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Introduction The rental assistance programs authorized under Section 8 of the United States Housing Act of 1937 (42 U.S.C. §1437f)—Section 8 project-based rental assistance and Section 8 tenant-based vouchers—have become the largest components of the Department of Housing and Urban Development's (HUD) budget, with combined appropriations of $27 billion in FY2013. The rising cost of providing rental assistance is due, in varying degrees, to expansions in the program, the cost of renewing expiring long-term contracts, and rising costs in housing markets across the country. The most rapid cost increases have been seen in the voucher program. Partly out of concern about cost increases, and partly in response to the administrative complexity of the current program, there have been calls for reform of the voucher program and its funding each year since 2002. In response, Congress has enacted changes to the way that it funds the voucher program and the way that PHAs receive their funding. Congress has considered program reforms, but has not enacted them. In order to understand why the program has become so expensive and why reforms are being considered, it is first important to understand the mechanics of the program and its history. This paper will provide an overview of the Section 8 programs and their history. For more information, see CRS Report RL33929, The Section 8 Voucher Renewal Funding Formula: Changes in Appropriations Acts ; CRS Report RL34002, Section 8 Housing Choice Voucher Program: Issues and Reform Proposals ; and CRS Report R41182, Preservation of HUD-Assisted Housing , by [author name scrubbed] and [author name scrubbed]. Background Information From 1937 until 1965, public housing and the subsidized mortgage insurance programs of the Federal Housing Administration (FHA) were the country's main forms of federal housing assistance. As problems with the public housing and other bricks and mortar federal housing construction programs (such as Section 235 and Section 236 of the National Housing Act) arose—particularly their high cost—interest grew in alternative forms of housing assistance. In 1965, a new approach was adopted (P.L. 89-117). The Section 23 program assisted low-income families residing in leased housing by permitting a public housing authority (PHA) to lease existing housing units in the private market and sublease them to low-income and very low-income families at below-market rents. However, the Section 23 program did not ameliorate the growing problems with HUD's housing construction programs and interest remained in developing and testing new approaches. The Experimental Housing Allowance Program is one example of such an alternative approach. Due to criticisms about cost, profiteering, and slumlord practices in federal housing programs, President Nixon declared a moratorium on all existing federal housing programs, including Section 23, in 1973. During the moratorium, HUD revised the Section 23 program and sought to make it the main assisted housing program of the federal government. However, at the same time, Congress was considering several options for restructuring subsidized housing programs. After all the debates and discussions that typically precede the passage of authorizing legislation were completed, Congress voted in favor of a new leased housing approach, and the Section 8 program was created. Early Section 8 The Section 8 program is named for Section 8 of the United States Housing Act of 1937. The original program, established by the Housing and Community Development Act of 1974 ( P.L. 93-383 ), consisted of three parts: new construction, substantial rehabilitation, and existing housing certificates. The 1974 Act and the creation of Section 8 effectively ended the Nixon moratorium. In 1978, the moderate rehabilitation component of the program was added, but it has not been funded since 1989. In 1983, the new construction and substantial rehabilitation portions of the program were repealed, and a new component—Section 8 vouchers—was added. In 1998, existing housing certificates were merged with and converted to vouchers. New Construction and Substantial Rehabilitation Under the new construction and substantial rehabilitation components of the early Section 8 program, HUD entered into long-term (20- or 40-year) contracts with private for-profit, non-profit, or public organizations that were willing to construct new units or rehabilitate older ones to house low- and very low-income tenants. Under those contracts, HUD agreed to make assistance payments toward each unit for the duration of the contract. Those assistance payments were subsidies that allowed tenants residing in the units to pay 25% (later raised to 30%) of their adjusted income as rent. The program was responsible for the construction and rehabilitation of a large number of units. Over 1.2 million units of housing with Section 8 contracts that originated under the new construction and substantial rehabilitation program still receive payments today. By the early 1980s, because of the rising costs of rent and construction, the amount of budget authority needed for the Section 8 rental assistance program had been steadily increasing while the number of units produced in a year had been decreasing. At the same time, studies emerged showing that providing subsidies for use in newly constructed or substantially rehabilitated housing was more expensive than the cost of providing subsidies in existing units of housing. Also, because contracts were written for such long terms, appropriators had to provide large amounts of budget authority each time they funded a new contract (see below for an illustration of the implication of long-term contracts). As the budget deficit grew, Members of Congress became concerned with the high costs associated with Section 8 new construction and substantial rehabilitation, and these segments of the Section 8 program were repealed in the Housing and Urban-Rural Recovery Act of 1983 ( P.L. 98-181 ). Moderate Rehabilitation The Housing and Community Development Amendments of 1978 ( P.L. 95-557 ) added the moderate rehabilitation component to the Section 8 program, which expanded Section 8 rental assistance to projects that were in need of repairs costing at least $1,000 per unit to make the housing decent, safe, and sanitary. Over the next 10 years, however, this component of the program was fraught with allegations of abuse; the process of awarding contracts was considered unfair and politicized. Calls for reform of the moderate rehabilitation program led to its suspension. It has not been funded since 1989. Existing Housing Certificates The existing housing certificate component of the Section 8 program was created in the beginning of the Section 8 program and continued until 1998. Under the existing housing certificate program, PHAs and HUD would enter into an Annual Contributions Contract (ACC) for the number of units that would be available to receive assistance. Contracts were originally written for five years and were renewable, at HUD's discretion, for up to 15 years. In the contract, HUD agreed to pay the difference between the tenant's rental payment and the contract rent of a unit. The contract rent was generally limited to the HUD-set Fair Market Rent (FMR) for the area. After entering into a contract with HUD, PHAs would advertise the availability of certificates for low-income tenants. The existing housing certificate program was primarily tenant-based, meaning that the assistance was attached to the tenant. Families selected to receive assistance were given certificates as proof of eligibility for the program; with their certificates, families could look for suitable housing in the private market. Housing was considered suitable if it rented for the FMR or less and met Housing Quality Standards (HQS). Once the household found a unit, they signed a lease and agreed to pay 30% of their adjusted income for rent. The remainder of the rent was paid by HUD to the landlord on behalf of the tenant. If a family vacated a unit in violation of the lease, HUD had to make rental payments to the landlord for the remainder of the month in which the family vacated, and pay 80% of the contract rent for an additional month. If the family left the unit at the end of their lease, they could take their certificate with them and use it for their next home. HUD also paid the PHA an administrative fee for managing the program. The amount of this administrative fee was set by Congress in appropriations legislation each year. PHAs were permitted to use up to 15% of their Section 8 certificates for project-based housing. In project-based Section 8 existing housing, the subsidy was attached to the unit, which was selected by the PHA, and not to the tenant. This meant that when a tenant vacated a unit, another eligible tenant would be able to occupy it, and HUD would subsidize the rent as long as a contract was in effect between the PHA and the owner. In 1998, the Quality Housing and Work Opportunity Reconciliation Act (QHWRA) ( P.L. 105-276 ) merged the Section 8 existing housing certificate program with the voucher program (see below) and converted all certificates to vouchers, effectively ending the Section 8 existing housing certificate program. The Voucher Program The largest component of today's Section 8 program, the voucher program, was first authorized by the Housing and Urban-Rural Recovery Act of 1983 ( P.L. 98-181 ). It was originally a demonstration program, but was made permanent in 1988. Like the Section 8 existing housing certificate program, the voucher program is administered by PHAs and is tenant-based, with a project-based component. However, under the voucher program, families can pay more of their incomes toward rent and lease apartments with rents higher than FMR. Today's Section 8 Programs Today's Section 8 program is really two programs, which, combined, serve almost 3.5 million households. Section 8 Project-Based Rental Assistance The first program under Section 8 can be characterized as Section 8 project-based rental assistance. This program includes units created under the new construction, substantial rehabilitation, and moderate rehabilitation components of the earlier Section 8 program that are still under contract with HUD. Although no new construction, substantial rehabilitation, or moderate rehabilitation contracts have been created for a number of years, about 1.3 million of these units are still funded under multiyear contracts that have not yet expired and do not require any new appropriations, or multiyear contracts that had expired and are renewed annually, requiring new appropriations. Families that live in Section 8 project-based units pay 30% of their incomes toward rent. In order to be eligible, families must be low-income; however, at least 40% of all units that become available each year must be rented to extremely low-income families. If a family leaves the unit, the owner will continue to receive payments as long as he or she can move another eligible family into the unit. Owners of properties with project-based Section 8 rental assistance receive a subsidy from HUD, called a Housing Assistance Payment (HAP). HAP payments are equal to the difference between the tenant's payments (30% of income) and a contract rent, which is agreed to between HUD and the landlord. Contract rents are meant to be comparable to rents in the local market, and are typically adjusted annually by an inflation factor established by HUD or on the basis of the project's operating costs. Project-based Section 8 contracts are managed by contract administrators. While some HUD regional offices still serve as contract administrators, the Department's goal is to contract the function out entirely to outside entities, including state housing finance agencies, PHAs, or private entities. When project-based HAP contracts expire, the landlord can choose to either renew the contract with HUD for up to five years at a time (subject to annual appropriations) or convert the units to market rate. In some cases, landlords can choose to "opt-out" of Section 8 contracts early. When an owners terminates an HAP contract with HUD, either through opt-out or expiration—the tenants in the building are provided with enhanced vouchers designed to allow them to stay in their unit (see discussion of " Tenant Protection or Enhanced Vouchers " below). In 2010, about 51% of the households that lived in project-based Section 8 units were headed by persons who were elderly, about 17% were headed by persons who were non-elderly disabled, and about 33% were headed by persons who were not elderly and not disabled. The median income of households living in project-based Section 8 units was a little more than $10,000 per year. Section 8 Tenant-Based Housing Choice Vouchers When QHWRA merged the voucher and certificate programs in 1998, it renamed the voucher component of the Section 8 program the Housing Choice Voucher program. The voucher program is funded in HUD's budget through the tenant-based rental assistance account. The federal government currently funds more than 2 million Section 8 Housing Choice Vouchers. PHAs administer the program and receive an annual budget from HUD. Each has a fixed number of vouchers that they are permitted to administer and they are paid administrative fees. Vouchers are tenant-based in nature, meaning that the subsidy is tied to the family, rather than to a unit of housing. In order to be eligible, a family must be very low-income (50% or below area median income (AMI)), although 75% of all vouchers must be given to extremely low-income families (30% or below AMI). To illustrate the regional variation in these definitions of low-income and their relationship to federal definitions of poverty, Table 4 compares HUD's income definitions to the Department of Health and Human Services (HHS) poverty guidelines for several geographic areas in 2013. Note that HHS poverty guidelines are uniform in all parts of the country (except for Alaska and Hawaii, not shown in the following table). Families who receive vouchers use them to subsidize their rents in private market apartments. Once an eligible family receives an available voucher, the family must find an eligible unit. In order to be eligible, a unit must meet minimum housing quality standards (HQS) and cost less than 40% of the family's income plus the HAP paid by the PHA. The HAP paid by the PHA for tenant-based vouchers, like the HAP paid for Section 8 project-based rental assistance, is capped; however, with tenant-based vouchers, PHAs have the flexibility to set their caps anywhere between 90% and 110% of FMR (up to 120% FMR with prior HUD approval). The cap set by the PHA is called the payment standard. Once a family finds an eligible unit, the family signs a contract with HUD, and both HUD and the family sign contracts with the landlord. The PHA will pay the HAP (the payment standard minus 30% of the family's income), and the family will pay the difference between the HAP and the rent (which must total between 30% and 40% of the family's income). After the first year, a family can choose to pay more than 40% of their income towards rent. PHAs may also choose to adopt minimum rents, which cannot exceed $50. (See box below for an example.) Once a family is using a voucher, the family can retain the voucher as long as the PHA has adequate funding for it and the family complies with PHA and program requirements. If a family wants to move, the tenant-based voucher can move with the family. Once the family moves to a new area, the two PHAs (the PHA that originally issued the voucher and the PHA that administers vouchers in the new area) negotiate regarding who will continue to administer the voucher. The voucher program does not contain any mandatory time limits. Families exit the program in one of three ways: their own choice, non-compliance with program rules (including non-payment of rent), or if they no longer qualify for a subsidy. Families no longer qualify for a subsidy when their incomes, which must be recertified annually, have risen to the point that 30% of that income is equal to rent. At that point the HAP payment will be zero and the family will no longer receive any subsidy. Unlike the project-based Section 8 program, the majority of households receiving vouchers are headed by a person who is not elderly and not disabled. In 2010, about 19% of the households with Section 8 vouchers were elderly households, about 28% were disabled households, and about 53% were non-elderly, non-disabled households with children. The median income of households with vouchers was just over $10,400 per year. Project-Based Vouchers Vouchers, like Section 8 existing housing certificates, can be project-based. In order to project-base vouchers, a landlord must sign a contract with a PHA agreeing to set-aside up to 25% of the units in a development for low-income families. Each of those set-aside units will receive voucher assistance as long as a family that is eligible for a voucher lives there. Families that live in a project-based voucher unit pay 30% of their adjusted household income toward rent, and HUD pays the difference between 30% of household income and a reasonable rent agreed to by both the landlord and HUD. PHAs can choose to project-base up to 20% of their vouchers. Project-based vouchers are portable; after one year, a family with a project-based voucher can convert to a tenant-based voucher and then move, as long as a tenant-based voucher is available. Tenant Protection or Enhanced Vouchers Another type of voucher, called a tenant protection voucher, is given to families that were already receiving assistance through another HUD housing program, before being displaced. Examples of instances when families receive tenant-protection vouchers include when public housing is demolished or when a landlord has terminated a Section 8 project-based rental assistance contract. Families that risk being displaced from project-based Section 8 units are eligible to receive a special form of tenant-protection voucher, called an enhanced voucher. The "enhanced" feature of the voucher allows the maximum value of the voucher to grow to be equal to the new rent charged in the property, as long as it is reasonable in the market, even if it is higher than the PHA's payment standard. They are designed to allow families to stay in their homes. If the family chooses to move, then the enhanced feature is lost and the voucher becomes subject to the PHA's normal payment standard. Special Purpose Vouchers The voucher program also has several special programs or uses. These include family unification vouchers, vouchers for homeless veterans, and vouchers used for homeownership. Family Unification Program Family unification vouchers are given to families for whom the lack of adequate housing is a primary factor in the separation, or threat of imminent separation, of children from their families or in preventing the reunification of the children with their families. HUD has awarded over 38,600 family unification vouchers to PHAs since the inception of the program. HUD-VASH Beginning in 1992, through collaboration between HUD and the VA, Section 8 vouchers have been made available for use by homeless veterans with severe psychiatric or substance abuse disorders. Through the program, called HUD-VA Supported Housing (HUD-VASH), PHAs administer the Section 8 vouchers while local VA medical centers provide case management and clinical services to participating veterans. Homeownership Vouchers While there are no specifically authorized "homeownership vouchers," since 2000 certain families have been eligible to use their vouchers to help pay for the monthly costs associated with homeownership. Eligible families must work full-time or be elderly or disabled, be first-time homebuyers, and agree to complete first-time homebuyer counseling. PHAs can decide whether to run a homeownership program and an increasing number of PHAs are choosing to do so. According to HUD's website, nearly 13,000 families have closed on homes using vouchers. Family Self-Sufficiency Coordinators The Family Self Sufficiency (FSS) program was established by Congress as a part of the National Affordable Housing Act of 1990 ( P.L. 101-625 ). The purpose of the program is to promote coordination between the voucher program and other private and public resources to enable families on public assistance to achieve economic self-sufficiency. Families who participate in the program sign five-year contracts in which