CRS Reports

Prospects in Colombia: Cease-Fire, Peace Accord Vote, and Potential Disrupters

On October 2, 2016, Colombians will be given a chance in a national plebiscite to embrace or reject a peace accord negotiated over four years between the government of President Juan Manuel Santos and the country’s largest insurgent group, the Revolutionary Armed Forces of Colombia (FARC). The FARC has fought the Colombian government for more than five decades and funded its leftist insurgency with proceeds from extortion, drug trafficking, and other illicit activities. The vote is not legally required to approve the FARC-government negotiations but was the path chosen by the Santos government to garner public support and bring legitimacy to the result. Despite the complexity and slow pace of peace negotiations, which lasted for some 50 “rounds” of talks, the process came to a rapid close with these major developments: On June 23, 2016, the Colombian government and the FARC reached an agreement on the terms for a bilateral cease-fire and disarmament of FARC combatants. The FARC had imposed a unilateral cease-fire continuously since late 2015. On August 24, 2016, the Colombian government and the FARC announced that a final peace accord had been completed. Subsequently, they announced that a formal signing of the accord would take place in Cartagena on September 26, 2016. On August 29, 2016, a cessation of hostilities and definitive bilateral cease-fire took effect, ending nearly 52 years of violent conflict. Momentum Toward Ending the War Between September 17 and September 23, 2016, the FARC guerrilla forces and leadership are scheduled to convene what is technically their 10th conference to determine their support for the accord. The peace accord stipulates that FARC combatants will disarm within 180 days of signature. FARC fighters are to move to zones in 28 sites around rural Colombia to disarm in a U.N.-supervised process. An estimated 10,000 to 15,000 FARC fighters and militia members would then begin a process of reintegration into civilian life. An ambitious program of transitional justice would take place through a mechanism called the Special Jurisdiction of Peace (JEP), featuring a Tribunal for Peace made up of judges selected by Colombian judges and foreign dignitaries, including the U.N. Secretary General. According to some estimates from Colombia, roughly 1,000 FARC members may be tried for serious crimes, including war crimes. If the perpetrators fully confess and pay victims reparations, they could become eligible for alternative sentences through the JEP that would not require serving time in a traditional jail but would restrict the liberties of those convicted. A parallel but “differentiated” process is to apply to the government security forces convicted of violations. Potential Disrupters Most observers anticipate that the majority of the FARC will agree to the terms of the peace agreement, but whether the Colombian public will vote in favor of the accord is less certain. Some analysts maintain that the Colombian public’s discomfort with the agreement’s terms will overshadow a desire to end the conflict. They highlight the public’s concern about justice for crimes committed during the war and the guaranteed political representation of the FARC in the Colombian Congress as support-draining concessions. Under the accord, the FARC would have a total of 10 guaranteed seats in Colombia’s House and Senate in legislative elections in 2018 and 2022. Other observers contend that although the accord is far from a perfect deal, it would allow Colombia to achieve peace. The accord will be expensive and difficult to implement. Several major challenges, in addition to the costs of implementation, which are not fully tallied, are described below. No Vote. What is the likelihood that voters will surprise forecasters by voting against the accord? Polls initially showed considerable variability in public opinion toward the plebiscite, with some indicating a triumph for a “no” vote against the accord and others showing a narrow win for supporters of the accord. The Colombian government notes that the “yes” vote appears to be gaining ground, and several mid-September polls indicate that Colombians now support the accord by a two-to-one margin. Other media accounts suggest that 20% to 30% of Colombians remain undecided. The Santos Administration states that there is no “Plan B”—if the plebiscite is voted down, a return to war is likely. Border Area Instability and Other Armed Actors. Many insurgents from the FARC and the smaller National Liberation Army (ELN) occupy regions along Colombia’s borders with Ecuador and Venezuela. Insurgents use the permeable borders to elude prosecution and raise funds. The ELN began preliminary talks with the Santos government, but as of September 2016, no formal peace talks have occurred. Meanwhile, the ELN continues to kidnap and blow up oil and energy infrastructure, mainly in its area of influence in northern Colombia, and it imposed an armed blockade in several states in mid-September 2016. Some analysts contend that the ELN will continue to expand and recruit former FARC combatants into its ranks. Others believe the ELN and FARC dissidents will relocate their bases to neighboring countries and continue to undermine peace efforts. Colombia’s peace process may face an enormous challenge due to the instability of Venezuela, with Venezuelans coming over the border to seek jobs, food, and respite from crime. Venezuela was once one of Colombia’s strongest trade partners and a key supporter of peace negotiations. Armed criminal bands of former right-wing paramilitaries also reside near the border with Venezuela. Coca, Cocaine, and Future Violence. The United Nations (U.N.) and the U.S. government reported an explosion of illicit drug cultivation in Colombia in 2015, particularly in coca bush and cocaine derived from it. The surge in cultivation generated between 46% and 68% more cocaine than the prior year, according to the respective U.N. and U.S. estimates. For the most part, Colombia has not followed through on its commitment to implement drug crop eradication, alternative development, and licit livelihoods programs, despite the country’s decision to end aerial spraying of coca crops and introduce a new drug policy. Colombia’s potential peace dividend in reduced violence may not be realized for some time. Other armed criminal groups are likely to take over coca cultivation, cocaine production, and trafficking routes abandoned by the FARC. As those groups struggle to solidify their control, some analysts expect violence to climb rather than decline.

Sep 14, 2016

Sea-Level Rise and U.S. Coasts: Science and Policy Considerations

Policymakers are interested in sea-level rise because of the risk to coastal populations and infrastructure and the consequences for coastal species and ecosystems. From 1901 to 2010, global sea levels rose an estimated 187 millimeters (mm; 7.4 inches), averaging a 1.7 mm (0.07 inch) rise annually. Estimates are that the annual rate rose to 3.2 mm (0.13 inches) from 1992 to 2010. Although the extent of future sea-level rise remains uncertain, sea-level rise is anticipated to have a range of effects on U.S. coasts. It is anticipated to contribute to flood and erosion hazards, permanent or temporary land inundation, saltwater intrusion into coastal freshwaters, and changes in coastal terrestrial and estuarine ecosystems. Some states, such as Florida and Louisiana, and U.S. territories have a considerable share of their assets, people, economies, and water supplies vulnerable to sea-level rise. In 2010, roughly 100 million people lived in U.S. coastal shoreline counties. Increased flood risk associated with sea-level rise may increase demand for federal disaster assistance and challenge the National Flood Insurance Program. Federal programs support local and state infrastructure investments that may be damaged or impaired, such as roads, bridges, and municipal water facilities. Sea-level rise also is anticipated to affect numerous federal facilities. Global and Relative Sea Levels. Sea levels are expressed in terms of global sea levels, which is the average value of sea surface heights around the globe, and relative sea levels, which is the sea level relative to the land surface. Since 1900, expanding oceans due to warming ocean water and melting glaciers and ice sheets have been the main drivers of global sea-level rise. Oceans have warmed due to a combination of natural variability and the influence of greenhouse gas emissions on atmospheric temperatures. Similarly, glaciers and ice sheets since 1900 have been melting due to both natural variability and greenhouse gas emissions. In 2012, the U.S. National Climate Assessment expressed very high confidence in global sea levels rising at least 0.2 meters (8 inches) but no more than 2.0 meters (6.6 feet) by 2100. There are regional and local variations in the rate of sea-level rise. Regional or local factors can be natural, such as the land rebounding upward after continental ice sheets melted at the end of the last ice age, or they may be due to human activities, such as groundwater pumping, oil and gas extraction, sediment compaction, and land management practices, among others. With few exceptions, sea levels are rising relative to the coastlines of the contiguous United States, as well as parts of the Alaskan and Hawaiian coastlines. Policy Considerations. Policy choices related to sea-level rise have the potential to shape the future development and resiliency of U.S. coasts. Policy options include a continuation of current government programs and policies, actions that address the forces contributing to sea-level rise globally or locally, and actions that reduce the vulnerability to and consequences of sea-level rise on U.S. coasts. For all the policy options, there are underlying questions of costs and benefits and who bears the costs of pursuing or not pursuing the policies. A challenge for federal lawmakers is how to deal with the tension between federal efforts to manage national and federal government risks (e.g., federal disaster costs, coastal ecosystem shifts) related to sea-level rise and the local and state roles in shaping coastal development and ecosystem health. Related policy questions include the following: To what extent do federal programs, regulations, and funding influence how coasts develop and redevelop? Who is responsible for the costs associated with adjusting to sea-level rise? Who will bear the risks associated with vulnerable coastal development and infrastructure? Some stakeholders are concerned that governments at all levels are paying insufficient attention to the risks posed by sea-level rise; others are concerned that overestimating the risk of sea-level rise could result in foregoing current uses of coastal areas and promoting overinvestment and overdesign of sea-level rise mitigation and adaptation. CRS In Focus IF10468, Sea-Level Rise and U.S. Coasts, also provides a brief overview of sea-level rise science and policy options.

Sep 12, 2016

Sea-Level Rise and U.S. Coasts

Sep 12, 2016

Coal Use Already Near EPA’s 2030 Projection

In February of this year, BloombergBusiness stated that although the Supreme Court had placed a hold on implementation of President Obama’s Clean Power Plan (CPP), the Court’s stay “won’t save coal from a shrinking market.” Under the CPP, Bloomberg noted, EPA had projected that coal’s share of the electric power mix would shrink to 27% in 2030 (from a 39% share in 2014); but it was already down to 29% in November 2015, a month after the CPP was promulgated. Coal’s shrunken market share has continued in the months since November: over the first six months of 2016, coal accounted for 28% of electric power generation. Figure 1. Electricity Generation by Energy Source January-June, 2014-2016 / Source: U.S. Energy Information Administration. Figure created by CRS. Coal Down; Natural Gas Up As coal-fired power plants have retired, or been used less often, much of the slack has been picked up by natural gas. As shown in Figure 1, natural gas surpassed coal as the leading source of energy for electric power generation in the first six months of this year. It accounted for 34% of electric generation during the period, up from 25% in the comparable period of 2014; 2016 looks likely to be the first full year in which natural gas will surpass coal as the leading source of electricity generation in the United States. The abundance of natural gas, much of it produced by fracking, has driven gas prices to less than half of EPA’s projected values for much of the last year, and has made natural gas-fueled power plants cheaper to operate than coal-fired units. A pleasant side effect for consumers is that the price of electricity in most areas has declined as gas has replaced coal: the national average price of electric power in June 2016 (latest available) was 1% below that in June 2015, and 2.1% below that in June 2014. No “Train Wreck,” At Least Thus Far Over the past few years, many EPA critics have predicted a “train wreck” of higher prices and less reliable electricity as coal plants were retired—a development that many tied to the implementation of new EPA and state environmental regulations. (See CRS Report R41914, EPA’s Regulation of Coal-Fired Power: Is a “Train Wreck” Coming?) But, thus far, market developments have made a shambles of most such predictions. Coal-fired power has declined from about 50% of total generation in 2007 to the current 28% with little noticeable impact on reliability, and no real (inflation-adjusted) increase in the national price of power. Other Factors at Work As coal use by the nation’s electric power producers has declined, the low price and resulting increase of natural gas-fired generation have not been the only factors at work filling coal’s shoes. Renewable power, stimulated by state-level requirements (such as Renewable Portfolio Standards) and federal tax credits, has been one factor. Even more importantly, the shoes themselves have gotten smaller. U.S. Energy Information Administration data show the relative contributions of each factor. Compared to the comparable period of 2014, coal use produced 253 million fewer megawatt-hours (MWh) of electricity in the first six months of 2016. Natural gas picked up 146 million MWh (58%) of the slack. What happened to the rest? One important factor was that consumption of electricity declined by 62 million MWh—nearly 25% of the gap left by less coal use. For the last decade, electricity consumption has remained relatively flat, breaking a century-long trend in which economic growth and electricity consumption increased in lockstep. Electricity consumption peaked in 2007: since then, as shown in Figure 2, the economy, as measured by the real (inflation-adjusted) Gross Domestic Product, has grown by 11.4%; but electric power use is 2.9% below the 2007 level. The other important factor is the growth of renewable sources of power: these increased by 35 million MWh in the first half of 2016, as compared to the comparable months of 2014, 14% of the gap left by coal. Figure 2. Growth of Real GDP and Electricity Consumption, 2007-2016 / Sources: U.S. Department of Commerce, Bureau of Economic Analysis (GDP); U.S. Energy Information Administration (electricity consumption). Figure created by CRS. Forecasting the Future The Clean Power Plan (CPP), mentioned at the outset of this Insight, set goals for reducing greenhouse gas (GHG) emissions from existing power plants. EPA modeling projected reductions of about 30% in these GHG emissions by 2030, largely through the substitution of natural gas and renewable sources for existing coal-fired power and energy efficiency improvements. Many of the changes EPA hoped to stimulate through this regulation have occurred in the single year since its promulgation—and despite the Supreme Court’s unusual step of staying the regulation even before challenges to it were heard by a lower court. This raises an interesting set of questions for EPA, the courts, and Congress going forward. One, given the electric power sector’s apparently smooth transition to cleaner power sources, is whether the CPP targets can and should be made more stringent. For now, EPA is defending its existing regulations in court from challenges by more than 100 parties, a process not likely to be complete before 2018. But win or lose in court, EPA and the dozen or so states that have begun regulation of GHG emissions will be looking at next steps. The electric power industry is the largest single source of GHG emissions, and there is a widespread assumption within the industry and outside it that further reductions will be expected from it. On the other hand, since late spring of this year, natural gas prices have increased by about $1.00 per thousand cubic feet (mcf). Prices are still low compared to EPA and other projections, but the Energy Information Administration noted in late August that for the first time in 18 months, the cost of generating electricity using natural gas exceeded the cost of using coal. Whether this will modify the recent industry trends will bear watching.

