January 29, 2022

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Department Of Justice Applauds President Trump’s Authorization Of The Antitrust Criminal Penalty Enhancement And Reform Permanent Extension Act

13 min read
<div>On October 1, President Donald J. Trump signed into law a continuing resolution that contains the Antitrust Criminal Penalty Enhancement and Reform Permanent Extension Act (the “Act”).  The Act reauthorizes the Antitrust Criminal Penalty Enhancement and Reform Act (ACPERA) and repeals the sunset provision therein.</div>

On October 1, President Donald J. Trump signed into law a continuing resolution that contains the Antitrust Criminal Penalty Enhancement and Reform Permanent Extension Act (the “Act”).  The Act reauthorizes the Antitrust Criminal Penalty Enhancement and Reform Act (ACPERA) and repeals the sunset provision therein.

“We thank President Trump and both the Senate and the House of Representatives for their bipartisan action and recognition of ACPERA’s importance in the fight to safeguard our free markets and protect American consumers from collusion,” said Assistant Attorney General Makan Delrahim of the Department of Justice’s Antitrust Division.  “The division wholeheartedly agrees with Congress’s findings that ‘[c]onspiracies among competitors to fix prices, rig bids, and allocate markets are categorically and irredeemably anticompetitive and contravene the competition policy of the United States.’”

Congress enacted ACPERA in 2004 in part to provide greater incentives for corporations to self-report and cooperate pursuant to the Antitrust Division’s Corporate Leniency Policy.  Since 2004, ACPERA’s provisions have substantially strengthened the Antitrust Division’s ability to detect and prosecute anticompetitive cartel activity through the Leniency Program.

From Fiscal Year 2010 to 2019, the Antitrust Division’s criminal prosecutions have resulted in over $9 billion in criminal fines and penalties, along with jail terms for more than 250 individuals.  Since the fall of 2019 alone, the division obtained four criminal fines and penalties at or above the Sherman Act’s $100 million statutory maximum, and prosecuted antitrust violations affecting generic drugs, cancer patients, grocery store staples, and financial markets.

ACPERA will continue to mitigate a successful leniency applicant’s civil damages exposure from treble damages to actual damages if the company provides civil plaintiffs with timely and satisfactory cooperation.  While treble damages liability can be an important deterrent for engaging in anti-competitive behavior, civil exposure also can deter self-reporting of criminal wrongdoing.  Therefore, the Department of Justice supported the reauthorization of ACPERA and the repeal of its sunset provision.