they agree to work toward leaving public assistance. While in the program, families can increase their incomes without increasing the amount they contribute toward rent. The difference between what the family paid in rent before joining the program and what they would owe as their income increases is deposited into an escrow account that the family can access upon completion of the contract. For example: If a family with a welfare benefit of $450 per month begins working, earning $800 per month, the family's contribution towards rent increases from $135 per month to $240 per month. Of that $240 the family is now paying towards rent, $105 is deposited into an escrow account. After five years, the family will have $6,300 plus interest in an escrow account to use for whatever purpose the family sees fit. PHAs receive funding for FSS coordinators, who help families with vouchers connect with services, including job training, child care, transportation and education. In 2012, HUD funded the salaries of over 1,100 FSS coordinators in the voucher program, serving nearly 48,000 enrolled families. Demonstrations Moving to Work The Moving to Work Demonstration, authorized in 1996 ( P.L. 104-134 ), was created to give HUD and PHAs the flexibility to design and test various approaches for providing and administering housing assistance. The demonstration directed HUD to select up to 30 PHAs to participate. The goals were to reduce federal costs, provide work incentives to families, and expand housing choice. MTW allows participating PHAs greater flexibility in determining how to use federal Section 8 voucher and Public Housing funds by allowing them to blend funding sources and experiment with rent rules, with the constraint that they had to continue to serve approximately the same number of households. It also permits them to seek exemption from most Public Housing and Housing Choice Voucher program rules. (For more information, see CRS Report R42562, Moving to Work (MTW): Housing Assistance Demonstration Program , by [author name scrubbed].) The existing MTW program, while called a demonstration, was not implemented in a way that would allow it to be effectively evaluated. Therefore, there is not sufficient information about different reforms adopted by MTW agencies to evaluate their effectiveness. However, there is some information available about how PHAs are using the flexibility provided under MTW. Agencies participating in MTW have used the flexibility it provides differently. Some have made minor changes to their existing Section 8 voucher and public housing programs, such as limiting reporting requirements; others have implemented full funding fungibility between their public housing and voucher programs and significantly altered their eligibility and rent policies. Some have adopted time limit and work requirement policies similar to those enacted in the 1996 welfare reform law. An evaluation for MTW published in January 2004 reported: The local flexibility and independence permitted under MTW appears to allow strong, creative [P]HAs to experiment with innovative solutions to local challenges, and to be more responsive to local conditions and priorities than is often possible where federal program requirements limit the opportunity for variation. But allowing local variation poses risks as well as provides potential benefits. Under MTW, some [P]HAs, for instance, made mistakes that reduced the resources available to address low-income housing needs, and some implemented changes that disadvantaged particular groups of needy households currently served under federal program rules. Moreover, some may object to the likelihood that allowing significant variation across [P]HAs inevitably results in some loss of consistency across communities. Moving to Opportunity The Moving to Opportunity Fair Housing Demonstration (MTO) was authorized in 1992 ( P.L. 102-550 , P.L. 102-139 ). MTO combined housing counseling and services with tenant-based vouchers to help very low-income families with children move to areas with low concentrations of poverty. The experimental demonstration was designed to test the premise that changes in an individual's neighborhood environment can change his or her life chances. Participating families were selected between 1994 and 1998 and followed for at least 10 years. Interim results have found that families who moved to lower-poverty areas had some improvements in housing quality, neighborhood conditions, safety, and adult health. Mixed effects were found on youth health, delinquency, and engagement in risky behavior: girls demonstrated positive effects from the move to a lower-poverty neighborhood; boys showed negative effects. No impacts were found on child achievement or schooling or adult employment, earnings, or receipt of public assistance. (For more information, see CRS Report R42832, Choice and Mobility in the Housing Choice Voucher Program: Review of Research Findings and Considerations for Policymakers . ) Conclusion The combined Section 8 programs are the largest direct housing assistance program for low-income families. With a combined FY2013 budget of $27 billion, they reflect a major commitment of federal resources. That commitment has led to some successes. More than three million families are able to obtain safe and decent housing through the program, at a cost to the family that is considered affordable. However, these successes come at a high cost to the federal government. Given current budget deficit levels, Congress has begun to reevaluate whether the cost of the Section 8 programs, particularly the voucher program, are worth their benefits. Proposals to reform the program abound, and whether the current Section 8 programs are maintained largely in their current form, changed substantially, or eliminated altogether are questions currently facing Congress. | The Section 8 low-income housing program is really two programs authorized under Section 8 of the U.S. Housing Act of 1937, as amended: the Housing Choice Voucher program and the project-based rental assistance program. Vouchers are portable subsidies that low-income families can use to lower their rents in the private market. Vouchers are administered at the local level by quasi-governmental public housing authorities (PHAs). Project-based rental assistance is a form of rental subsidy that is attached to a unit of privately owned housing. Low-income families who move into the housing pay a reduced rent, on the basis of their incomes. The Section 8 program began in 1974, primarily as a project-based rental assistance program. However, by the mid-1980s, project-based assistance came under criticism for seeming too costly and concentrating poor families in high-poverty areas. Congress stopped funding new project-based Section 8 rental assistance contracts in 1983. In their place, Congress created vouchers as a new form of assistance. Today, vouchers—numbering more than 2 million—are the primary form of assistance provided under Section 8, although over 1 million units still receive project-based assistance under their original contracts or renewals of those contracts. Congressional interest in the Section 8 programs—both the voucher program and the project-based rental assistance program—has increased in recent years, particularly as the program costs have rapidly grown, led by cost increases in the voucher program. In order to understand why costs are rising so quickly, it is important to first understand how the program works and its history. This report presents a brief overview of that history and introduces the reader to the program. For more information, see CRS Report RL34002, Section 8 Housing Choice Voucher Program: Issues and Reform Proposals; and CRS Report R41182, Preservation of HUD-Assisted Housing, by [author name scrubbed] and [author name scrubbed]. |
Background In its 2005 opinion United States v. Booker , the U.S. Supreme Court declared that the once-binding federal sentencing guidelines (the Guidelines) set by the United States Sentencing Commission are now only advisory, in order to be compatible with the Sixth Amendment to the Constitution. Until 2007, the Guidelines reflected a statutory scheme that made crack cocaine defendants subject to the same sentence as those defendants trafficking in 100 times more powder cocaine; thus, the sentences for crack cocaine offenses were three to over six times longer than those for offenses involving equivalent amounts of powder cocaine. In the immediate aftermath of Booker , federal courts disagreed about whether the 100:1 ratio produces disparities that justify a sentence lower than that recommended by the Guidelines. The Supreme Court resolved that issue in its 2007 opinion Kimbrough v. United States , by holding that a federal court may impose a sentence below that called for under the Guidelines' then-existing 100:1 ratio, based on its conclusion that the ratio is greater than necessary or may foster unwarranted disparity. The pre- Booker era for federal sentencing began with the Sentencing Reform Act of 1984, which established a sentencing system under the United States Sentencing Commission's federal sentencing guidelines. The previous system tailored sentences to the individual defendants. Judges were given broad ranges within which they could, at their discretion, sentence a defendant. The sentence was supposed to be based on the defendant's character as much as his conduct. Thereafter, the discretion given to the judge was passed on to the Parole Commission to determine how much of the judge's sentence the defendant ultimately served. Under the Guidelines, the judge's role at sentencing was more uniform and unvaried. The judge could inquire into a number of factors, including the defendant's conduct and criminal history. The judge then weighed each factor according to the Sentencing Commission's mandate and calculated an offense level for the defendant. The judge had discretion to sentence the defendant but, with little ground for departure, only within the narrow sentencing range that the Guidelines provided for each offense level. The Sentencing Reform Act also abolished the Parole Commission's role. Crack cocaine became prevalent in the mid-1980s and received widespread media attention following the death of the University of Maryland all-American basketball player, Len Bias, from the use of cocaine. Crack cocaine was portrayed as a violence-inducing, highly addictive plague of inner cities, and this notoriety led to the quick passage of a federal sentencing law concerning crack cocaine in 1986. This legislation created two mandatory sentencing ranges for drug offenses. The lower bracket spanned periods of imprisonment ranging from a mandatory minimum of 5 years to a maximum of 40 years; the higher bracket spanned periods ranging from a mandatory minimum of 10 years to a maximum of life. Congress prescribed the threshold quantities of both crack and powdered cocaine required to bring a particular offense within either bracket. Despite the chemical identity of crack and powder cocaine, Congress set widely disparate threshold quantities for the two drugs, requiring 100 times more powder cocaine than crack cocaine to trigger inclusion in a particular range. The rationale offered was that many considered crack much more addictive than powder cocaine, and they feared a wave of violent crimes spawned by drug users as well as the health threats to infants born to addicted mothers. The Sentencing Commission also incorporated this ratio into the drug guidelines, although it later concluded that the 100:1 powder to crack ratio produces sentences that are greater than necessary to satisfy the purposes of punishment because it exaggerates the relative harmfulness of crack cocaine; the majority of crack offenders have low drug quantities, short criminal histories, and no history of violence. The Sentencing Commission also concluded that a ratio providing for sentences that are greater than necessary creates an unwarranted disparity, inappropriate uniformity, racial disparity, and disrespect for the law. Over the years, Congress has had second thoughts about the disparity in drug sentences. To achieve a more equitable balance, as part of the Violent Crime Control and Law Enforcement Act of 1994, Congress enacted a safety valve provision, which provided an avenue for lowering mandatory minimum sentences in a limited category of drug cases. During the same year, Congress directed the Sentencing Commission to study the crack-to-powder ratio and submit recommendations relative to whether the ratio should be retained or modified. The Sentencing Commission recommended revision of the 100:1 quantity ratio in 1995, finding the ratio to be unjustified by the small differences in the two forms of cocaine. Congress rejected the recommendation of the Sentencing Commission and did not change the law. Two years later, the Sentencing Commission issued a follow-up report. In this report, the commission reiterated its position that the 100:1 ratio was excessive. It recommended that the 100:1 ratio be reduced to 5:1 by increasing the threshold quantities for offenses involving crack cocaine and decreasing the threshold quantities for offenses involving powder cocaine. Again, Congress took no action and did not amend the law. In 2001, the Senate Judiciary Committee asked the Sentencing Commission to revisit its position regarding the 100:1 ratio, and in the subsequent year, the Sentencing Commission issued its third report. In this report, the commission again proposed narrowing the gap that separated crack cocaine offenses from powder cocaine because (1) the severe penalties for crack cocaine offenses seemed to fall mainly on low-level criminals and African Americans, (2) the dangers posed by crack could be satisfactorily addressed through sentencing enhancements that would apply neutrally to all drug offenses, and (3) recent data suggested that the penalties were disproportionate to the harms associated with the two drugs. Unlike the previous report, the Commission did not recommend a reduction in the powder cocaine threshold. The Commission did recommend elimination of the 5-year mandatory minimum for simple possession of crack cocaine. Congress considered the substance of the Commission's 2002 report but took no action. Judges have long been critical of the automatic prison terms, commonly referred to as mandatory minimum sentences, which were enacted pursuant to the Anti-Drug Abuse Act of 1986 in part to stem the drug trade. United States v. Booker Prior to the Supreme Court's decision in United States v. Booker , the case law was generally cognizant of the seriousness in the sentencing disparities between crack and powder cocaine but regularly deferred to Congress's policy judgments. This undertaking led to a series of decisions that upheld the 100:1 ratio against a variety of challenges, which included the Equal Protection Clause and the rule of lenity. It was also decided that under the mandatory guidelines system that was popular before Booker , neither the Sentencing Commission's criticism of the 100:1 ratio nor its unacknowledged 1995 proposal to eliminate the differential provided a valid basis for leniency in the sentencing of crack cocaine offenders. In Booker , the Supreme Court consolidated two lower court cases and considered them in tandem, United States v. Fanfan and United States v. Booker . Booker was arrested after officers found in his duffle bag 92.5 grams of crack cocaine. He later gave a written statement to the police in which he admitted selling an additional 566 grams of crack cocaine. A jury in the United States District Court for the Western District of Wisconsin found Booker guilty of two counts of possessing at least 50 grams of cocaine base with the intent to distribute it, in violation of 21 U.S.C. § 841(b)(1)(A)(iii). At sentencing, the judge found by a preponderance of the evidence that Booker had distributed 566 grams in addition to the 92.5 grams that the jury found; the judge also found that Booker had obstructed justice. In the absence of the judge's additional findings, Booker would have only faced a maximum sentence of 262 months under the United States Sentencing Guidelines. The judge, however sentenced Booker to 360 months, based on the Guidelines' treatment of the additional cocaine and the obstruction of justice. The United States Court of Appeals for the Seventh Circuit affirmed the conviction but overturned the sentence. Narcotic agents arrested Fanfan when they discovered 1.25 kilograms of cocaine and 281.6 grams of cocaine base in his vehicle. A jury in the District of Maine found that he possessed "500 or more grams" of cocaine with the intent to distribute, in violation of 21 U.S.C. § 846. At sentencing, the court determined that Fanfan was the "ring leader of a significant drug conspiracy," which, combined with his criminal history, resulted in a sentence of 188 to 235 months under the Guidelines. However, four days before the June 28, 2004, sentencing hearing, the Supreme Court decided Blakely v. Washington , holding that as part of a state sentencing guideline system, a Washington state judge could not find an aggravating fact authorizing a higher sentence than the state statutes otherwise permitted. The sentencing judge in Fanfan considered the effect that Blakely may have on the federal sentencing Guidelines and recalculated the Guidelines based only on the possession of 500 grams and imposed the 78 month maximum for that range. The Supreme Court granted certiorari in Booker and Fanfan in an effort to give some guidance to lower courts that had begun a variety of applications of the Blakely decision to federal prisoners. For example, in Booker , the Seventh Circuit found that the federal sentencing guidelines violate the Sixth Amendment in some situations. The Fifth Circuit, on the other hand, concluded that Blakely did not apply to the Guidelines because to do so would create a separate "offense" for each possible sentence for a particular crime. The Second Circuit, without resolving the issue, certified questions to the Supreme Court regarding the application of Blakely to federal sentences pursuant to the Guidelines. The Supreme Court issued a majority opinion in two parts. The first part, written by Justice Stevens for a 5-4 majority (Justices Scalia, Souter, Thomas, and Ginsburg) decided that the Guidelines violate the Sixth Amendment and are thus unconstitutional because they require a judge to increase a sentence above the maximum guideline range if the judge finds facts to justify an increase. They said a defendant's right to trial by jury is violated if a judge must impose a higher sentence than the sentence that the judge could have imposed based on the facts found by the jury. Pursuant to 18 U.S.C. § 3553(b), the Guidelines were mandatory and thus create a statutory maximum for the purpose of Apprendi v. New Jersey , 530 U.S. 466 (2000), which had condemned mandatory judicial fact-finding for purposes of imposing a sentence beyond the statutory maximum. The Court had applied Apprendi 's reasoning to a state sentencing guideline system in Blakely v. Washington , and the rationale applied with equal force to the federal guideline system in Booker . Under the then current administration of the Guidelines, judges, rather than juries, were required to find sentence determining facts, and thus the practice was unconstitutional. The second part, written by Justice Breyer for a different 5-4 majority (Justices Rehnquist, O'Connor, Kennedy, and Ginsburg) remedies this defect by holding that the Guidelines are advisory, thereby making it necessary for the courts to consider the Guidelines along with other traditional factors when deciding on a sentence, and also finding that the appellant courts may review sentences for "reasonableness." Driven by the Court's first holding, it "excises" (through severance and excision of two provisions) 18 U.S.C. § 3553(b)(1) and § 3742(e) from the Sentencing Reform Act and declares the Guidelines are now "advisory." Pursuant to § 3553(a), district judges need only to "consider" the Guideline range as one of many factors, including the need for the sentence to provide just punishment for the offense (§ 3553(a)(2)(A), to afford adequate deterrence to criminal conduct (§ 3553(a)(2)(B), to protect the public from further crimes of the defendant (§ 3553(a)(2)(C)), and to avoid unwarranted sentencing disparities among similarly situated defendants (§ 3553(a) (6)). The Sentencing Reform Act, absent the mandate of § 3553(b)(1), authorizes the judge to