Guidelines For Application Of Provisions Designated As Emergencies, Contingency Operations, Or Unanticipated Defense-Related Operations
Mr. Speaker, pursuant to the provisions of House Concurrent Resolution 376, I am transmitting this document titled ``Guidelines for the Application of Provisions Designated as Emergencies, Contingency Operations, or Unanticipated…
Mr. Speaker, pursuant to the provisions of House Concurrent Resolution 376, I am transmitting this document titled ``Guidelines for the Application of Provisions Designated as Emergencies, Contingency Operations, or Unanticipated Defense-related Operations.'' It sets forth an explicit explanation of the characteristics of spending that is appropriately exempted from the enforcement controls of the Congressional Budget Act.
This report is required under the terms of House Concurrent Resolution 376, which is currently in effect as a concurrent resolution on the budget in the House for fiscal year 2007, deemed in force under the provisions of House Resolution 818.
Guidelines for Application of Provisions Designated as Emergencies,
Contingency Operations, or Unanticipated Defense-Related Operations
Summary
The fiscal year 2007 budget resolution, H. Con. Res. 376,
sets forth three categories of spending that are treated by
Congress under special procedures outside the normal budget
process: domestic emergencies, defense-related emergencies,
and contingency operations directly related to the global war
on terrorism. The first of these, domestic emergencies, has a
special reserve fund to finance emergency spending
priorities, such as unforeseen natural disasters that tend to
occur nearly every year. The remaining two categories--
defense-related emergencies and terror-related response
contingency operations--are exempted from normal controls due
to the special nature of each.
Although Congress did not reach a conference agreement on
the budget resolution, the House did deem the House-passed
resolution to be in force for all purposes of the
Congressional Budget Act. The general definition of an
emergency, as spelled out in the budget resolution, is not
new: its terms have long been employed by the
administration's Office of Management and Budget [OMB], and
have been carried in previous budget resolutions. What is new
is the enhanced discipline, called for by the resolution, in
applying these terms to the three special categories of
spending cited above. Section 503 of the resolution includes
the following mandate:
``In the House, as soon as practicable after the adoption
of this resolution, the chairman of the Committee on the
Budget shall, after consultation with the chairmen of the
applicable committees, and the Director of the Congressional
Budget Office, prepare guidelines for application of the
definition of an emergency and publish such guidelines in the
Congressional Record, and may issue any committee print from
the Committee on the Budget for this or other purposes.''
This discussion, therefore, provides guidelines for the
application of these spending categories.
Definition and General Guidelines for Emergency Spending
Section 502 of the Concurrent Resolution on the Budget for
Fiscal Year 2007 establishes in general terms the definition
of spending that is appropriately designated as an emergency.
Although these guidelines may be used to apply to
``unanticipated'' defense-related emergencies, they aim
principally to help determine what domestic priorities are
eligible to be funded through the reserve fund established by
the budget resolution, and to define an ``emergency'' in
general.
The term ``emergency'' is important because any spending so
designated escapes the regular controls applicable to all
other spending. But the definition, and the guidelines below,
are not intended to judge the policy importance of any given
emergency spending; that is for the Appropriations Committee
and the Congress in general to determine. It is rather to
identify general characteristics of such spending that
identifies it as meriting special procedures exempting it
from the normal congressional budget process.
There are two essential components to the application of
this designation: that an ``emergency'' concerns a threat to
life, property, or national security; and that the event was
``unanticipated.'' The definition also asserts that funding
in response to an emergency should be temporary in nature.
The applicable text in the resolution fleshes out these
terms, and is largely self-explanatory. It reads as follows:
``(1) The term `emergency' means a situation that--
``(A) requires new budget authority and outlays (or new
budget authority and the outlays flowing therefrom) for the
prevention or mitigation of, or response to, loss of life or
property, or a threat to national security; and
``(B) is unanticipated.
``(2) The term `unanticipated' means that the underlying
situation is--
``(A) Sudden, which means quickly coming into being or not
building up over time;
``(B) Urgent, which means a pressing and compelling need
requiring immediate action;
``(C) Unforeseen, which means not predicted or anticipated
as an emerging need; and
``(D) Temporary, which means not of a permanent duration.''
