Codifying “Soft Law” Governance in Statute

Today, Sen. Brian Schatz (D-HI) and Sen. Cory Gardner (R-CO) introduced their “AI in Government Act of 2018” (AIGA). The bill would authorize the creation of an Emerging Technology Policy Lab (ETPL) under the authority of the General Services Administration, with the twin goals of (1) advising on, and promoting, the use of emerging technologies within the federal government and (2) improving the government’s “cohesion and competency” in the use of, and rulemaking aimed at governing, emerging technologies. In an age of hyper-partisan political brinkmanship, this bill is a refreshing breath of fresh bipartisan air.  

Bills that attempt to tackle the many complex and difficult issues issues related to emerging technologies – such as autonomous vehicles and artificial intelligence (AI) – very often take on an amorphous character, providing little in the way of discernible, concrete steps towards action. While some may claim the AIGA fits that nature, it is actually a far more monumental and noteworthy proposal than many will give it credit for. The reason? This legislation would, in many important respects, codify some of the most crucial elements of “soft law” governance in emerging technologies – an important issue that the Niskanen Center has repeatedly emphasized as the defining system of how emerging technologies are currently, and should continue to be, governed in the Digital Age.

The AIGA codifies the essential features of a soft law governance doctrine – prioritizing multistakeholder engagement, housing those deliberative assemblies under the auspices of a non-rulemaking agency (which incentivizes industry to participate with government and civil society without the fear of threats or preemptive regulatory action), and offering pathways for providing recommendations that could, if necessity requires, materialize as best practices and other “soft criteria.” This multistakeholder approach is further strengthened by the inclusion of a provision that calls for explicit coordination with the Office of Management and Budget and Office of Science and Technology Policy. By prioritizing multistakeholder engagement among a wide and diverse assortment of actors, this legislation provides a market-friendly governance platform for discussion and collaboration without championing an overly-restrictive or precautionary approach to addressing the challenges facing the emerging technology ecosystem.

As described in the legislation, the ETPL will act as the emerging technology-focused multistakeholder-organizing body – of individuals from industry, government, the academy, nonprofits, and civil society – that has been so sorely lacking in the regulatory ecosystem. In this role, ETPL is also specifically tasked to work “with industry to improve the leadership of industry in emerging technology,” and ensure the American technology sector is able “to compete successfully in international markets.” Thus, the AIGA embraces not only the underlying tenets of soft law governance practices, but the basic principles of the 1997 Framework for Global Electronic Commerce, which – as the Niskanen Center has been emphasizing for many years – helped lay the policy foundation upon which the Internet was able to flourish.

In short, the AIGA is precisely the type of soft law platform America needs for the Digital Age.

By strengthening the government’s role as one of collaboration and coordination, the AIGA provides an effective platform for multistakeholder engagement on the broad scope of emerging technologies that promise untold benefits for the American economy and society. Because these benefits will be realized, first and foremost, by innovators and startups in the technology industry, it is appropriate that the ETPL provides the opportunity for government and civil society to work with industry to ensure America remains the world leader in innovation and technological progress.

The Niskanen Center applauds Sens. Schatz and Gardner for this forward-looking, bipartisan legislation.

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from nicholemhearn digest https://niskanencenter.org/blog/codifying-soft-law-governance-in-statute/

How Marriage and Inequality Reinforce Political Polarization

As politicians polarize, Americans are also sorting into clearer partisan camps who dislike the other side. What reinforces that cycle? Perhaps both our social relationships and our increasingly unequal society. Tobias Konizter finds that Americans are increasingly selecting spouses based on partisanship and then passing on our political views to our children. But John Kuk finds that economic inequality is increasingly tied to divisions on social and racial issues, which in turn are driving dislike of the other party. Our social ties, resources, and racial views are all dividing us into two partisan sides.

The Niskanen Center’s Political Research Digest features up-and-coming researchers delivering fresh insights on the big trends driving American politics today. Get beyond punditry to data-driven understanding of today’s Washington with host and political scientist Matt Grossmann. Each 20-minute episode covers two new cutting-edge studies and interviews two researchers.

You can subscribe to the Political Research Digest on iTunes here.

Transcript

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from nicholemhearn digest https://niskanencenter.org/blog/how-marriage-and-inequality-reinforce-political-polarization/

Do Immigrants Fraudulently Use Public Benefits?

For well over 100 years, the United States has denied entry to immigrant applicants who may become primarily dependent on the government for subsistence, on the grounds that they will likely become a “public charge.” To reduce the likelihood, all family visa applicants must have a sponsor provide an Affidavit of Support that makes the sponsor liable to the government and the immigrant for failure to support the immigrant financially; failure to provide this affidavit will result in an inadmissibility determination. Similarly, an individual can be deported if he becomes a public charge within five years of entering the United States.

In recent months, the Trump administration has indicated a renewed interest in cracking down on the fraudulent use of immigration benefits that the administration alleges is rampant. Is it? By one metric—prosecutions for fraud—the answer is no.

Background

The 1996 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), commonly known as welfare reform, introduced tight restrictions on recent immigrant use of virtually all public benefits. Qualified aliens, like lawful permanent residents (LPRs) or green card holders, are banned from means-tested programs for 5-years from their date of legal entry. The ban and subsequent tweaks to the rule sowed confusion among aliens who worried about the risk of deportation from obtaining such basic services as emergency medical assistance, or immunizations against communicable diseases.

Recognizing a potential risk to public health and other federal policy goals, clear definitions and standards for determining a public charge were laid down in a 1999 rulemaking by Immigration and Naturalization Service (INS, now U.S. Citizenship and Immigration Services or USCIS) after extensive inter-agency consultations. INS ultimately determined public charge to refer to being “primarily dependent on the government for subsistence” — not mere use of supplementary or non-cash benefits.

To deport or deny admission on public charge grounds requires an analysis of the immigrant’s “totality of circumstances” including age, health, family status, assets, resources, financial status, education, and skills. According to contemporary USCIS guidance, no single factor is sufficient for identifying a public charge.

Cash assistance and long-term institutionalization are the primary grounds for categorizing an individual as a public charge. Public charge determinations only affect those applying for a green card or seeking entry into the United States; not nonimmigrant visa applicants. Public benefits that do not count towards a public charge calculation are primary subsidized benefits, like transit and childcare subsidies.

Health services like immunization, testing and treatment of communicable diseases, and prenatal care also do not count towards the public charge determination. The same is true — for now — of nutrition programs like school meals, housing benefits, emergency disaster relief, job training programs, Title II Social Security, and community programs like soup kitchens and crisis counseling.

Prosecutions for fraud/false statements by immigrants are very low

Using prosecutions is a striking tool in measuring the credibility of fraud claims because the prosecutorial numbers are not influenced by politics. Furthermore, there is no dependable evidence that contradicts prosecutorial figures.

