJ) has nonetheless reaffirmed that marijuana growth, possession, and trafficking remain crimes under federal law irrespective of states’ positions on marijuana. Rather than targeting individuals for drug use and possession, federal law enforcement has generally focused its counterdrug efforts on criminal networks involved in the drug trade. While the majority of the American public supports marijuana legalization, some have voiced apprehension over possible negative implications. Opponents’ concerns include, but are not limited to, the potential impact of legalization on (1) marijuana use, particularly among youth; (2) road incidents involving marijuana-impaired drivers; (3) marijuana trafficking from states that have legalized it into neighboring states that have not; and (4) U.S. compliance with international treaties. Proponents of legalization have been encouraged by potential outcomes that could result from marijuana legalization, including a new source of tax revenue for states and a decrease in marijuana-related arrests. Many of these potential implications are yet to be fully measured. Given the current marijuana policy gap between the federal government and many of the states, there are a number of issues that Congress may address. These include, but are not limited to, issues surrounding availability of financial services for marijuana businesses, federal tax treatment, oversight of federal law enforcement, allowance of states to implement medical marijuana laws and involvement of federal health care workers, and consideration of marijuana as a Schedule I drug under the CSA. The marijuana policy gap has widened each year for some time. It has only been a few years since states began to legalize recreational marijuana, but over 20 years since they began to legalize medical marijuana. In addressing state-level legalization efforts and considering marijuana’s current placement on Schedule I, Congress could take one of several routes. It could elect to take no action, thereby upholding the federal government’s current marijuana policy. It may also decide that the CSA must be enforced in states and not allow them to implement conflicting laws on marijuana. Alternatively, Congress could choose to reevaluate marijuana’s placement as a Schedule I controlled substance.

Mar 10, 2017

The Federal Power Act (FPA) and Electricity Markets

The electric power industry is in the process of transformation. The electricity infrastructure of the United States is aging; uncertainty exists around how to modernize the grid, and what technologies and fuels will be used to produce electricity in the future. Unresolved questions are arising about market structure, potential cyber and physical security threats, and continuing interest in harnessing low carbon sources of electricity. Concerns about reliability and electricity prices are being affected by new environmental regulations, and the rising availability of natural gas for the production of electric power. On September 7, 2016, the House Energy and Commerce Committee’s Energy and Power subcommittee (E&P subcommittee) made efforts to re-evaluate the relevance of the Federal Power Act (FPA) in the context of a changing electricity industry, with a hearing on historical perspectives of the act. The FPA has been the primary vehicle that Congress has used to modify national policies affecting the U.S. electricity industry. It will be the most likely vehicle for Congress to consider in initiating new policies for the modernization of this industry. In 1935, Congress passed the Public Utility Act (PUA) seeking to end the abuses of market power evident at that time. Title II of the PUA created the Federal Power Act. Part I of the FPA addressed licensing of nonfederal hydropower projects on navigable waters. Part II of the FPA addressed the regulation of electric utilities engaged in interstate commerce, delineating federal and state jurisdiction, respectively, with respect to wholesale and retail sales. The Federal Energy Regulatory Commission’s (FERC’s) regulatory authority derives from the FPA. Electric utilities were originally vertically integrated companies responsible for power generation, transmission, and distribution of electricity to end-use customers. Congress began to move the electric power industry towards competition with the passage of the Energy Policy Act of 1992 (EPACT92; P.L. 102-486). In 1996, the Commission exercised its authority under the FPA, issuing two regulations intended to inaugurate an open and efficient marketplace for electric power. A few years later, FERC took the next step encouraging the formation of independent regional transmission organizations (RTOs) in Order No. 2000. In RTO regions, electricity utilities were restructured, shifting power generation from a rate-regulated to a competitive regime, with FERC regulating the transmission of power. Under restructuring, states continued to regulate distribution. RTO electricity markets provide about 60% of power nationwide supplied to distribution utilities. A number of conceptual, structural, and policy issues have emerged with RTO operations and energy markets. Some RTOs are being confronted with concerns over whether there will be adequate levels of competitive generation to participate in the markets, and sufficient future capacity in the marketplace. FERC has been involved in recent court proceedings to ensure that state actions to incentivize new power plant construction do not unduly inhibit competitive price formation in RTO markets. Other concerns involve the use of market power and price manipulation. FERC was tasked by the Energy Policy Act of 2005 (P.L. 109-58) with prohibiting “any entity” from using “manipulative or deceptive device or contrivance” in connection with the purchase or sale of natural gas or electric energy in transactions subject to FERC jurisdiction. The 2000-2001Western energy crisis showed that electricity markets are susceptible to market manipulation. RTO markets have enabled a variety of products and services, including derivatives and other tools for market participants, ostensibly to reduce risks from volatile prices. Regulating such products and services still faces a number of issues. FERC continues to refine its approach to these and other wholesale electricity market issues. But the emergence and of new technologies and energy conservation schemes will likely bring new pressures to change how the electricity industry operates. As the electricity markets continue to evolve, Congress may examine whether changes to the FPA are necessary to ensure the economic and reliable operation of the U.S. electricity system.

Mar 10, 2017

Colombia’s Changing Approach to Drug Policy

Colombia is one of the largest producers of cocaine globally, and it also produces heroin bound for the United States. Counternarcotics policy has long been a key component of the U.S.-Colombian relationship, which some analysts have described as “driven by drugs.” Now, Colombia is changing its approach to counternarcotics policy, which may have implications for the U.S.-Colombian relationship. U.S. concerns about illicit drug production and trafficking in Colombia arose in the 1970s but grew significantly when Colombia became the dominant producer of cocaine in the Andean region in the mid-to-late 1990s. The United States has worked closely with Colombia to eradicate drug crops and combat trafficking. Simultaneously, over the past 17 years, the United States has forged a partnership with Colombia—perhaps its closest bilateral relationship in Latin America—centered on helping Colombia recover its stability following a decades-long internal conflict with insurgencies of left-wing guerrillas and right-wing paramilitaries, whose longevity has been attributed, in part, to their role in the country’s illicit drug trade. Between FY2000 and FY2016, the U.S. Congress appropriated more than $10 billion of bilateral foreign assistance to support a Colombian-written strategy known as Plan Colombia and its successor programs. In addition to counternarcotics, the United States helped support security and development programs designed to stabilize Colombia’s security situation and strengthen its democracy. A peace accord between the government of Colombia and the country’s main leftist insurgent group, the Revolutionary Armed Forces of Colombia (FARC), was signed in late November 2016 after four years of formal peace talks. The Colombian Congress unanimously ratified the peace accord, which had been revised following the narrow rejection of an earlier accord in a national referendum in October 2016. The final peace agreement addresses important issues, such as illicit crop cultivation—a major source of FARC income—and rural development. According to President Juan Manuel Santos, the peace accord will draw former FARC members into efforts to counter illicit drug production and trafficking. In 2017, as Colombia begins to implement the final peace accord and demobilize the FARC, the country is facing a large increase in cocaine production. During the protracted peace negotiations with the FARC, the Colombian government altered its approach to drug policy. A major change was the decision to end aerial spraying to eradicate coca crops, which had been a central—albeit controversial—feature of U.S.-Colombian counterdrug cooperation for more than two decades. In addition, Colombia’s counternarcotics policies shifted in 2015 to a public health approach under President Santos. The shift was influenced by broader hemispheric trends to reform traditional antidrug practices in ways that proponents claim can reduce human rights violations. On the supply side, Colombia’s new drug policy gives significant attention to expanding alternative development and licit crop substitution while intensifying interdiction efforts. The revised drug policy approach promotes drug-use prevention and treatment for drug users. According to Colombian officials, the public health and prevention dimensions of the revised strategy will be led by Colombia’s Health Ministry, in coordination with other agencies. This report examines how Colombia’s drug policies have evolved in light of Colombia’s peace agreement with the FARC and its changing counternarcotics policy. It explores both policy and oversight concerns, such as prospects for reducing coca and poppy cultivation under Colombia’s new drug policy and the peace accord with the FARC; the role of Colombian drug trafficking organizations, including powerful criminal groups containing former paramilitaries, in a post-peace accord environment; U.S.-Colombian cooperation on counternarcotics and Colombia’s future role in regional antidrug efforts; and shifts in U.S. government assistance to support Colombia’s revised drug policy and how Colombia’s new policy converges with traditional U.S. priorities. For additional background, see CRS Report RL34543, International Drug Control Policy: Background and U.S. Responses, by Liana W. Rosen; CRS Report R43813, Colombia: Background and U.S. Relations, by June S. Beittel; and CRS Report R42982, Colombia’s Peace Process Through 2016, by June S. Beittel.