An example of ``emergency'' spending that was
``unanticipated'' was the major California earthquake of
January 1993. The Emergency Supplemental Appropriations Act
of 1994 (Public Law 103-211, 12 February 1994). The measure
provided $376.1 million to programs of the Department of
Agriculture, such as for Watershed and Flood Prevention
Operations. In contrast, there were attempts to declare the
funding for the 2000 Census required by the Constitution as
an emergency. This clearly would have been an abuse of the
designation: The census has been required every ten years for
over two centuries.
An example of ``urgent'' funding needs appeared in the
response to Hurricanes Fran and Hortense and other disasters,
Public Law 104-208. The measure provided $88 million for U.S.
Department of Agriculture [USDA] flood assistance programs,
including $63 million for Watershed and Flood Prevention
Operations, and $25 million for the Emergency Conservation
Program. Had the funding been delayed until the next budget
cycle, the consequences of the hurricanes would have been
irreparable, in Congress's judgment.
The term ``unforeseen'' applies to funding for activities
that could not be anticipated as an emerging need and are
over and above the aggregate level of anticipated emergencies
that are normally estimated in advance. A good example of an
unforeseen emergency is the terrorist attacks against New
York and Washington, D.C. on 11 September 2001.
The term ``temporary'' means that emergency spending should
not in general be for multiple fiscal years or in general be
for permanent new entitlements. For example, the Emergency
Supplemental Appropriations Act of 2006 (Public Law 109-234,
15 June 2006) included $55 million for USDA to repair its own
damaged facilities. Such spending was to respond to Hurricane
Katrina and was for a purpose that was not recurring--and was
directly related to the property destruction caused by the
hurricane.
Emergencies are divided into three categories: nondefense-
related, defense-related, and spending related to the Global
War on Terrorism. These categories are described at length
below, but a general summary is as follows:
Nondefense-related emergencies are chiefly, but not always,
associated with natural disasters such as hurricanes,
droughts, or earthquakes. The resolution creates a new
reserve fund to anticipate such events. The fund and its
application are further discussed below.
Defense-related spending, if unanticipated, is, in effect,
excepted from the Congressional budget process. This is
established in section 402 of H. Con. Res. 376.
Budget authority needed for the ``Global War on Terrorism''
includes spending for the security of the United States and
for military operations in Iraq and Afghanistan.
The emergency designation should only be used as follows:
The designation should be used when preparing
appropriations language and should be specific to each
appropriation account for which the designation will be used.
If not designated specifically as emergency under Section 402
or 501 of the Budget Resolution, the appropriation will be
scored against the subcommittee's 302(b) discretionary budget
totals for the year.
The designation is not to be used as a relief valve for
regular appropriations to circumvent 302 allocations. In
other words, this designation should not be used to
artificially deflate regular budget requests. It is to be
used for unknowns. If a known program requires known funding
at the time of the regular appropriations, it should not be
treated as an emergency.
The appropriations subcommittee will designate funding as
emergency when identifying the appropriation. The President
may request the funds as emergency or as contingent
emergency, but that request is non-binding and the
subcommittees may appropriate funds with or without the
designation as is appropriate. The Office of Management and
Budget is the arbiter of what is or is not designated as an
emergency in the request. OMB's guidance in its Circular A-11
to the Agencies on this matter is fairly loose and mentions
emergencies only in the context of supplemental requests. The
guidance lists an ``emergency'' as one of the rationales for
a supplemental stating that a supplemental is appropriate
when: An unforeseen emergency situation occurs (e.g., natural
disaster requiring expenditures for the preservation of life
or property).
The emergency designation is legislative language that
falls within the primary jurisdiction of the Committee on the
Budget. In addition, the Budget Committee enforces the
allocation of spending authority given to each Congressional
Committee. If the Appropriations Committee includes language
designating a provision of spending as an emergency, the
Budget Committee adjusts this general allocation by an equal
amount. Because this does not automatically cause a
corresponding increase in the suballocations that the
Appropriations Committee distributes to each of its
subcommittees (and which must equal the general allocation),
it must act to revise that suballocation for a bill or
amendment to escape a point of order under 302(f) of the
Budget Act which prohibits the consideration of measures
breaching the permissible levels of spending.