Sep 12, 2016

Interior Immigration Enforcement: Criminal Alien Programs

Congress has long supported efforts to identify, detain, and remove criminal aliens, defined as noncitizens who have been convicted of crimes in the United States. The apprehension and expeditious removal of criminal aliens has been a statutory priority since 1986, and the Department of Homeland Security (DHS) and one of its predecessor agencies have operated programs targeting criminal aliens since 1988. Investments in DHS’s Immigration and Customs Enforcement (ICE) interior enforcement programs since 2004 have increased the number of potentially removable aliens identified within the United States. Inconsistencies in data quality, collection, and definitions prevent a precise enumeration of total criminal aliens and key subgroups such as criminal aliens convicted of removable offenses and aggravated felonies. It is also not known what portion of these groups consists of legally present noncitizens and unauthorized aliens. Noncitizens incarcerated in federal and state prisons and local jails—a subset of all criminal aliens—totaled 142,463 in 2013 (the most recent year for which complete data are available), with state prisons and local jails each accounting for more incarcerations than federal prisons. Until recently, the proportion of noncitizens incarcerated in U.S. prisons and jails corresponded closely to that of noncitizens in the U.S. population, but unreported incarceration data since 2013 has hindered such comparisons. To direct immigration enforcement efforts toward the criminal alien population, ICE operates the Criminal Alien Program (CAP), an umbrella program for marshaling agency resources to identify and remove criminal and other removable aliens. CAP is guided by the Priority Enforcement Program (PEP), which represents a set of immigration enforcement priorities that describe which foreign nationals should be removed and in what priority order. PEP also employs “interoperability,” which is a data sharing infrastructure between DHS and the Department of Justice that screens individuals for immigration-related violations when they pass through law enforcement jurisdictions. PEP replaced the former Secure Communities, which many jurisdictions with large foreign-born populations had opposed. ICE also uses the §287(g) program, which allows the agency to delegate certain immigration enforcement functions to specially trained state and local law enforcement officers, under federal supervision. PEP and the §287(g) program both screen for immigration violations as people pass through the criminal justice system. The National Fugitive Operations Program (NFOP) pursues known at-large criminal aliens and fugitive aliens outside of controlled settings (i.e., administrative offices or custodial settings). NFOP is not part of CAP, although ICE officers in its workforce use the same DHS resources and databases as ICE officers working for CAP. PEP, its predecessor Secure Communities, and the §287(g) program have all contributed to DHS removing large numbers of aliens in the past decade. Yet, these programs also have been controversial. Because interoperability screens all people passing through law enforcement jurisdictions, critics often charged ICE with removing many people who either committed minor crimes or who had no criminal record apart from unauthorized presence in the United States. Other critics charge that revisions to the set of enforcement priorities through PEP have since contributed to declining numbers of enforcement actions. The §287(g) program has raised concerns over inconsistent policies and practices among jurisdictions and allegations of racial profiling, among other issues. Such concerns caused ICE to revise the program in FY2012 and allow certain §287(g) agreements with law enforcement agencies to expire. Since then, immigration enforcement advocates have questioned why ICE has curtailed the program’s use. ICE has recently expressed interest in expanding it. For these and other reasons, Congress may be interested in measures of enforcement levels by program, the level of appropriations for different criminal alien programs, and the role of state and local law enforcement agencies in immigration enforcement.

Sep 8, 2016

Department of Veterans Affairs FY2017 Appropriations

The Department of Veterans Affairs (VA) provides a range of benefits and services to veterans and eligible dependents who meet certain criteria as authorized by law. These benefits include medical care, disability compensation and pensions, education, vocational rehabilitation and employment services, assistance to homeless veterans, home loan guarantees, administration of life insurance as well as traumatic injury protection insurance for servicemembers, and death benefits that cover burial expenses. The President’s FY2017 budget request for the VA was submitted to Congress on February 9, 2016. The President’s FY2017 request for VA is approximately $177.54 billion. This amount, which includes $102.53 billion in mandatory funding and $75.01 billion in discretionary appropriations, is a 9.14% increase over the FY2016-enacted level of $162.67 billion. On April 13, 2016, the House Appropriations Committee approved its version of the FY2017 Military Construction and Veterans Affairs, and Related Agencies (MILCON-VA) appropriations bill (H.R. 4974; H.Rept. 114-497). The House passed the measure on May 19. The House-passed measure provides a total of $176.06 billion for the VA, a slight decrease (0.83%) from the President’s request of $177.54 billion and an 8.23% increase from the FY2016-enacted amount. This amount includes $102.53 billion in mandatory appropriations and $73.53 billion in discretionary appropriations. On April 14, the Senate Appropriations Committee approved its version of the FY2017 MILCON-VA appropriations bill (S. 2806; S.Rept. 114-237). The Senate passed the FY2017 MILCON-VA appropriations bill on May 19 as an appropriations package that included the FY2017 Transportation, Housing and Urban Development, and Related Agencies (THUD) appropriations bill (Division A); the FY2017 MILCON-VA appropriations bill (Division B), and the Zika Response appropriations bill (Title V of Division B). The Senate-passed version of the FY2017 MILCON-VA appropriations bill (Division B of H.R. 2577) provides a total of $177.39 billion for VA, a 9.04% increase over the FY2016-enacted level of $162.67 billion and slightly less than the President’s request for FY2017. This amount includes $102.53 billion in mandatory appropriations and $74.85 in discretionary appropriations. On May 26, 2016, the House concurred with the Senate amendment with an amendment consisting of the text of H.R. 4974, H.R. 5243, and H.R. 897, as passed by the House (H.Res. 751). On June 22, the Chairman of the House Appropriations Committee filed a conference agreement (H.R. 2577; H.Rept. 114-640). The Division A conference agreement (H.R. 2577; H.Rept. 114-640) contained the FY2017 MILCON-VA appropriations bill. The conference agreement would provide $176.89 billion for VA for FY2017. Although the House passed the conference agreement the Senate has voted not to invoke cloture on the conference agreement.

Sep 8, 2016

U.S. Relations with Burma: Key Issues for 2016

Sep 8, 2016

Biologics and Biosimilars: Background and Key Issues

A biological product, or biologic, is a preparation, such as a drug or a vaccine, that is made from living organisms. Compared with conventional chemical drugs, biologics are relatively large and complex molecules. They may be composed of proteins (and/or their constituent amino acids), carbohydrates (such as sugars), nucleic acids (such as DNA), or combinations of these substances. Biologics may also be cells or tissues used in transplantation. A biosimilar, sometimes referred to as a follow-on biologic, is a therapeutic drug that is similar but not structurally identical to the brand-name biologic made by a pharmaceutical or biotechnology company. In contrast to the relatively simple structure and manufacture of chemical drugs, biosimilars, with their more complex nature and method of manufacture, will not be identical to the brand-name product, but may instead be shown to be highly similar. The Food and Drug Administration (FDA) regulates both biologics and chemical drugs. Biologics and biosimilars frequently require special handling (such as refrigeration) and processing to avoid contamination by microbes or other unwanted substances. Also, they are usually administered to patients via injection or infused directly into the bloodstream. For these reasons, biologics often are referred to as specialty drugs. The cost of specialty drugs, including biologics, can be extremely high. In April 2006, the European Medicines Agency (EMA) authorized for marketing in Europe the first biosimilar product, Omnitrope, a human growth hormone. The EMA has authorized a total of 21 biosimilars for the European market. The introduction of biosimilars in Europe has reduced prices for biologics overall, in some cases by 33% compared with the original price of the brand-name product. For one drug in Portugal, the price reduction was 61%. In contrast, the pathway to marketing biosimilars in the United States has had several barriers. FDA approved Omnitrope in June 2006, following an April 2006 court ruling that the FDA must move forward with consideration of the application. At the time Omnitrope was approved, FDA indicated that this action “does not establish a pathway” for approval of other follow-on biologic drugs and stated that Congress must change the law before the agency can approve copies of nearly all other biotech products. Four years later, in March 2010, Congress established a new regulatory authority for FDA by creating an abbreviated licensure pathway for biological products demonstrated to be “highly similar” (biosimilar) to or “interchangeable” with an FDA-licensed biological product. The new authority was accomplished via the Biologics Price Competition and Innovation Act (BPCIA) of 2009, enacted as Title VII of the Affordable Care Act (ACA, P.L. 111-148). In addition, Congress authorized FDA to collect associated fees via the Biosimilar User Fee Act of 2012 (BsUFA, P.L. 112-144). FDA has approved three biosimilars for marketing in the United States: Zarxio (filgrastim-sndz) in March 2015, Inflectra (infliximab-dyyb) in April 2016, and Erelzi, (etanercept-szzs) in August 2016. The entry of such products on the U.S. market may result in price reductions similar to those that have occurred in Europe.

Sep 7, 2016

The Individuals with Disabilities Education Act (IDEA) Funding: A Primer

Since the enactment of P.L. 94-142, the predecessor legislation to the Individuals with Disabilities Education Act (IDEA), in 1975, the federal government has played a prominent role in encouraging the principle of educational equality for children with disabilities through a permanent, broad-scale federal assistance program. The IDEA is a grants statute that provides federal funding for the education of children with disabilities and requires, as a condition for the receipt of such funds, that states agree to provide a free appropriate public education (FAPE; i.e., specially designed instruction provided at no cost to the parents that meets the needs of a child with a disability) to every eligible child. The IDEA, most recently reauthorized by P.L. 108-446 in 2004, was appropriated approximately $13 billion in FY2016. The largest and most often discussed part of the IDEA is Part B, Assistance for Education of all Children with Disabilities, which covers special education for children and youth with disabilities between the ages of 3 and 21. Approximately 95% of total IDEA appropriations fund the Part B, Section 611, grants-to-states program. Part B was funded at $11.9 billion in FY2016; and in the 2014-2015 school year, 6.6 million children ages 3 through 21 received educational services under it. In addition to the Part B grants-to-states program, the IDEA contains two programs for young children with disabilities. Part C authorizes federal funding for early intervention services to infants and toddlers with disabilities ages birth to three years, and Part B, Section 619 authorizes supplementary grants to states for preschool programs serving children with disabilities ages three to five. Each IDEA program serving children and youth with disabilities has followed a similar funding pattern. Appropriations for IDEA, Part B (Sections 611 and 619) and Part C increased steadily from each program’s inception until the early 2000s. Since the IDEA’s most recent reauthorization in FY2004, the funding for both Part B and Part C programs has fluctuated. The IDEA has two formulas for determining Part B grants to states: one for years when the appropriated amount available to states is greater than or equal to the amount available to states in the previous year, and one for years when the amount available to states is less than the amount available to states the previous year. In years when the appropriated amount for Part B increases or remains the same, each state receives its base-year (FY1999) grant amount plus a share of the “new money” (i.e., the amount above the FY1999 appropriation), based on the state’s share of the national child population and national population of children living in poverty, adjusted according to one maximum and three minimum grant calculations, and ratably reduced when necessary. In years when the appropriated amount for Part B decreases, each state receives its base-year grant amount plus a share of the new money the state received the previous year, which has been ratably reduced proportional to the total new money available for the current year. This report will examine the development of the allocation formula for the Part B grants-to-states program, the major changes to the formula over the past 40 years, current funding levels and trends, and how allocations are currently calculated. Issues concerning the funding of special education and related services will also be discussed.

Sep 7, 2016

Post-Heller Second Amendment Jurisprudence

This report examines the scope of the Second Amendment, as interpreted by the federal circuit courts of appeals, after the watershed Supreme Court decisions in District of Columbia v. Heller and McDonald v. City of Chicago. The Second Amendment states that “[a] well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” Before the Supreme Court’s 2008 opinion in Heller, the Second Amendment had received little Supreme Court attention and had been largely interpreted, at least by the lower federal courts, to be intertwined with military or militia use. Still, there had been ample debate in the lower federal courts and political discussion over whether the Second Amendment provides an individual right to keep and bear arms, versus a collective right belonging to the states to maintain militias, with the vast majority of the lower federal courts embracing the collective right theory. In Heller, though, the Supreme Court adopted the individual right theory, holding that the Second Amendment protects an individual right for law-abiding citizens to keep and bear arms for lawful purposes including, most notably, self-defense in the home. Two years later in McDonald, the Court held that the Second Amendment applies to the states via selective incorporation through the Fourteenth Amendment. After Heller and McDonald, numerous challenges were brought on Second Amendment grounds to various federal, state, and local firearm laws and regulations. Because Heller neither purported to define the full scope of the Second Amendment, nor suggested a standard of review for evaluating Second Amendment claims, the lower federal courts have been tasked with doing so in the Second Amendment challenges brought before them. As will be discussed in this report, these challenges include allegations that provisions of the Gun Control Act of 1968, as amended, as well as various state and local firearm laws (e.g., assault weapon bans, concealed carry regulations, firearm licensing schemes), are unconstitutional. Generally, the courts have adopted a two-step framework for evaluating Second Amendment challenges. First, courts ask whether the regulated person, firearm, or place comes within the scope of the Second Amendment’s protections. If not, the law does not implicate the Second Amendment. But if so, the court next employs the appropriate level of judicial scrutiny—rational basis, intermediate, or strict scrutiny—to assess whether the law passes constitutional muster. In deciding what level of scrutiny is warranted, courts generally ask whether the challenged law burdens core Second Amendment conduct, like the ability to use a firearm for self-defense in the home. If a law substantially burdens core Second Amendment activity, courts typically will apply strict scrutiny. Otherwise, courts generally will apply intermediate scrutiny. Most challenged laws have been reviewed for intermediate scrutiny, where a court asks whether a law is substantially related to an important governmental interest. And typically, the viability of a firearm restriction will depend on what evidence the government puts forth to justify the law. Yet sometimes courts take a different or modified approach from that described above and ask whether a challenged regulation falls within a category deemed “presumptively lawful” by Heller. If the law falls within such a category, a court does not need to apply a particular level of scrutiny in reviewing the restriction because the law does not facially violate the Second Amendment. The body of this report discusses in detail notable post-Heller Second Amendment cases decided by federal courts of appeals. Because Heller and McDonald provide the only recent Supreme Court guidance on the Second Amendment, the analyses in these cases may provide useful guideposts for Congress should it seek to enact further firearm regulations.