Mar 10, 2017

An Introduction to Poverty Measurement

Poverty measures convey the number or percentage of people falling below given income amounts, which are intended to represent a level of economic privation and are computed using some factually based measurement of basic needs. The poverty measures discussed in this report—the official U.S. poverty measure and the research Supplemental Poverty Measure—focus on financial resources. A family’s income is compared against a dollar amount representing some measure of need, called a threshold, which typically varies by family size and composition. Those with family income less than the threshold are considered to be “in poverty,” or poor; those with incomes greater than or equal to the threshold are not considered to be in poverty. All members of the same family have the same poverty status. The poverty measures discussed here are financial measures; they do not directly capture the physical, mental, or social effects of being poor. They were developed to accurately measure economic privation rather than to describe the full complement of resources a person or family needs to be self-sufficient. Poverty data are obtained from surveys, and are therefore estimates that have margins of error. Poverty estimates derived from different data sources—even those using the same definition of poverty—will almost always differ. The official poverty thresholds were developed in the early 1960s, and were based on empirical measures of dietary need, on the amount that a family in economic distress might need to spend on food to attempt to meet its dietary needs, and on the spending patterns of families across the income distribution. This information was used to determine what percentage of an average family’s budget was spent on food, and in turn, to compute the amounts representing total family income. There has been broad agreement among poverty scholars that the official poverty measure has serious limitations, and decades of research were undertaken to address them. In 2009, an interagency technical working group, convened under the auspices of the Office of Management and Budget (OMB), put forth the Supplemental Poverty Measure to consolidate the research and emphasize not only sound concepts and methodology in the measure’s development, but also practicality in the measure’s maintenance, computation, and usage. The Supplemental Poverty Measure was not intended to replace the official measure, and it was expected that refinement of the Supplemental Poverty Measure’s methodology and data sources would continue. Neither the official poverty measure nor the Supplemental Poverty Measure was established in statute. The Bureau of the Budget and its successor agency, OMB, directed federal agencies to use the official measure for statistical purposes. The directive explicitly stated that the measure was not developed for administrative purposes, and allowed for other measures of poverty to be developed, as long as the data for those measures were distinguished from the official series. For administrative uses, such as determining whether an individual or family is eligible for assistance from a program, a different set of dollar amounts called poverty guidelines is used. Poverty guidelines are different from the official poverty thresholds, are published by the Department of Health and Human Services, and are not used to count the poverty population. However, any program that relies on counts of the poverty population, such as for formula grants, uses the official poverty thresholds and not the guidelines.

Mar 9, 2017

Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court

On January 31, 2017, President Donald J. Trump announced the nomination of Judge Neil M. Gorsuch of the U.S. Court of Appeals for the Tenth Circuit (Tenth Circuit) to fill the vacancy on the Supreme Court of the United States created by the death of Justice Antonin Scalia in 2016. Judge Gorsuch was appointed to the Tenth Circuit by President George W. Bush in 2006. The Tenth Circuit’s territorial jurisdiction covers Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming, and parts of Yellowstone National Park that extend into Idaho and Montana. Immediately prior to his appointment to the bench, the nominee served as the Principal Deputy to the Associate Attorney General, the third-ranking official at the U.S. Department of Justice, assisting the Associate Attorney General with oversight of the Department’s various civil litigation components. Before serving in the Justice Department, the nominee worked in private practice as a civil litigator at the Washington, D.C. firm of Kellogg, Huber, Hansen, Todd, Evans & Figel. Judge Gorsuch began his legal career clerking for federal judges. He first served as a law clerk to Judge David B. Sentelle of the D.C. Circuit. Later, he served two Supreme Court Justices, newly retired Justice Byron White and Justice Anthony Kennedy, during the October 1993 term. This report provides an overview of Judge Gorsuch’s jurisprudence and discusses how the Supreme Court might be affected if he were to succeed Justice Scalia. In particular, the report focuses on those areas of law where Justice Scalia can be seen to have influenced the High Court’s approach to particular issues or provided a fifth and deciding vote on the Court, with a view toward how the nominee might approach those same issues. The report begins by discussing the nominee’s views on two cross-cutting issues—the role of the judiciary and statutory interpretation. It then addresses fourteen separate areas of law, arranged in alphabetical order, from “administrative law” to “takings.” The report includes a table that notes the cases where the Supreme Court has reviewed majority opinions written or joined by Judge Gorsuch. Another set of tables in this report analyzes the nominee’s concurrences and dissents and those of his colleagues on the Tenth Circuit. A separate report, CRS Report R44772, Majority, Concurring, and Dissenting Opinions by Judge Neil M. Gorsuch, coordinated by Michael John Garcia, briefly summarizes all opinions authored by Judge Gorsuch during his tenure on the federal bench. Other CRS products discuss various issues related to the vacancy on the Court. For an overview of available products, see CRS Legal Sidebar WSLG1526, Supreme Court Nomination: CRS Products, by Kate M. Manuel and Andrew Nolan.