apply his own perceptions of just punishment, deterrence, and protection of the public, even when these differ from the perceptions of the United States Sentencing Commission. The Sentencing Reform Act continues to provide for appeals from sentencing decisions (regardless of whether the trial judge sentences are within or outside of the Guideline range) based on an "unreasonableness" standard (18 U.S.C. §§ 3553(a) and 3742(e)(3)). Booker and the Crack Defendant After Booker , the federal courts wrestled with whether they may or must impose sentences below the Guidelines' ranges in crack cocaine cases in view of the United States Sentencing Commission's conclusions and recommendations, the facts and circumstances of the case, the history and characteristics of the defendant, and the command of 18 U.S.C. § 3553(a)(2)(6) to avoid unwarranted sentencing disparity. Typically, the federal courts follow a three-step sentencing procedure in which they determine "(1) the applicable advisory range under the Sentencing Guidelines; (2) whether, pursuant to the Sentencing Commission's policy statements, any departures from the advisory guideline range clearly apply; and (3) the appropriate sentence in light of the statutory factors to be considered in imposing a sentence." An appellate court held that the federal courts are not compelled to lower a sentence recommended by the Guidelines based on the sentencing differential for crack cocaine versus powder cocaine. On the other hand, in more than a few cases, the application of Booker has led to lower sentences than those suggested by the 100:1 ratio ranges established in the Guidelines. In some cases, after considering the factors set forth in 18 U.S.C. § 3553(a), the courts found a different ratio, either 20:1 or 10:1, more compatible with the statutory command of 18 U.S.C. § 3553(a)(6) to weigh the need to avoid unwarranted disparities. The appellate courts were not so inclined to ignore the 100:1 ratio reflected in the then-existing Guidelines. For instance, the First Circuit held that the district court could not discard the guideline range and construct a new sentencing range, but could take into account, on a case-by-case basis, "the nature of the contraband and/or the severity of a projected guideline sentence." The First Circuit described the disparity as a "problem that has tormented enlightened observers ever since Congress promulgated the 100:1 ratio" and "share[d] the district court's concern about the fairness of maintaining the across-the-board sentencing gap associated with the 100:1 crack-to-powder ratio." But to recapitulate, said the First Circuit, "we hold that the district court erred ... when it constructed a new sentencing range based on the categorical substitution of a 20:1 crack-to-powder ratio for the 100:1 embedded in the sentencing guidelines." A panel in the Fourth Circuit agreed: [t]he principal question ... is whether a district court in the post- Booker world can vary from the advisory sentencing range under the guidelines by substituting its own crack cocaine/powder cocaine ratio for the 100:1 crack cocaine/powder cocaine ratio chosen by Congress. For the reasons stated below, we conclude a court cannot.... [The] sentencing court must identify the individual aspects of the defendant's case that fit within the factors listed in 18 U.S.C. § 3553(a) and in reliance on those findings, impose a non-Guideline sentence that is reasonable ... in arriving at a reasonable sentence, the court simply must not rely on a factor that would result in a sentencing disparity that totally is at odds with the will of Congress. The Fourth Circuit decision formed the basis for its later unpublished opinion in Kimbrough v. United States . Kimbrough v. United States Norfolk, VA, police arrested Derrick Kimbrough after they came upon him in the midst of what appeared to be a curbside drug sale. At the time, they discovered more than $1,900 in cash, 56 grams of crack cocaine, and more than 60 grams of powder cocaine in his car. They also recovered a loaded hand gun for which Kimbrough was holding a full magazine clip. Kimbrough subsequently pleaded guilty to federal charges for trafficking in more than 50 grams of crack, trafficking in cocaine powder, conspiracy to traffic in crack, and possession of a firearm during and in furtherance of a drug trafficking offense. He faced mandatory minimum terms of imprisonment of 10 years on the crack trafficking charge and of 5 years on the gun charge. The applicable sentencing guidelines called for a sentence of imprisonment in the range of 168 to 210 months on the drug charges with an additional 60 months on the gun charge (to be served consecutive to the drug charges for a range of imprisonment of 228 to 270 months). Kimbrough's attorney apparently urged a departure from the Guideline's recommended sentence based on the Sentencing Commission's dissatisfaction with the 100:1 ratio, Kimbrough's military service, the absence of any prior felony conviction, his employment record, and the suggestion that federal involvement represented an instance of "sentence shopping" in what was otherwise a state case. Under the facts before it, the district court considered the sentence recommended by the Guidelines "ridiculous." It sentenced Kimbrough to the statutory minimum of 180 months in prison (10 years on the drug charges and 5 years on the gun charge). It did so in part because of the sentencing disparity for crack and powder cocaine. However, the Fourth Circuit Court of Appeals vacated and remanded the sentence, consistent with its holding in United States v. Eura that "a sentence that is outside the guidelines range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder offenses." On June 11, 2007, the Supreme Court agreed to consider whether the district court abused its discretion when it determined that in Kimbrough's case the sentencing range recommended by the Guidelines would be greater than necessary to serve the penological purposes described in 18 U.S.C. § 3553(a)(2) and should not be controlling in light of the instruction in 18 U.S.C. § 3553(a)(6) to consider the need to avoid unwarranted disparity among similarly situated defendants. On December 10, 2007, the Supreme Court reversed the Court of Appeals in a 7-2 ruling. Writing for the majority, Justice Ginsburg held that although a district judge must respectfully consider the Guidelines range as one factor (among many) in determining an appropriate sentence, the judge has discretion to depart from the Guidelines based on the disparity between the Guidelines' treatment of crack and powder cocaine offenses. As the Booker decision had made clear that the Sentencing Guidelines—which include the cocaine Guidelines—are to be advisory only, the Fourth Circuit Court of Appeals had erred in holding the crack/powder disparity "effectively mandatory," the Court explained. Furthermore, the Supreme Court concluded that the 180-month sentence imposed on Kimbrough is reasonable given the particular circumstance of Kimbrough's case and that the district judge did not abuse his discretion in finding that the crack/powder disparity is at odds with the objectives of sentencing set forth in 18 U.S.C. § 3553(a)(2). Spears v. United States In a case that had been remanded by the Supreme Court for further consideration in light of Kimbrough , the Eighth Circuit Court of Appeals held in United States v. Spears that district courts "may not categorically reject the [crack-to-powder] ratio set forth by the Guidelines," and that "[n]othing in Kimbrough suggests the district court may substitute its own ratio for the ratio set forth in the Guidelines." On January 21, 2009, the Supreme Court issued a per curiam opinion that summarily reversed the appellate court's decision on remand, finding that the judgment conflicted with Kimbrough . The Court stated that "with respect to the crack cocaine Guidelines, a categorical disagreement with and variance from the Guidelines is not suspect" and reiterated that Kimbrough stands for the proposition that district courts have the "authority to vary from the crack cocaine Guidelines based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular case." The Supreme Court explained, As a logical matter, of course, rejection of the 100:1 ratio, explicitly approved by Kimbrough , necessarily implies adoption of some other ratio to govern the mine-run case. A sentencing judge who is given the power to reject the disparity created by the crack-to-powder ratio must also possess the power to apply a different ratio which, in his judgment, corrects the disparity. Put simply, the ability to reduce a mine-run defendant's sentence necessarily permits adoption of a replacement ratio. In releasing the opinion in Spears v. United States , the Supreme Court sought to clarify its holding in Kimbrough that had been misinterpreted by not only the Eighth Circuit Court of Appeals, but the First and Third Circuits as well. The Court speculated that if the Eighth Circuit's restrictive interpretation of Kimbrough was correct, one of two things would likely occur: Either district courts would treat the Guidelines' policy embodied in the crack-to-powder ratio as mandatory, believing that they are not entitled to vary based on "categorical" policy disagreements with the Guidelines, or they would continue to vary, masking their categorical policy disagreements as "individualized determinations." The latter is institutionalized subterfuge. The former contradicts our holding in Kimbrough. Neither is an acceptable sentencing practice. 2007 Amendment of the Sentencing Guidelines In May 2007, the United States Sentencing Commission submitted proposed amendments to the Guidelines (including those applicable in Kimbrough ) that essentially did away with the 100:1 ratio for purposes of the Guidelines (except at the point at which the statutory mandatory minimums are triggered). It also recommended that Congress raise the thresholds for the statutory mandatory minimums for trafficking in crack, thereby eliminating the statutory 100:1 ratio. In making the decision to amend the Guidelines, the Commission sought to "somewhat alleviate" the "urgent and compelling ... problems associated with the 100-to-1 drug quantity ratio." The Commission opined that the amendment was "only ... a partial remedy" and was "neither a permanent nor complete solution." In July 2007, the Commission proposed that the changes relating to what had been the 100:1 ratio in the Guidelines be made retroactively applicable to previously sentenced crack cocaine offenders. On November 1, 2007, the amendments to the Guidelines including those relating to crack and the 100:1 ratio went into effect. On December 11, 2007, the Sentencing Commission unanimously voted to apply the crack amendment retroactively. As noted earlier, the Controlled Substances Act makes trafficking in 5 to 50 grams of crack cocaine or 500 to 5,000 grams of cocaine powder punishable by imprisonment for not less than 5 years and not more than 40 years. It makes trafficking more than 50 grams of crack or more than 5,000 grams of cocaine powder punishable by imprisonment for not less than 10 years and not more than life. These sanctions, like most federal criminal penalties, are reflected in the Sentencing Guidelines. The Guidelines assign most federal crimes to an individual guideline which in turn assigns the offense an initial base sentencing level. Drug trafficking offenses, for example, have been assigned to section 2D1.1, which sets the base offense level according to the amount of crack or powder cocaine involved in a particular case. Levels are then added or subtracted on the basis of any aggravating or mitigating factors presented in a particular defendant's case. For example, a defendant's offense level may be decreased by two or four levels, if the offense involved a number of participants and the defendant's role in the offense was minor or minimal. A defendant's final offense level and his criminal history (criminal record) govern the sentence recommended by the Guidelines. The Guidelines assign sentencing ranges for each of the 43 possible final offense levels. Each of the 43 has a series of six escalating sentencing ranges to mirror the extent of the defendant's criminal history. For example, if a defendant has no prior criminal record and his final sentencing level is 26, the Guidelines recommend that the sentencing court impose a term of imprisonment somewhere between 63 and 78 months; at the other extreme, if a defendant has an extensive prior criminal record and his final sentencing level is the same 26, the Guidelines recommend a sentencing range of between 120 to 150 months. The drug quantity table that is part of the drug sentencing guideline, U.S.S.G. § 2D1.1(c), assigns offenses to one of several steps with corresponding sentencing levels based on the kind and volume of the controlled substances involved in the offense. For example, an offense involving 150 kilograms or more of powder cocaine is assigned a step (1) offense level of 38, while an offense involving less than 25 grams is assigned a step (14) offense level of 12. Prior to the amendments effective on November 1, 2007, each of the steps reflected a 100:1 ratio between crack and powder cocaine; for instance, offenses involving either more than 150 kilograms of powder cocaine or more than 1.5 kilograms of crack cocaine were each assigned a step (1) offense level of 38. In order to reduce the prospect of a Guideline result beneath the statutory minimums, the pre-amendment Guidelines assigned the 5-year-minimum-triggering 5 grams (crack)/500 grams (powder) offenses to U.S.S.G. § 2D1.1(c), step (7), with an offense level of 26 which translated to a sentencing range of from 5 years and 3 months (63 months) to 6 years and 6 months (78 months). It made a similar assignment for the 10-year mandatory minimum offenses involving 50 grams of crack or 5,000 grams of powder cocaine: level 32 with a sentencing range for first offenders of from 10 years and 1 month (121 months) to 12 years and 7 months (151 months). The Commission's amendments focused first on the assignment for crack offenses subject to a mandatory minimum. The Commission noted that its earlier assignment set the bottom of the two ranges higher than necessary to satisfy minimum sentencing requirements (5 years and 3 months in the case of 5 grams; 10 years and 1 month in the case of 50 grams). Its amendments reassign those offenses to offense levels where the mandatory minimum fell within the middle of the ranges, that is, to offense level 24 (51 to 63 months for first offenders) and offense level 30 (97 to 121 months for first offenders) for 5- and 50-gram crack offenses, respectively. They then provide a similar two-level reduction for crack offenses involving amounts above and beyond those that trigger the mandatory minimums. The amendments, however, make no such changes in the offense levels to which powder cocaine offenses are assigned. As a consequence, the 100:1 ratio has disappeared from the Guidelines (although the statutory 100:1 ratio in the quantities of powder cocaine and crack cocaine that trigger the mandatory minimum penalties still remains). Retroactivity Decision In July 2007, the Commission proposed that the amendment be made retroactively applicable to previously sentenced crack cocaine offenders. After receiving public comment on the issue of retroactivity and holding public hearings to consider the issue, the Commission voted 7-0 in favor of retroactivity on December 11, 2007. While the Commission found "that the statutory purposes of sentencing are best served by retroactive application of the amendment," it emphasized that not all previously sentenced crack cocaine offenders will automatically receive a reduction in sentence—rather, federal sentencing judges will have the final authority to make that determination based on the merits of each case, after considering a variety of factors, including whether public safety would be endangered by early release of the prisoner. Case Law Applying the Retroactive Crack Cocaine Amendments In general, a federal court "may not modify a term of imprisonment once it has been imposed." However, there are limited exceptions to this general rule, including the following: a federal prisoner may petition a court to modify his original term of imprisonment if he was "sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission." Such a modification is authorized "if such a reduction is consistent with" policy statements issued by the Sentencing Commission supporting the reduction for previously sentenced offenders—in other words, if the Commission makes its Guideline amendments retroactively applicable. The federal court is not required to approve a sentence reduction motion; rather, the statute provides that a court "may" reduce such imprisonment term. However, a court may not reduce a sentence below a statutory mandatory minimum. A federal court considering a so-called "§ 3582(c)(2)" motion has discretion to reduce the imprisonment sentence after considering the following statutory factors, set forth in 18 U.S.C. § 3553(a): the nature and circumstances of the offense and the history and characteristics of the defendant; the need for the sentence imposed: (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with educational or vocational training, medical care, or other correctional treatment in the most effective manner; the sentencing range established by the Commission; any pertinent policy statement issued by the Commission regarding application of the guidelines; the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and the need to provide restitution to any victims of the offense. The Sentencing Commission's policy statement governing reduction of terms of imprisonment based on amended Guidelines ranges is Sentencing Guidelines § 1B1.10. The policy statement explains that "proceedings under 18 U.S.C. § 3582(c)(2) and this policy statement do not constitute a full resentencing of the defendant." The policy statement also provides that a "court shall not reduce the defendant's term of imprisonment ... to a term that is less than the minimum of the amended guideline range." In the wake of the Sentencing Commission's crack cocaine amendment retroactivity decision, the federal courts began considering § 3582(c)(2) motions filed by crack offenders to obtain reductions in their sentences. In the month of March 2008, when the retroactivity decision became effective, more than 3,000 prisoners nationwide had their sentences reduced; 1,000 of these inmates were released immediately. As of May 2010, a nationwide total of 15,778 motions have been granted, with an average decrease of 26 months from the prisoners' original sentence (a 17% decrease), while 8,280 petitions have been denied. Several issues have arisen during these cases, including whether prisoners who request sentence reductions are entitled to have court-appointed lawyers to represent them in court, whether crack offenders who were sentenced as career-offenders are eligible for sentence reductions, and whether courts may reduce a sentence below the bottom end of the amended Guideline range (a power that would be available to a court assuming that Booker applies to § 3582(c)(2) proceedings). Many of the § 3582(c)(2) motions have been filed by defendants pro se, although often with some assistance by the local federal public defender office. A panel from the Fifth Circuit Court of Appeals declined to decide whether a § 3582(c)(2) motion triggers a statutory or constitutional right to an attorney, but rather used its discretionary authority to appoint the prisoner an attorney "in the interest of justice." Other federal courts have rejected the argument that a prisoner has a constitutional right to assistance of counsel in pursuing a § 3582(c)(2) motion for a sentence reduction. Another question facing the courts was whether defendants who were convicted of crack cocaine offenses but sentenced as career offenders could benefit from the amended crack cocaine sentencing guidelines. Courts of appeals that have considered the issue have ruled that they cannot. An opinion from the Eleventh Circuit Court of Appeals is typical of these decisions: Where a retroactively applicable guideline amendment reduces a defendant's base offense level, but does not alter the sentencing range upon which his or her sentence was based, § 3582(c)(2) does not authorize a reduction in sentence. Here, although Amendment 706 [the crack cocaine amendment] would reduce the base offense levels applicable