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Our firm assisted a tribe in its successful effort to secure a Forest Service decision banning rock climbing on Cave Rock, a significant tribal cultural site, and filed an amicus brief in Access Fund v. U.S. Department of Agriculture in support of the Forest Service’s decision, which was upheld.

General Memorandum 13-086

General Memorandum 13-086
FY 2014 Continuing Resolution Update; Senate Approves CR and Sends it to House

On September 27, 2013, the Senate approved an amended version of H. J. Res. 59, a Continuing Resolution (CR) that would provide FY 2014 funding to federal agencies on a short-term basis by a vote of 54 to 44. (The House of Representatives approved its version of a short-term CR on September 20, 2013. ) The outcome of a final CR is far from certain, with House conservatives wanting to use it as a vehicle to de-fund or delay the Affordable Care Act. If, as expected, the House makes changes to the Senate-passed version, the Senate will need to consider the bill again. Congress will be in session over the weekend, trying to reach an agreement in order to avoid a partial government shutdown on October 1, the beginning of the new fiscal year.

Things that are the same in the House and Senate Bills

No Contract Support Costs Anomaly. The bills do not contain the provision recommended by the Office of Management and Budget but opposed by Indian Country to impose contract support costs caps on individual Indian Self-Determination Act agreements.

Funding Level. The bills would provide funding at the FY 2013 post-sequester level of $986.3 billion, a figure that is a compromise between the House Budget Resolution cap of $967 billion and the Senate Budget Resolution cap of $1.058 trillion. Funds would generally be provided on a pro rata basis at the FY 2013 levels under the authority and conditions of the FY 2013 Appropriations Act.

Limitations on the Distribution of Funds. Funds would not be distributed for programs that may have high initial rates of operation or for which funds are fully distributed at the beginning of the fiscal year based on the possibility that Congress might eliminate or reduce funding for those particular programs. With regard to distribution of funds during the period covered by the CR, the bills state: "this joint resolution shall be implemented so that only the most limited funding action of that permitted in the joint resolution shall be taken in order to provide for continuation of projects and activities." However, agencies will be allowed to apportion funds in a manner that would avoid furloughing employees.

Mandatory Funding Programs. Funding for entitlement and mandatory payments which was provided for FY 2013 as well as activities under the Food and Nutrition Act would be continued at a rate to maintain current program levels. The bills would continue the current pay freeze for federal employees and extend the authorization for the Temporary Assistance for Needy Families program through the period of the CR.

Anomalies. The bills contain anomalies (provisions that do not adhere to FY 2013 funding levels and/or conditions) including:
• $600 million increase for Forest Service firefighting
• $36 million increase for Interior Department firefighting ($15 million would be allocated for burned-area rehabilitation)
• $2.5 billion for the Veterans Benefit disability claims processing
• $470 million in additional budget authority for Social Security disability reviews
• $1 billion for federal court Defender Services

Differences between the House and Senate Bills

Funding Period. The House bill would extend funding through December 15, 2013, while the Senate bill would provide funding through November 15, 2013.

Affordable Care Act. The House bill, but not the Senate bill, would permanently de-fund the Affordable Care Act (ACA). The President has said he would veto any bill that does this. The bill reads in part:
Notwithstanding any other provision of law, no Federal funds shall be made available to carry out any provisions of the Patient Protection and Affordable Care Act (Public Law 111-148) or title I and subtitle B of title II of the Health Care and Education Reconciliation Act of 2010 (Public Law 111-152), or of the amendments made by such Act.

We note that the Indian Health Care Improvement Act (IHCIA) was permanently reauthorized in Title X of PL 111-148 by incorporating via reference the text of the Senate-passed Indian health bill, S 1790. While there are other statutes which provide authority for IHS funding, i.e., the Synder Act which long preceded the IHCIA, defunding of the ACA might call into question or complicate IHS activities which were newly authorized in the IHCIA portion of PL 111-148.

Debt Limit. The House bill, but not the Senate bill, would provide that when the debt limit is reached (expected mid-October) the federal government can continue to borrow money, but only to make principle and interest payments and obligations to the Social Security Trust Fund.

We will continue to monitor Continuing Resolution developments. Please let us know if we may provide additional information.

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Inquiries may be directed to:
Karen Funk (kfunk@hobbsstraus.com)
Marie Osceola-Branch (mosceola-branch@hobbsstraus.com)
Moriah O'Brien (mobrien@hobbsstraus.com)

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