Mar 8, 2017

Regulating Space: Innovation, Liberty, and International Obligations

Mar 8, 2017

WTO Trade Facilitation Agreement

The Trade Facilitation Agreement (TFA), finalized in December 2013, is the newest international trade agreement in the World Trade Organization (WTO), having entered into force on February 22, 2017, when two-thirds of WTO members, including the United States, ratified the multilateral agreement. Congress has an interest in the TFA since it may affect U.S. trade flows, the U.S. economy, and international capacity building efforts. Trade facilitation measures aim to simplify and streamline international trade procedures to allow the easier flow of trade across borders and thereby reduce the costs of trade. There is no precise definition of trade facilitation, even in the WTO agreements. Trade facilitation can be defined narrowly as improving administrative procedures at the border or more broadly to also encompass behind-the-border measures and regulations. The TFA aims to address multiple trade barriers confronted by exporters and importers, whether small and medium-sized enterprises engaged in e-commerce or large multinational firms managing complex global supply chains. These barriers include the lack of transparency on process and documentation requirements for exporting to a given country. According to WTO estimates, global export gains from full implementation of the TFA could range from $750 billion to more than $3.6 trillion dollars per year. The Organization for Economic Co-operation and Development (OECD) finds that TFA implementation could lower trade costs as much as 12.5%-17.5% globally. Different sets of indicators and indices by various international organizations exist to measure levels of trade facilitation and could be used to monitor TFA effects. The TFA has three sections. The first section is the heart of the agreement, containing the provisions, of which many, but not all, are binding and enforceable. The second section provides for special and differential treatment for developing country members and least-developed country members, allowing them more time and assistance to implement the agreement. The TFA is the first WTO agreement in which members determine their own implementation schedules and in which progress in implementation is explicitly linked to technical and financial capacity. The TFA requires that “donor members,” including the United States, provide the needed capacity building and support to developing and least-developed members. Finally, the third section of the agreement contains the institutional arrangements for administering the TFA. Existing and proposed U.S. free trade agreements (FTAs) include trade facilitation commitments. While the WTO TFA and U.S. FTAs share common features, there are also differences. U.S. FTAs generally include more enforceable provisions and specific time frames, and do not include special and differential treatment for developing country participants. U.S. implementation of the TFA does not require changes from current processes, including planned efforts to update U.S. systems. In the United States, the U.S. Customs and Border Protection (CBP) seeks to balance its overarching objectives of promoting efficient trade flows with enforcing trade laws designed to protect consumers from dangerous and unlawful imports, and collecting customs duties. The CBP uses several instruments to collect information aimed at knowing who is importing and what types of goods are being imported, including the Customs-Trade Partnership against Terrorism (C-TPAT), the Automated Commercial Environment (ACE), and the International Trade Data System (ITDS). This report provides an overview of the TFA, its provisions, and the United States’ implementation and role in capacity building, and provides options for Congress to consider in relation to the TFA.

Mar 3, 2017

What Is the Effect of Enacting a Congressional Review Act Resolution of Disapproval?

The Congressional Review Act (CRA) provides Congress with a set of special parliamentary procedures to consider legislation to overturn federal regulations. The 115th Congress has taken up several disapproval resolutions thus far, and more are expected in the coming weeks. This has led to questions about the effects of enactment of a CRA disapproval resolution. Enactment of a CRA joint resolution of disapproval has two primary effects—one immediate and one more long-term. The immediate effect is that a rule subject to a disapproval resolution may not go into effect, or, if the rule has already taken effect, it is treated as though it had never taken effect. Second, the agency may not reissue the rule in “substantially the same form” or issue a “new rule that is substantially the same” as the disapproved rule, “unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.” There is no time limit on this provision; the prohibition on any agency issuing a “substantially the same” rule without further authorization appears indefinite. The CRA does not define the phrase “substantially the same,” nor does it identify what criteria should be considered in evaluating whether a rule falls into this category. The relevant factors would likely depend on the specific rule at hand, as well as the underlying statutory authority or requirement for the rule. For example, if the underlying statute authorizing the promulgation of the regulation gave the agency broad discretion as to whether and how to issue the rule, the agency would likely have a wide amount of discretion in responding to a disapproval resolution. The agency could, for example, choose not to reissue the rule, as was the case with the Clinton Administration’s ergonomics rule that was disapproved in 2001, or the agency could choose to reissue a rule that was not substantially the same. If, on the other hand, the underlying statute contained a specific requirement or instruction for the rule, the agency may have less discretion moving forward. It should be noted, however, that enactment of a CRA resolution does not remove any underlying statutory requirement that an agency may have to issue the rule. Presumably, therefore, it would be incumbent upon the agency to make the initial determination of how to meet its statutory obligation to issue a rule while not violating the CRA’s “substantially the same” provision. Following enactment of the CRA, its sponsors inserted into the Congressional Record a joint explanatory statement, in which they observed that “no formal legislative history was prepared to explain [the CRA]” and that the statement was “intended to cure this deficiency.” Even this post-enactment legislative history, which may be of limited legal value in interpreting a statute, does not provide a definition of “substantially the same.” The statement did, however, acknowledge that the provision “may have a different impact on the issuing agencies depending on the nature of the underlying law that authorized the rule.” The sponsors indicated in this statement that Congress should, when considering a joint resolution of disapproval, provide guidance to the agency on how to proceed following enactment of the joint resolution, including with regard to the “substantially the same” provision: “The committees [that wrote the CRA] intend the debate on any resolution of disapproval to focus on the law that authorized the rule and make the congressional intent clear regarding the agency’s options or lack thereof after enactment of a joint resolution of disapproval.” Because the CRA stipulates the text of a disapproval resolution, however, such direction could not be provided in the text of the disapproval resolution itself—it would have to be given through legislative history, as the quote suggests, or enactment of separate legislation. The CRA is also silent on the question of who determines whether an amended rule or new rule is “substantially the same” as a disapproved rule. Because a subsequent rule would also be subject to the CRA, however, Congress would have the opportunity to take action under the CRA again if Congress determined that a reissued rule was substantially the same as the disapproved rule. Importantly, Section 805 of the CRA states that “no determination, finding, action, or omission under this chapter shall be subject to judicial review.” Most courts have concluded that this provision does not allow courts to consider any claims under the CRA. (For a complete discussion of the relevant cases on the CRA’s judicial review provision, see CRS Report R43992, The Congressional Review Act (CRA): Frequently Asked Questions.) Given this prevailing interpretation of the CRA’s judicial review provision, one could argue that evaluating whether the “substantially the same” prohibition has been violated may be a matter for Congress alone to decide. To the extent that courts have interpreted the CRA as limiting their role in reviewing the law’s requirements, Congress would appear to be the sole arbiter of whether a reissued version was substantially similar and should be struck down again under the CRA, or whether it should be allowed to go into effect. Despite the CRA’s prohibition on the issuance of rules that are “substantially the same,” it does not appear that all disapproved rules would require specific authorization for the agency to reissue a different version of the rules. For example, when Congress or a court has established a deadline for promulgating a rule, and an agency promulgates that rule, Section 803 of the CRA provides that, in the event Congress disapproves the rule, the deadline for the agency to promulgate a new rule under the same statutory authority is extended for one year from the date that Congress enacted the disapproval resolution. This language indicates that Congress contemplated that agencies could continue to issue rules in the same issue area and under the same statutory authority, even following the enactment of a joint resolution of disapproval.