The illegal use of a benefit by an immigrant is not in and of itself criminal per se, but using false or misleading information to apply for the benefit is a felony, making it criminal for all intents and purposes.

Immigration prosecutions under 8 U.S.C. § 1001 — Fraud/false statements or entries generally  — are low. Both the recent levels of prosecutions are low, and the yearly trends have been consistently decreasing over the past decade. Even at peak levels, prosecutions for fraud were fewer than 400 cases annually. You look at both levels and recent changes.

As of August 2018, there have been 35 prosecutions that lead with this charge, a 6 percent decrease from last year; a -33.8 percent decrease from 5 years ago; and an -87.1 percent decrease from 10 years ago, according to Transaction Records Access Clearinghouse (TRAC) which uses FOIA information to provide the following information.

It’s important to put this number in perspective. Give or take, there are roughly 43 million immigrants residing in the United States, which account for 13.5 percent of the population. Of those 43 million, there were 35 prosecutions for fraud, meaning that were was one case of fraud for every 1.228 million immigrants.

To be clear, there are mitigating factors. Immigrants cannot accept benefits for the first five years they are in the United States, so that changes the calculation slightly. Furthermore, there are additional cases whereby prosecutions under this statute are not the primary charge, but a secondary charge. Although the numbers of those cases is similarly low, it does skew the numbers slightly as well.

Immigration Prosecutions under 8 U.S.C. § 1001

The long-term trend, again according to TRAC, demonstrates a gradual decline in the number of immigration prosecutions for this crime.

Immigration Prosecutions under 8 U.S.C. § 1001 over 20 years

When you break it down by judicial districts, the relatively few cases prosecuted in 2018 are even more stark. During the first nine months of 2018, the district with the highest number of prosecutions—16— occurred in the Southern District of Florida. The next closest was seven prosecutions in Texas.

In 2017, the Justice Department said the government obtained 1.6 fraud-federal program prosecutions for every one million people in the United States; which is expected to drop to 1.5 per one million this year.

To be clear, that is not to say that immigrants are not committing fraud, but it does make clear that the prosecutions under the primary statute are exceedingly low, and arguably, do not justify the draconian changes to regulations on public charge that the administration released last Saturday night.

Given that the number of prosecutions of immigrants and Americans for fraud are very low, the purpose behind the government’s proposed regulation overhauling the the regulation to make determination as a public as a means of reducing said fraud is unfounded, and the rule itself, overly broad.

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NEW RESEARCH PAPER: The Strategic Case for Refugee Resettlement

by Professor Idean Salehyan

Professor of Political Science, University of North Texas

Adjunct Fellow, Niskanen Center

 

EXECUTIVE SUMMARY

The Trump administration has dramatically reduced the number of refugees resettled to the United States. For Fiscal Year 2018, the cap on the number of resettled refugees was lowered to 45,000, although the actual number of admissions is likely to be far lower.

These cuts were predicated on the notion that refugees could potentially pose a security risk to the U.S. However, these fears are misplaced, as vetting procedures for refugees are quite robust. In addition, refugee resettlement is a useful tool for achieving broader U.S. foreign policy objectives.

The United States has a long tradition of welcoming people fleeing conflict and persecution. Beyond the humanitarian impact of generous refugee admissions programs, they also help bring stability to conflict-ridden regions. Through refugee resettlement and generous overseas assistance programs, the U.S. has reduced the burden on countries of first asylum, which often have weak capacity to manage migration. Moreover, refugee resettlement helps to facilitate the cooperation of regional partners and allies as the U.S. pursues broader geostrategic objectives, including military operations.

Finally, since the refugee resettlement program was created in 1980, not a single refugee has been involved in a fatal terrorist attack on the U.S., attesting to the robustness of vetting procedures. This includes thousands of refugees resettled from Muslim nations, including Syria and Iraq, which are believed to pose the most risk.

Instead, the vast majority of refugees have successfully adapted to life in America, contributed positively to the economy, and eventually acquired citizenship. These success stories serve to foster a positive image of the United States abroad, countering extremist narratives. Therefore, cuts to the resettlement program do little to enhance national security, and indeed, run counter to that end.

The full paper is available here.

 

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How to Do a Change of Use When Leasing Commercial Space

When buying or leasing commercial real estate you sometimes will come across a commercial property that was previously used as something different than your intended use.

For example say you find an industrial space for rent Austin that was previously used by a wine distributor. According to the City of Austin zoning chart their use was considered Limited Warehousing and Distribution. Your a food and beverage company that wants to use this industrial space for food preparation. Before you will be able to open for business you will have to apply and be approved for Light Manufacturing which would take about 15 to 20 days.

Change of Use Process

The change of use process will vary from jurisdiction to jurisdiction. In most counties and cities you will have to visit your city planning department or development assistant center. Anytime there is a proposed change in the use of a space or building you must obtain a permit. The change of use permit is required because they want to make sure you comply with the applicable codes for a new use before issuing a certificate of occupancy.

Change of Use in Austin Texas

In Austin, Tx however a change of use is a two step process.

1. First you need a site plan exemption application or a site plan correction application if they have a current site plan on file for the property. Either application must be submitted to the Austin Tx Development Assistance Center located at One Texas Center, 505 Barton Springs Road, Austin, Tx 78704. They are open from Monday to Friday 9 am to 12 pm. The review time is 7-10 days.

2. Next you need to submit a building permit application with Commercial Plan Review which is located at the same address on the 2nd floor Monday – Friday, 8:00 to 12 pm. Once you have approval of the building permit you will be issued a Certificate of Occupancy and you can open for business.

If you have any questions about whether you are required to do a change of use on your commercial space in Austin or how to do it feel free to give us a call to discuss at 512-861-0525

A Response to Nancy MacLean

I have honestly tried as hard as possible to maintain my equilibrium and good nature when engaging with Professor Nancy MacLean around the subject of her book, Democracy in Chains. And I sincerely attempted to have my say last year in a couple of pieces with Henry Farrell and leave it at that, but Professor MacLean insists on repeating outright falsehoods that could be avoided by a two minute Google search.

Prof. MacLean chose to slander me on Facebook, a medium that I have had the good sense to avoid. Here’s what she had to say:

Let’s start with the simply wrong and move on from there. First, Bill Niskanen was not president of Cato, but chairman of the board. That’s a pretty big difference. She can find the evidence right here on Wikipedia. If she had done any research on the Niskanen Center whatsoever, she would recognize that Bill Niskanen’s work has very little in common with the Center’s, beyond a willingness to call things as we see them. Second, when the book was published Brink Lindsey was no longer at VP at Cato, as he had moved to Niskanen. She would have found that here.

Third, the Niskanen Center does not describe itself as libertarian. For those who are interested, here’s Niskanen’s “About” page. It is certainly true that a lot of Niskanen’s staff came out of libertarian organizations, including Cato. And it’s right that Jerry Taylor’s original motivation for starting Niskanen had a lot to do with his rejection of climate science denial. But she might also find that Jerry was very involved on one side of the battle over control of Cato, with a certain bête noire of hers on the other side.