Sep 7, 2016

U.S. Withdrawal from Free Trade Agreements: Frequently Asked Legal Questions

The United States is party to 14 international free trade agreements (FTAs) with 20 countries. These agreements impose a wide variety of international obligations on the United States and its trading partners. Such obligations address import tariffs, as well as potential nontariff trade barriers. A country that is party to an FTA and that maintains laws, regulations, or practices that violate one of these obligations may be subject to trade retaliation (e.g., other FTA parties may increase tariffs on the country’s exports) or may have to pay a fine or monetary compensation to an FTA partner or injured investor. During the past decade, some have suggested that the United States should attempt to renegotiate—and possibly withdraw from—the North American Free Trade Agreement (NAFTA). Such statements have prompted congressional interest in domestic and international legal issues pertaining to U.S. termination of, or withdrawal from, an FTA. U.S. FTAs have historically been approved as congressional-executive agreements by a majority vote of each house of Congress rather than as treaties ratified by the President after Senate approval by a two-thirds majority vote. FTAs are not self-executing agreements. Thus, legislation is required to provide U.S. bodies with domestic legal authority necessary to enforce and comply with the agreements’ provisions. FTAs are legally binding agreements under international law. All U.S. FTAs that have entered into force as of the date of this report contain provisions allowing for a party’s withdrawal from, or termination of, the FTA upon advance notice to the other parties. Questions have arisen regarding whether the President can unilaterally withdraw the United States from such agreements without the consent of Congress. The Constitution does not specifically address withdrawal from treaties or congressional-executive agreements. In some cases, the United States has withdrawn from international legal agreements pursuant to the joint action of the political branches. However, the weight of judicial and scholarly opinion suggests that the President possesses the exclusive constitutional authority to communicate with foreign powers, and such authority might provide the President with a constitutional basis for withdrawing from at least some types of international agreements. The agreement’s subject matter, however, might be relevant to a legal analysis. As a practical matter, the President’s communication of a notice of withdrawal from an FTA to trade partners in accordance with the FTA’s terms would likely release the United States from its international obligations from the effective date of withdrawal onward as provided in the Vienna Convention on the Law of Treaties, which the United States has not ratified but considers to reflect, in many aspects, customary international law. Congress may thus find it difficult to prevent the President from terminating or withdrawing from an FTA. On the other hand, if Congress wanted to pressure the President to withdraw, it could enact a statute (over any presidential veto) that would repeal its approval and implementation in domestic law of an FTA. Even in the event that the President could properly withdraw from an FTA unilaterally, the President cannot make laws, and thus repeal of federal statutory provisions implementing U.S. FTA obligations requires congressional action. Congress has enacted provisions that appear to delegate to the President authority to repeal some provisions of federal statutory law implementing FTA obligations upon termination of, or U.S. withdrawal from, the agreement. However, the President might not be able to exercise this authority if a court struck down such provisions as unconstitutional or Congress amended or repealed them. Although the President cannot repeal other statutory provisions implementing FTA obligations without further congressional action, if the President identified a federal regulation, order, or practice that implemented FTA obligations, the President may be able to rely on constitutional or statutory authority to repeal or limit the effect of the measure. Such actions by the President may be subject to judicial review.

Sep 7, 2016

Department of Homeland Security Appropriations: FY2017

This report discusses the FY2017 appropriations for the Department of Homeland Security (DHS). The report makes note of many budgetary resources provided to DHS, but its primary focus is on funding approved by Congress through the appropriations process. It includes an Appendix with definitions of key budget terms used throughout the suite of Congressional Research Service reports on homeland security appropriations. It also directs the reader to other reports providing context for and additional details regarding specific component appropriations and issues engaged through the FY2016 appropriations process. The Administration requested $40.62 billion in adjusted net discretionary budget authority for DHS for FY2017, as part of an overall budget that the Office of Management and Budget estimates to be $66.2 billion (including fees, trust funds, and other funding that is not annually appropriated or does not score against discretionary budget limits). The request amounted to a $332 million, or 0.8%, increase from the $40.96 billion enacted for FY2016 through the Department of Homeland Security Appropriations Act, 2016 (P.L. 114-113, Division F). The Administration also requested discretionary funding for DHS components that does not count against discretionary spending limits set by the Budget Control Act (BCA, P.L. 112-25) and is not reflected in the above totals. The Administration requested an additional $6.2 billion for the Federal Emergency Management Agency (FEMA) in disaster relief funding, as defined by the BCA, and in the budget request for the Department of Defense, a transfer of $163 million in Overseas Contingency Operations/Global War on Terror designated funding (OCO). On May 26, 2016, the Senate Committee on Appropriations reported out S. 3001, accompanied by S.Rept. 114-264. S. 3001 included $41.2 billion in adjusted net discretionary budget authority for FY2017. This was $578 million (1.4%) above the level requested by the Administration, but $246 million (0.6%) above the enacted level for FY2016. The Senate committee-reported bill included the Administration-requested levels for disaster relief funding and OCO funding covered by BCA adjustments—the latter as an appropriation in the DHS appropriations bill rather than the requested transfer. On June 22, the House Committee on Appropriations reported out H.R. 5634, accompanied by H.Rept. 114-668. H.R. 5634 included $41.04 billion in adjusted net discretionary budget authority for FY2017. This was $426 million (1.0%) above the level requested by the Administration, and $95 million (0.2%) above the enacted level for FY2016. The House committee-reported bill included the Administration-requested levels for disaster relief funding—the House Appropriations Committee chose to provide the OCO funding as a transfer as requested. Direct comparisons of certain aspects of the funding provided by the legislation has been complicated by a congressionally-mandated restructuring of the department’s appropriations. This report will be updated throughout the FY2017 appropriations process.

Sep 7, 2016

Patent Cases in the October 2015 Term of the U.S. Supreme Court: Halo Electronics v. Pulse Electronics and Cuozzo Speed Technologies v. Lee

This report examines the two patent law cases decided by the U.S. Supreme Court in its October 2015 Term. The first patent case, decided on June 13, 2016, Halo Electronics, Inc. v. Pulse Electronics, Inc., concerns the circumstances in which the awarding of enhanced damages in a patent infringement case are warranted and the discretion of the district courts to award them. Section 284 of the Patent Act provides that the court may increase damages up to three times the amount found by a jury or assessed by the court, but does not provide any guidance to the court, or any express limits or conditions, in how to exercise its discretion to do so. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit), a specialized tribunal established by Congress that has exclusive appellate jurisdiction in patent cases, limited such awards to cases of “willful infringement.” Specifically, in its 2007 opinion, In re Seagate Technology, the Federal Circuit established a two-part test that must be met before the district court can exercise its discretion to increase damages under Section 284. This strict standard arguably made such awards very difficult for patent holders to recover. In a unanimous opinion, the Halo Supreme Court rejected the Seagate test for enhanced damages, determining that it was unduly rigid and inconsistent with the statutory grant of discretion to courts to decide when to award punitive damages. In invalidating the strict Seagate test, the Halo opinion advised district courts to exercise their discretion to award enhanced damages in a manner consistent with Supreme Court precedent that generally reserves such punishment for “egregious cases of misconduct beyond typical infringement.” The Court’s second patent opinion of its October 2015 Term, issued on June 20, 2016, involves the “claim construction” standard used by the Patent Trial and Appeal Board (PTAB) of the U.S. Patent & Trademark Office (USPTO) in an administrative proceeding called an inter partes review (IPR), where members of the public may challenge the validity of issued patents. In Cuozzo Speed Technologies, LLC v. Lee, the Court upheld a USPTO regulation that requires the PTAB, in IPR proceedings, to read a disputed patent claim according to its “broadest reasonable interpretation.” Such an interpretive standard arguably makes it more likely that the PTAB finds a patent claim to be obvious or not novel (and thus subject to invalidation), compared to in a judicial proceeding in which a court construes patent claims according to the “plain and ordinary meaning” of the claims’ language (a narrower standard). Furthermore, the Cuozzo Court held that a provision of the Patent Act precludes judicial review of the USPTO’s decision whether to institute an IPR proceeding. The Halo opinion arguably favors patent holders by improving the chances of receiving enhanced damages in patent infringement cases, while Cuozzo leaves in place a process that may help third parties seeking to challenge the validity of issued patents. However, the impact of these decisions could be affected in the future by Congress, as some Members have expressed their disagreement with the Halo decision, and legislation pending in the 114th Congress (the Innovation Act (H.R. 9)) and the Protecting American Talent and Entrepreneurship Act (PATENT Act (S. 1137)) would require that the PTAB use the same claim construction standard in IPR proceedings that is applied by federal courts.

Sep 7, 2016

Marketplace Lending: Fintech in Consumer and Small-Business Lending

Marketplace lending—also called peer-to-peer lending or online platform lending—is a nonbank lending industry that uses innovative financial technology (Fintech) to make loans to consumers and small businesses. Although marketplace lending is small compared with traditional lending, it has grown quickly in recent years. In general, marketplace lenders accept applications for small, unsecured loans online and determine applicants’ creditworthiness using an automated algorithm. Often, the loans are then sold—whole or in pieces—to investors. More traditional lenders are more apt to use employees to make credit assessments and have a greater need for office and retail space. Traditional lenders may hold loans themselves or package many loans together into large securities (a process called securitization). Due to these differences and to marketplace lending’s lack of industry track record, marketplace lending is facing uncertainty about its advantages, its risks, and how it should be treated by regulators. Some observers assert that marketplace lending may pose an opportunity to expand the availability of credit to individuals and small businesses in a fair, safe, and efficient way. Marketplace lenders may have lower costs than traditional lenders, potentially allowing them to make more small loans than would be profitable for traditional lenders. In addition, some observers believe the accuracy of credit assessments will improve by using more data and advanced statistical modeling, as marketplace lenders do through their automated algorithms, leading to fewer delinquencies and write-offs. They argue that using more comprehensive data could also allow marketplace lenders to make credit assessments on potential borrowers with little or no traditional credit history. Other observers warn about the uncertainty surrounding the industry and the potential risks marketplace lending poses to borrowers, loan investors, and the financial system. The industry only began to become prevalent during the current economic expansion and low-interest-rate environment, so little is known about how it will perform in other economic environments. Many marketplace lenders do not hold the loans they make themselves and earn much of their revenue through origination and servicing fees, which potentially creates incentives for weak underwriting standards. Finally, some observers argue that lack of oversight may allow marketplace lenders to engage in unsafe or unfair lending practices. Marketplace lenders are subject to existing federal and state regulations related to lending and security issuance, and some observers assert that the existing system is appropriate for regulating this lending. However, because existing regulations were developed and implemented largely prior to the emergence of marketplace lending, some argue that regulatory gaps and weaknesses exist and should be addressed. The evolution of the regulatory environment facing marketplace lenders is just one development that will likely occur in coming years. Traditional lenders will continue to adapt to the new technology, market entrants, and market conditions. Marketplace lending has not been through an entire economic cycle, and rising interest rates or the onset of a recession will reveal strengths and weaknesses of marketplace lending. Congress may have to consider the issues surrounding marketplace lending, because as the industry grows and develops, it will likely require attention from policymakers, regulators, and financial institutions.

Sep 6, 2016

Federally Funded Research and Development Centers (FFRDCs): Background and Issues for Congress

The federal government supports research and development (R&D) that is conducted by a wide variety of performers, including federally owned and operated laboratories, universities, private companies, and other research institutions. A special class of research institutions referred to as federally funded research and development centers, or FFRDCs, are owned by the federal government, but operated by contractors, including universities, other non-profit organizations, and industrial firms. FFRDCs are intended to provide federal agencies with R&D capabilities that cannot be effectively met by the federal government or the private sector alone. FFRDCs are required to have a long-term strategic relationship with the federal agency that supports them. This relationship is presumed to convey a number of benefits, including the ability of an FFRDC to recruit and retain scientific and technical expertise; an in-depth knowledge of, and the capability to rapidly respond to, the R&D needs of the federal agency; and the capacity to offer independent and objective scientific and technical advice. Currently, 12 federal agencies sponsor a total of 42 FFRDCs. These FFRDCs provide R&D capabilities in support of federal agency missions in a broad range of areas—from energy and cybersecurity to cancer and astronomy. In FY2014, the federal government spent $10.6 billion or 8.1% of its total R&D expenditures at FFRDCs. Congress maintains a continuing interest in FFRDCs due to their contributions to U.S. technological and economic leadership. However, some Members of Congress have questioned the appropriate role of FFRDCs in the federal R&D enterprise and the ability of FFRDCs to effectively address federal agency R&D needs. The following issues have been of particular interest: (1) the effectiveness of federal agency oversight and management of FFRDCs; (2) competition between FFRDCs and the private sector for federal R&D funding; (3) the diversification of FFDRC activities or “mission creep”; and (4) the award of noncompetitive FFRDC management and operation contracts.

Sep 6, 2016

EPA’s Recent Methane Regulations: Legal Overview

President Obama’s “Climate Action Plan” aims to reduce emissions of carbon dioxide (CO2) and other greenhouse gases (GHGs). One of the initiatives within the Plan focuses on the control of emissions of methane, a short-lived climate pollutant. In 2014, the U.S. Environmental Protection Agency (EPA) and other federal agencies developed an interagency “Strategy to Reduce Methane Emissions” (Methane Strategy) that outlined voluntary actions and potential agency rulemakings to cut methane emissions. In response to the Methane Strategy, EPA published new and updated standards of performance (commonly referred to as new source performance standards, or NSPSs) on June 3, 2016, for GHGs (in the form of methane limitations) and volatile organic compounds emissions from new, modified, and reconstructed equipment, processes, and activities across the oil and natural gas sector pursuant to Section 111 of the Clean Air Act (CAA). In addition, on August 29, 2016, EPA published its updated NSPSs to reduce municipal solid waste (MSW) landfill gas emissions, including methane emissions, from landfills built, modified, or reconstructed after July 17, 2014. The agency also revised emission guidelines established in 1996 for existing landfills operating prior to that date. North Dakota, Texas, a coalition of 14 other states, and various gas associations filed petitions for review of the final oil and gas rule in the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit). Nine states and the city of Chicago moved to intervene on behalf of EPA to support the final rule. In addition, several environmental advocacy groups filed their own motion to intervene in the case. This report examines a few potential issues that may be raised in the litigation, primarily drawn from comments submitted to EPA on the proposed rule. It is uncertain whether the revised MSW landfill NSPSs and emission guidelines will be challenged in court. Petitions for legal review of the rule and guidelines must be filed no later than October 28, 2016. This report analyzes EPA’s authority to revise the 1996 emission guidelines for existing MSW landfills—an issue raised in comments on the proposed landfill emission guidelines.