Mar 3, 2017

S. 385: The Energy Savings and Industrial Competitiveness Act of 2017 (Portman-Shaheen Bill)

S. 385 Provisions Also known as the Portman-Shaheen bill, S. 385 has four energy efficiency titles (buildings, industry, federal agencies, and regulatory measures) and one title on budget matters. Title I would update model building energy codes and encourage adoption by state and local governments and American Indian Tribes (§101); authorize grants to universities to establish building training and assessment centers (§111); authorize matching grants to nonprofit organizations to train industry-certified installers of energy-efficient technologies (§112); and provide technical assistance to help schools improve energy efficiency and install renewable energy equipment (§121). Title II would improve information outreach to small- and medium-sized manufacturers and provide a 50% match to support energy efficiency internship programs (§202); provide energy efficiency assessments for manufacturers and conduct a “sustainable manufacturing” program (§203); establish a “Supply Star” program that publicly recognizes companies and products that use highly efficient equipment supply chains (§211); and establish rebate programs to spur replacement of energy inefficient electric motors (§221) and energy inefficient electricity transformers (§231). Title III would direct federal agencies to purchase and maintain energy-efficient information technologies (§301); establish a federal data center energy metric, energy practitioner program, and open data initiative (§302); and establish a pilot project for energy or water conservation in multifamily housing (§303). Title IV would revise certification requirements for Energy Star program partners (§401); require an ongoing review of private sector green building certification systems (§411); extend existing federal building energy efficiency targets (§421); expand existing efficiency standards for new federal buildings to cover major renovations (§422); and require federally issued home mortgages to consider efficiency (§423). Title V prescribes how pay-as-you-go compliance would be achieved (§501); and specifies that authorized funding amounts would require appropriations (§502). Provisions Are Derived from Previous Bills The provisions in S. 385 trace back to congressional action on a sequence of bills that were considered in the 113th and 114th Congresses. Table 1 shows the evolution of those provisions. Prior bipartisan action to modify or otherwise perfect the provisions peaked in the 113th Congress. Thirteen provisions proposed as amendments to S. 1392 were added as new provisions in S. 2262. The American Council for an Energy-Efficient Economy (ACEEE)—which has stated support for S. 385 and its predecessors—estimated an energy-saving potential for S. 2262 of 1.8 quadrillion Btu (quads) annually by 2030,with an associated annual cost-saving potential of $16.2 billion. More details about S. 2262 are available in CRS Report R43524, S. 2262, Shaheen-Portman Bill 2014: Energy Savings and Industrial Competitiveness Act. Early in the 114th Congress, the provisions of S. 2262 (113th Congress) were split into two bills, S. 535 and S. 720. S. 535 contained five of the thirteen “new” provisions in S. 2262, and it was enacted as P.L. 114-11. S. 720 was introduced with virtually all of the other provisions in S. 2262. The provisions of S. 720 (S.Rept. 114-130) were later incorporated into S. 2012, a much broader bill. The Senate passed its version of S. 2012 in April 2016 and the House approved its version in May 2016. Table 1 shows some key differences between the two versions. Progress on reconciling the differences stalled due to a lack of conference committee action on S. 2012. More details about S. 2012 appear in CRS Reports R44291 and R44569. The provisions of S. 385 are nearly identical to those in S. 720. Support and Opposition The elements of support and opposition over S. 385 may parallel those for S. 720 (114th Congress) and its predecessor, S. 2262 (113th Congress). Thus, S. 385 may enjoy support from many groups that supported S. 2262, including a variety of businesses, industry associations, and trade groups. The bill may also face opposition from conservative groups like the Heritage Foundation and its affiliated advocacy group, Heritage Action, which opposed S. 2262. Table 1. S. 385, Evolution of Bill Provisions (House and Senate versions of S. 2012 only show provisions related to S. 385) Policy ProvisionS 385 2017 (115th Cong.)S. 2012 [Senate] 2016 (114th Cong.)S. 2012 [House] 2016 (114th Cong.) S. 720a 2015 (114th Cong.) S. 2262 2014 (113th Cong.) S. 1392b 2013 (113th Cong.) Model Codes §101 §1001 §3141 §101 §101 §101 Worker Training 111 and 112 1007 and 1008 9001 111 and 112 111 and 112 111 and 112 Schools 121 1003 3131 121 121 no provisionc Industry 202 and 203 1201 no provision 202 and 203 202 and 203 202 and 203 Supply Star 211 no provision no provision 211 211 211 Motor Rebate 221 1101 no provision 221 221 221 Transformer Rebate 231 1102 no provision 231 231 231 Federal Agency Info. Tech 301 1009 3111 301 301 301 Federal Agency Data Centers 302 1011 3112 303 303 303 Multifamily Buildings 303 1002 no provision 304 304 no provision Energy Star Certification 401 1104 no provision 401 401 no provision High Performance Green Federal Buildings 411 1019 no provision 411 411 no provision Energy Performance Requirement for Federal Buildings 421 1015 3116 421 431 no provision Federal Building Efficiency Standards 422 1016 3117 422 432 no provision Underwriting 423 1502 no provision 423 433 no provision Voluntary Verification no provision 1106 3122 431 441 no provision Budget Offset no provision no provision no provision no provision 501 401 Source: Various bills, as noted in the table. Notes: Five provisions in S. 2262 did not appear in S. 720, but were put into a separate bill, S. 535, which was enacted as P.L. 114-11. They included three “better buildings” provisions, grid-enabled water heaters, and energy information for commercial buildings. S. 1392 was a trimmed-down version of S. 761 (113th Congress). S. 761, in turn, was a trimmed-down version of S. 1000 from the 112th Congress. The table specification of “no provision,” means that there was no directly equivalent provision in a bill, even though there may have been a related provision.

Mar 3, 2017

Anti-Money Laundering: An Overview for Congress

Anti-money laundering (AML) refers to efforts to prevent criminal exploitation of financial systems to conceal the location, ownership, source, nature, or control of illicit proceeds. Despite the existence of long-standing domestic regulatory and enforcement mechanisms, as well as international commitments and guidance on best practices, policymakers remain challenged to identify and address policy gaps and new laundering methods that criminals exploit. According to United Nations estimates recognized by the U.S. Department of the Treasury, criminals in the United States generate some $300 billion in illicit proceeds that might involve money laundering. Rough International Monetary Fund estimates also indicate that the global volume of money laundering could amount to as much as 2.7% of the world’s gross domestic product, or $1.6 trillion annually. Money laundering is broadly recognized to have potentially significant economic and political consequences at both national and international levels. Despite robust AML efforts in the United States, the ability to counter money laundering effectively remains challenged by a variety of factors. These include the scale of global money laundering; the diversity of illicit methods to move and store ill-gotten proceeds through the international financial system; the introduction of new and emerging threats (e.g., cyber-related financial crimes); the ongoing use of old methods (e.g., bulk cash smuggling); gaps in legal, regulatory, and enforcement regimes, including uneven availability of international training and technical assistance for AML purposes; and the costs associated with financial institution compliance with global AML guidance and national laws. AML Policy Framework In the United States, the legislative foundation for domestic AML originated in 1970 with the Bank Secrecy Act (BSA) of 1970 and its major component, the Currency and Foreign Transaction Reporting Act. Amendments to the BSA and related provisions in the 1980s and 1990s expanded AML policy tools available to combat crime, particularly drug trafficking, and prevent criminals from laundering their illicitly derived profits. Key elements to the BSA’s AML legal framework, which are codified in Titles 12 (Banks and Banking) and 31 (Money and Finance) of the U.S. Code, include requirements for customer identification, recordkeeping, reporting, and compliance programs intended to identify and prevent money laundering abuses. Substantive criminal statutes in Titles 31 and 18 (Crimes and Criminal Procedures) of the U.S. Code prohibit money laundering and related activities and establish civil penalties and forfeiture provisions. Moreover, federal authorities have applied administrative forfeiture, non-conviction based forfeiture, and criminal forfeiture tools. In response to the terrorist attacks on the U.S. homeland on September 11, 2001, Congress expanded the BSA’s AML policy framework to incorporate additional provisions to combat the financing of terrorism (CFT). Although CFT is not the primary focus of this CRS report, post-9/11 legislation provided the executive branch with greater authority and additional tools to counter the convergence of illicit threats, including the financial dimensions of organized crime, corruption, and terrorism. Policy Outlook for the 115th Congress Although CFT will likely remain a pressing national security concern for policymakers and Congress, some see the beginning of the 115th Congress as an opportunity to revisit the existing AML policy framework, assess its effectiveness, and propose regulatory and statutory changes. Such efforts could further address issues raised in hearings and proposed legislation during the 114th Congress, including beneficial ownership, the application of targeted financial sanctions, and barriers to international AML information sharing. Drawing from past legislative activity, the 115th Congress may also revisit proposals to require the executive branch to develop a roadmap for identifying key AML policy challenges and balancing AML priorities in a national strategy. Some observers have gone further to propose broader changes to the BSA/AML regime. The 115th Congress may also seek to address tensions that remain in balancing the policy objectives of improving financial services access and inclusion while also accounting for money laundering risks and vulnerabilities that may result in the exclusion (or “de-risking”) of others from the international financial system.