In any case it’s certainly not even remotely correct to say that that Niskanen “holds on to the libertarianism.” Has she even bothered to visit the Niskanen website before saying things like this? If she had, she’d have run into, for instance, Sam Hammond’s excellent work on the “free market welfare state,” which argues that in an era of market disruption the cause of social insurance is even more vital than ever.  If that was too long she could have read Jared Bernstein’s interview with Sam, craftily hidden at the Washington Post.   

Looking around elsewhere on the Niskanen site, Prof. MacLean might have read our Vice-President for Research Will Wilkinson’s attack on the Republican tax bill last year, which traces its flaws back to libertarian ideas. It was deep in the dark web…no, it was in the New York Times, which is easily available in Durham. She might also be interested in Will’s argument with a prominent George Mason University libertarian, Ilya Somin, on what he sees as libertarianism’s fundamental conflict with democracy. The piece, by the way, says that Professor MacLean is right on the question of libertarian hostility to democracy, but that, among other things, she is “overly fond of Infowars-style dot-connecting.”

If Professor MacLean was under the impression that Niskanen is just a libertarian mouthpiece, she could have also picked up my book with Niskanen VP for Policy Brink Lindsey, The Captured Economy. There are two copies in Duke’s library, for her reading pleasure. There she would have found us arguing for reversing Republicans’ cynical cuts in Congressional analytical capacity, which we argue simply empower lobbyists for concentrated interests. She might have also looked on the New York Times website, where she would have found Brink and I criticizing the Trump administration’s record on regulation as simply advancing upward redistribution and rent seeking. Neither of these are the standard argument around the halls of Reason or Cato.

Why does Professor MacLean make such basic errors and misstatements of motivation? The answer, I fear, is that she cannot imagine any criticism of her work that is not motivated by partisanship and financial conflict of interest. But the truth is that there are now significant scholars who are not on the right who read her book and had much the same reaction that Henry and I had. Those range from the sociologist Elizabeth Popp Berman at Albany (who describes the book as “hyperbolic, overly speculative, and sometimes uses sources in misleading ways”)  to the Stanford University historian Jennifer Burns (“Democracy in Chains is characterized by a fundamental lack of curiosity. The book is disconnected from not just economics or political theory, but from all the social sciences…it bears witness to an alarming parochialism.”) And that’s just as a taste.

It’s also worth noting that the co-author of my critical essays, Henry Farrell, is a full-throated Irish-born social democrat and ringleader of the wonderful but quite lefty blog Crooked Timber. And given that she quotes me extensively in her book, Prof. MacLean clearly thinks my scholarship is valuable and not just financially conflicted ideological claptrap.

Prof. MacLean cannot, despite all the evidence to the contrary, imagine this as anything but a political dispute, when it is at its core a scholarly disagreement. At the end of her post she says that this whole conflict is a waste of time because “people could be our (sic) registering voters and canvassing to stop the cause the two [myself and Geoff Kabaservice] are at pains to defend.” I will let Geoff account for his own partisan leanings.

But Prof.MacLean seems to have a very mistaken impression of where I’m coming from where electoral politics is concerned. That’s because she is now reading backwards from scholarly criticism to partisan motivations, and in doing so simply embarrassing herself. But where the general elections of 2018 are concerned, there is no daylight between myself and Prof. MacLean. Neither was there in the general election of 2016. Or 2012. Or 2008. Or…well, any general election since I first voted for president back in 1988.

My scholarly impression of Prof. MacLean’s work, however, has nothing to do with any of this. It’s just that, wearing my scholar’s hat, I came to the same impression as Professors Berman, Farrell and Burns—that Prof. MacLean had written a very poor piece of scholarship, regardless of my agreement with some of her positions. She can disagree with that, but she should do so as a scholar, responding to the specific criticisms that have been made of her book. My original pieces with Henry Farrell are here and here. I would hope that she would finally address them substantively, along with the other work cited above, and cease hurtling slander at her critics as a way of avoiding responsibility for the scholarly merits of her work.

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What is a Certificate Of Occupancy?

A certificate of occupancy (C.O.) is a document given by a building department or local government agency that certifies that your commercial building and/or space complies with the plans you submitted to and that were approved by the city, the city’s / county’s applicable building codes and laws, and that it’s in a suitable condition to occupy. 

Who Needs a Certificate of Occupancy?

The procedure and requirements for a certificate of occupancy vary from jurisdiction to jurisdiction and on the type of commercial property. In general however it’s required when

• A new building is built
• When a property is changing from one use to another(e.g. an industrial building changed to residential use)
• Change of ownership
• Occupancy of a commercial building changes
• When doing tenant finish outs and a permit is required

Temporary Certificate of Occupancy

A Temporary certificate of occupancy gives the occupants the same rights as a CO however only for a temporary time period.

Certificate of Occupancy in Austin TX

If you are buying or leasing commercial real estate Austin Tx and doing any construction or improvements you more than likely will need to get a permit and then ultimately approval for a certificate of occupancy. When you complete and pass the inspection phase after tenant finish out and construction you will receive a certificate of occupancy. The C.O. proves that your building and space is safe for your particular use. If you are trying to get a C.O. in Austin and not sure where to start the following steps will help.

1. Start with the City of Austin Development Assessment center . Here you will verify the intended use that is allowed under current zoning, submit plans for construction, determine if a site plan is needed.
2. Next is Commercial Plan Review. Anytime a structure is erected, altered, improved, repaired, etc the review staff has to approve.
3. Permitting – After the commercial plan review has approved your building plans and application you can pick up permits and pay.
4. Inspections – Your project will be inspected to ensure that it’s compliant with mechanical, electrical, plumbing, and zoning, as well as other structural and engineering inspections. Once everything passes you will be issued a certificate of occupancy.

How to Choose a Reliable Commercial Contractor

When buying or leasing commercial real estate in most cases you will end up having to build, renovate, construct, or do some sort of tenant improvements whether you want to occupy office, retail, or warehouse space. Choosing the right contractor however can be a difficult process especially if you have not been through the process before.

Picking the wrong contractor can lead to your tenant improvement project being way over budget and not on time which can create a lot of stress especially if you have a hard deadline or existing lease expiration date. Going through a commercial real estate renovation is not ideal or fun however choosing the right commercial contractor can make the different between a successful move in and a stressful one. Below are a few tips on how to select the right contractor that will keep your project on time and within your budget.

Know What Your Needs Are First

Have some plans and ideas. Contractors can’t guess your needs and while verbally telling them what you want is possible on a small job in most cases you want to have things in writing. If the scope is really small (e.g. just building a couple of walls or having new flooring installed) then you really won’t need plans but do have what you want done in writing. If the scope is larger you need to hire an architect or space planner to draw up an office layout that meets your current and future needs. Once you have a good plan that you are at least 90% sure will work then you are ready to get preliminary bids.