Sep 6, 2016

FEMA Disaster Housing: The Individuals and Households Program—Implementation and Potential Issues for Congress

Following a major disaster declaration, the Federal Emergency Management Agency (FEMA) may provide three principal forms of assistance. These include Public Assistance, which addresses repairs to a community and states’ or tribe’s infrastructure; Mitigation Assistance which provides funding for projects a state or tribe submits to reduce the threat of future damage; and Individual Assistance (IA) which provides help to individuals and families. IA can include several programs, depending on whether the governor of the affected state or the tribal leader has requested that specific help. These can include Disaster Unemployment Assistance (DUA) for workers made unemployed by a disaster and not covered by the state’s standard unemployment program. IA can also include Crisis Counseling that provides assistance to state and local mental health organizations to assist disaster victims traumatized by an event. IA may also include Case Management services that help a state to organize potential forms of assistance for disaster survivors. All of those programs can perform important tasks in the post-disaster environment to aid disaster survivors in reorienting their lives and returning to normal. But the principal IA program to offer such assistance is the Individuals and Households Program (IHP), authorized by Section 408 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act. The IHP provides temporary housing assistance as well as the Other Needs Assistance (ONA) grants that can provide necessary assistance for the replacement of lost items such as furniture and clothing. Funds to assist any household are currently capped at $33,000. This amount is adjusted annually according to the Consumer Price Index (CPI). Federal disaster housing assistance has a long history that is not always best understood by concentration on the exceptional circumstances presented by Hurricane Katrina and its aftermath. In fact, the Hurricane Sandy experience of the last several years may serve as a better guide to explain the form FEMA housing assistance takes in most disaster recovery operations. While the Katrina experience suggested a general reliance on motel rooms, travel trailers, mobile homes, and even docked cruise ships, the great majority of disaster housing help comes in the form of repairs to a home to make it habitable and financial assistance to cover the cost of temporary rental units, such as available apartments in the disaster area. The use of mobile homes and travel trailers, what FEMA terms “direct assistance,” is rare and generally considered a last resort to be employed only when other housing options are not available in the immediate disaster area. But improvements have been made in this form of assistance and are reviewed here. This report explains the traditional approach for temporary housing through the IHP program following a disaster, how it is implemented, and considers if the current policy choices are equitable for disaster victims. As a part of this examination, the report looks at other forms of housing repair assistance such as the Small Business Administration (SBA) Disaster Loan Program for homeowners as well as assistance that is provided, in some instances, through the Department of Housing and Urban Development’s (HUD) Community Development Block Grant (CDBG-DR) program. In recent years FEMA has catalogued its use of various forms of housing and the associated costs of each. This report will review those expenditures and provide information on the relative costs, and applications of, several categories of assistance.

Sep 2, 2016

How Big Should the Army Be? Considerations for Congress

Article I, Section 8, of the U.S. Constitution vests Congress with broad powers over the Armed Forces, including the power "To raise and support Armies" and “To provide and maintain a Navy.” As such, the size of the Armed Forces is a topic of perennial congressional interest and debate. Congress annually sets minimum and maximum strength levels for the active components and maximum strength levels for the reserve components. The House and Senate versions of the National Defense Authorization Act (NDAA) for FY2017 authorized differing levels for active duty personnel in each of the services, but these authorizations diverge most significantly with respect to the Army. The Senate version of the FY2017 National Defense Authorization Act approved Army end strength of 460,000 soldiers, while the House version approved an Army end strength of 480,000. The Senate figure represents a decrease of 15,000 soldiers in comparison to the Army’s FY2016 end strength of 475,000, while the House figure represents an increase of 5,000. Congress’s decision about the size of the Army for FY2017 will likely hinge on how it reconciles competing interpretations and judgments about key issues, including the current and emerging strategic environment; the role of the Army in advancing national security interests within that environment; how any additional end strength would be used by the Army; the results of a congressionally directed study on the future of the Army; and the trade-offs associated with various options to fund additional strength in the context of budgetary constraints. In addition to the decision for FY2017, the debate about the size of the Army may well continue into the next Congress, as the Department of Defense plans further reductions in the size of the Army, proposing FY2018 end strength of 450,000. There will also be a new President in January, and his or her policy priorities may revise the contours of this debate. This report provides an overview of active duty Army personnel strength changes in recent years, outlines the different end strength authorizations in the House and Senate versions of the FY2017 NDAA, highlights the perspectives which have contributed to these diverging approaches in the respective NDAAs, and outlines some factors which Congress may consider as it determines the appropriate size for the Army.

Sep 2, 2016

Comparing DHS Component Funding, FY2017: Fact Sheet

Generally, the homeland security appropriations bill includes all annual appropriations for the Department of Homeland Security (DHS), providing resources to every departmental component. Table 1 and Figure 1 show DHS’s new discretionary budget authority enacted for FY2016 and requested by the Administration for FY2017, as well as the House and Senate committee-reported responses, broken down by component—from largest to smallest appropriations request. (TO BE SUPPRESSED) Department of Homeland Security DHS budget Appropriations FY2017, FY2016 funding analysis

Sep 2, 2016

U.S. Textile Manufacturing and the Proposed Trans-Pacific Partnership Agreement

Textiles are a sensitive sector in the Trans-Pacific Partnership (TPP), an agreement that would establish a free-trade zone across the Pacific if it is approved by Congress and foreign governments. Because the TPP includes Vietnam, a major apparel producer that now mainly sources yarns and fabrics from China and other Asian nations, the agreement could shift global trading patterns for textiles and demand for U.S. textile exports. Canada and Mexico, both significant regional textile markets for the United States, and Japan, a major manufacturer of high-end textiles and industrial fabrics, are also TPP members. U.S. textile manufacturers produce yarn, thread, and fabric for apparel, home furnishings, and various industrial applications. In 2015, the U.S. textile industry generated some $55 billion in shipments and directly employed about 232,000 Americans, accounting for approximately 2% of all U.S. factory jobs. More than a third of U.S. textile production is exported, with the bulk of the exports going to Western Hemisphere nations that are members of the North American Free Trade Agreement (NAFTA), the Dominican Republic-Central America Free Trade Agreement (CAFTA-DR), and the Caribbean Basin Initiative (CBI). These free-trade agreements provide that certain exports from member countries may enter the U.S. market duty-free only if they are made from textiles produced in the region. This has encouraged manufacturers in Mexico and Central America to use U.S.-made yarns and fabrics in apparel, home furnishings, and other products. Exports to the NAFTA and CAFTA-DR countries contributed to a U.S. trade surplus of $1.6 billion in yarns and fabrics in 2015. The proposed TPP would eliminate some tariffs on textiles and apparel immediately, and phase out others over a decade or more. The agreement has the potential to affect U.S. textile exporters in at least three ways: It could enable some Asian apparel producers, principally Vietnam, to export clothing to the United States duty-free. This would eliminate much of the advantage now enjoyed by Western Hemisphere apparel producers in the U.S. market, and, because Vietnamese manufacturers make little use of U.S.-made textiles, could reduce demand for U.S. textile exports. The TPP would allow Western Hemisphere apparel manufacturers to use yarn and fabric made anywhere in the TPP region and still enjoy preferential access to the U.S. market. Thus, an enlarged Vietnamese textile industry could, at some future time, compete with U.S. exporters in Mexico and Central America. The U.S. manufacturers of industrial textiles may experience more direct competition from Japan, also a leading producer of industrial textiles. On the upside, U.S. exports of these products could increase because the agreement would eliminate tariffs on industrial fabrics that are currently as high as 20% in some TPP countries. Responding to concerns from domestic textile manufacturers, the proposed TPP agreement includes a “yarn-forward” rule of origin that would allow a garment to enter the United States duty-free only if yarn production, fabric production, and cutting and sewing of the finished garment all occur within the TPP region. However, nearly 190 fibers, yarns, and fabrics in short supply in TPP-member countries could be sourced from outside the region, including China. This provision was a concession to U.S. retailers and apparel brands that wanted maximum flexibility to source yarns and fabrics from non-TPP countries.

Sep 1, 2016

Climate Change: Frequently Asked Questions about the 2015 Paris Agreement

Experts broadly agree that stabilizing greenhouse gas (GHG) concentrations in the atmosphere to avoid dangerous GHG-induced climate change could be accomplished only with concerted efforts by all large emitting nations. Toward this purpose, delegations of 195 nations adopted the Paris Agreement (PA) on December 12, 2015. The PA outlines goals and a structure for international cooperation to slow climate change and mitigate its impacts over decades to come. The PA opened for signature by Parties to the United Nations Framework Convention on Climate Change (UNFCCC) on April 22, 2016, at U.N. headquarters in New York City. Heads of state and ministers from more than 175 governments signed the PA, a record for a single day. Signature generally indicates that a nation state intends to be bound by the agreement, and it initiates the process by which a prospective Party follows its domestic procedures to ratify, accept, approve, or accede to the agreement. A government then deposits its instrument of ratification, acceptance, approval, or accession with the U.N. depositary. The PA will enter into force 30 days after at least 55 countries, representing at least 55% of officially reported GHG emissions, deposit their instruments. As of August 10, 2016, 22 states—representing 1.08% of global GHG emissions—had deposited their instruments of ratification. Based on stated intentions of many nations to deposit their instruments in 2016, including the United States and China, some experts suggest that the PA could enter into force by the end of 2016. The PA creates a structure for nations to pledge to abate their GHG emissions, set goals to adapt to climate change, and cooperate toward these ends, including financial and other support. The negotiators intended the PA to be legally binding on its Parties, though not all provisions in it are mandatory. Some are recommendations or collective commitments to which it would be difficult to hold an individual Party accountable. Key aspects of the agreement include: Temperature goal. The PA defines a collective, long-term objective to hold the GHG-induced increase in temperature to well below 2o Celsius (C) and to pursue efforts to limit the temperature increase to 1.5o C above the pre-industrial level. A periodic “global stocktake” will assess progress toward the goals. Single GHG mitigation framework. The PA establishes a process, with a ratchet mechanism in five-year increments, for all countries to set and achieve GHG emission mitigation pledges until the long-term goal is met. For the first time under the UNFCCC, all Parties participate in a common framework with common guidance, though some Parties are allowed flexibility in line with their capacities. This largely supersedes the bifurcated mitigation obligations of developed and developing countries that have held the negotiations in often-adversarial stasis for many years. Accountability framework. To promote compliance, the PA balances accountability to build and maintain trust (if not certainty) with the potential for public and international pressure (“name-and-shame”). Also, the PA establishes a compliance mechanism that will be expert-based and facilitative rather than punitive. Many Parties and observers will closely monitor the effectiveness of this strategy. Adaptation. The PA also requires “as appropriate” that Parties prepare and communicate their plans to adapt to climate change. Adaptation communications will be recorded in a public registry. Collective financial obligation. The PA reiterates the collective obligation in the UNFCCC for developed country Parties to provide financial resources—public and private—to assist developing country Parties with mitigation and adaptation efforts. It urges scaling up of financing. The Parties agreed to set, prior to their 2025 meeting, a new collective quantified goal for mobilizing financial resources of not less than $100 billion annually to assist developing country Parties. U.S. executive branch officials have stated that the PA is not a treaty requiring Senate advice and consent to ratification. Whether becoming a Party to the PA would require Senate advice and consent depends on the content of the agreement. If the PA were to contain new legal obligations on the United States or require authorizations to implement it, these factors would favor requiring Senate consent to the President’s ratification of it. However, many authorities have opined that the PA does not meet these thresholds for the United States. Beyond the Senate’s role in giving advice and consent to a treaty, Congress continues to exercise its powers through authorizations and appropriations for related federal actions. Additionally, numerous issues may attract congressional oversight, such as international rules to be developed to carry out the PA, guidance to Parties, use of funds, and assessment of the effectiveness of other Parties’ efforts.

Sep 1, 2016

Northeast Asia and Russia’s “Turn to the East”: Implications for U.S. Interests

Since Russia’s aggression in Ukraine and its annexation of the Crimea in March 2014, Moscow’s already tense relationship with the United States and Europe has grown more fraught. After the imposition of sanctions on Russia by much of the West, Russian President Vladimir Putin has turned to East Asia, seeking new partnerships to counter diplomatic isolation and secure new markets to help Russia’s struggling economy. His outreach to Beijing, Tokyo, Seoul, and Pyongyang has met varying degrees of success. The most high-profile outreach was a summit with Chinese President Xi Jinping in May 2014, when the leaders announced dozens of economic cooperation agreements. Putin has met with Japanese Prime Minister Shinzo Abe over a dozen times in an effort to resolve a territorial dispute and improve bilateral relations. Putin has also reached out to both Koreas in his bid to step up engagement with Northeast Asian countries. Russian engagement in Northeast Asia challenges the U.S. strategic presence in the region in a number of ways and represents a new arena of potential concern for Congress. If Moscow’s engagement efforts succeed, it could undermine U.S. efforts to impose sanctions on Russia and isolate Putin diplomatically for his intervention in Ukraine. It could also create mistrust between the United States and its allies Japan and South Korea if those countries’ leaders are drawn closer to Russia. Diplomatic initiatives in the region to deal with the threat of North Korea’s nuclear weapons and ballistic missile programs could suffer if Moscow disrupts international efforts to rein in North Korean provocations. Perhaps most importantly, China and Russia could form a regional bloc whose primary purpose could be to reduce U.S. economic leverage and challenge the U.S. security presence in the region. The Chinese-Russian relationship is driven in large part by the perceived threat of the U.S. rebalance to Asia and their shared perspective of American unilateralism. Concrete progress on bilateral projects, however, is marked by inconsistency and faltering implementation of agreements. With Russia’s economy devastated by falling energy prices since 2014, China appears to view Russia as a junior partner. Although Russia-China military relations have increased rapidly, so too has an element of competition, particularly in the Arctic region. Chinese firms are wary of investing in Russia, seeing it as politically risky and commercially unattractive. In multilateral fora like the Shanghai Cooperation Organization and new Silk Road initiatives, China wants to expand its economic clout while Russia looks to assert its military dominance in Central Asia. These tensions may prevent a full-fledged strategic partnership, but relations continue to grow stronger through regular bilateral summits and global cooperation. Japan appears enthusiastic about improving relations with Russia and resolving their territorial dispute over four islands at the northern edge of Japan. Even as U.S.-Japan security links grow stronger, Abe continues to respond to Putin’s overtures with an eye on balancing China. Russia’s economic engagement of Pyongyang has chilled since the Kim regime resumed testing nuclear weapons and missiles. The stalemate in inter-Korean relations and the abandonment of cross-border projects also limit Russia’s potential role in facilitating infrastructure and trade links on the Peninsula. Seoul’s increasingly close U.S. alliance contracts the space for Moscow’s diplomatic maneuver. Japan, South Korea, and China all have interest in Russia’s supply of oil and gas from its resource-rich Far East. Although several partnerships already exist, dealing with Russia’s government-controlled energy companies has proved difficult. Private firms are reluctant to invest in a politically risky environment, and the availability of cheap energy from elsewhere has dampened commercial enthusiasm for investing heavily in Russia’s energy industry. Despite obstacles, Russia’s pursuit of better relations with countries in East Asia remains a complicating and potentially destabilizing factor for the U.S. policy of rebalancing its security and economic interests to the region. Russia could become a larger factor for Congress to consider when assessing progress on the rebalance to Asia strategy. Russia’s “Turn to the East” could also affect areas of congressional concern such as the efficacy of U.S. sanctions policy, U.S. North Korean policy, U.S. strategy in the Arctic region, U.S. priorities at the United Nations, and global energy politics.