to the defendants, it would not affect their guideline ranges because they were sentenced as career offenders under [U.S. Sentencing Guidelines] § 4B1.1. Dillon v. United States Federal courts have also addressed whether Booker applies to § 3582(c)(2) proceedings (which would determine whether district courts have the authority to impose a sentence that is even lower than the minimum of the amended Sentencing Guideline range). Ten courts of appeals have held that while Booker applies to original sentencing proceedings, "in which a district court must make a host of guideline application decisions in arriving at a defendant's applicable guideline range and then ultimately impose a sentence after reviewing the § 3553(a) factors," Booker does not apply to sentence modification proceedings under § 3582(c)(2) because such proceedings are "much more narrow in scope." One federal appellate court offered the following reasoning to justify its decision not to apply Booker to § 3582(c)(2) proceedings: Nowhere in Booker did the Supreme Court mention §3582(c)(2). Because §3582(c)(2) proceedings may only reduce a defendant's sentence and not increase it, the constitutional holding in Booker does not apply to §3582(c)(2). ... Additionally, the remedial holding in Booker invalidated only 18 U.S.C. §3553(b)(1), which made the Sentencing Guidelines mandatory for full sentencings, and §3742(e), which directed appellate courts to apply a de novo standard of review to departures from the Guidelines. Therefore, Booker applies to full sentencing hearings –whether in an initial sentencing or in a resentencing where the original sentence is vacated for error, but not to sentence modification proceedings under §3582(c)(2). In disagreement with all of the other circuit courts of appeals, the Ninth Circuit Court of Appeals found that Booker renders the Guidelines advisory in a § 3582(c)(2) proceeding, and thus a district court may reduce a sentence below the amended guideline range. To resolve this circuit split and offer a definitive answer to this question, the Supreme Court granted certiorari in Dillon v. United States , a Third Circuit Court of Appeals case that had held that Booker does not apply to the size of a sentence reduction that may be granted under § 3582(c)(2). The defendant in the case, Percy Dillon, was convicted in 1993 of several felony offenses involving cocaine and was sentenced to the bottom of the then-applicable Guidelines range, 322 months. At his sentencing, the district court judge commented that "I personally don't believe that you should be serving 322 months[, b]ut I feel I am bound by those Guidelines.... I don't say to you that these penalties are fair. I don't think they are fair. I think they are entirely too high for the crime you have committed." After the Sentencing Commission's decision to make the amendments to the crack cocaine Guidelines retroactive in December 2007, Dillon filed a pro se motion for a sentence reduction pursuant to § 3582(c)(2). The district court reduced Dillon's sentence to 270 months (the term at the bottom of the revised Guidelines range), although Dillon desired an even greater reduction, below the bottom of the amended Guidelines range, in light of Booker and the institutional rehabilitation and educational and community-outreach achievements that he has accomplished while incarcerated. On appeal, the Third Circuit opined that "[i]f Booker did apply in proceedings pursuant to § 3582, Dillon would likely be an ideal candidate for a non-Guidelines sentence," but ultimately upheld the district court's conclusion that it lacked the authority to further reduce his sentence because the Sentencing Commission's applicable policy statement (Sentencing Guidelines § 1B1.10) is binding on the district court pursuant to 18 U.S.C. 3582(c)(2). In his briefs submitted to the Supreme Court, Dillon argued that Booker extends to resentencings conducted under § 3582(c)(2) and criticized the Sentencing Commission's policy statement (Sentencing Guidelines § 1B1.10) that binds district courts to the Guidelines sentencing range during resentencings under § 3582(c)(2). The policy statement, he asserted, "attempts to resurrect the mandatory Guidelines system Booker invalidated." In its brief on the merits, the United States argued that Booker only applies "when a court engages in a plenary sentencing." A § 3582(c)(2) proceeding, however, "provides a one-way ratchet to lower a defendant's otherwise-final sentence" in a way that "does not implicate the Sixth Amendment rule applied in Booker " because the court may not increase a defendant's sentence based on judicially found facts. Furthermore, the United States warned the Supreme Court of the consequences of applying Booker to § 3582(c)(2) proceedings: [E]very retroactive Guidelines amendment would carry the potential to reopen thousands of sentences of imprisonment under the statutory sentencing factors set out in Section 3553(a). Petitioner's proposed rule not only would undermine principles of finality that are essential to the operation of the criminal justice system, but also would inevitably affect the Sentencing Commission's calculus in deciding whether to make its Guidelines amendments retroactive in the first place. That result would diminish Section 3582(c)(2)'s value as a mechanism for the exercise of leniency. On June 17, 2010, the Supreme Court issued its opinion in Dillon , in which it sided with the position of the United States. In a 7-1 decision authored by Justice Sonia Sotomayor, the Court ruled that Booker did not apply to § 3582(c)(2) proceedings. Justice Sotomayor observed that while Booker had invalidated two provisions of the Sentencing Reform Act (SRA) of 1984, the decision "left intact other provisions of the SRA including those giving the Commission authority to revise the Guidelines ... and to determine when and to what extent a revision will be retroactive." This authority vested by Congress in the Sentencing Commission reflects the "substantial role" that Congress envisioned for the Commission with respect to sentence-modification proceedings. Furthermore, she noted that the statutory text of § 3582(c)(2) undercuts Dillon's characterization of the sentence-modification proceedings as "plenary resentencing proceedings"; rather, the section provides a limited opportunity for a court to "modify a term of imprisonment" by reducing an otherwise final sentence under certain narrow circumstances specified by the Commission. "A court's power under § 3582(c)(2) thus depends in the first instance on the Commission's decision not just to amend the Guidelines but to make the amendment retroactive." A court is also bound by the Commission's determination of the extent to which a prisoner's term of imprisonment may be reduced. Justice Sotomayor described § 3582(c)(2) as not a constitutionally required proceeding, but rather "a congressional act of lenity intended to give prisoners the benefit of later enacted adjustments to the judgments reflected in the Guidelines." She explained that § 3582(c)(2) does not implicate the Sixth Amendment right vindicated in Booker because any facts that may be found by a judge in a § 3582(c)(2) proceeding would not increase the range of punishment—rather, it would only affect the judge's exercise of discretion within a particular amended Guidelines range. Thus, Dillon's constitutional rights were not violated by the district court that considered a reduction only within the amended range. In lone dissent, Justice Stevens argued that Booker should apply to § 3582(c)(2) proceedings. He accused the Court of being "unfaithful" to Booker in treating the Commission's policy statements "as a mandatory command rather than an advisory recommendation." He also regarded the Court's decision to allow "the Commission to exercise a barely constrained form of lawmaking authority" as "manifestly unjust" and "on dubious constitutional footing." While accepting that Booker explicitly severed only two specific statutory sections of the Sentencing Reform Act, Justice Stevens believed that a fair reading of Booker requires the elimination of all mandatory features of the Guidelines. He surmised that "the Court's decision today may reflect a concern that a contrary holding would discourage the Commission from issuing retroactive amendments to the Guidelines, owing to a fear of burdening the district courts"; however, he urged that such concern "should not influence our assessment of the legal question" before the Court. He opined that "Dillon's continued imprisonment is a truly sad example of what I have come to view as an exceptionally, and often mindlessly, harsh federal punishment scheme." Legislation in the 111th Congress Several bills have been introduced concerning cocaine sentencing; to date, the Congress has passed one into law: S. 1789 (Fair Sentencing Act of 2010). Introduced by Senator Richard Durbin, S. 1789 will, among other things, increase the threshold amount of crack cocaine necessary to trigger the mandatory minimum penalties to 28 grams (from 5 grams for the current 5-year sentence) and 280 grams (from 50 grams for the current 10-year sentence). This change will reduce the statutory 100:1 ratio to 18:1. The bill also eliminates the 5-year mandatory minimum for simple possession of crack cocaine. The bill goes beyond crack cocaine sentencing issues by increasing criminal fine amounts available for major drug traffickers and also directing the U.S. Sentencing Commission to amend the Sentencing Guidelines to ensure that the Guidelines provide an additional penalty increase of at least two offense levels if the defendant used violence, made a credible threat to use violence, or directed the use of violence during a drug trafficking offense. The Sentencing Commission is also required to study and submit to Congress within five years a report concerning the impact of the changes in federal sentencing law made by the Fair Sentencing Act of 2010. On March 17, 2010, the Senate passed S. 1789 by unanimous consent. On July 28, 2010, the House considered S. 1789 under suspension of the rules and passed it by voice vote. President Obama signed the bill into law on August 3, 2010 ( P.L. 111-220 ). The Congressional Budget Office has estimated that implementation of S. 1789 will generate $42 million in savings to the federal prison system over the 2011-2015 period. Representative Roscoe Bartlett introduced H.R. 18 (Powder-Crack Cocaine Penalty Equalization Act of 2009), which would equalize the triggering quantity for the mandatory minimum sentences for cocaine offenses at the crack cocaine levels (5 grams of powder cocaine would result in a 5-year sentence and 50 grams a 10-year sentence). Currently, it takes 100 times those quantities to trigger the 5- and 10-year mandatory minimum sentences for powder cocaine. Representative Sheila Jackson-Lee introduced H.R. 265 (Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2009), which would eliminate the statutory 100:1 ratio in cocaine cases by raising the crack cocaine threshold to 500 grams and 5 kilograms for the 5- and 10-year mandatory minimums, respectively. It would call upon the Sentencing Commission to reexamine the weight given aggravating and mitigating factors in drug trafficking cases. It also would eliminate the 5-year mandatory minimum for simple possession of crack cocaine. In addition, the bill would increase fines for significant drug trafficking offenses, authorize funding for prison- and jail-based drug treatment programs, and authorize increased resources for the Departments of Justice, Treasury, and Homeland Security. Representative Bobby Scott introduced H.R. 1459 (Fairness in Cocaine Sentencing Act of 2009), which would amend the Controlled Substances Act and the Controlled Substances Import and Export Act regarding cocaine penalties. The bill would treat 50 grams of crack the same as 50 grams of other forms of cocaine, 5 grams of crack the same as 5 grams of other forms of cocaine, and would eliminate all mandatory minimum penalties relating to cocaine offenses. The bill also would reestablish the possibility of probation, suspended sentence, or parole for cocaine offenders. Representative Scott also has introduced H.R. 3245 (Fairness in Cocaine Sentencing Act of 2009), which would make fewer changes to the drug laws; the bill would eliminate references to "cocaine base" from the Controlled Substances Act and the Controlled Substances Import and Export Act (meaning that these laws would treat all forms of cocaine the same for sentencing purposes) and would eliminate the mandatory minimum for simple possession of crack cocaine. Representative Maxine Waters introduced H.R. 1466 (Major Drug Trafficking Prosecution Act of 2009), which would, among other things, eliminate all mandatory minimum sentences for drug trafficking and possession offenses, and permit courts to place drug offenders on probation or suspend their sentences. The bill also would require the Attorney General to provide written approval before the commencement of a federal prosecution for an offense involving less than 500 grams of powder or crack cocaine. Representative Charles Rangel introduced H.R. 2178 (Crack-Cocaine Equitable Sentencing Act of 2009), which would amend the Controlled Substances Act and the Controlled Substances Import and Export Act to treat 50 grams of crack the same as 50 grams of other forms of cocaine; 5 grams of crack the same as 5 grams of other forms of cocaine, and eliminate the 5-year mandatory minimum for simple possession of crack cocaine. Past Congresses have considered legislation relating to cocaine sentencing; some of these bills had called for a 1:1 drug quantity ratio between crack and powder cocaine, while other bills would have changed the statutory ratio to 20:1. Appendix. Drug Quantity Table (Before and After Amendment) | Pursuant to the Anti-Drug Abuse Act of 1986, Congress established basic sentencing levels for crack cocaine offenses. Congress amended 21 U.S.C. § 841 to provide for a 100:1 ratio in the quantities of powder cocaine and crack cocaine that trigger a mandatory minimum penalty. As amended, 21 U.S.C. § 841(b)(1)(A) required a mandatory minimum 10-year term of imprisonment and a maximum life term of imprisonment for trafficking offenses involving 5 kilograms of cocaine or 50 grams of cocaine base. In addition, 21 U.S.C. § 841(b)(1)(B) established a mandatory 5-year term of imprisonment for offenses involving 500 grams of cocaine or 5 grams of cocaine base. 21 U.S.C. § 844(a) called for a 5-year mandatory minimum punishment for simple possession of crack cocaine. Although the Fair Sentencing Act of 2010 revises these penalties (as discussed below), there still remains a disparity in the threshold amount of powder cocaine and crack cocaine that triggers the mandatory minimums in 21 U.S.C. § 841. Federal sentencing guidelines (the Guidelines) established by the U.S. Sentencing Commission reflect the statutory differential treatment of crack and powder cocaine offenders. Until 2005, the Guidelines were binding on federal courts: the judge had discretion to sentence a defendant, but only within the narrow sentencing range that the Guidelines provided. In its 2005 opinion United States v. Booker, the Supreme Court declared that the Guidelines must be considered advisory rather than mandatory, in order to comply with the Constitution. Instead of being bound by the Guidelines, sentencing courts must treat the federal guidelines as just one of a number of sentencing factors (which include the need to avoid undue sentencing disparity). In the aftermath of Booker, some judges, who did not believe that crack cocaine is 100 times worse than powder cocaine, imposed lower sentences on crack cocaine offenders than the ones recommended by the Guidelines. In 2007, the Supreme Court in Kimbrough v. United States upheld this practice, ruling that a court may impose a below-the-Guidelines sentence based on its conclusion that the 100:1 ratio is greater than necessary or may foster unwarranted disparity. Also in 2007, the Sentencing Commission revised the Guidelines by lowering the base offense level for crack cocaine offenses by two levels, thereby eliminating the 100:1 ratio for future sentencing guideline purposes (except at the point at which the statutory mandatory minimums are triggered). In addition, the Sentencing Commission decided to make these amendments retroactively applicable, thus allowing eligible crack cocaine offenders who were sentenced prior to November 1, 2007, to petition a federal judge to reduce their sentences. On June 17, 2010, the Supreme Court decided Dillon v. United States, in which it held that Booker does not apply in a sentence modification proceeding that is based on the retroactive crack cocaine amendment to the Guidelines; thus, district courts do not have the authority to further reduce a crack cocaine offender's sentence in such proceedings below the retroactive, amended Guidelines range. The Fair Sentencing Act of 2010 (S. 1789) changes the statutory 100:1 ratio in crack/powder cocaine quantities that trigger the mandatory minimum penalties under 21 U.S.C. § 841(b)(1). President Obama signed the bill into law on August 3, 2010 (P.L. 111-220). S. 1789 reduces the statutory 100:1 ratio to 18:1, by increasing the threshold amount of crack cocaine to 28 grams (for the 5-year sentence) and 280 grams (for the 10-year sentence). S. 1789 also eliminates the 5-year mandatory minimum for simple possession of crack cocaine. Other bills introduced in the 111th Congress would completely eliminate the statutory disparity in cocaine sentencing, including H.R. 18, H.R. 265, H.R. 1459, H.R. 2178, and H.R. 3245. Another bill, H.R. 1466, would repeal all statutory mandatory minimums for drug offenses. |