Find Out Commercial Contractor Recommendations

There are a few ways to go about choosing the best contractor. If using a commercial real estate company Austin you can start with them. They have been through the process a ton and can share a complete list. You can also ask the landlord for a few references on who they have used for tenant finish outs. Ask neighboring tenants who they used and how their experience was. As you do your research you will find that there will be a handful of commercial contractors that do most of the tenant build out work in your city. 

Ask Contractors Lot’s of Questions Before Asking For Construction Bids

Before asking for contractor bids you want to interview at least 5-6 contractors and ask them a lot of questions about their experience.

• Find out how busy they are right now and if they have the bandwidth to do your job. 
• How they communicate during construction regarding timelines, challenges, issues, etc
• What do they do to keep costs down and within budget?
• What do they specialize in?
• Get references for other projects they have done
• Do they have employees or do they subcontract everything out?
• What work will be completed by subs vs employees?
• What vendors do they use (e.g. architects, electricians, plumbers, etc..)?

Obtain at Least 3 Preliminary Construction Bids

Now you are ready to request preliminary commercial construction bids. You may have not signed a lease yet or closed on a property however BEFORE you do it’s important that you get at least 3 preliminary written bids first. The landlord may be giving you $50,000 in a tenant improvement allowance however how do you know if the total construction costs will be above or below that? In most cases it ends up being above and if so it might make this property too expensive for you. You don’t want to be surprised later on by finding out you have to come out of pocket by $100,000.

You need to set your expectations and having an idea of what the costs will be is VERY important. Even if you are 90% sure you are going with XYZ company getting a few other prelim bids will educate you on typical costs and you will be able to keep your contractor honest. Make sure the bids include a line item for every aspect of the build-out. For example total plumbing, electrical, flooring, walls, mechanical costs, etc.

Compare Each Commercial Bid

Make sure to compare each bid ensuring each one includes the same level of materials, tasks, and scope of work. You want to ENSURE they are apples to apples. If the landlord is charging a construction management fee make sure you know whether it’s on the total construction amount (hard and soft costs) or just the hard costs. Also make sure to get estimates on architectural and engineering fees if needed and insert those as line items on the bids.

Value Engineer the Construction Scope of Work If Needed

If the bids came back much higher than you anticipated then discuss with each contractor how you can value engineer. This essentially means reducing the scope where possible to get the costs down. You want to meet in person or jump on a conference call and go through the bids line by line. Do this with each contractor and find out where (if possible) you are able to reduce the costs. You can also negotiate with the contractor to see where they are able to reduce their list price.

Choose the Least Expensive Qualified Commercial Contractor

After comparing all the bids now is the time to choose a contractor. Don’t always go for the cheapest, however picking the most expensive doesn’t mean you will get the best service. I like to pick the “least expensive qualified contractor”. I also make sure I pick the one that I know has the time and bandwidth to work on my project. If I have a deadline it’s important that it gets met. In addition you want the contractor to commit in writing to give you weekly progress updates whether physical onsite meetings and/or conf calls. There needs to be some sort of penalty for not doing this. Communication is key to a successful build out.

Don’t Pay Contractors All Up Front

You may be required to pay a small retainer fee or money needed to cover ordering materials but paying the full construction costs in advance is not advisable.

Get Building Permits If Necessary

For small jobs a construction permit may not be required. However if the scope of work is significant the city will require a building permit. In most cases (such as City of Austin) a qualified commercial contractor is required to obtain permits of their work. Be wary of one that asks you to obtain a permit on their behalf. The party that pulls the permits is held responsible for any construction work that does not meet city code. Before the project begins request proof from the contractor that the building permits and trade permits (if required) have been obtained.

Weekly Construction Updates & Timelines

Communication is key for a successful tenant improvement finish out or other construction. Get in writing up front that the contractor will have a predefined day and time to either meet onsite or have a conference call to review construction progress and if the project is still scheduled to be completed on time. The best experiences I have had have been when we have all met in person to discuss project progress, obstacles, etc..

For more info checkout Federal Trade Commission Consumer Information hiring a contractor

City of Austin Building Permit Services Commercial & Residential Property

If you are planning on buying a commercial building or leasing commercial real estate Austin you will more than likely need to do some sort of construction and/or tenant improvements. Whether it’s office, retail or warehouse space, if it’s located within the City of Austin, and depending on the scope of work, you or your contractor will probably be required to pull a permit before getting started.

Services City of Austin Building Permits Provides

• Issuing building permits
• Issuing trade permits such as mechanical, electrical, plumbing, & irrigation permits
• Permit payment services
• Registering licensed contractors to perform work (e.g. mechanical, electrical, plumbing, and irrigation)

When is Permit Required in Austin?

A building permit in Austin is required to construct, erect, alter, enlarge, improve, repair, convert, remove, demolish, or move any structure or building within the City’s zoning jurisdiction or in particular MUDs (Municipal Utility Districts). The permit can be 

Before a permit is issued all building plans must be reviewed by Residential or Commercial Building Plan Review. Depending on the scope of work a trade permit (e.g. mechanical, electrical, plumbing, irrigation) may also be required. To determine whether or not your project needs a permit call (512) 978-4000

What Type of Commercial Work Does Not Require a Permit?

 An Austin building permit is not required for the following commercial work, however you still must comply with applicable city codes, building codes, etc. To see the full list and details of commercial work in Austin not requiring permit click here.

Building

• Finish work such as carpeting, tiling, painting, cabinetry, counter work, etc.
• Movable and non-fixed fixtures, racks, counters, cases, and partitions no higher than 5 feet 9 inches
• One story detached buildings used as storage & tool sheds, playhouses, etc that are not greater than 120 sf, provided not in a flood zone
• Fences 8 feet high or less provided not in a flood zone
• Retaining walls 4 ft or less
• Driveways and sidewalks no more than 30 inches above grade

Electrical

• Replacing cables and cords on portable appliances
• Replacing dimmer switches or fans
• Replacement of electrodes, transformers, overcurrent protection devices, etc of same size, capacity, voltage, amperage, etc.

Mechanical

• Portable heating appliances, cooling, ventilation equipment, evaporative coolers
• Replacing any parts that do not alter its previous approved status or make unsafe

Plumbing

• Work needed to stop leaking drain, waste, soil, or vent pipe
• Work needed to clear a stoppage
• Repairing and replacing fixtures and exposed traps

What Happens During Construction and After Permitted Work is Completed?

Depending on the scope and type of work that was permitted an inspection will be required during construction. After the work is fully completed whoever a final inspection must be performed. The inspection scheduling is the responsibility of the permit holder. This can be initiated by a licensed contractor, homeowner if listed at general contractor on permit, official agents registered under contractor, or a master trade contractor.