Aug 31, 2016

Army and Marine Corps Active Protection System (APS) Efforts

Active Protection Systems (APSs) are subsystems integrated into or installed on a combat vehicle to automatically acquire, track, and respond with hard or soft kill capabilities to a variety of threats, including rocket-propelled grenades (RPGs) and anti-tank guided missiles (ATGMs). APS technologies are not new, and a number of nations have already employed APS on the battlefield. The U.S. military is now beginning to include APS as part of its formal combat vehicle modernization plans and, if the initial deployment of APS proves successful, could expand the use of APS to potentially thousands of tactical military vehicles—a complex and potentially costly undertaking. The proliferation of advanced RPGs and ATGMs is of concern to some defense officials and policymakers, including Congress. These weapons—RPGs in particular—have been particularly popular with insurgents because they are readily available, relatively inexpensive, and require little training. Israel’s experiences with RPGs and ATGMs in the 2006 Israel-Lebanon War and the 2014 Gaza Conflict and growing concerns with Russian military capabilities and activities in Eastern Europe have possibly served as catalysts for intensifying U.S. APS efforts. Technical and operational challenges to APS include being able to work under extremely demanding circumstances and compressed timelines, robustness against countermeasures, minimizing the threat to friendly forces and civilians, being compatible with the space and power allocated to it on the vehicle, and affordability. A number of nations have operationally deployed APS on combat vehicles—Russia and Israel most notably—and some experts characterize U.S. efforts as somewhat lagging. U.S. military officials contend there are still a number of developmental and safety challenges that must be overcome before current APS systems are suitable for battlefield deployment. According to the U.S. Army Tank-Automotive Research, Development, and Engineering Center (TARDEC), “Active Protection Systems have been in the design and development stages since the early 1950s, but none have successfully made the transition from development to integration on a platform.” The Army’s and Marines’ current APS efforts are described as technology demonstrations and have not progressed to formal Programs of Record. The Army and Marines are coordinating their respective efforts, although no joint program currently exists. The Army is currently involved in two separate parallel and distinct APS efforts—the Expedited, Non-Developmental Item (NDI) APS effort and the Modular Active Protection System (MAPS) effort. The Marines describe their APS efforts as a “technology demonstration” whereby the Marines would attempt to install a Trophy APS on the M-1A1 tank in coordination with the Army’s Expedited NDI effort. The Marines have a number of unique APS requirements—including the ability to be transported by ship and withstand salt water corrosion—which will also factor into their eventual APS plans. Potential issues for Congress include whether current NDI APSs are effective and safe enough for operational use, the benefits of MAPS relative to non-developmental efforts, MAPS’ impacts on NDI APS performance and costs, the Army’s and Marines’ detailed plans for APS fielding, and APS adaptability to future threats.

Aug 30, 2016

Regulation of Over-the-Counter (OTC) Drugs

Aug 29, 2016

The Commodity Credit Corporation: In Brief

The Commodity Credit Corporation (CCC) has served as a mandatory funding mechanism for agricultural programs since 1933. The CCC Charter Act enables it to broadly support the U.S. agriculture industry through authorized programs including commodity and income support, natural resources conservation, export promotion, international food aid, disaster assistance, agricultural research, and bioenergy development. While CCC is authorized to carry out a number of activities, it has no staff of its own. CCC is overseen by the Secretary of Agriculture and a board of directors, which are also U.S. Department of Agriculture (USDA) officials. CCC has $100 million in capital stock; buys, owns, sells, and donates commodity stocks; and provides loans for to farmer and ranchers. It has a permanent indefinite borrowing authority of $30 billion from the U.S. Treasury. By law, it receives an annual appropriation equal to the amount of the previous year’s net realized loss. This replenishes its borrowing authority from the Treasury and allows it to cover authorized expenditures that will not be recovered. The majority of CCC activities are authorized through omnibus farm bills—most recently the Agricultural Act of 2014 (P.L. 113-79). Farm bill authorization allows programs to utilize CCC’s borrowing authority, thereby not requiring an annual appropriation for individual programs. The use of this mandatory authority has expanded over time and has led to tension between authorizing committees (namely the House and Senate Agriculture Committees) and appropriation committees. Ultimately, it is Congress that passes legislation and not individual committees. As Congress looks to debate the next farm bill, many wonder whether CCC will be used to fund other areas of agriculture policy or whether spending will be restricted similar to recent limiting provisions in annual appropriations. The Charter Act also grants the Secretary of Agriculture broad powers and discretion in the use of CCC. Recently, the Secretary’s use of CCC to fund a bioenergy initiative has highlighted this discretion and created concern in Congress. Restrictions in annual appropriation legislation have reduced the Secretary’s use of CCC but not so much as to prevent the funding of recent cotton and dairy marketing assistance.

Aug 29, 2016

EPA’s Clean Energy Incentive Program: Background and Legal Developments

In 2015, the U.S. Environmental Protection Agency (EPA) established the Clean Energy Incentive Program (CEIP) as a voluntary complement to its regulatory program known as the Clean Power Plan (CPP). The goal of the CPP is to reduce carbon dioxide (CO2) emissions from existing fossil-fuel-fired electric power plants, which produced 30% of all U.S. greenhouse gas emissions in 2014. The CEIP would support that objective by promoting CO2 emission reductions before the CPP is scheduled to take effect in 2022. The CEIP is a voluntary program that would encourage states to develop energy efficiency measures and renewable energy projects. To participate, a state would need to include specific design elements in its CPP state plan that is submitted to EPA for approval. The CEIP would establish a system to award either emission rate credits (measured in pounds of CO2 emissions per megawatt-hour) or emission allowances (measured in tons of CO2 emissions) that can be used to meet state emission reduction targets for two categories of activities: Energy efficiency and solar renewable energy projects in low-income communities, and Renewable energy projects in participating states. Renewable energy projects would receive one credit/allowance from the state and one credit from EPA for every two megawatt-hour of renewable energy generation. Projects in low-income communities would receive double credits. Under a mass-based approach, EPA would match up to the equivalent of 300 million emission allowances nationally: Half of the credits/allowances would support renewable energy projects, and half would support energy efficiency and solar energy projects in low-income communities. The amount of EPA credits/allowances potentially available to each state participating in the CEIP would depend on the relative amount of emission reduction each state is required to achieve under the CPP. Thus, states with greater reduction requirements would have access to a greater share of the EPA credits. EPA’s CPP has generated significant interest from Congress and a wide range of stakeholders. Some Members in the 114th Congress have made several attempts to prevent the implementation of the CPP and more recently the CEIP. In particular, both the Senate and the House passed a resolution of disapproval pursuant to the Congressional Review Act, which President Obama vetoed in December 2015. In July 2016, the House passed H.R. 5538 (Department of the Interior, Environment, and Related Agencies Appropriations Act, 2017), which would prohibit EPA from using appropriations to “finalize, implement, administer, or enforce” the CEIP proposed rule. The CPP is the subject of ongoing litigation involving most states and over 100 entities. In February 2016, the Supreme Court stayed the implementation of the rule for the duration of the litigation. The CPP final rule therefore currently lacks enforceability or legal effect, and if the rule is ultimately upheld, some of the deadlines would likely be delayed. EPA published the CEIP proposed rule in June 2016 to provide additional implementation details for states wishing to participate in the program. EPA’s release of the CEIP proposed rule has raised questions regarding the agency’s legal authority to move forward with the CEIP while the CPP is stayed. Although some argue that the stay requires EPA to “put its pencil down” and stop all work related to the CPP, EPA believes that it has sufficient authority to move forward with rulemakings that relate to the stayed CPP. To support this assertion, EPA points to several instances when it continued to revise provisions related to previously stayed regulations. However, there are few judicial opinions that address the types of activities allowed during a judicial stay.

Aug 29, 2016

Reforming the U.S. Postal Service: Background and Issues for Congress

This report provides background information on the responsibilities, financial challenges, and workforce issues facing the U.S. Postal Service (USPS). Additionally, it covers the current strategies and initiatives under development by the USPS and discusses further options for postal reforms. In FY2015, the USPS marked its ninth consecutive year of financial losses with a net loss of $5.1 billion. In addition, the USPS has reached its statutory debt limit of $15 billion. In recent years, the USPS has experienced growth in the package and shipping part of its business (known as Competitive Products). The USPS, however, has experienced sharp declines in both volume and revenue of its Market Dominant Products (e.g., First Class single-piece mail). The USPS has struggled in recent years to fulfill its statutory obligation to prefund its health benefits liability for future postal retirees. Under a prefunding schedule established by the Postal Accountability and Enhancement Act, the USPS has made $20.9 billion in contributions since FY2007 but defaulted on its remaining $28.1 billion in payments. In its most recent financial statement, the USPS requested reforms that would integrate postal employee healthcare options with Medicare, thereby reducing costs and making the prefunding liability expense more manageable. Such reforms would require statutory authorization from Congress. This report also covers several issues facing the USPS workforce. In recent years, initiatives designed to restructure the USPS retail and mail processing networks allowed the USPS to implement several workforce reduction strategies that helped cut costs. In FY2015, however, workforce costs increased. According to the USPS, this reversal was due to contract obligations and work hours associated with the growth in its labor-intensive package and shipping business. Additional postal initiatives and reform options discussed in this report include (1) changes to postal delivery standards, (2) consolidation of mail processing facilities, (3) closure of retail post offices, (4) five-day delivery, (5) updates to the postal fleet, (6) nonpostal products and services; and (7) postal banking. Appendix B of this report includes a table of House and Senate postal reform legislation introduced in the 113th and 114th Congresses, such as S. 2051, Improving Postal Operations, Service, and Transparency Act of 2015 (iPOST Act), and H.R. 5714, Postal Service Reform Act of 2016. For each bill, the table in Appendix B provides the bill number, title, sponsor, the committee(s) to which the bill was referred, a list of selected issues the bill covers, and the last major action (e.g., referral to committee, markup held).

Aug 25, 2016

TPP-Trade Promotion Authority (TPA) Timeline

Aug 24, 2016

History of House and Senate Restaurants: Context for Current Operations and Issues

The restaurants, cafeterias, and carry-out facilities operated by the House of Representatives and the Senate serve Members of Congress, congressional employees, constituents, and other visitors to the Capitol or congressional office buildings on a daily basis. Although their services may seem similar, food operations are separately administered and managed for the House, for the Senate, and for the Capitol Visitor Center (CVC). The House and Senate restaurant systems have operated continually since they were first created in the early 1800s, reflecting the necessary role they fulfill as congressional support services. Providing efficient and convenient food service has been a priority for the House and Senate restaurant systems, as it helps facilitate legislative and representational work. This report provides historical background on the House and Senate restaurant systems, addressing major changes in facilities, management, and oversight. Information and issues for Congress related to the present operations of the House and Senate restaurants is available in CRS Report R44601, House and Senate Restaurants: Current Operations and Issues for Congress, by Sarah J. Eckman. Although the particular entities involved have changed, the general operational pattern for the House and Senate restaurants has remained similar for both chambers over time. Typically, day-to-day activities are overseen by a restaurant manager; key administrative decisions have been made by a designated Member of Congress, congressional officer, or committee; and a House or Senate committee oversees the overall restaurant system for the respective chamber. Running the House and Senate dining systems is different from running other large institutional dining systems in some ways because the congressional restaurants must operate within the Capitol complex and in conjunction with other congressional offices, like the Architect of the Capitol (AOC) and committees in each chamber. Historical information about the House and Senate restaurants can provide useful, institution-specific context for current restaurant oversight and administration, especially since many of the challenges the House and Senate restaurants face today are similar to those they have faced in the past. Some of the ongoing concerns related to the House and Senate dining systems include restaurant finances, facilities, food services provided, and employee wages and benefits. For many years, the House and Senate operated their own restaurants, but today, both chambers use private contractors to provide dining services and retain a formal role in restaurant oversight. During the twentieth century, Members and others periodically debated whether congressional operation or private management would better meet the needs of restaurant customers, employees, and congressional administrators. These discussions often revealed how management choices could affect operating costs, services provided, oversight and accountability, and other important elements of the restaurants’ operations.

Aug 23, 2016

Heroin Trafficking in the United States

Over the past several years, the nation has seen an uptick in the use and abuse of opioids—both prescription substances and non-prescription substances such as heroin. The estimated number of individuals who had used heroin was 914,000 in 2014. Further, about 586,000 individuals (0.2% of the 12 and older population) had a heroin use disorder in 2014. In addition to an increase in heroin use over the past several years, there has been a simultaneous increase in its availability in the United States. This has been fueled by a number of factors, including increased production and trafficking of heroin—principally by Mexican criminal networks. Mexican transnational criminal organizations are the major suppliers and key producers of most illegal drugs smuggled into the United States. They have been increasing their share of the U.S. drug market—particularly with respect to heroin. The United States still receives a large portion of heroin from South America (primarily Colombia) and, to a much lesser extent, Southwest Asia. In order to facilitate the distribution and sale of drugs in the United States, Mexican drug traffickers have formed relationships with U.S. street, prison, and outlaw motorcycle gangs. Although these gangs have historically been involved with retail-level drug distribution, their ties to the Mexican criminal networks have allowed them to become increasingly involved at the wholesale level as well. The bulk of heroin smuggled into the United States transits across the Southwest border. From 2010 to 2015, heroin seizures in this area more than doubled from 1,016 kg to 2,524 kg. This trend mirrors the increase in overall seizures throughout the country. Further, there has been an increase in federal arrests and prosecutions of heroin traffickers. In 2015, for example, the Drug Enforcement Administration made 6,353 heroin-related arrests. In addition, U.S. Sentencing Commission data indicate that from 2011 to 2015, the number of individuals sentenced for heroin trafficking offenses in U.S. District Courts increased by nearly 50%. The federal government—specifically, law enforcement—relies on a number of tools and initiatives to counter heroin trafficking. Many of these efforts focus on drug trafficking broadly and prioritize the greatest drug trafficking threats in a given area, whether those threats come from heroin or other illicit drugs or substances. Going forward, there are a number of issues policymakers may consider as they address the issue of heroin trafficking. For instance, what is known about drug trafficking is contingent on data surrounding poppy cultivation, heroin production, and product inflows into the United States. Given that these are often based on snapshots of knowledge from disparate sources, Congress may question the collection and adequacy of these data. In addition, Congress may examine current law enforcement efforts to maximize the dismantling and prosecution of heroin trafficking networks. Policymakers may also look at existing federal strategies on drug control, transnational crime, and Southwest border crime to evaluate whether they are able to target the current heroin trafficking threat.