Mar 1, 2017

Presentation of Legislation and the Veto Process

Mar 1, 2017

Russia: Background and U.S. Interests

Since 1991, Congress has played a key role in the development of U.S. policy toward the Russian Federation (Russia), the principal successor to the United States’ former superpower rival, the Soviet Union. In that time, U.S.-Russian relations have gone through positive and negative periods. Each new U.S. Administration has sought to improve U.S.-Russian relations at the start of its tenure, and the Donald J. Trump Administration has expressed similar intentions to rebuild constructive relations with Moscow. In doing so, however, the Administration has indicated it intends to adhere to core international commitments and principles, including retention of sanctions against Russia. Moving forward, the 115th Congress is expected to actively engage with the Administration on questions concerning U.S.-Russian relations. Over the last five years, Congress has monitored and, together with the executive branch, taken steps to respond to significant concerns about Russian domestic and foreign policy developments. These developments include a trend toward increasingly authoritarian governance since Vladimir Putin’s return to the presidential post in 2012; Russia’s 2014 annexation of Ukraine’s Crimea region and sponsorship and support of separatists in eastern Ukraine; violations of the Intermediate-Range Nuclear Forces (INF) Treaty; Moscow’s ongoing intervention in Syria in support of Bashar al Asad’s government; increased military activity oriented toward Europe; and, according to the U.S. intelligence community, cyber-related influence operations that have extended to the 2016 U.S. presidential election. U.S. responses to these developments have included the imposition of sanctions related to human rights violations, Russia’s actions in Ukraine, and malicious cyber activity. The United States has also led NATO in developing a new military posture in Eastern Europe designed to reassure allies and deter further aggression. The Barack Obama Administration, together with Congress, condemned Russia’s military support to Asad’s government, especially its air strikes on Aleppo. Members of the 115th Congress have proposed to make permanent, until the crisis in Ukraine is resolved, existing Ukraine-related sanctions against Russia (H.R. 830, H.R. 1059, S. 94, S. 341), as well as to expand sanctions related to Russia’s actions in Ukraine (H.R. 830, S. 94), intervention in Syria (S. 138), and cyberattacks against U.S. democratic institutions (S. 94). Members also have proposed to provide congressional oversight over any potential sanctions relief (H.R. 1059, S. 341). In addition, Congress has begun to investigate Russian interference in U.S. elections. In January 2017, the House and Senate Select Committees on Intelligence announced inquiries into Russian cyber activities and “active measures” surrounding the U.S. election and more broadly. The Senate Armed Services, Foreign Relations, and Judiciary Committees launched or announced related investigations. Members also have proposed a variety of other independent or joint commissions, committees, or investigations (H.R. 356, H.Con.Res. 15, H.Con.Res. 24, S. 27). At the same time, U.S. policymakers over the years have identified multiple areas in which U.S. and Russian interests are or could be compatible. The United States and Russia have successfully cooperated on key issues, including nuclear arms control and nonproliferation, support for military operations in Afghanistan, the Iranian nuclear program, the International Space Station, and the removal of chemical weapons from Syria. The United States and Russia also have identified other areas of cooperation, such as counterterrorism, counternarcotics, counterpiracy, and global health. Although U.S.-Russian trade and investment were relatively low before sanctions were imposed, economic ties at the firm and sector levels have in some cases been substantial. In 2012, Congress authorized permanent normal trade relations for Russia. In the same year, the U.S. government supported Russia’s entry into the World Trade Organization. This report provides background information on Russian politics, economics, and military issues. It also discusses a number of key issues for Congress concerning Russia’s foreign relations and the U.S.-Russian relationship.

Mar 1, 2017

Cybersecurity Legislation in the 113th and 114th Congresses

Mar 1, 2017

Majority, Concurring, and Dissenting Opinions by Judge Neil M. Gorsuch

On January 31, 2017, President Trump announced the nomination of Judge Neil M. Gorsuch of the U.S. Court of Appeals for the Tenth Circuit (Tenth Circuit) to fill the vacancy on the Supreme Court left by the death of Justice Antonin Scalia on February 13, 2016. Judge Gorsuch has served as a judge on the Tenth Circuit since August 2006, and has also sat, by designation, on the U.S. Court of Appeals for the Ninth Circuit and the U.S. Court of Appeals for the District of Columbia Circuit. This report provides a tabular listing of cases in which Judge Gorsuch authored a majority, concurring, or dissenting opinion. The opinions are categorized into three tables: Table 1 identifies opinions authored by Judge Gorsuch on behalf of a unanimous panel; Table 2 contains controlling opinions authored by Judge Gorsuch in which one or more panelists wrote a separate opinion; and Table 3 lists cases where Judge Gorsuch wrote a concurring or dissenting opinion (decisions where Judge Gorsuch wrote both the majority opinion and a separate concurrence are included in this final table). Opinions are identified and briefly discussed in each table in reverse chronological order. The opinions are also categorized by their primary legal subject. While this report identifies and briefly describes judicial opinions authored by Judge Gorsuch during his time on the federal court, it does not analyze the implications of his judicial opinions or suggest how he might approach legal issues if appointed to the Supreme Court. Those matters will be discussed in a forthcoming CRS report. Key CRS products related to the Supreme Court vacancy and Judge Gorsuch’s nomination are collected in CRS Legal Sidebar WSLG1526, Vacancy on the Supreme Court: CRS Products, by Kate M. Manuel and Andrew Nolan.

Mar 1, 2017

Federally Funded Academic Research Requirements: Background and Issues in Brief

For decades, the federal government and academic research institutions have been partners in supporting American innovation, competitiveness, and economic growth. The federal government is the largest source of academic research and development (R&D) funding in the United States, providing funds through more than two dozen federal agencies, with the National Institutes of Health (NIH) and the National Science Foundation (NSF) providing the largest portions of federal R&D funding to U.S. colleges and universities. As part of oversight of federal funding for academic research, Congress and federal agencies have established requirements through statutes, regulations, and guidance documents that U.S. universities and other research institutions must comply with when applying for, receiving, and reporting on the results of federal research grants. Such requirements seek to ensure transparency and effectiveness of federal funds, while helping to prevent waste, fraud, and abuse. Academic research institutions broadly recognize the need for, and benefits from, federal regulations but have raised concerns that federal regulations and administrative requirements have produced unintended consequences, such as reducing research productivity and the return on federal investments. Surveys and assessment reports conducted over the past two decades have evaluated the benefits and challenges related to federal requirements for academic research. Among specific areas of concern frequently brought forth by researchers and academic administrators are the amount of time spent on completing administrative tasks compared to conducting research; the increasing number, and lack of harmonization, of requirements across federal funding agencies; the adequacy of stakeholder engagement in the review and modification of federal regulations; and the need for updated requirements for human subjects and animal research. Legislation was enacted in the 114th Congress that addressed a number of the concerns, including the 21st Century Cures Act (P.L. 114-255), the American Innovation and Competitiveness Act (AICA, P.L. 114-329), and the National Defense Authorization Act for Fiscal Year 2017 (NDAA, P.L. 114-328). Enacted provisions addressed a subset of issues focused on specific agencies, including conflicts of interest disclosure, financial reporting, and subrecipient monitoring. Enacted provisions also addressed cross-agency efforts by directing the establishment of an advisory committee (Research Policy Board) with federal and non-federal stakeholders, as well as an interagency working group (WG) on federal research regulations. The 115th Congress may conduct oversight as agencies work to implement the provisions enacted in the 114th Congress. Congress may further consider legislation to extend certain provisions more widely across the federal government. For current and potential future efforts to streamline and harmonize federal regulations, a central consideration will likely be ensuring that mechanisms to evaluate transparency and accountability of federal funds are not diminished.