When Do Permits Expire?

Permits are only active for 180 days. On the 181st day the permit will expire if a project has not received any inspections. If you let the permit expire this must be resolved before they city will issue a new permit. To check if your property has an expired permit call (512) 978-4000.

City of Austin Permit Search

The Austin permit search tool allows the public to do searches for permits, plan reviews, inspections, and the status of those permits/cases. You can also view issued construction permits and the online user manual for public search assistance.

The city of Austin provides this tool so registered users can apply for permits online, pay for permits, schedule inspections, apply for right of way permits and assign permits.

 

Lifespan of Commercial Heating Ventilation Air Conditioning Units

In most cases when leasing warehouse or retail space tenants are responsible for the maintenance, repair, and replacement (if needed) of the heating, ventilation, and air conditioning (HVAC) units. Before renting commercial space you need to make sure that you know how old the units are and how they have been maintained over the years or you will end up paying for costly repairs that were not caused by you. Below we will go into more detail as to why.

What Does HVAC Stand For or Mean?

HVAC stands for heating, ventilation, and air conditioning. In most states that experience extreme heat and cold HVAC is common in residential properties such as apartments and single family homes, hotels, senior living facilities, apartment buildings, commercial properties such as office, retail, and industrial space, etc.

How Long do Commercial HVAC Systems Last?

The life expectancy of commercial hvac units is typically 15 to 20 years however depends on a number of factors such as:

• Size of the system in relation to the building or space square footage
• Size of the Unit in relation to the ductwork size
• Preventative maintenance regularity
• How often filters are changed
• Climate and weather conditions
• Intensity of use such as extreme cold settings or hot
• Installation quality
• Compatibility of system components age vs the units age

Average Lifespan of HVAC Components

• Central Air Conditioner – 15 years
• Rooftop Air Conditioner – 15 years
• Air Compressor – 15 years
• Heat Pump – 15 years
• Boilers – 30 years

How Much Does it Cost to Replace an HVAC System per Unit?

The average cost can range from $4,500 to $5,000 however that depends on the size of the space you are trying to heat and cool. For example if you are trying to cool a 1200 sf space you might need a 2 ton unit. A 5,000 sf space might need a 5 ton unit. For larger commercial spaces expect to pay anywhere from $4,500 to 10,000 for each hvac unit being replaced. Replacing HVAC units can be costly upfront however your roi will be tremendous. When all the units are of similar age the entire system within the premises is more reliable and efficient, which means you can worry less about repairs costs.

Why Worry About HVAC Units When Leasing Warehouse Space?

When your leasing industrial space such as warehouse space Austin or office/warehouse space you most likely will be responsible for 100% of the repair, maintenance, and replacement (if needed) all all the HVAC units that service your space. That is because those units ONLY service your space an no others as you see with traditional office space. If the units die or need repair you have to pay for those costs no matter how old or bad the units are.

Because of this you have to make sure that you don’t sign a lease until you know all the important details about the HVAC units such as:

• Age of each unit
• Date installed
• Manufacturer & model numbers
• Repair & maintenance history of each unit (work done and cost)
• Warranty information
• Operating instructions
• Previous service agreements

During the negotiations ask the landlord to have all of the HVAC systems inspected, maintenanced, and repaired or replaced if needed before you take occupancy. You may also ask for a warranty for the first year or two.

If the units are newer ask if their is any remaining manufacturer warranty.

If the systems are older and close to the lifespan of 10-15 years then you definitely want to get some sort of warranty or CAP on any hvac expenses. You have to keep in mind that an old unit will need more repairs than newer ones. Also, your utility bills will be higher because the older units are less efficient.

At the end of the day if the landlord is asking you to take over the maintenance and repairs of HVAC units that are at or over the typical life expectancy you need to stand your ground and negotiate to have them take most of the responsibility………….or go find another space.

 

You Can’t Understand Big Tech Without Understanding Network Effects. Here’s a Road Map.

Platforms are unique businesses — their purpose is more often to bring customers together to interact or make exchanges with each other than it is to sell something directly to the customers. The service being provided is that of a matchmaker, finding two people who could profitably trade or communicate but haven’t done so yet because transaction costs were too high without a trusted intermediary.

The platform business model also leverages one of the more powerful forces in the economy — network effects — to scale quickly and maintain momentum behind the entire ecosystem. Network effects mean the product or service increases in value with the total number of customers. The classic example is the telephone: The more people who have one, the more useful each phone is.

Platforms that serve multiple customer groups can also have indirect network effects, meaning that when one user group grows, the platform becomes more valuable to a complementary user group. Operating systems are a case in point: Developers’ demand for adopting a particular operating system depends on the number of users, and users’ demand depends on the number of developers creating applications.

If an operating system can reach critical mass — the point at which the value of the platform exceeds its cost for a large number of customers — it can engage a powerful flywheel effect where more users create more value for developers and vice versa. Research has shown that the social benefit from someone buying a new computer can exceed the private benefit due to these indirect network effects.

A successful platform can decrease search costs and reduce deadweight loss by brokering exchanges that never would have happened without it. But before a platform reaches that point, it must overcome a chicken-and-egg problem caused by the interdependence of demand between the customer groups. Who wants to join a two-sided market with no one on the other side? One way to solve this problem is for the platform operator to subsidize one side (usually the one with the higher elasticity of demand or the one that creates more value for the platform) by raising prices on what’s known as the “money side.”

Where the Network Effects Are: A Taxonomy

The charts below map the digital and analog markets with significant network effects. The vertical axis measures how strong their indirect network effects are, and the horizontal axis measures how strong their direct network effects are.

Communications networks have the strongest direct network effects — in which each user benefits when a similar user joins — of any platforms. Their raison d’être is to enable people to interact with others. WhatsApp, Facebook Messenger, Slack, iMessage, and Snapchat all serve this purpose, and collectively they have billions of users. In the pre-Internet age, the phone and fax machines were communications networks that also grew in value with their size.

Marketplaces facilitate transactions between two or more distinct groups and help minimize transaction costs, which results in more exchanges and an increase in social welfare. From the analog era, we have shopping malls that match retailers and shoppers; flea markets that match buyers and sellers; and nightclubs that match singles (n.b.: ladies’ night means that women are the subsidy side of the market and men are the money side). In the digital economy, there are eBay, Craigslist, and Amazon Marketplace for matching merchants and customers; Uber and Lyft for matching drivers and riders; Postmates and GrubHub for restaurants and eaters; and Airbnb for hosts and guests.

Social media networks like Facebook, Instagram, Twitter, Pinterest, Reddit, YouTube, and LinkedIn combine the direct network effects of communications networks (the “social” part of the name) with the matchmaking of marketplaces. Social media networks aggregate attention and then sell pieces of it to advertisers for targeted campaigns. Newspapers, magazines, television, and radio used to be the primary platforms for this latter function in the pre-Digital Era.