Aug 23, 2016

DOD Security Cooperation: An Overview of Authorities and Issues

Over the past decade, Congress has authorized the Department of Defense (DOD) to conduct a wide range of security cooperation programs. As the scope, pace, and cost of activities to train, equip, and otherwise support foreign security forces have increased, however, some policymakers believe that the DOD’s growing authority may undermine the State Department’s lead role in foreign assistance. To others, DOD’s expanded role is a necessary response to the perceived inadequacies of the existing legal regime through which Congress has authorized the State Department and DOD to provide security assistance. DOD’s role supporting foreign military and other security forces has evolved over recent decades. Following the September 11, 2001, terrorist attacks, the White House identified instability in foreign countries as growing threat to U.S. interests and articulated a growing role for the U.S. military in enhancing the ability of foreign forces to control their territories as vital to achieving national security objectives. In response, Congress provided DOD with new authority to combat instability by building partner capacity. Congress has provided DOD with, by CRS’s estimate, more than 80 separate authorities to assist foreign governments, militaries, and populations. These authorities cover a wide range of categories, including contingency operations, building partnership capacity, operational support, infrastructure development, counter-drug and counterproliferation activities, humanitarian assistance, military-to-military contacts, education and exchange programs, and defense institution building. As the number of authorities has grown, the resulting statutory framework has become difficult to navigate and implement. Frequently, implementing agencies must draw on multiple authorities, which may lead to program delays and cancelations, staffing problems, sustainment issues, and difficulty achieving efficient interagency coordination. The House and Senate versions of the FY2017 National Defense Authorization Act (NDAA), now in conference, contain different proposals to address these problems. The House version (H.R. 4909) would consolidate certain existing authorities, while the Senate version (S. 2943) proposes a broad reform of the security cooperation legislative framework. This report provides a general overview of DOD security cooperation authorities. It presents background information on the evolving DOD security cooperation mission and the recent development of the statutory framework through which DOD conducts security cooperation activities. It also discusses salient issues related to the development, implementation, sustainment, and coordination of security cooperation to support congressional oversight. Two tables in the appendix are attached to this report. The first catalogs current security cooperation authorities, noting legislative mandates for State Department input, and notification and reporting requirements. The second provides a snapshot of current authorized and/or appropriated funding levels for select security cooperation authorities. Additional information on related security issues is covered by other CRS products: CRS Report R44313, What Is “Building Partner Capacity?” Issues for Congress, coordinated by Kathleen J. McInnis. CRS Report R44444, Security Assistance and Cooperation: Shared Responsibility of the Departments of State and Defense, by Nina M. Serafino. CRS Report R42641, Global Security Contingency Fund: Summary and Issue Overview, by Nina M. Serafino.

Aug 23, 2016

TPP: U.S.-Japan Issues

Aug 23, 2016

House and Senate Restaurants: Current Operations and Issues for Congress

Dining facilities in the Capitol and in House and Senate office buildings provide an essential convenience for Members of Congress and congressional staff, enabling them to easily obtain meals, beverages, and snacks, and quickly return to work. By providing an efficient way to meet congressional dining needs during unpredictable workdays, the restaurant systems help facilitate the legislative and representational work of Congress. These restaurants also provide spaces for constituents and other visitors to meet with staff and Members of Congress, or simply to purchase refreshments. House and Senate restaurant services are also available to provide catering to Members of Congress when they host events on Capitol grounds. The restaurants remain a subject of ongoing congressional interest, as many Members and staff visit them on a daily basis. Those involved with restaurant administration in the House and Senate have often considered how management choices affect operating costs, services available, oversight, and other elements of the restaurant systems. For much of their histories, the House and Senate operated their own restaurants, but since 1994 in the House and since 2008 in the Senate, private vendors have run the restaurants. In August 2015, the House entered an agreement with Sodexo to operate the 17 facilities in the House restaurant system, subject to direction from the Chief Administrative Officer (CAO) and the Committee on House Administration. In December 2015, the Senate entered a new contract with Restaurant Associates to operate the 12 facilities in the Senate restaurant system, subject to direction from the Architect of the Capitol (AOC) and the Committee on Rules and Administration. Many argue that this professional restaurant management experience is necessary to meet the variety of customer needs in the House and Senate restaurants in a cost-effective manner. Today, there are a number of nearby eateries that compete with the congressional restaurants for customers. Often, an advantage the House and Senate restaurants are able to provide is convenience for Members, staff, and visitors. This advantage, however, may be undermined if the restaurants are not responsive to customer input and are unable to provide consistent food quality, sufficient variety, or reasonably-priced service, relative to their competitors. Food and price issues, along with other day-to-day operational issues, including personnel matters, are largely the responsibility of the restaurant contractors. Some Members and observers have raised concerns about the degree of accountability for the House and Senate restaurant contractors, believing that the restaurants’ administration reflects upon Congress and that the restaurants should set an example for other businesses to follow. Although the House and Senate are responsible for restaurant oversight, the delegation of restaurant operations to private contractors means the chambers have less control over employee wages and benefits, procurement, or other business decisions that affect the restaurant systems. The combination of entities involved in House and Senate dining operations creates a unique organizational arrangement, unlike other institutional dining systems. Other features of Congress also distinguish the House and Senate restaurants from similar-seeming restaurant operations. The restaurants’ business volume, for example, is highly contingent on the congressional calendar, consisting of a fairly constant weekday breakfast and lunch business, but experiencing substantial, and sometimes unexpected, decreases if Congress adjourns for a recess. Information specific to the House and Senate restaurant systems may therefore be of particular interest to those concerned with their operations. Additional background and context on House and Senate restaurant operations is found in CRS Report R44600, History of House and Senate Restaurants: Context for Current Operations and Issues, by Sarah J. Eckman.

Aug 23, 2016

China: Economic Sanctions

United States-China relations, since 1969, when the process of normalization began under President Richard M. Nixon, have advanced to a point that relatively few restrictions affecting trade remain. This report summarizes the United States’ economic sanctions on China. The United States, in its relationship with China, limits U.S. foreign assistance and State Department programs; limits U.S. support for China’s requests for funding in the international banks; prohibits the exportation of defense articles and defense services to China; prohibits the importation of munitions and ammunition from China; limits exports to China of goods and services controlled for national security or foreign policy reasons, including prohibiting exports to specific Chinese entities of goods that have a military end-use; limits import/export and procurement contracts for specific Chinese entities found to be engaged in weapons proliferation activities; and restricts access to U.S.-based assets and the ability to enter into transactions with U.S. persons, imposed on specific Chinese persons for reasons ranging from weapons proliferation, illicit narcotics trafficking, international terrorism, and engagement with others against which the United States imposes sanctions (i.e., entities in Iran, Russia, North Korea, Belarus). Policymakers recognize the influence and impact of China’s growing economy and role in international markets, military modernization, increasingly outward-looking investment in other regions, activities in the South China Sea, and often contrarian position in the United Nations Security Council. These factors challenge legislators and the executive branch alike in their efforts to shape and implement the U.S.-China bilateral relationship.

Aug 22, 2016

Genetically Engineered Mosquitoes: A Vector Control Technology for Reducing Virus Transmission

Aug 22, 2016

Zika Virus in the Western Hemisphere: CRS Products

In late 2015, health officials in Brazil saw a spike in the number of infants born with microcephaly, a birth defect that may be associated with significant, permanent brain damage. The increase in microcephaly was later linked to prenatal infection with the Zika virus (ZIKV), which appears to have emerged in Brazil early in 2015. ZIKV has spread from South America into Central America and the Caribbean. Puerto Rico has been hard hit, with more than 6,500 locally transmitted (i.e., mosquito-borne) infections reported to date. In late July 2016, local transmission of ZIKV was reported for the first time on the U.S. mainland, in Miami, Florida, and case counts surged in Puerto Rico. On August 12, 2016, the Secretary of Health and Human Services (HHS) declared the situation in Puerto Rico to be a public health emergency, allowing more flexibility to hire workers for education, outreach, and mosquito control.

Aug 18, 2016

The Zika Outbreak Is Declared a Public Health Emergency in Puerto Rico

On August 12, 2016, Sylvia Matthews Burwell, the Secretary of Health and Human Services (HHS), declared a public health emergency for Puerto Rico “[a]s a consequence of the outbreak of Zika virus and its potential effect on pregnant women and children born to pregnant women with Zika.” Background The Zika virus (ZIKV), first recognized in Uganda in 1947, emerged in South America early in 2015. Although most cases of infection are mild, prenatal infection can cause severe birth defects, including microcephaly. ZIKV is transmitted among humans by the bite of an infected mosquito, by sexual contact, from mother to fetus, and through contaminated blood transfusions. Protecting pregnant women from infection is a public health priority. ZIKV has spread from South America to Central America and the Caribbean. About 2,000 infections have been reported on the U.S. mainland, mostly among travelers from countries with widespread mosquito-borne ZIKV transmission. To date, only one neighborhood in Florida has experienced local (i.e., mosquito-borne) transmission. In contrast, Puerto Rico has been hard hit. Local transmission on the island was first recognized in November 2015. Since then, more than 10,000 cases have been reported, more than 1,000 of them in pregnant women. Mosquito control measures have faltered, and Dr. Thomas R. Frieden, Director of the U.S. Centers for Disease Control and Prevention (CDC), said that data from July showed an “explosion” of ZIKV cases. In February 2016 the Administration requested supplemental funding of $1.9 billion for the Zika response, including primary care, maternal and child health, and Medicaid assistance for Puerto Rico. Congress has considered but not passed a supplemental appropriation to date, and HHS has reprogrammed $670 million in funds from other sources for its domestic and international response efforts. Figure 1. Portion of a Brochure in Spanish Urging Protection from Mosquito Bites / Source: Centers for Disease Control and Prevention (CDC) and the Departamento de Salud del Estado Libre Asociado de Puerto Rico (Puerto Rico Department of Health), “Información Sobre el Virus del Zika” (Information About the Zika Virus), http://www.salud.gov.pr/Sobre-tu-Salud/Pages/Condiciones/Zika.aspx. Public Health Emergency Declaration Authority The term “public health emergency” is used generically to refer to a variety of situations that involve threats to life and health, or threats to health system infrastructure. Federal and state laws use the term in various contexts to trigger broad or specific response authorities or to release additional funds. On August 12, HHS Secretary Burwell declared the Zika outbreak to be a public health emergency pursuant to Section 319 of the Public Health Service Act (PHSA), 42 U.S.C. §247d, one of several public health emergency legal authorities available to her. The “Section 319” authority may be invoked if the Secretary “determines ... that—(1) a disease or disorder presents a public health emergency; or (2) a public health emergency, including significant outbreaks of infectious diseases or bioterrorist attacks, otherwise exists.” A determination under Section 319, alone or concurrent with other legal provisions, allows the Secretary to take certain actions not otherwise authorized, including (among others) awarding grants or contracts; and studying the causes, treatment, or prevention of the relevant disease or disorder; waiving certain management and reporting requirements of grantees; and streamlining federal hiring and payment procedures for response personnel. Although a Section 319 determination also allows the Secretary to access a Public Health Emergency Fund for response purposes, there have not been any funds in this account since 2000. The Declaration as Applied to the Zika Response in Puerto Rico In a press release accompanying the determination, Secretary Burwell listed two specific actions that the government of Puerto Rico may take pursuant to the Section 319 determination. Each of them allows federal funds to support personnel in Puerto Rico who work on the ZIKV response effort. The enabled authorities are as follows: funding to hire and train unemployed workers to assist in mosquito control and outreach and education efforts through the U.S. Department of Labor’s (DOL’s) National Dislocated Worker Grant (DWG) program; and temporary reassignment of local public health department or agency personnel who are funded through PHSA programs in Puerto Rico to assist in the Zika response. The DWG program, which is authorized by Section 170 of the Workforce Innovation and Opportunity Act (WIOA; P.L. 113-128), funds grants that are awarded primarily to states and local Workforce Development Boards (WDBs) to provide services for eligible individuals. Eligible workers include those dislocated by economic conditions, military installation closures, and emergency or disaster conditions. DWG services include job search assistance and training for eligible workers. In addition, DWG funding may be used to provide direct employment (“disaster relief employment”) to individuals for a period of up to 12 months for work related to a disaster. Typically DOL’s authority to award disaster relief grants under the DWG program would be triggered by a declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (the Stafford Act). However, because the ZIKV outbreak has not led to a Stafford Act declaration to date, the Section 319 determination enables the DWGs pursuant to WIOA Section 170(a)(1)(B) (29 U.S.C. §3225(a)(1)(B)), regarding “an emergency or disaster situation of national significance that could result in a potentially large loss of employment, as declared or otherwise recognized by the chief official of a Federal agency with authority for or jurisdiction over the Federal response to the emergency or disaster situation.” In addition, PHSA Section 319(e) authorizes the HHS Secretary, upon gubernatorial request, to allow state, local, or tribal government employees who are supported by federal grants under any PHSA authority to work temporarily on the public health emergency response instead, without loss of funding. The PHSA provides authority, at least in part, for eight agencies and several offices in HHS, and their grant-making activities. The Section 319 declaration for Puerto Rico does not clarify which PHSA grants may be affected in this case.