Background The Randolph-Sheppard Act, originally signed into law by Franklin D. Roosevelt in 1936, requires that blind individuals receive priority for the operation of vending facilities on federal property. The 1974 amendments to the act changed the term "vending stand" to "vending facility" and defined the term as meaning "automatic vending machines, cafeterias, snack bars, cart services, shelters, counters, and such other appropriate auxiliary equipment as the Secretary [of Education] may by regulation prescribe as being necessary for the sale of the articles or services described in section 107a(a)(5) of this title and which may be operated by blind licensees...." The regulations promulgated by the Department of Education define "cafeteria" as "a food dispensing facility capable of providing a broad variety of prepared foods and beverages (including hot meals) primarily through the use of a line where the customer serves himself from displayed selections. A cafeteria may be fully automated or some limited waiter or waitress service may be available and provided within a cafeteria and table or booth seating facilities are always provided." The act does not apply to "income from vending machines within retail sales outlets under the control of exchange or ships' stores systems[,] ... income from vending machines operated by the Veterans Canteen Service[,] ... or income from vending machines not in direct competition with a blind vending facility at individual locations" on the federal property. The Randolph-Sheppard Act and Military Troop Dining Facilities Application of the Act to Military Troop Dining Facilities Two major circuit court cases have dealt with the issue of whether the term "cafeteria" in the Randolph-Sheppard Act applies to military troop dining facilities. Both the Fourth Circuit and the Tenth Circuit concluded that military troop dining facilities are "cafeterias" under the Randolph-Sheppard Act. NISH v. Cohen In NISH v. Cohen , the court held that the Randolph-Sheppard Act applied to military troop dining facilities at Fort Lee in Virginia. NISH, a nonprofit agency designated "to represent other nonprofits employing the severely disabled in the production of items and services for government agencies under the Javits-Wagner-O'Day Act" (JWOD Act), had unsuccessfully sought to negotiate a contract for military troop dining facilities that was granted to a blind licensee. NISH filed suit seeking a declaratory judgment concerning the proper interpretation of the Randolph-Sheppard Act. In its appeal to the Fourth Circuit, NISH argued that military troop dining facilities are not "cafeterias" under the Randolph-Sheppard Act "because, in contrast to typical cafeterias (where meals are purchased by the general public from private funds), meals at military mess halls are provided to soldiers from appropriated funds." Using a two-part Chevron analysis , the court analyzed statutory and administrative interpretations and ruled that Fort Lee's contracting officer did not act unreasonably in applying the term "cafeteria" to the military troop dining facilities at Fort Lee. NISH also argued that the JWOD Act applied to the awarding of the military troop dining facilities contract at Fort Lee because the Competition in Contracting Act (CICA) "preclud[ed] application of the Randolph-Sheppard Act." CICA "requires that the military use 'full and open competition' when contracting for 'property or services' except 'in the case of procurement procedures otherwise expressly authorized by statute.'" The court ruled that the procurement provisions found in the Randolph-Sheppard Act met CICA's sweeping definition of procurement, which meant both the Randolph-Sheppard Act and the JWOD Act could apply to the situation. The court further held that, of the two statutes, the Randolph-Sheppard Act was more specific and therefore controlling. NISH v. Rumsfeld In NISH v. Rumsfeld , the court held that the Randolph-Sheppard Act applied to military troop dining facilities at Kirtland Air Force Base in New Mexico. NISH had a one-year contract for food services at the base with options for four additional years. Following the first year, the Air Force did not renew the contract with NISH and instead awarded it to the New Mexico Commission for the Blind (NMCB), citing compliance with the provisions of the Randolph-Sheppard Act. NISH filed suit seeking a declaratory judgment concerning the proper interpretation of the Randolph-Sheppard Act. In its appeal to the Tenth Circuit, NISH argued that Congress did not intend to include military troop dining facilities in the Randolph-Sheppard Act's definition of "vending facilities." The court rejected this argument by ruling that the plain language of the statute is unambiguous with respect to the inclusion of "cafeterias." NISH further argued that the Randolph-Sheppard Act did not grant authority to the Department of Education (ED) to regulate military mess halls, but the court ruled that Congress did grant this authority to the ED. Using a two-part Chevron analysis, the court held that the Air Force reasonably relied on the ED's determinations about the meaning of the Randolph-Sheppard Act as well as its own determination in awarding the contract to NMCB. As in NISH v. Cohen , NISH also argued that the JWOD Act applied because of CICA. The court here reached the same conclusion, holding that the Randolph-Sheppard Act met CICA's procurement definition and controlled over the JWOD Act. Other Cases Small business concerns eligible to participate in a program or contract under Section 8(a) of the Small Business Act and HUBZone entities have also filed claims objecting to the application of the Randolph-Sheppard Act to the military troop dining facility contract process. In these cases the Comptroller General and the Court of Federal Claims both held that the blind vendor contracts within the competitive range of contracts had priority over the other groups' contracts. Limits on the Act's Application to Military Troop Dining Facilities The application of the Randolph-Sheppard Act to military troop dining facility contracts is limited by the requirement found in 48 C.F.R. 15.306 that the contract fall within the competitive range. In Southfork Systems, Inc. v. United States , the Court of Appeals for the Federal Circuit held that a contract proposal from a blind vendor could fall within the competitive range of contracts as determined by the contracting officer. In this case Southfork lost its contract with the Air Force for military troop dining facility services to the Texas Commission for the Blind (the Commission) and contested the inclusion of the Commission's contract proposal in the competitive range. The lower court rejected Southfork's claims. The appellate court agreed with the lower court and specifically stated that it failed to see "how ... the Air Force could have concluded that the Commission did not have a 'reasonable chance of being selected for award'" without rejecting "out of hand the proposition that economic opportunities for the blind could be enlarged by having a blind individual" managing the cafeteria. The court recognized that the "contracting officer had broad discretion to consider each factor [in the contract process] as a part of a totality of the circumstances" in making the competitive range determination. The determination of the competitive range has also been part of several federal district court rulings. The application of the Randolph-Sheppard Act to military troop dining facility contracts also may be limited by the types of services provided by the blind individual. In one case, Washington State Department of Services for the Blind v. United States , the Court of Federal Claims held that dining facility attendant services contracts were not covered by the Randolph-Sheppard Act. In this case, the Washington State Department of Services for the Blind (WSDSB) challenged the Army's determination that the Randolph-Sheppard Act did not apply to contracts for dining facility attendant services at Fort Lewis. WSDSB argued that the Randolph-Sheppard Act's requirement that blind persons be given priority for " operation of a vending facility" on federal property included dining facility attendant services contracts, but the court held that the Army's interpretation that "operation" did not include dining facility attendant services was not arbitrary or capricious. However, in Mississippi Department of Rehabilitation Services v. United States , the Court of Federal Claims held that a contract for day-to-day services, as opposed to dining facility attendant services, fell under the Randolph-Sheppard Act even though the Navy retained control over menu selection and food supply purchasing. In this case, the Mississippi Department of Rehabilitation Services challenged the Navy's determination that the Randolph-Sheppard Act did not apply to a contractor for services at the Naval Air Station in Meredian, Mississippi, who was required to "manage the cafeteria, prepare the food, serve the food, provide cleanup and cashier services, implement quality control and training programs, provide certain supplies and equipment and hire the personnel, both managerial and support." The court concluded that the contractor was considered the facility's "operator" because of its daily responsibilities. Legislation in the 110th Congress The Javits-Wagner-O'Day and Randolph-Sheppard Modernization Act of 2008 was introduced by Senator Enzi on June 11, 2008. This legislation would, among other things, address several issues raised by the judicial decisions previously discussed. The bill would establish the Committee for the Advancement of Individuals with Disabilities that would jointly administer both the Randolph-Sheppard program and the AbilityOne program (which implements the JWOD Act). The bill also would require state licensing agencies to grant licenses for the operation of a vending facility to individuals with disabilities other than blindness starting three years after the bill's enactment. Additionally, with respect to military troop dining facilities, the bill would grant equal priority in the contract process to a state licensing agency bidding for a contract under the Randolph-Sheppard Act, a small business concern eligible to participate in a program or contract under Section 8(a) of the Small Business Act, a HUBZone entity, an Alaska Native Corporation, and other socially disadvantaged groups as defined by the Department of Defense. For military troop dining facility contract proposals from the AbilityOne program, the bill would prohibit new proposals and require that proposals be removed from the procurement list five years after the bill becomes law. Finally, the bill would specify that the term "cafeteria" in the Randolph-Sheppard Act, when used in reference to a military troop dining facility, would refer only to "services pertaining to a full food service military dining facility." This definition would not include "mess attendant, dining facility attendant, dining support" or other activities that supported the operation of the cafeteria. The bill was referred to the Senate Committee on Health, Education, Labor, and Pensions on June 11, 2008. No similar legislation has been introduced in the House. | The Randolph-Sheppard Act requires that blind individuals receive priority for the operation of vending facilities on federal property. "Vending facilities" include automatic vending machines, cafeterias, and snack bars. This report will discuss several significant court decisions and recent legislation related to the Randolph-Sheppard Act. Two federal court of appeals decisions, NISH v. Cohen and NISH v. Rumsfeld, held that military troop dining facilities are "cafeterias" under the Randolph-Sheppard Act and that the act controlled over the Javits-Wagner-O'Day Act, which provides employment opportunities for the severely disabled. Other cases have analyzed the scope of the Randolph-Sheppard Act's application to military troop dining facilities. S. 3112, which was introduced on June 11, 2008, would amend the Javits-Wagner-O'Day and Randolph-Sheppard Acts and address several issues raised by these judicial decisions. |
The Immigration and Nationality Act Since 1903, the INA has contained two separate provisions addressing the public charge grounds. One provision, currently codified in Section 212 of the INA, addresses the public charge grounds of inadmissibility (formerly, excludability) and specifies that "[a]ny alien who ... is likely at any time to become a public charge is inadmissible." This provision generally applies to aliens seeking to obtain visas or admission at ports of entry; aliens within the United States who seek to adjust their status to that of lawful permanent resident (LPR); and aliens who entered the United States without inspection. If such aliens are found to be inadmissible on public charge grounds, they are, respectively, barred from entering the United States, denied adjustment of status, or subject to removal from the country. Another provision, currently codified in Section 237 of the INA, addresses the public charge ground of deportability and specifies that "[a]ny alien who, within five years after the date of entry, has become a public charge from causes not affirmatively shown to have arisen since entry is deportable." This provision applies to LPRs and other aliens admitted to the United States. However, while the INA provides that an alien may be inadmissible or deportable on public charge grounds, it does not define what it means for an alien to be a public charge. Such determinations were historically made using certain tests developed by the case law, discussed below. Then, in 1996, Congress amended the INA provisions regarding the public charge ground of inadmissibility to require that consular and immigration officers take certain factors "into account" when determining whether aliens are inadmissible or ineligible for adjustment of status on public charge grounds. These factors include, "at a minimum," the alien's age; health; family status; assets, resources, and financial status; and education and skills. In addition, the 1996 amendments also authorize consular and immigration officers to consider any affidavit of support furnished on behalf of an alien and provide that certain family-sponsored and employment-based immigrants are inadmissible if they do not have the requisite affidavit of support. No similar amendments have been made as to the public charge ground of deportability , which is still assessed based upon a three-part test developed by the case law, discussed below. It is important to note, however, that public charge has been construed more narrowly for purposes of the grounds of deportability than it has been construed for purposes of the grounds of inadmissibility, in part, due to the differences between deportation and exclusion. Because the "deportation statute dislodges an established residence" in the United States, it "must be strictly construed." The same is not true with the INA's provisions regarding inadmissibility. Early Administrative and Judicial Decisions Given this general lack of statutory guidance, the executive and judicial branches initially construed the term public charge in adjudicating cases involving individual aliens. Immigration officers would consider certain factors in determining whether particular aliens were inadmissible or deportable on public charge grounds. If the alien appealed, the determinations of these officers were subject to review by the Board of Immigration Appeals (BIA or Board), the highest administrative body for interpreting and applying immigration law. Then, if they were appealed, the BIA's decisions were subject to review by the federal courts. Numerous decisions, dating back to at least 1903, address the applicability of the public charge grounds to particular aliens. However, two BIA decisions, in particular, helped establish what it means for an alien to be a public charge. First, in its 1948 decision in Matter of B— , the BIA established the prevailing test for determining whether an alien is deportable on public charge grounds. There, a majority of the Board granted the INS's motion to withdraw the order and warrant of deportation and dismiss removal proceedings against an alien who had been committed by the courts to a state hospital. In so doing, the BIA articulated a three-part test for determining whether an alien is deportable on public charge grounds that, it said, had been "implicit" in prior judicial decisions and "applied administratively over a long period of time." For an alien to be deportable as a public charge under this test: (1) The State or other governing body must, by appropriate law, impose a charge for the services rendered to the alien .... (2) The authorities must make demand for payment of the charges upon those persons made liable under State law. (3) [T]here must be a failure to pay for the charges. Applying this test to the alien in question, the BIA found that the alien could not be deemed a public charge because the Illinois statute governing commitment at the state hospital provided that hospital residents were entitled to receive free maintenance, care, and treatment. Residents were only legally liable for their clothing, transportation, and other incidental expenses, which the record "clearly show[ed]" that the alien's sister had paid. In its decision, the Board also emphasized that "[t]he fact that the State or municipality pays for the services accepted by the alien is not, ... by itself, the test of whether the alien has become a public charge." Subsequently, in its 1974 decision in Matter of Harutunian , the BIA reaffirmed that a "totality of the circumstances" test—as opposed to the three-part test of Matter of B — applies in determining when an alien is inadmissible on public charge grounds. In Harutunian , the Board affirmed immigration officials' determination that a 70-year-old alien who had relied on state "old-age assistance benefits" for support was ineligible for adjustment of status on public charge grounds. The alien had sought to overturn this decision by citing the precedent of Matter of B— , since California did not require repayment of old-age assistance benefits of the type the alien received. However, the BIA rejected this argument, primarily because it construed public charge as having a different meaning in Section 212 of the INA than it does in Section 237. In support of this conclusion, the Board first noted the differences between deportation and exclusion. In particular, the Board noted that deportation "dislodges an established residence" in the United States, while aliens outside the United States generally have no constitutional right to enter the country. Thus, it concluded that the grounds of deportability must be more "strictly construed" than the grounds of inadmissibility. The Board also noted that the legislative history of the public charge ground of inadmissibility supported the view that Congress intended "elements" such as age, financial status, and family support be considered in determining whether an alien is a public charge. The Board further emphasized that administrative authorities had historically taken the view that the alien's physical and mental condition, as well as the alien's economic circumstances, were to be considered in determining whether the alien is inadmissible on public charge grounds. In addition, the BIA viewed the three-part test of Matter of B — as inappropriate in determining inadmissibility, since the public charge ground of inadmissibility is concerned with whether the alien is "likely to become a public charge at some time in the future, a prediction which necessarily precludes the element of reimbursement." Applying this "totality of the circumstances" test to the alien in question, the BIA found in Harutunian that immigration officials had properly determined that the alien was ineligible for adjustment of status on public charge grounds. The alien had been on welfare since her arrival in the United States, and she was receiving such assistance at the time she applied for adjustment of status. In addition, the alien was aged, unskilled, uneducated, and without family or other support. In light of these circumstances, the Board concluded that the alien could be deemed a public charge, "even though the state from which she will receive old age assistance [had not sought and] may not permit reimbursement." PRWORA and Resulting Guidance The enactment of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 prompted the then Immigration and Naturalization Service (INS) to issue guidance defining public charge and describing the application of the public charge grounds. PRWORA is best known for generally barring noncitizens who do not fall within PRWORA's definition of "qualifed aliens" from receiving federal, state, and local "public benefits" and for significantly restricting the receipt of "federal means-tested public benefits" by qualified aliens. However, even with these restrictions, noncitizens may receive certain public benefits under PRWORA. For example, PRWORA expressly exempts specified benefits—including emergency medical assistance and certain disaster relief—from its general prohibition upon the provision of federal, state, and local public benefits to aliens who are not qualified aliens. PRWORA also exempts specified categories of qualified aliens—including refugees, asylees, and certain victims of domestic violence—from the five-year bar upon their receipt of federal means-tested public benefits. Because PRWORA permits noncitizens to receive some public benefits, aliens and commentators have raised questions about whether aliens who take advantage of such benefits could potentially be found to be removable as a result of doing so. In 1999, the INS responded to these questions by proposing regulations and issuing a field guide defining public charge , and describing how immigration officials viewed receipt of public benefits when making public charge determinations. The proposed regulations would have defined public charge , for purposes of both the grounds of inadmissibility and the grounds of deportability, to mean: an alien who has become primarily dependent on the Government for subsistence as demonstrated by either: (i) [t]he receipt of public cash assistance for income maintenance purposes, or (ii) [i]nstitutionalization for long-term care at Government expense (other than imprisonment for conviction of a crime). Government would have referred to any federal, state, or local entity. Public cash assistance for income maintenance , in turn, would have been defined to include, but not be limited to, Supplemental Security Income (SSI) and, with certain exceptions, Temporary Assistance for Needy Families (TANF). Forms of cash benefits "not intended for income maintenance" would have been expressly excluded from consideration in public charge determinations (e.g., the Low Income Home Energy Assistance Program (LIHEAP), Child Care and Development Block Grant Program (CCDBGP), food stamp benefits issued in cash). Cash benefits that had been "earned" would also have been excluded, including benefits under Title II of the Social Security Act, government pension benefits, and veteran's benefits. The proposed regulation would also have spelled out the role that receipt of public cash