Platforms, such as operating systems and video game consoles, are ecosystems of users and developers and demonstrate both strong direct network effects (many apps that involve communication and collaboration become more useful with more users) and indirect network effects (app developers want more users and users want more apps), with the result that these markets tend toward oligopoly. Today, there are only three big personal computing platforms: Windows, which leads the desktop OS market with more than 88 percent market share, and Android and iOS, which together have almost 97 percent of the mobile and tablet OS market.   Sony, Microsoft, and Nintendo control almost the entire video game console market.

Data networks are a new type of network that did not exist before the Internet made collecting, analyzing, and applying large datasets economical. Waze uses a driver’s speed and location to improve routing and navigation for other users of the app. Yelp and Netflix collect data and ratings to improve recommendations for users. AncestryDNA and 23andMe create databases of their customers’ genetic data, which are then used to improve genetic analysis for those same customers. All of these data networks have direct network effects, i.e., after each user’s data is added to the network, the value of the service provided by the network increases to every user.

Network Effects Aren’t What They Used To Be

Last century, all the action revolved around the desktop computer. This century, the multiplicity of devices and ease of direct communication means platforms can quickly find themselves cut out or replaced. Here are a few reasons why network effects may not be as strong in the 21st century as they were in the 20th century:

1. The proliferation of physical devices and digital platforms lowers switching costs.

2. Network effects have become highly localized, diminishing the advantage large networks have over small networks.

3. Network effects can be negative due to congestion, competition, advertising, and spam.

4. Users have an incentive to go off-platform for repeat business or high-value transactions.

In light of the empirical evidence, antitrust regulators should proceed on a case-by-case basis in markets with platform business models, identifying negative and positive network effects and determining if they are diminishing, increasing, or constant before making conclusions about market power.

Read the full comment we submitted to the FTC here.

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How the Tea Party Paved the Way for Donald Trump

The Tea Party that arose in 2009 seemed initially focused on bailouts, health care, and taxes. But new research suggests that concerns about cultural change and distrust of distant elites, the same themes that drove Trump supporters, were also central to the Tea Party—not just in the electorate but among activists and even for aligned Members of Congress. Bryan Gervais finds that Tea Partiers in Congress veered rightward on racial concerns and pioneered the social media incivility now associated with President Trump. Rachel Blum finds that the activist network of the Tea Party worked as a party within the Republican Party to reorient its ideology to focus on cultural threats.

The Niskanen Center’s Political Research Digest features up-and-coming researchers delivering fresh insights on the big trends driving American politics today. Get beyond punditry to data-driven understanding of today’s Washington with host and political scientist Matt Grossmann. Each 20-minute episode covers two new cutting-edge studies and interviews two researchers.

You can subscribe to the Political Research Digest on iTunes here.

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How Iran Solved Its Kidney Shortage, And We Can Too

The U.S has a major shortage of kidneys for transplants. In 2015, there were over 121,000 people with End Stage Renal Disease (ESRD) on the kidney transplant list. With an aging population, and thousands of people dying or becoming “too sick to transplant” every year, the gap between people in need of a kidney and completed transplants has widened dramatically.

Dialysis, the primary treatment option for ESRD, is not only time consuming and exhausting — it’s also expensive, accounting for $87,000 per year, per patient, and over 7% of Medicare’s budget.

Without a bold strategy for increasing the supply of kidneys for transplant, thousands will continue to suffer while Medicare’s budget balloons. Fortunately, unlike many problems we face, we know how to solve the kidney shortage, and save taxpayer money in the process.

To do so, we should look to Iran. An unlikely innovator in organ transplant policy, Iran offers monetary compensation to living donors in order to help supply meet demand, a policy so effective that their kidney transplant waiting list was virtually eliminated within 11 years of implementation. Meanwhile, providing donors with any form of “valuable consideration” is prohibited in the United States under the National Organ Transplant Act, contributing to the current crisis.

Iran’s experiment in donor compensation dates to the 1979 revolution, a tumultuous event that left its economy struggling. Transplants from cadavers were not yet feasible, so kidney transplants were done between friends and relatives, although black market transactions for kidneys were not uncommon. In response to the pressing shortage, Iran legalized compensating donors in 1988.

Receiving a kidney in Iran is relatively simple. Once a recipient is identified, a transplant team searches for a biologically related donor. If no relative is found, they are transferred to the Dialysis and Transplant Patient Association, waiting six months for a kidney from a deceased donor. If no kidney becomes available, they search for a living donor. A donor is required by law to be a healthy young-adult who has the consent of their spouse or parent. Donors are compensated $1,200 from the government, and receive additional payment from the recipient or a non-profit broker.

While unsettling to some, the Iranian kidney system has its strengths. First, a jury of doctors decides whether an individual is eligible to sell, ensuring the health of the donor to verify that the kidney will perform well. Second, the Iranian government has rebranded the compensation as a reward for the “act of donation.” This has softened the stigma around selling organs. And, finally, the government has strict nationality requirements that discourage transplant tourism.

This is not to say the system is flawless. The value of the donor reward has eroded considerably over the years due to inflation. In Iran, 76 percent of individuals donating a kidney are impoverished, and often use the money to pay off debts. This is worsened by Iran’s routine imprisonment of debtors. Having mostly impoverished donors also puts the recipients at risk, as transplants from poor donors are more likely to cause kidney infections.

Fortunately, all these shortcomings have obvious solutions. If the United States were to follow Iran’s path, the size of compensation could be indexed to inflation. Prospective donors could be required to have a six month “cool-down” period to avoid true exploitation. And additional guardrails — like basic hospital sanitation and health screenings— would help preclude most, if not all, nightmare scenarios.

Past research suggests the market-clearing price for a kidney in the U.S. could be as low as $25,000. Yet rather than permit a true “market” in kidneys, the entire process could be facilitated within Medicare. Every dollar put into increasing the supply of kidneys would pay for itself many times over.

While we’re a long way from that vision, there’s some near-term hope on the horizon. The Organ Donation Clarification Act was introduced in congress last July and has 14 co-sponsors. The bill would clarify the National Organ Transplant Act’s definition of “valuable consideration,” making it clear that donors can be compensated for things like medical expenses and lost wages. The bill would also permit the U.S. government to run pilot programs, testing the viability of non-cash incentive systems.

With the kidney shortage reaching a breaking point, exploring new models to encourage donation is really the least we can do.