Feb 28, 2017

An Overview of Recent Tax Reform Proposals

Many agree that the U.S. tax system is in need of reform. Congress continues to explore ways to make the U.S. tax system simpler, fairer, and more efficient. In doing so, lawmakers confront challenges in identifying and enacting policies, including consideration of competing proposals and differing priorities. To assist Congress as it continues to debate the intricacies of tax reform, this report provides a review of legislative tax reform proposals introduced since the 113th Congress. Although no comprehensive tax reforms have been introduced into legislation yet in the 115th Congress, two 2016 reform proposals appear to be at the forefront of current congressional debates—the House GOP’s “A Better Way” tax reform proposal, released in June 2016, and President Trump’s campaign reform proposal, released in September 2016. As with most recent tax reform proposals, both of these plans call for lower tax rates coupled with a broader tax base. In either case, numerous technical details would need to be addressed before either plan could be formulated into legislation. Several proposals have already been introduced in the 115th Congress to replace the current income tax system. The Fair Tax Act of 2017 (H.R. 25/S. 18) would repeal the individual income tax, the corporate income tax, all payroll taxes, the self-employment tax, and the estate and gift taxes. These taxes would be effectively replaced with a 23% (tax-inclusive, meaning that the rate is a proportion of the after-tax rather than the pre-tax value) national retail sales tax. The Tax Code Termination Act (H.R. 29) would terminate the Internal Revenue Code (IRC) and declares that its replacement meet several criteria regarding simplicity, fairness, and efficiency. Both of these proposals have been introduced in previous Congresses. In the 114th Congress, no comprehensive proposals to reform the individual and corporate income tax systems were introduced. There were, however, reform proposals to replace the income tax with an alternative system or abolish the current system altogether. In the 113th Congress, then-chairman of the House Committee on Ways and Means Dave Camp introduced the Tax Reform Act of 2014 (H.R. 1). This legislative proposal was preceded by several tax reform discussion drafts, the first of which was introduced during the 112th Congress. The Tax Reform Act of 2014 would have made substantial changes to the current federal tax system, modifying individual, corporate, and business income taxes, as well as the tax treatment of multinational corporations. The proposal would also have made a number of changes related to the treatment of tax-exempt entities, tax administration and compliance, and excise taxes. This report will be updated as warranted by legislative changes.

Feb 28, 2017

Iran Policy and the European Union

Policy Context European Union (EU) officials have expressed concern that the Trump Administration might abandon consensus U.S.-EU policy toward Iran. On February 1, 2017, Trump Administration officials told journalists that the Administration had begun a “deliberative process” to respond to what officials termed Iran’s provocative behavior and “malign” regional activities, including ballistic missile tests and military support of regional armed groups. Administration officials asserted that U.S. responses to Iranian actions would be separate from and not in conflict with U.S. commitments in the multilateral Iran nuclear agreement (Joint Comprehensive Plan of Action, JCPOA). On February 17, 2017, Secretary of State Rex Tillerson denied that there were grounds for his French counterpart to infer that the Administration intended to cease implementing the JCPOA. In January 2017, EU High Representative Federica Mogherini marked the first anniversary of the JCPOA’s implementation with a statement asserting that the agreement is working, that Iran has delivered on its nuclear related commitments, and that full implementation of the deal remains essential. She further reiterated the view that “The JCPOA is a multilateral endeavor...endorsed by a United Nations Security Council resolution...[that] now belongs to the entire international community.” On February 10, 2017, after meeting with Administration officials, Mogherini stated she was “reassured” about U.S. intentions to implement the agreement. U.S.-EU Convergence on Iran The finalization of the JCPOA in July 2015 represented the culmination of a years-long process of coordination between several EU countries and the United States. From the time of the 1979 revolution in Iran that brought its current regime to power until 2012, when the EU adopted sanctions on Iran nearly as strict as those the United States imposed on Iran (including a total embargo on the importation of Iranian crude oil), the United States and European countries often diverged on the issue of Iran. For virtually all of that period, European countries maintained embassies in Iran and normal trade with Iran in civilian goods, and engaged in dialogue with Iranian officials. The United States, for its part, imposed significant “secondary” sanctions on Iran that penalized European and other foreign companies if they conducted certain transactions with Iran. In 2006, as Iran’s nuclear program continued to expand, the United States formally joined an effort by three European countries (UK, France, and Germany—the so-called “EU-3” negotiating group) to attempt to induce Iran, through a mix of sanctions and incentives, to agree to limit the scope of its nuclear program. The EU-3 and the United States, along with the two other permanent members of the United Nations Security Council, Russia and China, formed the “P5+1” group of negotiating states. Current EU Sanctions Policy Toward Iran On JPCOA “Implementation Day” (January 16, 2016), the EU suspended its economic and financial sanctions related to Iran’s nuclear program (see CRS Report R43333, Iran Nuclear Agreement). Sanctions relief included lifting the oil embargo, ending prohibitions on financial, banking, and insurance activities, allowing business with Iran’s energy and petrochemical sectors, and suspending most restrictions on Iran’s shipping and transportation sectors. Many individuals and entities involved in Iran’s civilian economic sectors were removed from a visa ban/asset freeze list. Suspended provisions are to terminate formally on “Transition Day” (October 18, 2023). In case of unresolvable “significant non-performance” of Iran’s JCPOA commitments, the EU – in concert with a U.N. Security Council decision - could reimpose all suspended sanctions. A number of proliferation-related EU sanctions against Iran will remain in force until Transition Day, including an arms embargo and a prohibition on sales of goods related to missile technology. Certain individuals and entities involved in nuclear and ballistic missile activities will remain subject to a visa ban and asset freeze until Transition Day. Requirements for cargo inspections and restrictions on ship supply services will remain in effect for prohibited items indefinitely. Proliferation-sensitive transfers and activities involving specified goods and technology are also subject to an authorization regime indefinitely. The EU also maintains sanctions against Iran in response to what it deems as human rights violations, comprising targeted visa bans, asset freezes, and a ban on exporting equipment that could be used for internal repression. Iranians designated under sanctions regimes covering terrorism and Syria also continue to be listed. As evidenced by a stream of European ministers and businesspeople visiting Tehran over the past year, European businesses have sought to reengage Iran following the JCPOA’s implementation. EU trade with Iran nearly doubled in 2016, and oil imports from Iran quickly returned to near pre-embargo levels. European companies have announced investments in Iran worth billions of euros, and European banks and credit agencies have begun to facilitate transactions. At the same time, uncertainty over the details of the remaining U.S. sanctions regime and speculation about its future could make some European businesses, especially those with U.S. subsidiaries, hesitant. Legal uncertainties for multinational companies wary of violating U.S. sanctions raise the risks and costs of doing business in Iran. Financing business dealings with Iran remains difficult, and transactions in U.S. dollars cannot be cleared through U.S. financial institutions or the Brussels-based SWIFT electronic payments network. Some state export credit agencies have reportedly demanded insurance premiums that have led banks to insert political risk clauses in contracts, and while many preliminary deals have reportedly been signed, relatively few large contracts have been finalized. Prospects under the Trump Administration Should the Trump Administration decide to cease implementing the JCPOA, EU policy would affect implementation of that decision. Absent a significant Iranian breach of the agreement, the EU might seek to continue implementing the JCPOA and could keep sanctions relief in place. However, the U.S. sanctions that have had most effect on Iran are secondary sanctions, and a reimposition of such U.S. sanctions would probably dissuade many EU-based companies from reentering the Iran market. It is possible that Iran might abrogate the accord if economic benefits from the JCPOA declined or stopped.