assistance for income maintenance plays in determining whether an alien is inadmissible or deportable on public charge grounds. As to inadmissibility , the rule would have noted that Section 212 of the INA requires consular and immigration officers to consider, "'at a minimum, [the alien's] age, health, family status, assets, resources, financial status, education, and skills in making a decision on whether [the alien is] likely to become a public charge." It would also have noted that public charge determinations are based on the "totality of the circumstances" and "[n]o single factor," other than the lack of any required affidavit of support, is controlling, including past or current receipt of public cash assistance. As to deportability , the rule would have specified that aliens are generally not deportable on public charge grounds unless the INS shows that 1. the government entity that provided, or is providing, public cash assistance for income maintenance, or the costs of institutionalization for long-term care, has a legal right to seek repayment of those benefits; 2. that entity demanded repayment of the benefit within five years of the alien's entry to the United States; 3. the alien or any other party obligated to repay the benefit failed to do so; 4. there is a final administrative or court judgment requiring the alien or another party to repay the benefit; and 5. the benefit-granting agency, or other applicable government entity, has taken "all actions necessary to enforce the judgment," including "all collections actions." The INS never finalized these regulations. However, at the same time it issued the proposed regulations, the INS also issued a field guide on inadmissibility and deportability on public charge grounds that incorporated the definition of public charge and other guidance provided in the proposed regulations. Commonly referred to as the "Pearson memorandum," after its author, this field guidance has continued to be cited as an authoritative source on the public charge grounds of inadmissibility and deportability. Similar guidance appears in other sources, most notably the State Department's Foreign Affairs Manual, discussed below. Current Regulations and Other Guidance The public charge grounds are currently discussed in the regulations of both the Departments of Homeland Security (DHS) and State (DOS), as well as in DOS's Foreign Affairs Manual. The DOS regulations address only the grounds of inadmissibility, since consular officers are responsible for the issuance of visas to aliens outside the United States, but generally play no role in determining whether aliens within the United States are deportable. DHS officials, in contrast, determine whether aliens arriving at U.S. ports of entry are to be admitted; whether applications for adjustment of status are to be granted; and whether aliens within the United States are to be removed. Thus, the DHS regulations address both inadmissibility and deportability. DHS Regulations and Guidance The INS never finalized the proposed regulations regarding the public charge grounds, discussed above, and DHS has not proposed or promulgated similar regulations. Instead, the INS and, later, DHS promulgated specific regulations regarding the "special rules" used in determining whether certain applicants for adjustment of status are public charges. For example, DHS regulations currently provide that "special agricultural workers" who meet certain requirements are subject to the public charge grounds, but may not be excluded if they have a "consistent employment history" which shows the aliens' ability to support themselves and their families. The regulations further provide that "[p]ast acceptance of public cash assistance within a history of consistent employment will enter into" public charge determinations for special agricultural workers, with "the length of time an applicant has received [such] assistance" being viewed as a "significant factor." However, the weight given to the acceptance of public cash assistance is expressly said to "depend on many factors," and the overall analysis is "prospective in that [immigration officials] shall determine, based on the applicant's history, whether he or she is likely to become a public charge." In other words, pursuant to these regulations, prior receipt of public cash assistance would not necessarily result in an alien being found ineligible for adjustment of status if other factors suggest that the alien is unlikely to become a public charge in the future . There are similar "special rules" for other aliens seeking adjustment of status. DHS regulations are currently silent as to the public charge grounds of deportability. The Pearson memorandum has apparently continued to guide DHS's consideration of public charge determinations. The U.S. Citizenship and Immigration Service's (USCIS's) 2011 "fact sheet" on the public charge grounds, for example, defines public charge in the same way as the Pearson memorandum and expressly references the Pearson memorandum. As of February 4, 2017, this fact sheet is publicly available on the DHS website. State Department Regulations and Guidance The current DOS regulations, in contrast, address the public charge grounds of inadmissibility more broadly than the DHS regulations do. The DOS regulations emphasize the role that the alien's "circumstances" play in determining whether an alien is inadmissible, in part, by specifying that: [a]ny determination that an alien is ineligible [on public charge] grounds must be predicated upon circumstances indicating that, notwithstanding any affidavit of support that may have been filed on the alien's behalf, the alien is likely to become a public charge after admission, or, if applicable, that the alien has failed to fulfill the affidavit of support requirement .... Consular officers are expressly authorized to issue visas to aliens subject to the affidavit of support requirement, noted above, who "giv[e] ... a bond or undertaking in accordance with INA 213 and INA 221(g)," provided that the officer is satisfied that the giving of such bond or undertaking removes the likelihood that the alien will become a public charge, and the alien is otherwise eligible for a visa. However, consular officers are also required to presume that aliens not subject to the affidavit of support requirement who are relying solely on personal income to establish that they are not likely to become a public charge are ineligible for a visa if they do not demonstrate "an annual income above the federal poverty line" and are without "other adequate financial resources." The DOS guidance in the Foreign Affairs Manual (FAM) largely parallels that in the 1999 INS proposed regulations and the Pearson memorandum. However, the FAM expressly characterizes the types of public cash assistance for income maintenance considered in public charge determinations as "means tested benefits." The FAM also defines institutionalization for long-term care , which is not defined in the Pearson memorandum, as "care for an indefinite period of time for mental or other health reasons, rather than temporary rehabilitative or recuperative care even if such rehabilitation or recuperation may last weeks or months." Overall, though, like the Pearson memorandum, the FAM emphasizes that public charge determinations are to be made based upon the "totality of the circumstances," considering the factors specified in the INA (e.g., age, health), as well as "any other factors thought relevant by an officer in a specific case." Past or current receipt of cash benefits for income maintenance or institutionalization at public expense "may be factored into" the determination when it constituted the alien's primary means of subsistence. However, under the FAM, "[a] finding of inadmissibility [on public charge grounds] cannot be based solely on the prior receipt of public benefits," or on institutionalization at public expense. Public Benefits and the Public Charge Grounds Collectively, the various sources addressing the meaning of public charge suggest that an alien's receipt of public benefits, per se, has historically been unlikely to result in the alien being deemed removable on public charge grounds. As previously noted, the INA does not define public charge , or link the public charge grounds of inadmissibility and deportability with the receipt of public benefits. DHS and DOS regulations are also silent as to the definition of public charge and the role that receipt of public benefits may play in public charge determinations. Other guidance from DHS and DOS does link the INA's public charge grounds with public benefits, in part, by defining public charge in such a way as potentially to encompass aliens who receive certain public benefits (i.e., SSI; certain TANF assistance; state and local cash assistance for income maintenance). However, this guidance also indicates that prior or current receipt of public benefits, in itself, has generally not sufficed for an alien to be found removable on public charge grounds. This guidance emphasizes that determinations as to admissibility involve projections regarding whether the alien is "likely to become a public charge" in the future that are based on the totality of the circumstances. These circumstances include, but are not limited to, prior receipt of benefits. The guidance similarly emphasizes that determinations as to deportability are made by applying a three-part test, previously discussed, which considers whether payment for any government-provided assistance was legally required, was demanded, and could be made. The case law interpreting and applying the public charge grounds similarly suggests that receipt of certain public benefits could result in a determination that an alien is inadmissible or deportable on public charge grounds, if certain other conditions are met. However, these cases also illustrate that prior receipt of public benefits, in itself, has not necessarily resulted in a determination that an alien is a public charge. For example, in Matter of A— , the BIA sustained an alien's appeal of a decision finding her ineligible for adjustment of status on public charge grounds. The INS district director had determined that the alien was ineligible because the alien's family had received "public cash assistance" for nearly four years, and neither the alien nor her spouse had worked for four years prior to filing the application for adjustment of status. The district director thus viewed the alien as "unable to support herself and her family without public assistance." The Board, however, disagreed, noting that the alien was "young" and had no "physical or mental defect which might affect her earning capacity." It also noted that the alien had recently begun working, and that during the time when she was absent from the workforce, she had been caring for her children. Likewise, in Matter of T— , the BIA sustained the appeal of a mother and child who had been excluded on public charge grounds after their husband/father was excluded for having committed a crime involving moral turpitude. The mother and son sought permanent residence in the United States independent of the father, but were denied. In reversing this denial, the BIA noted that the mother was "quite capable of earning her own livelihood independent of her husband," and the child had training in a field which represented "a wide field of employment for this country." Prior or current receipt of public benefits was not at issue in this case. However, the Board's focus on the aliens' ability to earn a living, even without the contributions of the husband/father, is illustrative, and recurs in cases where aliens did receive public benefits (e.g., "welfare services," food stamps, "public assistance," Aid to Families with Dependent Children (AFDC), Medi-Cal). Similar conclusions have been reached in the cases construing and applying the public charge grounds of deportability. As Matter of B — illustrates, receipt of public assistance has been merely one factor in determining deportability. There must also be (1) a legal obligation to repay that assistance; (2) a demand for repayment; and (3) a failure to repay the assistance. Where there is no legal obligation to repay the assistance, the alien has not been found deportable on public charge grounds. This was the case in Matter of B— , where Illinois law provided that residents at the state hospital were entitled to receive free maintenance, care, and treatment. In other cases, the government authorities did not request repayment, or the alien (or another responsible party) had the ability to pay. Thus, in Matter of P— , the BIA terminated removal proceedings against an alien, in part, because no demand for payment was made upon the alien or his relatives, and "it appears that the respondent had property" which could have been used for making payment had payment been demanded. The situation was the same in Matter of C— , because no demand for repayment of the assistance provided was made by the state within five years of the alien's last entry, and her husband had "some ability to pay." It should also be noted that, in making determinations regarding aliens' deportability on public charge grounds, only causes that pre-date their entry are considered. Causes which the alien can "affirmatively show" developed subsequent to entry do not factor into public charge determinations. Conclusion Congressional interest in the public charge grounds of inadmissibility and deportability seems likely to persist, in part, because of the interplay between the provisions of the INA providing for aliens' removability on public charge grounds and other provisions of immigration law that permit noncitizens to receive certain benefits. On the one hand, Congress has provided that aliens may be excluded or deported if they are likely to become, or have become, a public charge , a term which the executive branch has construed to mean that they are primarily dependent on the government for subsistence. On the other hand, Congress has also provided that certain public benefits (e.g., certain disaster relief) are exempt from PRWORA's restrictions upon the provision of federal, state, or local public benefits to aliens who are not qualified aliens. These two provisions could be seen to be reconcilable, especially if one focuses upon whether specific programs "count" as public benefits, or for purposes of public charge determinations. However, the overall picture may raise questions about how and why noncitizens can receive benefits without being subject to removal. | The Immigration and Nationality Act (INA) has long provided for aliens' exclusion and deportation from the United States on "public charge" grounds. Under current law, aliens outside the United States who seek to obtain visas at U.S. consulates overseas, or admission at U.S. ports of entry, are generally denied entry if they are deemed "likely at any time to become a public charge." Aliens within the United States who seek to adjust their status to that of lawful permanent resident (LPR), or who entered the United States without inspection, are also generally subject to this ground of inadmissibility. Similarly, LPRs and other aliens who have been admitted to the United States are removable if they become a public charge within five years after the date of their entry due to causes that preexisted their entry. These public charge grounds are of recurring interest to Members of Congress because of questions about whether aliens who receive various forms of public assistance are inadmissible or deportable on public charge grounds. The INA does not expressly define what it means for an alien to be a public charge, and, prior to 1996, there was no statutory guidance on what was to be considered in determining whether an alien is inadmissible or deportable on public charge grounds. Then, in 1996, the INA was amended to require that certain factors be taken into account when determining whether aliens are inadmissible on public charge grounds. These factors include the alien's age, health, family status, financial resources, education, and skills. There is no similar statutory guidance on what factors are to be considered in determining whether an alien is deportable on public charge grounds. Given this general lack of statutory guidance, the executive and judicial branches initially construed the meaning of public charge in adjudicating cases involving individual aliens. In so doing, administrative authorities interpreted public charge differently for purposes of the grounds of inadmissibility than for the grounds of deportability. Specifically, public charge was construed broadly in the context of admissibility, with determinations based on a "totality of the circumstances" test that considered factors like those codified in the INA in 1996. In contrast, in the context of deportability, "public charge" was construed more narrowly. Aliens could only be found to be deportable on public charge grounds if (1) they received government assistance that they were legally obligated to repay; (2) the government entity providing the assistance demanded repayment; and (3) the alien or the alien's sponsor was unable to pay. Following the enactment of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996, executive agencies issued guidance regarding the public charge grounds. While PRWORA generally restricts noncitizens' eligibility for "public benefits," it permits them to receive specified benefits. Thus, its enactment raised questions about whether aliens who receive benefits for which they are eligible under PRWORA could potentially be removable on public charge grounds. Immigration officials addressed these questions in a 1999 policy letter that defined public charge and identified which benefits are considered in public charge determinations. This policy letter underlies current regulations and other guidance on the public charge grounds of inadmissibility and deportability. Collectively, the various sources addressing the meaning of public charge have historically suggested that an alien's receipt of public benefits, per se, is unlikely to result in the alien being deemed to be removable on public charge grounds. Neither the INA nor implementing regulations address the role that receipt of public benefits plays in public charge determinations. Other agency guidance and court decisions have generally indicated that, while receipt of certain public benefits could be considered in public charge determinations, other factors are also considered (e.g., age, obligation to repay). |