Aug 17, 2016

Introduction to FEMA’s National Flood Insurance Program (NFIP)

The NFIP was established by the National Flood Insurance Act of 1968 (NFIA, 42 U.S.C. §4001 et seq.), and was most recently reauthorized by the Biggert-Waters Flood Insurance Reform Act of 2012 (Title II of P.L. 112-141). The general purpose of the NFIP is both to offer primary flood insurance to properties with significant flood risk, and to reduce flood risk through the adoption of floodplain management standards. Generally, communities volunteer to participate in the NFIP in order to have access to flood insurance, and in return are required to adopt minimum standards. FEMA manages a process, called Risk MAP, which conducts Flood Insurance Studies (FISs) to produce Flood Insurance Rate Maps (FIRMs). Depicted on FIRMs are Special Flood Hazard Areas (SFHAs), which is the area exposed to a 1 in 100 or greater risk of annual flooding. FIRMs vary in age across the country, and are updated on a prioritized basis with no definitive timetable. The Risk MAP process provides extensive outreach and appeal opportunities for communities. Updating a community’s FIRMs can take as long as three to five years or more. Participating communities must adopt a flood map and enact minimum floodplain standards to regulate development in the SFHA. FEMA encourages communities to enhance their floodplain standards by offering reduced premium rates through the Community Rating System (CRS). FEMA also manages a Flood Mitigation Assistance (FMA) grant program using NFIP revenues to further reduce comprehensive flood risk. NFIP flood insurance uses one of three types of Standard Flood Insurance Policies (SFIPs). SFIPs have maximum coverage limits set by law. Any federal entity that makes, guarantees, or purchases mortgages will require property owners in the SFHA to purchase flood insurance, generally through the NFIP. In moderate risk areas, community members may purchase Preferred Risk Policies (PRPs) that offer less costly insurance. NFIP policies also provide Increased Cost of Compliance (ICC) coverage to offset the cost of complying with floodplain management standards, such as elevating a substantially damaged property. The day-to-day sale, servicing, and claims processing of NFIP policies are conducted by private industry partners. Most policies are serviced by companies that are reimbursed through the Write Your Own (WYO) Program. The premium rate for most NFIP policies is intended to reflect the true flood risk. However, Congress has directed FEMA to subsidize flood insurance for properties built before the community’s first FIRM (i.e., the pre-FIRM subsidy). FEMA also “grandfathers” properties at their rate from past FIRMs to updated FIRMs through a cross-subsidy. Congress also directed the development of an Affordability Study, and a forthcoming Draft Affordability Framework, to evaluate methods for making flood insurance more affordable. Participating communities that fail to adopt FIRMs or maintain minimum floodplain standards can be put on probation or suspended from the NFIP. In communities that do not participate in the NFIP, or have been suspended, individuals cannot purchase NFIP flood insurance. Individuals in these communities also face challenges receiving federal disaster assistance in flood hazard areas, and have difficulties receiving federally-backed mortgages. Congress has provided discretionary appropriations to the NFIP for some of the cost of Risk MAP. Congress also authorizes the use of premium revenues for other NFIP costs, including administration, salaries, and other expenses. NFIP premiums also include additional charges, including a Federal Policy Fee, a Reserve Fund assessment, and a surcharge that help fund the NFIP. The NFIP currently owes $23 billion to the U.S. Treasury, leaving $7.425 billion in borrowing authority from a $30.425 billion limit in law. This debt is serviced by the NFIP, not the general taxpayer, and interest is paid through premiums. Though an exact timetable is unknown and depends heavily on future flood losses, it is unlikely that the debt will be repaid within 10 years or longer. After September 30, 2017, key authorities of the NFIP, such as the authority to issue new insurance contracts, will expire if they are not reauthorized by Congress.

Aug 16, 2016

TPP: Labor Provisions

Aug 16, 2016

Sage-Grouse Conservation: Background and Issues

The greater sage-grouse (Centrocercus urophasianus) is a squat, feathered, chicken-like bird that is currently found in 11 western states. For more than 25 years, there has been considerable controversy concerning whether to list sage-grouse for protection under the Endangered Species Act (ESA; P.L. 93-205). On October 2, 2015, the Fish and Wildlife Service (FWS, Department of the Interior) published its decision not to list the greater sage-grouse as threatened or endangered under ESA. Under the act, one of the factors that can lead to a listing is the inadequacy of existing regulatory mechanisms. However, FWS concluded that existing regulatory mechanisms for lands under federal, tribal, state, or local control were adequate to avoid the need to list the species. Before the listing decision, federal, state, and local governments, as well as other stakeholders in the states where sage-grouse are still found had undertaken extensive efforts to develop conservation plans, monitoring, and other actions to obviate the need for listing sage-grouse. These efforts included collaboration across levels of government, action plans by state governments, voluntary federal programs to assist private landowners in conserving sage-grouse habitat, and revisions in the land management plans of federal agencies. To be considered adequate regulatory mechanisms, various courts held that these efforts had to meet certain tests. Prior court cases meant that FWS had to determine, in order to reach its conclusion not to list the species, that the regulatory mechanisms of these various levels of government were (1) in effect at the time, (2) not discretionary, and (3) adequate to avoid the need to list the species. After FWS decided not to list sage-grouse, it fell to other federal agencies and other levels of government to carry out the commitments that had served to avoid listing. All 11 states have plans and programs to address the varying threats to the species in each state. For private lands, the Natural Resources Conservation Service (NRCS, Department of Agriculture) has led voluntary conservation efforts. NRCS uses existing federal conservation programs to help farmers and ranchers benefit sage-grouse. On federal lands, the Bureau of Land Management (BLM, Department of the Interior) and the Forest Service (FS, Department of Agriculture) have had the greatest role in conserving sage-grouse because more than half of the bird’s remaining habitat is found on BLM and FS lands. In September 2015, after a review process including public notice and comment, the two agencies signed records of decision amending 98 land and resource management plans covering the range of the sage-grouse. Lands identified as the most valuable habitat will be given the highest level of protection. The plans have three goals: (1) to improve sage-grouse habitat condition; (2) to minimize new or additional surface disturbance; and (3) to reduce the threat of rangeland fire to sage-grouse and sage-grouse habitat. Controversy after the FWS decision has focused particularly on the revised land management and conservation strictures adopted on federal lands. The amended plans are proving controversial with various industries, including energy developers, which argue that the development restrictions on high-value habitat under the plans are placing a burden on their activities that is as restrictive as a decision to list the species. A number of bills and amendments have been introduced in the 114th Congress to address aspects of sage-grouse conservation on specific lands. A common theme in the bills and amendments is a greater role for states in species conservation, with varying amounts of state preemption of federal land management plans. Some measures would provide exemptions from judicial review.

Aug 15, 2016

Discount Rates in the Economic Evaluation of U.S. Army Corps of Engineers Projects

Since 1936, Congress has relied on benefit and cost information to justify investments of federal involvement in water resource projects of the U.S. Army Corps of Engineers (Corps). Today, Congress faces more demand for Corps projects than the agency can deliver at recent funding levels. Congress also faces stakeholder concerns about how water resources issues are addressed; this brings attention to how the Corps develops and evaluates the alternatives considered for congressional construction authorization. Corps benefit-cost analyses (BCAs) and their underlying assumptions are central to decisions currently shaping the portfolio of federal water resources assets and their benefits, costs, and risks for decades to come. The quality and reliability of the BCAs shape federal decisionmaking and the efficacy of federal and nonfederal spending on federal water resource projects. Disagreement persists about the use of BCAs in decisionmaking, how benefits and costs are captured and monetized, and how to value future benefits and costs. A main element of the debate is the discount rate used to convert future benefits and costs into present values. For some projects, the discount rate applied can influence which alternative is deemed the most economically efficient and whether a project’s net benefits appear to justify federal investment. The higher the discount rate, the less present value is attributed to future benefits and costs. The Water Resources Development Act of 1974 (WRDA 1974; P.L. 93-251) requires the executive branch to use an annually adjusted water planning discount rate for project planning. The Corps continues to use the water planning discount rate for planning; however, in recent years, the executive branch has chosen to use a different discount rate when selecting Corps construction projects to include in its annual budget request. The executive branch’s approach to budgeting has focused its funding requests on a limited set of projects. The executive branch uses as a principal performance metric for a project’s inclusion in its budget request the project’s benefit-cost ratio (BCR, ratio of the present value of benefits to the present value of costs), calculated with a 7% discount rate. Projects with BCRs less than 2.5 (calculated at a 7% discount rate) are largely excluded from the budget request. An issue for Congress and nonfederal project sponsors is the uncertain prospects for construction for the suite of congressionally authorized projects that do not meet the executive branch’s BCR threshold. Pursuant to WRDA 1974, the water planning discount rate is calculated annually based on a formula established in S.Doc. 97 from 1962; the rate was 3.125% in FY2016. The calculation uses the average yield on Treasury securities with 15 years or more remaining to maturity, rounded to the nearest one-eighth of 1% and capped at an annual change of 0.25%. The executive branch has used a 7% discount rate for its evaluation of most federal programs since 1992, pursuant to Office of Management and Budget (OMB) Circular A-94. According to the circular, the 7% rate is intended to reflect the pretax rate of return on capital in the private sector. Since the late 1990s, the water planning discount rate has been below 7%. Critics of the water planning discount rate have argued for a rate that better reflects the opportunity cost of capital. Others argue that Corps projects are public investments with long-term benefits that are appropriately evaluated with a low discount rate. For many Corps stakeholders, the current interest in the water planning discount rate is less a function of these long-standing debates and more part of the concern about the uncertain construction funding prospects for congressionally authorized projects that are below the BCR at the 7% discount rate threshold used by the executive branch. This report discusses the role and significance of discount rates in the economic evaluation of Corps projects. It also discusses the water planning discount rate’s history, theoretical underpinning, and related issues and criticisms.

Aug 15, 2016

Foster Youth: State Support for Higher Education

Aug 12, 2016

Foster Youth: Higher Education Outcomes and Federal Support

Aug 12, 2016

Implementing Bills for Trade Agreements: Statutory Procedures under Trade Promotion Authority

The Bipartisan Congressional Trade Priorities and Accountability Act of 2015 (BCTPAA, title II of P.L. 114-26) renewed the “trade promotion authority” (TPA) under which implementing bills for trade agreements that address non-tariff barriers to trade (and certain levels of tariff reduction) are eligible for expedited (or “fast track”) consideration by Congress under the “trade authorities procedures” established by the Trade Act of 1974 (P.L. 93-618). These expedited procedures provide for automatic introduction of the implementing bill submitted by the President, attempt to ensure that both chambers will consider and vote on it, prohibit amendment, and eliminate any need to resolve bicameral differences before sending the measure to the President. (In practice, each chamber has usually agreed to consider each implementing bill under terms that modify or override the statutory requirements, but that usually retain the prohibition on amendment.) These arrangements have been viewed as assuring negotiating partners that the United States will implement a trade agreement in the form negotiated; they also ensure that Congress will be able to conclude action within a delimited period of time. For these reasons, however, they also have often been seen as restricting Congress to approving or disapproving the terms of a trade agreement in the form negotiated by the President. The BCTPAA, however, also mitigates these restrictions in several ways. First, it establishes numerous requirements that a trade agreement must meet in order for the implementing bill to be eligible for expedited consideration. Principally, it provides that (1) the trade agreement must promote a series of negotiating objectives, (2) the agreement and the implementing bill must meet several other requirements of content, (3) the President and the United States Trade Representative (USTR) must submit a range of required notifications, reports, and other materials to Congress in relation to any covered trade negotiations, and (4) the President and the USTR must engage in an extensive variety of ongoing consultations with Advisory Groups on Negotiations (established by the act), the House Committee on Ways and Means and the Senate Committee on Finance, and other organs of Congress. Second, the BCTPAA provides several means by which Congress can deny expedited consideration for a specific trade agreement and either decline to consider it or consider it under terms that would permit amendment and eliminate debate limits. A “procedural disapproval resolution” (PDR) declares a trade agreement ineligible for expedited consideration because adequate consultations have not occurred or the agreement does not promote statutory objectives. Expedited consideration of the implementing bill is withdrawn if, within a 60-day period, each chamber adopts a PDR (subject to an applicable expedited procedure). Each chamber, as well, has available its own form of “consultation and compliance resolution” (CCR), by which it can deny expedited consideration in that chamber if it judges that adequate consultations have not occurred; the CCR, however, is not subject to expedited consideration. (By agreeing to a third form of resolution, either chamber may declare that a proposed agreement contravenes U.S. negotiating objectives regarding “trade remedies.” This resolution may receive expedited consideration, but if adopted, does not deny expedited consideration to an implementing bill.) Also, either chamber might use its general rules to deny expedited consideration to an implementing bill, typically through a special rule in the House or by unanimous consent in the Senate. Control over the use of all the mechanisms established by the BCTPAA lies principally with the revenue committees. They are the ones that receive most of the notifications and reports and that are most involved in the consultations, required by the act. The act also makes them responsible for negotiating the terms of the consultations with the executive. Significantly, the structure of the act allows them to use the act’s informational requirements and consultations to develop, and propose to the President, the text of the implementing bill he is to submit. They customarily do this through a proceeding known as a “mock markup.” Finally, the BCTPAA provides that any of the resolutions through which Congress can deny expedited consideration becomes available for floor consideration in either chamber only through action by the respective revenue committee. Accordingly, although the President need not submit his draft implementing bill in the form proposed through a mock markup, the revenue committee could still effectively determine whether that measure may receive expedited consideration. In all these ways, the structure of the BCTPAA establishes the revenue committees as the chief agents of Congress in preserving its constitutional prerogatives in relation to the trade agreements covered by the act. This report is not designed to address events that may occur in congressional consideration of implementing legislation for the Trans-Pacific Partnership (TPP) or any other specific trade agreement under the BCTPAA. It will be updated only if changes occur in the statutory conditions for consideration of this class of trade agreements.