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For its efficiency initiative, the department devised an internal DOD methodology in which it rank ordered positions in terms of higher and lower priority in order to identify reductions. This assessment identified a reduction of 178 civilian senior leader positions within DOD's civilian senior leader workforce for fiscal years 2011 and 2012. From the plan, it is not clear how these two efforts fit together, or how DOD drew from the strengths of each analysis. DOD officials explained to us, however, that they incorporated the results of the efficiency initiative into the strategic workforce plan when they issued that plan, so that the projections of the workforce plan and the results of the efficiency initiative would be consistent.DOD assessments of the critical skills, competencies, and gaps of its career civilian senior leader workforces did not identify areas that will require increased focus to help the department meet its vital missions. Most of DOD's civilian senior leader workforce can be categorized into five separate workforces, and our review found that DOD conducted assessments of skills, competencies, and gaps for two of them--the Senior Executive Service and Defense Intelligence Senior Executive Service workforces. However, the department did not include the results of either assessment in its 2010-2018 strategic workforce plan and only discussed the processes it used for conducting the assessment of its Senior Executive Service workforce. Further, DOD did not conduct assessments of skills, competencies, and gaps for the remaining three career civilian senior leader workforces--its Senior Level, Senior Technical, and Defense Intelligence Senior Level workforces. Officials told us that they did not assess these three workforces because the skills and competencies of these workforces are position-specific. However, section 115b of Title 10 of the United States Code requires that DOD conduct assessments of the skills, competencies, and gaps within all its senior leader workforces. Without conducting such assessments and reporting on them, it is difficult to identify those areas that will require increased focus on recruiting, retention, and training. Therefore, we are recommending that DOD conduct assessments of the skills, competencies, and gaps within all five of its career senior leader workforces and report the results in its future strategic workforce plans.Why GAO Did This StudyThe ability of the Department of Defense (DOD) to achieve its mission and carry out its responsibilities depends in large part on whether it can sustain a civilian senior leader workforce that possesses necessary skills and competencies. Managing civilian senior leaders effectively is imperative, especially in light of DOD’s plans to reduce at least 150 civilian senior leader positions, the department’s current cap on civilian personnel numbers, and the existing pay freeze. Further, as DOD faces fiscal constraints, implements its efficiency initiatives, and prepares for an anticipated drawdown in Afghanistan, the department is faced with the complex task of re-shaping its workforce to meet future needs. This includes assessing the requirements for approximately 2,900 civilian senior leaders who help manage DOD’s overall civilian workforce of more than 780,000 personnel. In managing these senior leaders, the department must ensure that they are sufficient in number and properly prepared to achieve DOD’s mission. 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DOD's mandate previously required that the department's assessments cover a 7-year period following the year in which the plan is submitted to Congress. Therefore, DOD's latest civilian senior leader workforce plan covered the period 2010-2018.Following the enactment of this legislation, the Secretary of Defense, in August 2010, announced an efficiency initiative to eliminate unnecessary overhead costs by, among other things, reviewing DOD’s entire senior leader workforce and reducing the total number of civilian senior leader positions by at least 150. The Secretary’s guidance called for these reductions to take place in fiscal years 2011 and 2012. After the Secretary’s announcement, DOD’s Office of the Under Secretary of Defense for Personnel and Readiness created the Civilian Senior Executive Study Group, and directed the group to conduct a DOD-wide survey of the number, placement, skills, and competencies of civilian senior leader positions and to provide recommendations for restructuring civilian senior leader positions to best align with missions and responsibilities. The Office of the Under Secretary of Defense for Personnel and Readiness also directed the group to consider how to inform follow-on efforts to further analyze civilian senior leader appointment, management, and renewal policies. The Civilian Senior Executive Study Group, which consisted of Senior Executive Service and General Schedule-15 representatives from the Office of the Secretary of Defense, each of the military departments, the Joint Staff, and the Office of the Under Secretary of Defense for Intelligence, issued its final report to the Secretary on November 23, 2010. The Secretary of Defense announced his decisions based on recommendations developed as part of the efficiency initiative, including recommendations made in this report on March 14, 2011.Subsequently, on March 27, 2012, DOD issued its 2010-2018 Strategic Workforce Plan, and GAO, as mandated by the National Defense Authorization Act for Fiscal Year 2010, is required to report on that plan within 180 days of its submission to Congress. For this report on DOD's 2010-2018 plan we (1) reviewed DOD's approach for determining its civilian senior leader projections to meet future requirements and (2) evaluated the extent to which DOD's assessment of the critical skills, competencies, and gaps in the existing and future civilian senior leader workforces identified areas that will require increased focus to help the department meet its vital missions.
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Further, DOD estimated that it has cost about $10 million each year since 1989 to use active duty Title 10 forces nationwide, through its Joint Task Force-North, in support of drug law enforcement agencies with some additional operational costs borne by the military services. Agency officials stated multiple benefits from DOD’s increased border role, such as assistance to the Department of Homeland Security (DHS) Border Patrol until newly hired Border Patrol agents are trained and deployed to the border; providing DOD personnel with training opportunities in a geographic environment similar to current combat theaters; contributing to apprehensions and seizures and deterring other illegal activity along the border; building relationships with law enforcement agencies; and strengthening military-to-military relationships with forces from Mexico.GAO found challenges for the National Guard and for active-duty military forces in providing support to law enforcement missions. For example, under Title 32 of the United States Code, National Guard personnel are permitted to participate in law enforcement activities; however, the Secretary of Defense has precluded National Guard forces from making arrests while performing border missions because of concerns raised about militarizing the U.S. border. As a result, all arrests and seizures at the southwest border are performed by the Border Patrol. Further, DOD officials cited restraints on the direct use of active duty forces, operating under Title 10 of the United States Code in domestic civilian law enforcement, set out in the Posse Comitatus Act of 1878. In addition, GAO has reported on the varied availability of DOD units to support law enforcement missions, such as some units being regularly available while other units (e.g., ground-based surveillance teams) may be deployed abroad—making it more difficult to fulfill law enforcement requests.Federal officials stated a number of broad issues and concerns regarding any additional DOD assistance in securing the southwest border. DOD officials expressed concerns about the absence of a comprehensive strategy for southwest border security and the resulting challenges to identify and plan a DOD role. DHS officials expressed concerns that DOD’s border assistance is ad hoc in that DOD has other operational requirements. DOD assists when legal authorities allow and resources are available, whereas DHS has a continuous mission to ensure border security. Further, Department of State and DOD officials expressed concerns about the perception of a militarized U.S. border with Mexico, especially when Department of State and Justice officials are helping civilian law enforcement institutions in Mexico on border issues.Why GAO Did This StudyDHS reports that the southwest border continues to be vulnerable to cross-border illegal activity, including the smuggling of humans and illegal narcotics. Several federal agencies are involved in border security efforts, including DHS, DOD, Justice, and State. In recent years, the National Guard has played a role in helping to secure the southwest land border by providing the Border Patrol with information on the identification of individuals attempting to cross the southwest land border into the United States. Generally, the National Guard can operate in three different statuses: (1) state status—state funded under the command and control of the governor; (2) Title 32 status—federally funded under command and control of the governor; and (3) Title 10 status—federally funded under command and control of the Secretary of Defense.This testimony discusses (1) the costs and benefits of a DOD role to help secure the southwest land border, including the deployment of the National Guard, other DOD personnel, or additional units; (2) the challenges of a DOD role at the southwest land border; and (3) considerations of an increased DOD role to help secure the southwest land border.The information in this testimony is based on work completed in September 2011, which focused on the costs and benefits of an increased role of DOD at the southwest land border. See "Observations on the Costs and Benefits of an Increased Department of Defense Role in Helping to Secure the Southwest Land Border," GAO-11-856R (Washington, D.C.: Sept. 12, 2011).For more information, contact Brian J. Lepore at (202) 512-4523 or leporeb@gao.gov.
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