Background The 111 th Congress is considering legislation ( S. 707 and H.R. 1722 ) to foster the development of telework in executive agencies of the federal government. Senator Daniel Akaka, for himself and Senator George Voinovich, introduced S. 707 , the Telework Enhancement Act of 2009, on March 25, 2009, and it was referred to the Senate Committee on Homeland Security and Governmental Affairs. In his statement upon introducing the bill, Senator Akaka stated that the legislation would "provide Federal agencies with an important tool to remain competitive in the modern workplace and would offer a flexible option for human capital management." Furthermore, he stated that the bill "prohibits discrimination against employees who chose to telework, guaranteeing those employees will not be disadvantaged in performance evaluations, pay, or benefits." Senator Voinovich's statement emphasized that the legislation "helps ensure that executive agencies better integrate telework into their human capital planning, establishes a level playing field for employees who voluntarily elect to telework, and improves program accountability." He noted that, telework "participation is far short of what it should be and what the Federal workforce needs if our government is to remain an employer of choice." The committee marked up the legislation on May 20, 2009, and, by voice vote, ordered it to be reported with an amendment favorably. The amendment, offered by Senator Tom Coburn and agreed to by voice vote, would amend 5 U.S.C. §5710 by amending subsections (a)(1) and (e) and adding a subsection (f) to authorize a test program for travel expenses at the Patent and Trademark Office. An estimate prepared by the Congressional Budget Office determined that administrative costs in the federal agencies would increase by $5 million in 2010, and by $25 million over the 2010-2014 period as S. 707 is implemented. The Senate Committee on Homeland Security and Governmental Affairs reported S. 707 ( S.Rept. 111-177 ) on May 3, 2010. The Senate agreed to the committee amendments, including a title change, and passed S. 707 , the Telework Enhancement Act of 2010, under unanimous consent on May 24, 2010. Representative John Sarbanes, for himself and Representatives Frank Wolf, Gerald Connolly, Stephen Lynch, Danny Davis, Jim Moran, and C.A. Dutch Ruppersberger, introduced H.R. 1722 , the Telework Improvements Act of 2010, on March 25, 2009, and the bill was referred to the House Committee on Oversight and Government Reform. The legislation would amend Title 5 of the United States Code by adding a new Chapter 65 entitled "Telework." Representative Sarbanes, upon introducing the bill, stated that it "encourages a uniform and consistent telework policy across the federal government, while imposing strict oversight and accountability that will ensure the success of this pragmatic yet innovative workforce management policy." He expressed the expectation that the bill will "bolster the federal workforce, reduce traffic and carbon emissions, and improve the quality of life for our dedicated civil servants." The House Subcommittee on Federal Workforce, Postal Service, and the District of Columbia marked up H.R. 1722 on March 24, 2010. The subcommittee, by voice vote, agreed to a manager's amendment, offered by Subcommittee Chairman Representative Lynch, and an amendment, offered by Representative Connolly, related to continuity of operations and telework, and then reported the bill to the House Committee on Oversight and Government Reform, favorably, as amended. Representative Connolly withdrew a second amendment before it could be considered that would have provided for the establishment and operation of a National Telework Research Center at an institution of higher education. The full committee marked up the bill on April 14, 2010, and, by voice vote, agreed to a manager's amendment, offered by Committee Chairman Representative Edolphus Towns, and amendments offered by Representatives Jason Chaffetz, related to telework managing officers, and Gerald Connolly, related to OPM research on telework. The committee then ordered H.R. 1722 to be reported, as amended, to the House of Representatives. The House Committee on Oversight and Government Reform reported H.R. 1722 ( H.Rept. 111-474 ) on May 4, 2010. An estimate prepared by the CBO determined that administrative costs in the federal agencies would increase by $2 million in 2010, and by $30 million over the 2010-2015 period as H.R. 1722 is implemented. The House began consideration of the bill on May 5, 2010. A motion to suspend the rules and pass H.R. 1722 , as amended, failed by the Yeas and Nays (2/3 required) 268-147 ( Roll No. 251 ) on May 6, 2010. On July 13, 2010, the House Committee on Rules reported the rule for the consideration of H.R. 1722 , H.Res. 1509 , to the House. The next day the House agreed to the rule on a 238-180 (Roll No. 438) vote after the previous question was ordered on a 232-184 (Roll No. 437) vote. Pursuant to the rule, the amendment in the nature of a substitute recommended by the House Committee on Oversight and Government Reform was considered as adopted. Following debate on the bill, the House agreed to a motion offered by Representative Darrell Issa to recommit the bill to the committee with instructions to report the bill back to the House forthwith with an amendment. The House agreed to the motion on a 303-119 (Roll No. 440) vote. Subsequently, Representative Lynch reported the bill back to the House with the amendment and the amendment was agreed to by voice vote. The House passed H.R. 1755 , as amended, on a 290-131 (Roll No. 441) vote on July 14, 2010. The title of the bill also was amended. The amendment placed specific limitations on the authorization of telework. An employee would not be authorized to telework if any of the following apply to him or her: (A) The employee has a seriously delinquent tax debt. Such a debt would be defined as an outstanding debt under the Internal Revenue Code of 1986 for which a notice of lien has been filed in public records pursuant to section 6323 of such Code. Not included under the definition would be a debt that is being paid in a timely manner under an agreement under sections 6159 or 7122 of the Code; a debt for which a levy has been issued under section 6331 of the Code upon accrued salary or wages (or, in the case of an applicant for employment, a debt for which the applicant agrees to be subject to a levy issued upon accrued salary or wages); and a debt for which a collection due process hearing under section 6330 of the Code, or relief under subsection (a), (b), or (f) of section 6105 of the Code, is requested or pending. OPM would prescribe regulations to implement this provision. The regulations would provide that an individual would be given a reasonable amount of time to demonstrate that his or her debt is not included under the definition of a seriously delinquent tax debt. (B) The employee has been officially disciplined for violations of subpart G of the Standards of Ethical Conduct for Employees of the Executive Branch for viewing, downloading, or exchanging pornography, including child pornography on a federal government computer or while performing official federal government duties. (C) The employee received a payment under the Low-Income Home Energy Assistance Act of 1981 but was ineligible to receive the payment under the criteria described in 42 U.S.C. §8624(b)(2). (D) The employee has been officially disciplined for being absent without permission for more than five days in any calendar year. Furthermore, An agency could not permit employees to telework unless the agency head certifies to the OPM Director that implementation of the policy will result in savings to the agency. Any time during which an employee teleworks may not be treated as 'official time' for purposes of the authority to carry out any activity under 5 U.S.C. §7131[on official time for negotiation of collective bargaining agreement]. Any employee who, while teleworking pursuant to a policy established under Chapter 65 of Title 5, United States Code , creates or receives a Presidential record or Vice-Presidential record within the meaning of Chapter 22 of Title 44, United States Code , through a non-official electronic mail account, a social media account, or any other method (electronic or otherwise), would electronically copy the record into the employee's official electronic mail account. The Senate received H.R. 1722 on July 15, 2010, and it was referred to the Committee on Homeland Security and Governmental Affairs. The committee discharged the bill under unanimous consent on September 29, 2010. The Senate agreed to an amendment (S.Amndt. 4689) in the nature of a substitute to H.R. 1722 , offered by Senator Richard Durbin, under unanimous consent, and then passed H.R. 1722 , as amended, under unanimous consent, on September 30, 2010. The amendment, among other provisions, incorporated several provisions from the House-passed bill related to employees who would not be eligible to telework, information and security protections for systems used while teleworking, guidance on purchasing computer systems that enable and support telework, and research on telework to be undertaken by the OPM Director. The amendment added a provision that would require OPM to consult with the National Archives and Records Administration on policy and guidance for telework related to efficient and effective records management and preservation, including records of the President and Vice President. Any House action to concur in the Senate amendment may occur in the lame duck session scheduled to convene on November 15, 2010. As passed by both the Senate and the House, H.R. 1722 would define telework as a work flexibility arrangement under which an employee performs the duties and responsibilities of his or her position, and other authorized activities, from an approved worksite other than the location from which the employee would otherwise work. The bill would require the heads of executive agencies to establish policies under which employees (with some exceptions) could be eligible to participate in telework. The policies on telework would have to be established within 180 days after enactment (Senate-passed H.R. 1722 ) or within one year after the enactment (House-passed H.R. 1722 ) of the new Chapter 65 of Title 5 United States Code . Employee participation in telework must not diminish either employee performance or agency operations (Senate-passed H.R. 1722 ) or agency operations and performance (House-passed H.R. 1722 ). In the executive agencies, employees not eligible for telework generally would include those whose duties involve the daily direct handling of secure materials determined to be inappropriate for telework by the agency head or on-site activity that cannot be handled remotely or at an alternative worksite (Senate-passed H.R. 1722 ) or the daily direct handling of classified information or are such that their performance requires on-site activity which cannot be carried out from a site removed from the employee's regular place of employment (House-passed H.R. 1722 ). Under the Senate-passed version of the bill, an employee would have to enter into a written agreement with the agency to participate in telework. H.R. 1722 , as passed by the Senate and the House, would require that a Telework Managing Officer, who would be responsible for implementing the telework policies, be appointed for each executive agency. Each agency also would be required to provide training to managers, supervisors, and employees participating in telework. Telework would be incorporated into Continuity of Operations (COOP) plans under the legislation. The Senate-passed H.R. 1722 provides that each executive agency would incorporate telework into its COOP plan and, when operating under COOP, that plan would supersede any telework policy. Under the House-passed H.R. 1722 , the agency head, for agencies named in 31 U.S.C. §901(b)(1)(2), would be required to ensure that telework is incorporated into its COOP plans and uses telework in response to emergencies. The Senate-passed and House-passed H.R. 1722 also would require the Director of the Office of Personnel Management (OPM) to submit annual reports on telework to Congress, and the Comptroller General (CG) to review the OPM report and then annually report to Congress on the progress of executive agencies in implementing telework. The CG would be required to annually submit a report to Congress on telework at the Government Accountability Office (GAO). H.R. 1722 , as passed by the Senate, would require the Chief Human Capital Officers (CHCOs) to annually report to the CHCO Council chair and vice-chair on telework implementation by their agencies. Under the Senate-passed and House-passed H.R. 1722 , test programs for telework travel expenses would be authorized. Such programs would be authorized for seven years and no more than 10 programs could be conducted simultaneously. As passed by the Senate, H.R. 1722 also would authorize a test program for telework travel expenses at the Patent and Trademark Office. Table 1 , below, compares the provisions of S. 707 , as passed by the Senate, and H.R. 1722 , as passed by the House of Representatives and the Senate. | Legislation to augment telework in executive agencies of the federal government is currently pending in the 111th Congress. S. 707, the Telework Enhancement Act of 2010, and H.R. 1722, the Telework Improvements Act of 2010, were introduced on March 25, 2009, by Senator Daniel Akaka and Representative John Sarbanes, respectively. The Senate passed S. 707, amended, under unanimous consent on May 24, 2010. The House passed H.R. 1722, amended, on July 14, 2010, on a 290-131 (Roll No. 441) vote. The Senate agreed to an amendment in the nature of a substitute to H.R. 1722, and then passed H.R. 1722, as amended, under unanimous consent on September 30, 2010. Any House action to concur in the Senate amendment may occur in the lame duck session scheduled to convene on November 15, 2010. H.R. 1722, as passed by the House and the Senate, would amend Title 5 of the United States Code by adding a new Chapter 65 entitled "Telework." The bill defines telework as a work flexibility arrangement under which an employee performs the duties and responsibilities of his or her position, and other authorized activities, from an approved worksite other than the location from which the employee would otherwise work. The heads of executive agencies would be required to establish policies under which employees (with some exceptions) could be eligible to participate in telework. Employee participation in telework must not diminish either employee performance or agency operations (Senate-passed H.R. 1722) or agency operations and performance (House-passed H.R. 1722). Executive agency employees not eligible for telework generally would include those whose duties require the daily direct handling of secure materials determined to be inappropriate for telework by the agency head or on-site activity that cannot be handled remotely or at an alternative worksite (Senate-passed H.R. 1722) or the daily direct handling of classified information or are such that their performance requires on-site activity which cannot be carried out from a site removed from the employee's regular place of employment (House-passed H.R. 1722). The Senate-passed version of the bill would require an employee to enter into a written agreement with the agency before participating in telework. The Senate- and House-passed H.R. 1722 would require each executive agency to appoint a Telework Managing Officer, who would be responsible for implementing the telework policies; provide training to managers, supervisors, and employees participating in telework; provide for telework to be incorporated into Continuity of Operations (COOP) plans; require the Director of the Office of Personnel Management (OPM) to submit annual reports on telework to Congress, and require the Comptroller General (CG) to review the OPM report and then annually report to Congress on the progress of executive agencies in implementing telework; and require the CG to annually submit a report to Congress on telework at the Government Accountability Office (GAO). The Senate-passed H.R. 1722 would require the agency Chief Human Capital Officers (CHCOs) to annually report to the chair and vice-chair of the CHCO Council on telework in their organizations. Test programs for telework travel expenses would be authorized by the Senate- and House-passed H.R. 1722. This report presents a side-by-side comparison of the provisions of S. 707, as passed by the Senate, and H.R. 1722, as passed by the House and the Senate. It will be updated as events dictate. |
Introduction Some Members of Congress have expressed concern that the cost of redeveloping closed military property may place a burden on local communities. On March 12, 2009, Senator Olympia Snowe (Maine) introduced in the 111 th Congress on behalf of herself and Senator Mark L. Pryor (Arkansas), the "Defense Communities Assistance Act of 2009" ( S. 590 ). As stated under its Section 2 (Sense of Congress), the legislation is intended to assist communities located near military installations "to either recover quickly from [military base] closures or to accommodate growth associated with troop influxes" brought on by the movement of troops and activities as part of "base closures and realignments, global repositioning, and grow the force initiatives." Representative Chellie Pingree (Maine) introduced the "Defense Communities Redevelopment Act of 2009" ( H.R. 1959 ) on April 2, 2009. The bill duplicates the no-cost conveyance section of S. 590 . Representative Sam Farr, of California, introduced H.R. 2295 on May 7 on behalf of himself, Representative Kay Granger (Texas), Representative Pingree, and Representative William Delahunt (Massachusetts) as an identical companion bill to S. 590 . The three Senate and House bills have been referred to their respective Committees on Armed Services. Conveying Property to Gain Construction and Avoid Encroachment Current Statute 10 USC § 2689 authorizes the Secretary of Defense or any military department (Army, Navy, or Air Force) to convey real property to any legal entity in exchange for either other real property to limit encroachment that might restrict military activities or for housing at or near a military installation that is experiencing a housing shortage. The Secretary may transfer only property under his jurisdiction that is located on an installation being closed or realigned. Until his authority to do so expired on September 30, 2008, the Secretary could also use this conveyance authority for any other military property declared excess to defense needs. The fair market value of the property, as determined by the Secretary, received in the exchange must be at least equal to that being conveyed. Should the received property's value be less than that exchanged, the person must pay the United States an amount equal to the difference. Advance notice of any conveyance under this section must be announced in a manner prescribed by the Secretary of Defense. When military property is to be conveyed by public sale, the Secretary concerned may notify prospective purchasers that consideration may take the form described. The Secretary is required to notify Congress of a prospective conveyance and wait for a period of between 14 and 60 days before entering into an agreement. The Secretary of Defense is required to report annually on his use of this authority. Effect of the Proposed Amendment Section 3 of S. 590 / H.R. 2295 would reinstate the Secretary's authority to transfer property at any military installation, regardless of its closure or realignment status "without limitation on duration," rendering it permanent. Outsourcing Services to Municipalities Current Statute 10 U.S.C. § 2465 prohibits the Department of Defense (DOD) from entering into a contract "for the performance of firefighting or security-guard functions at any military installation or facility." Another provision of law, 10 USC § 2461 note, requires a public-private competition under Office of Management and Budget Circular A-76 before any DOD function being performed by 10 or more DOD civilian employees can be converted to performance by a contractor. Amendments to that statute authorize the Secretaries of the military departments to carry out pilot programs to contract with a county or municipality for certain municipal services. The permitted services include refuse collection, refuse disposal, library services, recreation services, facility maintenance and repair, and utilities. The number of installations permitted to be included in the pilot project is limited to three per military service, and all must be located within the United States. All pilot program contracts must terminate not later than September 30, 2012. Effect of the Proposed Amendment S. 590 / H.R. 2295 would create a new statute, 10 U.S.C. 2465a, that would permanently authorize military department secretaries to enter into an unrestricted number of contracts with "a county, municipal government, or other local governmental unit in the geographic area in which [an] installation is located" for the provision of the same municipal services as the pilot program. The new authority would permit the Secretary concerned to use "other than competitive procedures" if the contract would not exceed five years in duration, if he determines that the price for contracted municipal services represents least cost to the federal government, and if his supporting business case describes alternative sources and establishes that contract performance will not increase costs to the federal government. The authority to make the necessary determinations could not be delegated below the level of the Deputy Assistant Secretary for Installations and Environment (or DOD equivalent). The Secretary would have to notify the Committee on Armed Services of the House and of the Senate of any such contract 14 days before it could become effective. Subsection (c) of this section of the proposed amendment appears to reference the original pilot program for contracted municipal services. The pilot program was originally created under Section 325(f) of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 and authorized only the Secretary of the Army to initiate two such contracts that would terminate not later than September 30, 2010. A 2008 amendment expanded the pilot program to all military departments, raised the