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Let’s Bring Health Into the Climate Policy Debate

The Trump administration is continuing its overhaul of federal pollution restrictions by rolling back Obama-era strictures on coal-burning power plants. The EPA’s proposed Affordable Clean Energy Rule (ACE) would effectively repeal and replace Obama’s Clean Power Plan (CPP) and comes just weeks after the EPA released its plans to freeze fuel economy standards. The ACE rule establishes guidelines for states to use when developing plans to limit greenhouse gas (GHG) emissions at their power plants and defines “the best system of emission reductions” as on-site heat-rate improvements (HRI), which is a policy option to reduce the amount of heat required to produce one kilowatt-hour of electricity. The proposed rule also takes aim at the New Source Review program, which requires power plant operators to undergo EPA preconstruction reviews when they propose modifications to existing facilities that would result in a significant increase in a regulated pollutant.

It should come as no surprise that these modest guidelines and the loosening of the New Source Review program will be seen as  a lifeline to the coal industry, with some arguing the changes will lead to an increase in greenhouse gas emissions over the course of a year. By rolling back regulations for transportation and now the power sector, the two largest contributors of carbon emissions, the Trump administration has shown little regard for the costs associated with climate change.

What is arguably of greater concern, however, is the effect of forgoing the ancillary cobenefits that would be achieved alongside deeper reductions in GHG emissions, such as reductions in nontargeted pollutants improving air quality and public health. Most notably, reductions in CO2 emissions result in lower concentrations of PM2.5, a pollutant with well-documented health and environmental impacts.

A review of the cobenefits literature and the monetized net benefits of a range of climate-related policies will help to put the impact of the ACE rule in context.

Cobenefits of HRI and CPP

The health cobenefits of climate policies are well-studied. I’ve previously written about an analysis of three separate policy scenarios. It demonstrated that less stringent climate policies, such as the proposed ACE rule, have significantly fewer cobenefits than more stringent policies such as the Clean Power Plan it will replace (let alone a meaningful carbon tax scheme). That Harvard-Syracuse study found that if coal-fired plants were to achieve heat-rate improvements similar to the ones being proposed in the ACE rule, the result would be a modest increase in average annual PM2.5 and peak ground-level ozone concentrations, resulting in a slight increase in premature deaths from heart attacks relative to the reference case. The reference case uses energy demand projections from the Annual Energy Outlook for 2013, and assumes EPA clean-air policies are fully implemented but not changed (either with Obama’s CPP or with ACE).  The study concluded that heat-rate improvements would result in an additional 10 premature deaths per year, as coal-fired plants would work more efficiently but also increase their output. By contrast, it found that over 3,000 premature deaths could be avoided with a carbon tax or CPP policy.

The realized benefits of decreased air pollution are mainly decreases in premature deaths, fewer heart attacks, and fewer hospital admissions for cardiovascular and respiratory issues. The authors of the Harvard-Syracuse study monetized the cobenefits associated with the policy scenario that mimicked the Clean Power Plan. Their analysis found that most counties in the United States gained at least $1 million in annual cobenefits from improved air quality within the implementation year of the policy, and that the value of health cobenefits alone would exceed the costs of the policy in all regions of the country but the Pacific Northwest by 2030.

Climate and Health Cobenefits of ACE

As the Harvard-Syracuse study demonstrated, less stringent heat-rate improvements, similar to the ones in the ACE rule, achieve the smallest amount of cobenefits and would lead to an increase in premature deaths per year. In fact, the results of the Harvard-Syracuse study parallel the findings in the EPA’s own Regulatory Impact Analysis of the ACE rule. The EPA’s own models predict that the heat-rate improvements in ACE would significantly increase emissions of CO2 , sulfur dioxide,, and nitrogen oxides  when compared to the base case of the Clean Power Plan, and would decrease those pollutants modestly relative to no CPP at all.

The proposed rule presents several different pathways states could choose to regulate coal-fired power plants. Under the pathway that the EPA considers most likely, the agency estimates that increases in PM2.5 alone will result in as many as 1,400 premature deaths annually by 2030, and up to 16,000 new cases of upper-respiratory problems.

The impact analysis of the ACE rule includes a section that monetizes the climate benefits and health cobenefits of the proposal. Climate benefits are the direct effects on global warming of reducing CO2, while the health cobenefits are the result of indirect reductions in nontargeted pollutants via reductions in CO2. The analysis reports negative values, which represent forgone benefits, in parentheses. Positive values represent benefits realized by the policy.

Source: Regulatory Impact Analysis for the ACE rule

The table shows the monetized benefits realized under the ACE proposal when compared to the base case of the Clean Power Plan. All estimated benefits are negative, indicating that each of the policy scenarios yield forgone climate benefits, as well as forgone ancillary health cobenefits.

Although total monetary values of the climate and health cobenefits of the ACE rule may be negative, an understanding of the net benefits of the policy is more telling, as it allows policymakers to understand how the monetary benefits compare to the compliance costs of the proposal. The analysis predicts that the ACE rule will have positive net benefits of up to $3.4 billion per year between 2023-2037 when compared to the Clean Power Plan, and $2 billion relative to the no-CPP, alternative baseline. However, this finding of positive net benefits applies  in only one of the three HRI policies that the ACE rule proposes, and only accounts for the domestic climate benefits achieved through reductions in the targeted pollutant (CO2). Including the impacts that the ACE rule will have on health cobenefits significantly changes the net benefits that the proposed policy is expected to deliver.

Source: Regulatory Impact Analysis of ACE Rule

The table above represents the present value, as well as the equivalent annualized value, of the estimated costs, benefits, and net benefits, inclusive of ancillary health cobenefits, relative to the base case of the CPP. In this analysis, the net benefits of every policy scenario proposed by the ACE rule are negative.

Maximizing Cobenefits Through Flexibility and Accountability

The weak emissions reductions suggested by the ACE rule will do almost nothing to stem CO2 emissions. The EPA’s own assessment of the ACE rule suggest that the increases in premature deaths, the serious health impacts, and the negative welfare costs to society make it a hard policy to defend. The inclusion of monetized cobenefits in their policy analysis demonstrates that simply reducing compliance costs will not translate to welfare gains for the overall society.

The hesitation about enacting stringent climate policy is due to the fact that the economic costs of deep CO2 reductions are borne immediately, while the benefits are uncertain and accrue for generations to come. However, accounting for the health cobenefits when analyzing climate policy justifies immediate and meaningful reductions of CO2. These health cobenefits are widespread and can immediately improve the well-being of communities who bear the costs of climate action. They should be counted against the costs of environmental regulation or carbon pricing. Incorporating these health cobenefits into policy impact analysis is necessary in order to truly account for the costs and benefits of climate action.

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What You Need to Know About the Proposed Rule on Family Detention

Last Friday, the departments of Homeland Security (DHS) and Health and Human Services (HHS) officially published a proposed regulation altering the way immigration authorities detain families and children who enter the United States without legal status—like asylum seekers. By nullifying and replacing the Flores Settlement, the administration can accomplish two goals: legally detaining families together indefinitely and relaxing the standards for the places they are detained, even for unaccompanied children.

