[Congressional Record (Bound Edition), Volume 152 (2006), Part 18]
[Extensions of Remarks]
[Pages 23847-23849]
[From the U.S. Government Publishing Office, www.gpo.gov]




  GUIDELINES FOR APPLICATION OF PROVISIONS DESIGNATED AS EMERGENCIES, 
  CONTINGENCY OPERATIONS, OR UNANTICIPATED DEFENSE-RELATED OPERATIONS

                                 ______
                                 

                            HON. JIM NUSSLE

                                of iowa

                    in the house of representatives

                        Friday, December 8, 2006

  Mr. NUSSLE. 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.

[[Page 23848]]




        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;

[[Page 23849]]

       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.

                          ____________________