limit to three contracts in each, and reset the termination date to September 30, 2012. This new legislation would permit these pilot program contracts to terminate as late as September 30, 2020. Federal Reimbursements for Military Site Cleanup Current Statute Section 211 of the Superfund Amendments and Reauthorization Act of 1986 ( P.L. 99-499 ) required the Secretary of Defense to establish a Defense Environmental Restoration Program to clean up environmental contamination and address other safety hazards on current and former military installations in the United States, subject to appropriations. The Secretary is authorized to enter into agreements to reimburse other entities for expenses they may incur in participating in the cleanup of a military installation under this program. These other entities that are eligible for reimbursement include: other federal agencies, state, territorial, or local agencies, Indian tribes, nonprofit conservation organizations, and owners of "covenant" property. This latter category refers to owners of former military property conveyed with a deed that includes a covenant stating the continuing cleanup responsibility of the United States. Section 120(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) generally requires contaminated federal property to be cleaned up prior to transfer out of federal ownership. However, additional cleanup may be needed after the transfer if the contamination was found not to have been sufficiently remediated. To address such situations, Section 120(h)(3) requires the deed to a transferred federal property to include a covenant stating the continuing responsibility of the United States to conduct additional cleanup that may be needed subsequent to transfer. Such a covenant must be included in the deed to all surplus federal property transferred out of federal ownership, on which a hazardous substance was stored for one year or more, was known to have been released, or was disposed of. If the owner of the covenant property wishes to perform cleanup actions that may be necessary after acquiring ownership, the Secretary may enter into an agreement with the owner to reimburse its costs, as the United States ultimately would be responsible for those actions under the covenant. Historically, the Secretary has most often exercised this agreement authority to reimburse states for the expenses they incur in participating in cleanup decisions at military installations within their jurisdictions. As of the end of FY2007, the Department of Defense had entered into cooperative agreements with 47 states, the District of Columbia, and 4 U.S. territories, to govern the types of expenses that are eligible for reimbursement. These agreements typically allow the reimbursement of expenses that a state or territory may incur in exercising its statutory right under Section 120(f) of CERCLA to participate in the planning and selection of a "remedial" action to clean up a federal facility, including the review of available data and the development of studies, reports, and plans. Under current law, states cannot be reimbursed under these agreements for the costs of enforcement actions they may take against the Department of Defense for failure to carry out a planned cleanup action or to comply with other cleanup requirements. Whether enforcement action taken by a state may affect the Secretary's willingness to enter into, or renew, an agreement with such state to reimburse expenses it may incur in participating in cleanup decisions. Nevertheless, the Secretary is not required to enter into these reimbursement agreements, but may do so at his discretion. Effect of the Proposed Amendment This section of the proposed legislation would expand the scope of current law to allow the Secretary to enter into agreements for reimbursement of expenses that other entities may incur in "processing" a transfer of federal property, before or after cleanup is performed. Like the agreements for reimbursement of expenses associated with cleanup, the Secretary would not be required to enter into agreements for reimbursement of these processing expenses. Rather, the Secretary would be authorized to do so at his discretion. Although the title of the section, "Reimbursable Activities under the Defense-State Memorandum of Agreement Program," implies that this provision would apply only to agreements with states, the entities that would be eligible for reimbursement of these processing expenses would be the same as those under current law for reimbursement of expenses associated with cleanup: other federal agencies; state, tribal, or local agencies; Indian tribes; nonprofit conservation organizations; and owners of covenant property. The section does not define what activities would constitute the "processing" of a transfer of federal property, making it unclear as to what specific activities would qualify for reimbursement. Absent such definition in statute, the Secretary presumably would have the discretion to determine what processing expenses may be eligible for reimbursement. In practice, a recipient of federal property could incur legal or administrative expenses in the process of acquiring a property, in addition to the actual cost of the property itself, if payment is required to provide fair market or other value in exchange for the property. Even though a state may not be the recipient of a property, a state still could incur administrative expenses in its involvement in the transfer of a property before cleanup is complete. Although federal property generally must be cleaned up prior to transfer out of federal ownership, Section 120(h)(3)(C) of CERCLA allows transfer to occur before then if certain conditions are satisfied, including the providing of assurances that the cleanup will be performed and that the land use would be protective of human health and the environment. Transferring a federal property before cleanup is complete is subject to the concurrence of the governor of the state in which the property is located. The review and approval of such property transfers by a governor could result in a state incurring administrative expenses. The proposed language also is intended to prevent the Secretary from imposing certain conditions on the funding made available through a reimbursement agreement. If the Secretary enters into a reimbursement agreement with another entity, the Secretary would be required not to make the reimbursement conditional upon whether a state may take an enforcement action against the Department of Defense, or upon a state's willingness to enter into dispute resolution with the Department of Defense to avoid an enforcement action. This requirement would appear to apply to any reimbursement agreement entered into under this authority, including both those that would apply to expenses associated with cleanup and those that would apply to expenses associated with the processing of property transfers. Base Realignment and Closure (BRAC)15 On September 8, 2005, the Defense Base Closure and Realignment Commission submitted nearly 200 recommendations to President George W. Bush. These recommendations would fundamentally alter the stationing of military forces and the functions carried out at many posts, bases, and stations throughout the United States, its territories, and possessions. President Bush approved the recommendations and, in accordance with the Defense Base Closure and Realignment Act of 1990 (DBCRA), as amended, the Secretary of Defense is putting into effect the entire list prior to September 15, 2011. The final two sections of S. 590 / H.R. 2295 would further amend the DBCRA to expand the indemnification (holding harmless) of persons who have taken title to property on closed military installations and to require the conveyance at no cost of surplus military property under certain conditions. Indemnification of Transferees of Closing Defense Properties18 Current Statute Section 330 of the National Defense Authorization Act for FY1993 ( P.L. 102-484 ) indemnifies all recipients of property on closed military installations from any claim arising from personal injury or property damage resulting from contamination caused by past military activities on such property. This indemnification applies specifically to military properties declared surplus to the federal government under the DBCRA. As discussed earlier, Section 120(h)(3) of CERCLA states that the United States is responsible for conducting additional cleanup deemed necessary after a property is transferred out of federal ownership, generally relieving the recipient of the property from such responsibility. However, this provision does not address the responsibility of the United States for personal injury or property damage that may result from contamination caused by past activities of the federal government. This potential responsibility for personal injury as a consequence of receiving ownership upon transfer has been perceived as a deterrent to the acquisition of certain surplus federal properties. Section 330 of P.L. 102-484 specifically indemnifies recipients of BRAC property from responsibility for personal injury or property damage resulting from contamination caused by past military activities. Effect of the Proposed Amendment This section of S. 590 / H.R. 2295 would amend Section 330 of P.L. 102-484 to indemnify recipients of BRAC property not only from responsibility for personal injury or property damage arising from contamination caused by past military activities, but also specifically from environmental remediation (i.e., cleanup) of that contamination. Although Section 120(h)(3) of CERCLA already states that additional cleanup found to be necessary after the date of transfer "shall be conducted by the United States," this provision does not explicitly indemnify recipients of surplus federal property from responsibility for such additional cleanup. This section would explicitly remove recipients of BRAC property from responsibility for cleanup of contamination caused by past military activities and would indemnify them against statutory or regulatory requirement or cleanup order for contamination caused by past military activity. It would also protect the new owners from the costs of compliance with any such requirement or order. In effect, only the United States could be held subject to statutory or regulatory requirements or orders, and the associated costs, to perform additional cleanup of contamination it originally caused. Requirement for No-Cost Economic Development Conveyances Current Statute Section 2905 of the DBCRA specifies the manner in which the Secretary of Defense is to implement the approved recommendations of the Defense Base Closure and Realignment Commission (the BRAC Commission). It grants the Secretary the authority to dispose of excess and surplus property using a variety of methods, such as public sale or auction. Subsection 2905(b)(4) augments this disposal authority by stating that the "Secretary may transfer real property and personal property located at a military installation to be closed or realigned under this part to the redevelopment authority [sometimes referred to as a Local Redevelopment Authority, or LRA] with respect to the installation for purposes of job generation on the installation." This is the so-called Economic Development Conveyance (EDC). If such is the case and the installation was approved for closure or realignment after January 1, 2005, the subsection further requires the Secretary to "seek to obtain consideration in connection with any transfer under this paragraph of property located at the installation in an amount equal to the fair market value of the property, as determined by the Secretary." The statute permits the Secretary to transfer the property to the redevelopment authority under this authority at no cost if the recipient agrees to utilize proceeds from the sale or lease of any portion of the transferred property "during at least the first seven years after the initial transfer to support the economic development of, or related to, the installation," and executes the agreement of transfer and accepts control of the property "within a reasonable time after the date of the property disposal record of decision or finding of no significant impact under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.)." Effect of the Proposed Amendment The law currently requires the Secretary concerned to seek fair market value consideration for BRAC property transferred to the LRA as part of an EDC, but allows the Secretary the discretion of granting a no-cost EDC under certain circumstances. Under S. 590 / H.R. 1959 / H.R. 2295 , the DBCRA would be returned to the provisions that were in effect on December 27, 2001, essentially removing the fair market value requirement. The Secretary would no longer have the discretion to grant a no-cost EDC. He would be required to transfer the property to the LRA at no cost as long as the LRA agrees to certain requirements. The amendment would also require the Secretary of Defense to prescribe regulations to implement the revived provisions within 60 days of enactment. The Secretary is to "ensure that the military departments transfer surplus real and personal property at closed or realigned military installations without consideration to local redevelopment authorities for economic development purposes, and without the requirement to value such property." Because the proposed legislation is silent on the question of its applicability to the 2005 round versus earlier base closures, it is unclear what impact, if any, this change would have on property now or in the future being transferred as part of the2005 BRAC round. Arguably, any agreements not concluded by the date of enactment of the bill would be subject to the new framework and would be eligible for transfer at no cost. It is uncertain if the bill would allow the LRA to modify its redevelopment plan to include a no-cost EDC that was not previously recommended. Issues for Congress Although the introductory sections of S. 590 and H.R. 2295 state that the legislation's purpose is to enhance communities' ability to recover from installation downsizing or to adjust the military population growth, the discussion above indicates that the potential impact of the proposed legislation could extend beyond the current BRAC round. As Congress considers these bills, Members may wish to weigh questions such as the following: If current law permanently authorizes DOD to exchange property on closing or realigning military installations for non-DOD property that could increase its supply of housing or ease encroachment pressure, to what extent does extending the authority to all excess DOD property serve to satisfy the stated purpose of the legislation—assisting communities to recover from the effects of base resizing or closure? What are the risks and benefits relative to the merits of authorizing the military departments to outsource base support, such as refuse removal, the operation of golf courses, libraries, and fitness centers, and public works functions, to county or local governments rather than provide for them through DOD employees or private contractors? Are there advantages in broadening the Secretary of Defense's ability to reimburse agencies and organizations for military site cleanup activities to include expenses associated with "processing" of a conveyance of the property? If there are disadvantages, what are they, and could they decrease the Secretary's willingness to enter into reimbursement agreements? An extension of indemnification to include removal of statutory and regulatory requirements for site cleanup of past military activity will effectively add to the cost of remediation borne by the federal government and correspondingly reduce the burden on the state or locality near the site or the new owners. What are the implications for future federal costs? Current law requires the Secretary of Defense to "seek fair market value" for surplus 2005 BRAC property conveyed to redevelopment authorities for the purposes of job creation on the former military site. Nevertheless, the Secretary is permitted to execute such an Economic Development Conveyance for no consideration (at no cost) under certain circumstances. Existing statute requires that all "proceeds received from the lease, transfer, or disposal of any property at a military installation closed or realigned" be used only to defray the cost of implementing BRAC recommendations or remediating environmental degradation on BRAC-surplus property. If the Secretary is required to convey surplus property at no cost, revenue could be lost that would have to be replaced by appropriated funds. What are the advantages and disadvantages of foregoing this potential revenue stream? How much in toto will these proposed changes cost the federal Treasury relative to the benefits gained by federal agencies, local governments, and private enterprise? | Several bills (S. 590, H.R. 1959, and H.R. 2295) that would modify or expand statutory authorities granted to senior executives of the Department of Defense (DOD) have been introduced to the 111th Congress. These authorities relate to the exchange of real property, the outsourcing of some military installation support services, and the reimbursement by DOD of some costs associated with military site cleanup. The proposed legislation would also amend the Defense Base Closure and Realignment Act of 1990, the BRAC law, to expand existing legal protections granted to those who have taken title to property at closed military bases and to set conditions under which future title transfers for surplus military property would be carried out at no cost to the recipient. S. 590 and H.R. 2295 are identical. If enacted, these bills would render permanent an expired authority held by the Secretary of Defense (or the Secretary of a military department) to exchange any defense real property for real property held by non-DOD entities if the exchange will limit encroachment on military activities or will relieve a shortage of military housing. They would also expand and make permanent a limited pilot program that allows certain services currently performed at military installations by DOD employees or private contractors to be non-competitively outsourced to municipal or county governments. Another section in the bills would expand the authority of the Secretary of Defense to enter into a cost-reimbursement agreement for the cleanup of a military site. Current law permits agreements that reimburse federal, state, and local agencies and other entities for certain costs incurred by participation in a cleanup program. The bill would allow reimbursement agreements to include costs incurred in the "processing" of a transfer of title of federal property and would prevent the Secretary from imposing certain conditions on the funding made available. The remaining sections of the bills would amend the Defense Base Closure and Realignment Act of 1990, the so-called BRAC law. They would expand the legal protections available to persons who have taken title to property on closed military bases and would require the conveyance of surplus military property at no cost if certain conditions are met. This report analyzes the key provisions of the legislation, identifies probable effects of the proposed amendments to existing law, and suggests issues raised for congressional consideration. |
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Dataset Card for "gov_report"
GOV_REPORT
A dataset "consisting of about 19.5k U.S. government reports with expert-written ab- stractive summaries.3 GOVREPORT has two impor- tant features: (1) It contains significantly longer documents (9.4k words) and summaries (553 words) than existing datasets, such as PubMed and arXiv (Cohan et al., 2018) (2) Salient content is spread throughout the documents, as opposed to cases where summary-worthy words are more heavily concentrated in specific parts of the document. These properties make GOVREPORT an important benchmark for producing long document summaries with multiple paragraphs.
Links
Citation
@article{kryscinski2021booksum,
title={BookSum: A Collection of Datasets for Long-form Narrative Summarization},
author={Wojciech Kry{\'s}ci{\'n}ski and Nazneen Rajani and Divyansh Agarwal and Caiming Xiong and Dragomir Radev},
year={2021},
eprint={2105.08209},
archivePrefix={arXiv},
primaryClass={cs.CL}
}
License
Licensing info TBD. Issue raised in main repo to get info on the license from the original authors.
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