The Budget Committee does not, as a matter of course,
validate that all funds designated emergency meet the
criteria outlined above for amounts within the nondefense
reserve fund--the adjustments are automatic once the
designation is placed in the legislative text. Once the
reserve fund is exhausted, and adjustments are required above
the amount set aside for nondefense emergencies ($6.45
billion for fiscal year 2007), the committee must meet in
open session to consider whether the additional
amounts designated should be accommodated by an additional
adjustment in the allocation to the Appropriations
Committee. In the meeting, the amount by which the
allocation should be raised is open for amendment--though
it is not in order to raise the amount above the level
designated as an emergency in the bill to be considered on
the floor of the House.
Nondefense Emergency Reserve Fund
Section 501 of the budget resolution creates an emergency
reserve fund that effectively caps the overall amount that
can be used for nondefense domestic emergencies (such as
natural disasters). Funding beyond the reserve amount may be
provided only if the Budget Committee meets and approves an
increase in the cap.
The concept of the emergency reserve fund is not unlike a
colloquial ``rainy-day fund.'' It does not attempt to predict
any specific natural disaster. Instead, it recognizes that
natural disasters of some kind--whether hurricanes, forest
fires, floods, or others--occur in the United States nearly
every year; the reserve sets aside an amount of funding in
advance to address such needs, should they arise. The amount
in the fund is based on historical experience. It does not
assume to anticipate extraordinary disasters, such as
Hurricane Katrina; it would be impractical and impracticable
to set aside funds of that magnitude for events that are so
rare.
Guidelines for Budget Authority for the Global War on Terrorism
This section (section 402) exempts from the Congressional
Budget Act and its enforcement provisions only those spending
provisions that meet the following definitions:
(a) General contingency operation: A provision designated
as a contingency operation related to the global war on
terrorism may be either:
Defense-related; or
Nondefense-related.
(b) Defense-related contingency operation: A provision
designated as a defense-related contingency operation:
May be for spending directly related to an immediate
response to a terrorist attack by the Department of Defense,
whether domestic or international;
May be for spending directly related to the costs of
Operation Iraqi Freedom or Operation Enduring Freedom;
May be for spending that also meets the definition of an
``unanticipated defense-related operation'' described in this
committee print;
May not be for spending for routine military expenditures
not specifically caused by or directly related to Operation
Iraqi Freedom or Operation Enduring Freedom. It is not
appropriate to use the designation to fund special interest
projects that could be addressed in the normal appropriation
process.
(c) Nondefense-related contingency operation: A spending
provision designated as a nondefense-related contingency
operation:
May be for any immediate nondefense response to a terrorist
attack, whether domestic or international;
May not be for nondefense-related spending predominantly
required to respond to unanticipated criminal law enforcement
needs, except for nondefense terrorism-related spending;
May not be used to offset spending on projects or earmarks
that are anticipated and should be in regular spending bills.
(d) Terrorism-related spending: Both defense and nondefense
``terrorism-related spending'' includes, but is not limited
to, immediate responses to terrorist attacks carried out by
individual terrorists or terrorist organizations to either
domestic or international interests of the United States [or
other applicable nation-states or international
organizations]. Terrorism-related spending does not include
legislative or appropriations provisions intended to reduce,
prevent or mitigate future terrorist attacks that could
adequately be addressed in the normal authorizing and
appropriations process (that is unless the measure in
question is in response to a need that has arisen subsequent
to the passage of the budget resolution).
(f) Terrorist attack: A ``terrorist attack'' is the use or
threatened use of force or violence to civilian or military
persons, buildings, installations or other property [people
or property] carried out by an individual or organization;
and
Is not carried out by an internationally recognized nation-
state;
May be the result of state-sponsored terrorism.
Further Guidelines for the Designation of Unanticipated Defense-Related
Operations
Unanticipated Defense-related spending may be:
For defense facilities damaged by natural disasters, or
For a response to natural disasters that entails the use of
military resources; or
For all costs associated with the national defense that can
not be accommodated through the normal appropriations
process.
Other General Definitions
(a) Defense-related spending: ``Defense-related'' means
spending from provisions from accounts within function 050--
National Defense.
(b) Nondefense-related spending: ``Nondefense-related''
means spending from provisions from accounts not within
function 050--National Defense.
(c) Directly related: ``Directly related'' means the direct
relation between the spending designated under this section
and the response to an activity that would not be necessary
were general contingency operations as described in this
committee print not required. For instance crop and livestock
disaster assistance should not be available to those not
directly affected by the disaster but who happen to live in
the same geographic region that was generally impacted.