Feb 27, 2017

Dam Safety: Federal Programs and Authorities

Feb 23, 2017

China Primer: South China Sea Disputes

Feb 23, 2017

Provisions Affecting the Congressional Budget Process Included in H.Res. 5 (115th Congress)

On January 3, 2017, the House passed H.Res. 5, adopting the standing rules for the House of Representatives for the 115th Congress. In addition to the standing rules, H.Res. 5 included several separate orders. This report provides information on the standing rules and separate orders that might affect the congressional budget process.

Feb 23, 2017

Current Ballistic Missile Defense (BMD) Issues

Little detail is currently available about the Trump Administration’s agenda for missile defense and whether current policy or program direction might change. The Administration has thus far said only that it will “develop a state-of-the-art missile defense system to protect against missile-based system attacks from states like Iran and North Korea.” A detailed defense budget will not be presented until later this spring, so there is uncertainty as to what precisely the BMD budget and program will look like. Ongoing BMD issues of interest to Congress are summarized below. Legislative Issues The FY2017 National Defense Authorization Act (NDAA, P.L. 114-328) made several notable changes that could have significant effects on the direction of U.S. BMD policy and programs. First, the NDAA modified the National Missile Defense Act of 1999 (P.L. 106-38; 10 U.S.C. 2431 note), which had emphasized deploying a national BMD system “capable of defending the territory of the United States against limited ballistic missile attack.” It now reads that the United States should “maintain and improve an effective, robust layered missile defense system capable of defending the United States, allies, deployed forces, against the developing and increasingly complex ballistic missile threat” (Section 1681). Although conferees noted that the new provision does not require or direct the development of missile defenses against any country or their strategic forces, neither does the new provision restrict such development. This is important because, since the 1980s, the United States has explicitly asserted its BMD policy and programs are not directed at Russian and Chinese strategic nuclear deterrent forces. Some policy experts believe this change could have significant consequences for relations with Russia and China, while also affecting the scope of U.S. strategic nuclear and BMD programs. Second, the FY2017 NDAA (Section 1683) encourages the Department of Defense (DOD) to examine the feasibility of defeating space-based threats to space-based U.S. national security systems and to examine the feasibility of defeating ballistic missile threats with a new generation of space-based missile defense capabilities. Although there are no prohibitions against deploying nonnuclear weapons in space, the United States has not pursued space-based BMD interceptor programs since the 1980s, and Congress has not demonstrated widespread budgetary or legislative support of such capabilities in space. Third, the FY2017 NDAA (Section 1684) directs DOD to review and report on the full range of offensive and defensive capabilities of the United States to defeat potential ballistic missile threats. This would include the possibility of preemption as a new mission for U.S. BMD systems. BMD Program Issues For years, Congress has expressed ongoing concern over the pace of flight tests for the Ground-based Midcourse Defense (GMD) program, indicating it would like to see such flight tests at least once per fiscal year. But that suggested pace has not taken place and this issue continues to be a perennial concern for many on Capitol Hill. A significant GMD flight test was scheduled for 2016 (this would have been the first BMD test against a ballistic missile target launched at ICBM range since the start of the missile defense program in 1985), but the Missile Defense Agency continues to delay that flight test. Also, mixed test results over the years demonstrate that the GMD system may only have a limited capability against small numbers of simple or first-generation ICBM threats according to DOD. At the same time, the operational test and evaluation performance record of other BMD systems—such as Patriot PAC-3, Aegis BMD, and THAAD (Terminal High Altitude Area Defense)—has provided many observers with relatively greater confidence in those systems and their potential effectiveness. Those programs generally receive strong congressional support. Many in Congress and elsewhere have sought to deploy a GMD site in the northeast United States. DOD has conducted various environmental and other studies, and a location recommendation is forthcoming. Congress has provided some initial funding to support planning and design work. Neither the Obama Administration nor the Pentagon, however, expressed strong interest citing, in part, needless cost, absence of current threat or need, and questions over the limited capabilities of GMD. There is no indication that the Trump Administration intends to continue this effort. Foreign Relations Issues In 2016, the Obama Administration announced it would deploy a THAAD system to South Korea to defend against a potential North Korean ballistic missile attack. Inside South Korea, although the government backed the prospective deployment, it met considerable political opposition over issues such as effectiveness, cost, and Chinese opposition to the proposal. In the United States, some questions have been raised as to potential shared financial costs between the two countries. Most observers expect THAAD to be deployed there this year, though the possibility of an earlier-than-expected presidential election in South Korea has injected some uncertainty. The current president was impeached in December 2016 and is awaiting a court decision that will determine whether she will be removed. In 2009, the Obama Administration announced the European Phased Adaptive Approach (EPAA) as the U.S. contribution to NATO’s territorial BMD mission against a potential Iranian missile threat to Europe. Phase 1 and Phase 2 of that effort is complete, and the United States has deployed an Aegis BMD capability at sea in the eastern Mediterranean, a THAAD radar in Turkey, and an Aegis Ashore BMD capability in Romania. Phase 3 of the EPAA is reportedly on track for completion by 2018; it will include a second Aegis Ashore site in Poland, as well as upgraded Aegis BMD capabilities at sea and ashore in Romania. The Trump Administration has not given any indication that it intends to alter this schedule. Since 2010, the Obama Administration had sought to integrate existing BMD capabilities among various U.S. allies in both the Asia Pacific and the Persian Gulf, setting forth plans for increased cooperation and expansion of BMD system capabilities in those regions. Those efforts played out slowly, however, primarily because of historical distrust between some regional allies. The Trump Administration has not indicated whether it intends to continue such efforts.