Since the late 1990s, the way we treat minors, unaccompanied children, and families at the border has been governed largely by a court agreement known as the Flores Settlement Agreement (FSA) and number of conforming regulations. At the time of the enactment of the FSA, the now-defunct Immigration and Naturalization Service handled all individuals encountered at the border.

Now, DHS, HHS, and the Office of Refugee Resettlement (ORR) all share responsibility for entrants, depending on factors like age, legal status, and whether they are alone or traveling with parents or guardians. Rules governing the agencies come from a variety of sources in addition to the FSA, including the Immigration and Nationality Act (INA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Complicating matters, the Homeland Security Act of 2002 (HSA) and William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) also include provisions regarding the way we treat children and families encountered at the border.

At a high level, the breakdown of current responsibilities based on individual is depicted below:

The Flores Settlement agreement was used primarily to protect children who arrived at the border without their parents, but was expanded to include children who arrived with their parents in 2015, thus imposing strict detention, care, and release parameters on the government to ensure minors are not detained for more than 20 days.

The Trump administration’s grumbling response to the relatively high standards imposed by FSA and subsequent anti-trafficking and national security laws intended to protect children and families encountered at the border was to institute a “zero tolerance” policy meant to scare away potential asylum applicants by manipulating the laws to separate parents from their children.

The response was weeks of public outrage over the policy of separating children from their parents at the border and a lack of evidence supporting the administration’s claims that there is rampant asylum fraud. Despite ongoing lawsuits, there are still children younger than 5 years of age who are in custody as of September 6, 2018 according to the joint status report filed in court:

According to the text of the proposed rule, the purpose of the 200+ pages of changes is to terminate the FSA, but also preserve its guiding principle that the “Government treats, and shall continue to treat, all juveniles in its custody with dignity, respect, and special concern for the particular vulnerability.” But given the administration’s shameful track record when it comes to dealing humanely with children and families seeking asylum in the United States, many immigrant advocates are looking to the rule with suspicion, and rightfully so.

The proposed rule quite clearly lays out the administration’s ongoing effort to break down FSA protections and relax all oversight standards in two overarching ways:

1. Keeping more children detained longer and reducing the number of children who benefit from extra protections by virtue of status as an “unaccompanied minor

The proposed rule allows an immigration officer to classify a child encountered at the border as either a minor or an unaccompanied minor (UAC). The distinction is an important one—the proposed rule allows the indefinite detention of minors. Families waiting for a court date for a final decision on a positive credible fear determination can wait years.

UACs are generally afforded significantly more rights than a minor, like the ability to leave government custody to live with a relative. The proposed rule limits who a UAC can be placed with by removing the reference to relative, brother, sister, aunt, uncle, and grandparent, and replaces it with parent or legal guardian. Under the auspices of protecting children from potential tracking, the effect of the change will undoubtedly be the extended detention of UACs.

Further, by cutting off status as a UAC once a child reaches the age of 18—as the new rule proposes doing—their legal status becomes extremely tenuous. It is unknown whether an 18-year-old UAC can remain with their sponsor or whether they have to go to a detention facility while they wait for a court date for their asylum claim.  

For minors encountered with their parents, the proposed rule removes the authority of an accompanying parent or legal guardian to swear out an affidavit designating a person to take custody of the child while the parents remain in detention, meaning that child must remain with them in detention, as opposed to living in the United States with a grandparent or uncle.

By expanding the definition of “emergency” circumstances and when the government is experiencing an “influx” of individuals at the border allows the government to bypass safety standards and potentially the basic needs of children and adults. Given that we have been at “influx” levels for years—and the rule does not propose changing the level—excuses for more lax safety standards will become commonplace.

Finally, by unraveling the rights of minors and UACs in the FSA, the government proposes giving all juveniles a telephone call and literature about their legal rights, but no provisions are made for exceptionally young children who cannot read or write or those who don’t speak English.

2. Weakening standards for detention facilities

Currently, the FSA governs conditions of facilities where children are detained, and requires licensure from an appropriate state agency. The proposed rule suggests that the licensure requirements are too arduous on the state level, and contends that federal licensure should be adequate to provide “materially identical assurances about the conditions of the facility, and thus to implement the underlying purpose of the FSA’s licensing requirement.”

The proposed rule does not lay out the conditions that it would deem satisfactory for federal licensure as a family detention facility, but does propose the requirement on DHS to hire an auditor to ensure compliance with Immigration and Customs Enforcement (ICE) detention standards. Of course, there has been significant concern in the past about the conditions of ICE detention facilities, including allegations of physical and sexual assault, a lack of food and water, freezing and hot temperatures, and a lack of medical care.

The FSA also specifies that children are kept in non-secure facilities, and although the agreement does not define the term, it is meant to allow children to roam relatively freely and play outside. The proposed rule suggests defining “non-secure” by defining what a secure facility isn’t. Provided the facility does not provide a 24-hour living setting that prohibits “delinquent” children from voluntary egress in the building through internal or exterior locks or from the premise through secure, perimeter fencing, it is non-secure. The definition effectively allows the government significant latitude in type of facility they can legally detain children—who have committed no crime— within.

When detained together, as a family unit, children may also be subjected to secure facilities—like jails—if they are “unacceptably disruptive,” are an “escape risk,” or for nonviolent offenses like vandalism or intimidating others. For the purposes of clarity, DHS proposes not defining the list of offenses that might subject a child and their family to be detained in a secure facility. The new rule would also allow a child to remain in a secure facility if an alternative was not “available or appropriate,” leaving open a number of questions about oversight and enforcement of standards.

It seems that the administration is looking for a way to authorize the secure detention of minors. In addition to those listed above, the proposed rule also allows for the secure detention of UACs if ORR determines that while in the presence of an immigration officer, a child commits a chargeable offense. Given the administration’s zero tolerance policy, this could include crossing the border, even to seek asylum, or being unlawfully present in the United States.

Finally, the administration proposes significantly more lax standards regarding the transfer of minors from one facility or another, which can take many long hours, including suggesting that whenever “operationally feasible” the government will “make every attempt” to “transport and hold UACs separately from unrelated adults.” In fact, the rule allows DHS to house a UAC with an unrelated adult for more than 24 hours in emergencies.

Up Next

The most important thing missing from this rule are adequate protections for children. Not only does the rule not add protections, it takes away administrative processes meant to protect children—like the right to a bond hearing. When children as young as 2 years of age must represent themselves in court, it is critical that we ensure that they have more adequate protections until we can provide each of them counsel. We need significant oversight of processes and monitoring standards that are currently inadequate, and will be even further degraded by this rule.

It’s important to remember that this is a proposed rule, so the public has 60 days—until November 6, 2018—to offer official comments asserting alternative facts or presenting information about specific aspects of the rule that the government must consider and address prior to the final rulemaking process.

In the meantime, we can also expect challenges to an unsympathetic court over the administration’s compliance with the current standards, and we can certainly expect challenges to a final rule in the future.

For more information about submitting a comment, click here.

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