Aug 12, 2016

Revisiting U.S.-Mexico Sugar Agreements

Numerous reports in the business trade press in recent months have quoted U.S. government officials, lawmakers, and sugar industry leaders commenting on negotiations the U.S. Department of Commerce (DOC) is conducting with the government of Mexico to consider changes to two sugar suspension agreements the United States and Mexico entered into in December 2014. The suspension agreements, which are currently in force, establish limits on exports of Mexican sugar to the United States, including quantitative limits and minimum prices. Previously, Mexican sugar had been the only unmanaged source of sugar in the U.S. market, unique access that Mexico had achieved through the North American Free Trade Agreement (NAFTA). Mexico currently is the leading foreign source of sugar to the U.S. market, supplying about 10% of total U.S. supplies, so any changes to these agreements could have important implications for stakeholders in the U.S. sugar market. Agreements Limit Exports, Impose Minimum Prices on Mexican Sugar In return for concessions by Mexico that involved limiting its sugar exports to the United States and agreeing to observe minimum export prices, the U.S. government under the suspension agreements suspended the imposition of substantial duties on Mexican sugar that otherwise would have taken effect as a consequence of U.S. countervailing duty (CVD) and antidumping (AD) investigations. The investigations, which were initiated by petitioners in the U.S. sugar industry, determined that Mexican sugar was being subsidized by the Mexican government and was being dumped into the U.S. market, meaning it was sold at less than fair value. The investigations also concluded that the U.S. sugar industry was materially injured as a result of these actions. The suspended countervailing and antidumping duties range from 5.78% to 43.93% and from 40.48% to 42.14%, respectively. In addition to addressing the subsidization and dumping of Mexican sugar, the suspension agreements were to further the intent of Congress in reauthorizing the U.S. sugar program in the 2014 farm bill (P.L. 113-79) (i.e., that the U.S. Department of Agriculture (USDA) provide support for sugar prices, while operating the program at no cost to the government). The sugar program incurred significant budgetary costs in the 2012/2013 crop year—a period when Mexican sugar exports were unrestricted. Low sugar prices that year led to forfeitures of domestic sugar under the price support mechanism, obligating USDA to incur costs disposing of the forfeited sugar. The sugar program attempts to avoid budgetary costs by combining a price support mechanism with a supply management structure. The latter consists of annual limits on the quantity of sugar that U.S. processors can sell for domestic human use with quotas and tariffs to restrict imports. The suspension agreements support the objectives of the sugar program by limiting sugar from Mexico according to a calculation of U.S. needs after considering marketings of domestic sugar and imports under quota agreements. For more on the U.S. sugar program and the U.S.-Mexico sugar suspension agreements, see CRS Report R43998, U.S. Sugar Program Fundamentals, by Mark A. McMinimy. Proportion of Raw Mexican Sugar Going to Cane Refiners is an Issue Industry observers indicate that a key issue in the current talks concerns the proportion of raw sugar that Mexico is exporting to the U.S. market that is destined for traditional cane refineries that produce crystalline sugar. In addition to quantitative export limits and minimum prices established under the suspension agreements, Mexico agreed to limit shipments of refined sugar to no more than 53% of the total volume of its exports to the U.S. market in a given marketing year, meaning at least 47% of its sugar exports would be raw sugar. As raw sugar is defined in the suspension agreements, a significant portion of the Mexico’s sugar exports qualify as raw sugar while being sufficiently refined for human consumption. It seems likely that meaningful quantities of these raw sugar exports have been delivered to U.S. producers of liquid sugar for end use in products such as beverages, ice cream, and baked goods. While not a violation of the agreements, these raw sugar imports are bypassing traditional U.S. sugar cane refiners, which depend on imports of raw Mexican sugar to maintain an adequate level of capacity utilization. Industry observers assert that traditional cane refiners that produce crystalline sugar have been left with a smaller supply of Mexican raw cane sugar even as the market for refined sugar has become more competitive, creating a difficult market environment for these cane refiners. At the behest of a broader coalition of U.S. sugar producing and refining interests, U.S. government officials are exploring possible modifications to the suspension agreements that could address the supply of raw Mexican sugar exports to traditional cane refiners. A consideration in assessing alternative approaches is that simply allowing for additional imports of raw cane would have to be weighed against the need to avoid creating an oversupply situation in the overall domestic sugar market, which consists of supplies of both cane and beet sugar. An excess supply of sugar could end up obliging USDA to take a variety of costly actions under the sugar program to keep prices above levels that would provoke forfeitures of domestic sugar. Terminating Suspension Agreements Would Trigger High Duties Another aspect of the suspension agreements that is expected to factor into the negotiations is that either government can terminate them at any time with 60 days’ written notice of its intent to do so. An open question is whether DOC would move to terminate the agreements if it were to conclude that they are not operating satisfactorily and if it is unable to arrive at modifications that are also agreeable to Mexico. Terminating the suspension agreements would trigger the imposition of the suspended duties on Mexican sugar under the CVD and AD determinations, which could price Mexican sugar out of the U.S. market. If so, one option for replacing Mexican sugar might be to allow additional sugar imports from tariff-rate quota suppliers. How Mexico might respond if the suspended duties were to be levied is unknown, but prior to the suspension agreements Mexican officials had threatened to pursue retaliatory trade measures in that circumstance.

Aug 12, 2016

Agriculture and Related Agencies: FY2017 Appropriations

The Agriculture appropriations bill funds all of the U.S. Department of Agriculture (USDA) except for the Forest Service. It also funds the Food and Drug Administration (FDA) and—in even-numbered fiscal years—the Commodity Futures Trading Commission (CFTC). Agriculture appropriations include both mandatory and discretionary spending. Discretionary amounts, though, are the primary focus during the bill’s development, since mandatory amounts are generally set by authorizing laws such as the farm bill. The largest discretionary spending items are the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC); agricultural research; FDA; rural development; foreign food aid and trade; farm assistance programs; food safety inspection; conservation; and animal and plant health programs. The main mandatory spending items are the Supplemental Nutrition Assistance Program (SNAP), child nutrition, crop insurance, and the farm commodity and conservation programs paid by the Commodity Credit Corporation. Both the House and the Senate Appropriations Committees have reported their FY2017 Agriculture appropriations bills (H.R. 5054, S. 2956). The discretionary total of the House-reported bill is $21.299 billion, which would be $451 million less than enacted in FY2016. The discretionary total of the Senate-reported bill is $21.250 billion. On a comparable basis, the Senate bill is $201 million more than the House bill if the CFTC appropriation is subtracted from the House bill to adjust for CFTC jurisdiction. Both bills also carry mandatory spending totaling $126.4 billion, bringing the overall total in excess of $147 billion. In addition to setting budgetary amounts, the Agriculture appropriations bill also is a vehicle for policy-related provisions that direct how the executive branch should carry out the appropriation. Notable policy provisions in the FY2017 bills include: GIPSA rule. The House-reported bill would prohibit the Grain Inspection, Packers and Stockyards Administration (GIPSA) from finalizing and implementing a livestock and poultry marketing rule—the “GIPSA rule.” Horse slaughter. Both the House- and Senate-reported bills would prohibit the Food Safety Inspection Service (FSIS) from inspecting horse slaughter facilities. Checkoff programs. The House report calls for USDA to recognize that checkoff boards are not subject to the Freedom of Information Act (FOIA). Tobacco products. The House-reported bill would grandfather all e-cigarettes and other newly deemed tobacco products so that manufacturers would not have to file a premarket application. SNAP-authorized retailers. Both bills would limit the scope of rules about inventory requirements for SNAP-authorized retailers. SNAP households reporting requirements. Both bills would require SNAP households to report to the state agency a move out of the state beginning in FY2017 and each year thereafter. School meals nutrition standards. The House-reported bill again would require exemptions from a 100% whole grain requirement, and prevent USDA from implementing a sodium requirement without scientific evidence. Export promotion office in Cuba. The Senate committee report recommends fully funding an Administration request to open a Foreign Agricultural Service (FAS) office in Cuba.

Aug 11, 2016

The National Transportation Safety Board (NTSB): Background and Possible Issues for Reauthorization and Oversight

The National Transportation Safety Board (NTSB) is a small, independent federal agency with responsibility for investigating transportation accidents; conducting transportation safety studies; issuing safety recommendations; aiding victims’ families after aviation and passenger rail disasters; and promoting transportation safety. The NTSB makes safety recommendations to federal and state agencies, transportation providers, and manufacturers, which may or may not choose to implement them. In recent years, NTSB recommendations have helped build support for laws enacted to mandate positive train control systems, a safety technology now being installed on certain railroad lines; Federal Aviation Administration (FAA) regulations to address airline pilot fatigue; state laws addressing distracted driving; federal safety standards for helicopter air ambulances; and crashworthiness standards for helicopter fuel systems, which are required under a new federal law. The NTSB was last reauthorized in 2006 when Congress approved a two-year reauthorization measure, covering FY2007 and FY2008 in the National Transportation Safety Board Reauthorization Act of 2006 (P.L. 109-443). Since then, the NTSB has addressed a number of Government Accountability Office (GAO) recommendations to improve its strategic planning, financial and human capital management, risk-based accident response, training, and communications. The agency has also increased staffing to better respond to accident investigation demands. In 2013, GAO cautioned that the NTSB needed to continue its efforts to further improve training center utilization, close-out processes for safety recommendations, interagency communications, financial management, and workforce diversity management, and it recommended that the NTSB develop a formal strategy to maximize the utility of its cost accounting system. Some Members of Congress have expressed an interest in reauthorizing the NTSB. Issues that might be considered in the context of reauthorization include the adequacy of staffing resources and the cost of the NTSB’s training center. Additionally, reauthorization could offer a legislative vehicle for addressing a number of transportation safety issues that directly relate to the NTSB mission, including the recoverability of vehicle recorders involved in aviation and maritime accidents, the privacy of data collected from vehicle recorders, and the use of recorder data for purposes other than accident investigation and reconstruction.

Aug 10, 2016

Trends in the Timing and Size of DHS Appropriations: In Brief

(TO BE SUPPRESSED) Department of Homeland Security DHS budget Appropriations FY2016, FY2015 funding analysis

Aug 9, 2016

Evolution of the Meaning of “Waters of the United States” in the Clean Water Act

The scope of waters that are properly the subject of federal water pollution legislation has been the subject of long-standing consideration by all three branches of the federal government, particularly in the aftermath of the 1972 amendments to the Federal Water Pollution Control Act, commonly referred to as the Clean Water Act. In a shift from early water pollution legislation, those amendments eliminated the requirement that the federally regulated waters—known as jurisdictional waters—must be navigable in the traditional sense, meaning that they are capable of being used by vessels in interstate commerce. Rather than use classical tests of navigability, the amendments redefined “navigable waters” for purposes of the Clean Water Act’s jurisdiction to include “the waters of the United States, including the territorial seas.” Disputes over the proper meaning of that phrase have been ongoing. Some courts and commentators also disagree on how the scope of federal jurisdictional waters changed over time as a result of interpretative approaches taken by the federal agencies responsible for administering the Clean Water Act—the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps). While some believe EPA and the Corps consistently expanded the meaning of “waters of the United States,” others contend that, in recent years, the agencies have construed the term in a narrower fashion than permitted under the Clean Water Act. In 2015, the Corps and EPA issued a new rule, known as the Clean Water Rule, that substantially redefined “waters of the United States” in the agencies’ regulations for the first time in more than two decades. Some observers disagree on whether the Clean Water Rule constitutes an expansion of jurisdiction over waters not previously regulated. This report provides context for this debate by examining the history of major changes to the meaning of “waters of the United States” as expressed in federal regulations, legislation, agency guidance, and case law. The Clean Water Act uses the phrase “waters of the United States,” but it does not include a statutory definition of that term. The long-standing disagreement over the meaning of that phrase has centered on the degree to which the Clean Water Act should be interpreted as covering the widest amount of “waters” that could permissibly be federally regulated under the Constitution, or whether that term should be interpreted in a more limited fashion. Federal authority to regulate waters within the United States primarily derives from the Commerce Clause, and accordingly, federal laws and regulations concerning waters of the United States cannot cover matters which exceed that constitutional source of authority. During the first two decades after the passage of the Clean Water Act, courts generally interpreted the act as having a wide jurisdictional reach. In recent decades, however, the Supreme Court has emphasized that “the grant of authority to Congress under the Commerce Clause, though broad, is not unlimited.” This modern Commerce Clause jurisprudence has informed federal courts’ approach to interpreting which “waters” are subject to the Clean Water Act. Most recently, courts have taken up legal challenges to the Clean Water Rule. On October 9, 2015, the United States Court of Appeals for the Sixth Circuit stayed its enforcement, and the House version of the FY2017 Interior-Environment appropriations bill (H.R. 5538) would block its application by prohibiting the use of appropriated funds to implement changes to the meaning of jurisdictional waters beyond those that were in effect on October 1, 2012.

Aug 8, 2016

GI Bill Legislation Considered in the 114th Congress

The GI Bills® provide financial assistance to individuals, whose eligibility is based on experience in the uniformed services, while they are enrolled in approved programs of education, including training programs. In FY2017, the GI Bills are estimated to provide over $14 billion in benefits to over 1 million veterans and servicemembers and their dependents. The largest program, the Post-9/11 GI Bill, is estimated to account for approximately 93% of the benefits and 80% of the participants. This report provides a description of and background for selected provisions in bills that did and would amend the GI Bills and have been reported by a committee of the 114th Congress as of July 2016. The National Defense Authorization Act for Fiscal Year 2016 (P.L. 114-92) was enacted on November 25, 2015. The bill effectively ends the Reserve Educational Assistance Program (REAP) on November 25, 2019. It also prohibits nonexempt individuals from receiving a Post-9/11 GI Bill allowance while receiving Unemployment Compensation for Ex-Servicemembers (UCX). The Veterans Employment, Education, and Healthcare Improvement Act (H.R. 3016) passed the House on February 9, 2016. The bill would include a controversial amendment reducing by half the Post-9/11 GI Bill housing allowance and books and supplies stipend for some children using transferred benefits. The bill would also reduce the maximum tuition and fees benefit for individuals pursuing flight training at or through a public institution of higher learning (IHL) to the same maximum benefit level at a private or foreign IHL. In juxtaposition to these reductions, the bill would expand benefits for individuals in the Post-9/11 GI Bill Marine Gunnery Sergeant John David Fry Scholarship program and expand eligibility for the Post-9/11 GI Bill. The bill would also authorize funding to more fully automate the Post-9/11 GI Bill claims processes, and it would amend the process and criteria by which programs of education gain and maintain approval for GI Bill purposes in an effort to increase the quality of such programs. The Veterans First Act (S. 2921) was reported by the Senate Committee on Veterans’ Affairs on May 11, 2016. The bill includes several provisions that are equivalent or similar to provisions in H.R. 3016 and H.R. 2360 but not the same provisions to reduce benefit levels. The bill would also allow eligible Post-9/11 GI Bill students who attend schools that permanently close to recover their entitlement for future use; allow Montgomery GI Bill-Selected Reserve (MGIB-SR) participants to extend their entitlement when called to active duty under specified orders; and allow eligible Reserve Educational Assistance Program (REAP) participants to retain their entitlement by electing the Post-9/11 GI Bill. Finally, the bill includes a savings provision that would reduce the annual increase in the Post-9/11 GI Bill housing allowance. The Career-Ready Student Veterans Act (H.R. 2360) was agreed to in the House on February 9, 2016. The bill is intended to ensure that GI Bill approved programs of education meet the standards required for state licensure, certification, or employment. Some GI Bill participants have indicated that they felt as though they wasted their benefits on programs of education that did not allow them to become employed in the occupation in which they were educated. This bill attempts to address this concern. The 21st Century Veterans Benefits Delivery and Other Improvements Act (S. 1203) was agreed to in the Senate on November 10, 2015. Among other provisions, the bill would require educational institutions to report the academic progress of Post-9/11 GI Bill participants. The provision is intended to make data available on the outcomes and return on investment of the Post-9/11 GI Bill.

Aug 8, 2016