Feb 21, 2017

The DACA and DAPA Deferred Action Initiatives: Frequently Asked Questions

The future of the Deferred Action for Childhood Arrivals (DACA) program and the proposed Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, two Obama Administration initiatives, is uncertain under President Donald Trump. As of the date of this report, the Trump Administration has not taken action on these initiatives. The DACA program was established in June 2012, when the Department of Homeland Security (DHS) announced that certain individuals without a lawful immigration status who were brought to the United States as children and met other criteria would be considered for relief from removal for two years. To request consideration of DACA, an individual must file specified forms with DHS’s U.S. Citizenship and Immigration Services (USCIS) and pay associated fees. As of the date of this report, the DACA program is ongoing. USCIS’s decision on a DACA request is discretionary. The agency makes determinations on a case-by-case basis. Individuals granted DACA may receive employment authorization. DACA recipients are not granted a lawful immigration status and are not put on a pathway to a lawful immigration status. They are, however, considered to be lawfully present in the United States during the period of deferred action. The period of deferred action under DACA expires after two years unless it is renewed. DACA recipients may request renewal of their deferral for another two years in accordance with USCIS requirements and procedures. To request a renewal, an individual must file specified forms with USCIS and pay associated fees. USCIS’s decision on a DACA renewal request is discretionary, as it is on an initial DACA request. Cumulatively, through September 30, 2016, USCIS approved more than 750,000 initial DACA requests and more than 580,000 renewal requests. The overall approval rate for DACA requests accepted and decided by September 30, 2016, was about 92% for initial requests and about 99% for renewals. Congress has considered, but never enacted, legislation on the DACA program. It has also considered, but never enacted, related “DREAM Act” proposals, which generally are aimed at the same population of unauthorized childhood arrivals. A key difference between the DACA initiative and past DREAM Act proposals, however, is that the latter would establish a process for eligible individuals to become U.S. lawful permanent residents (LPRs). The separate DAPA program was proposed by the Obama Administration in November 2014 to provide temporary relief from removal for certain parents of U.S. citizen or LPR children. Its implementation was blocked in the federal courts. It remains to be seen how this litigation may be affected by the change in administration. This report provides answers to frequently asked questions about the DACA and DAPA initiatives.

Feb 15, 2017

Sanctuary Jurisdictions: Congressional Action and President Trump’s Interior Enforcement Executive Order

President Trump’s executive order (EO) “Enhancing Public Safety in the Interior of the United States” issued on January 25, 2017, seeks, among other things, to penalize “sanctuary jurisdictions.” The latter is an informal term referring to states and localities that limit their cooperation with federal agencies on immigration law enforcement. In the immigration context, the EO may raise legal questions about the extent to which states and localities must comply with federal immigration law enforcement efforts and the potential consequences for not cooperating with these efforts. What Are Sanctuary Jurisdictions? Sanctuary jurisdictions, which are not officially defined, are states and localities with policies that typically involve the following: noncompliance with requests to detain foreign nationals (aliens) temporarily pending transfer of custody from the jurisdiction to the Department of Homeland Security’s (DHS’s) Immigration and Customs Enforcement (ICE), or with requests to notify ICE of a foreign national’s impending release from incarceration; restricting information sharing about foreign nationals between local law enforcement agencies and ICE; and/or restricting the use of local resources for federal immigration enforcement activities. How Many Sanctuary Jurisdictions Are There? Although there is no official count of sanctuary jurisdictions, the Immigrant Legal Resource Center (ILRC) reports that at least five states (California, Connecticut, Oregon, Rhode Island, and Vermont); dozens of cities, including Chicago, New York, Los Angeles, New Orleans, and Washington, DC; and hundreds of counties limit their assistance to federal immigration law enforcement agencies. It is difficult to track the exact number or current policies of sanctuary jurisdictions at any given point, because jurisdictions may periodically change their policies regarding their level of cooperation with ICE. Why Have Sanctuary Jurisdictions Emerged? Some jurisdictions have adopted sanctuary policies because they object to ICE’s removal of aliens who, apart from having entered or remained in the United States in violation of federal immigration law, have relatively minor or no criminal records. Other jurisdictions have done so because of concerns about potential legal liability for violating aliens’ constitutional rights if the jurisdiction were to detain an alien after the alien would otherwise be released for the state or local offenses. Still others, desiring to focus on their own law enforcement duties, have objected to devoting local resources for immigration law enforcement, something generally viewed as a federal responsibility. Critics of sanctuary jurisdictions contend that they impede the work of federal immigration officers in ways that could result in serious crimes committed by aliens who could have been removed. Others contend that sanctuary jurisdictions encourage aliens to enter or remain in the United States in violation of federal immigration law by protecting those doing so from immigration law enforcement. Legislation in the 114th Congress Several legislative proposals introduced in the 114th Congress sought to restrict federal funding to sanctuary jurisdictions. For example, H.R. 3009 would have penalized jurisdictions that violated 8 U.S.C. §1373 (which bars restricting information sharing on an individual’s citizenship or immigration status with federal agencies) by withholding funding for two Department of Justice grant programs: the Community-Oriented Policing Services Program and the Edward Byrne Memorial Justice Assistance Grant Program. Similarly, H.R. 3128 would have withheld Federal Emergency Management Agency funding from non-compliant jurisdictions. Other legislation, such as S. 2146, would have, in addition to penalizing sanctuary jurisdictions, deemed jurisdictions that comply with immigration detainers to be acting as agents of DHS and made provisions to limit their liability for compliance with such detainers. Current Legislative Efforts Legislation on sanctuary jurisdictions introduced in the 115th Congress is similar to that of the 114th Congress. H.R. 83 seeks to withhold all federal assistance (as defined in 31 U.S.C. §7501(a)(5)) from jurisdictions that violate 8 U.S.C. §1373. Similarly, H.R. 400 seeks to withhold several economic development grant funds from jurisdictions that either violate 8 U.S.C. §1373 or do not comply with ICE detention requests or requests for notification. In contrast, H.R. 748 would prohibit the withholding of federal funding for jurisdictions that do not comply with such requests. Questions on the Interpretation of the EO President Trump’s EO calls for the Attorney General and DHS Secretary to take steps to withhold funding from jurisdictions that willfully refuse to comply with 8 U.S.C. §1373; allows DHS to designate jurisdictions as sanctuaries; and directs the Attorney General to take “appropriate enforcement action” against a jurisdiction that violates 8 U.S.C. §1373 or otherwise prevents or hinders federal immigration enforcement. The broad language of the EO has raised questions that may make it difficult to assess the EO’s potential effects on particular jurisdictions. For example, Section 9(a) explicitly defines sanctuary jurisdictions as entities that “willfully refuse to comply with 8 U.S.C. §1373.” However, some jurisdictions that ILRC currently classifies as sanctuary jurisdictions could be seen to comply with 8 U.S.C. §1373. Instead, they have been so classified because they have declined to honor at least some immigration detainers. Courts have ruled that states and localities are not required to honor immigration detainers. In addition to defining sanctuary jurisdictions as noncompliant with 8 U.S.C. §1373, the EO also grants DHS the authority to designate any jurisdiction as a sanctuary jurisdiction. Questions may also arise over the EO’s penalties for sanctuary jurisdictions. The EO states that sanctuary jurisdictions are not eligible to receive federal grants, but it does not specify to which grants this ban applies. Section 9(a) also penalizes “any entity that violates 8 U.S.C. §1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of federal law.” The section also states that the Attorney General shall take “appropriate enforcement action” against sanctuary jurisdictions, without further specifying the meaning of “appropriate” or “enforcement action.” Section 9(a) includes the caveat “to the extent consistent with law.” It is unclear the degree to which this reference might limit the application of funding restrictions in particular contexts.

Feb 15, 2017

Harbor Deepening: Federal Studies and Construction Projects

Feb 15, 2017

Cybersecurity: Federal Agency Roles

Feb 13, 2017