Kenneth H. Ryesky, Esq. Comments REG-138006-12 28 January 2013 Page 1

COMMENTS ON PROPOSED TREASURY REGULATIONS REGARDING SHARED RESPONSIBILITY FOR EMPLOYERS REGARDING HEALTH

COVERAGE

I. INTRODUCTION: Per its Notice of Proposed Rulemaking in the Federal Register of 2 January 2013, 78 F.R. 218, the Treasury Department and the IRS 1 have stated, with regard to Adjunct faculty members at colleges and universities, that "[t]he Treasury Department and the IRS are continuing to consider, and invite further comment on, how best to determine the full-time status of [Adjunct faculty members]" 2 for purposes of Shared Responsibility for Employers Regarding Health Coverage. 3 This Commentary aims to accommodate the IRS's invitation. II. COMMENTATOR'S BACKGROUND & CONTACT INFORMATION: Background: The Commentator, Kenneth H. Ryesky, Esq., is a member of the Bars of New York, New Jersey and Pennsylvania, and is an Adjunct Assistant Professor, Department of Accounting and Information Systems, Queens College of the City University of New York. Prior to entering into the private practice of law, Mr. Ryesky served as an Attorney with the Internal Revenue Service ("IRS"), Manhattan District. At Queens College CUNY, Mr. Ryesky served on the Provost's Adjunct Task Force. He has authored several scholarly articles relating specifically to taxation and to Adjunct faculty, and has submitted commentaries and delivered testimony on such matters at various IRS rulemaking proceedings, hearings of Congressional committees and a hearing of the New York State Commission on Higher Education. Contact information: Kenneth H. Ryesky, Esq., Department of Accounting & Information Systems, 215 Powdermaker Hall, Queens College CUNY, 65-30 Kissena Boulevard, Flushing, NY 11367. Telephone 718/997-5070 (vox), 718/997-5079 (fax). E-mail: kenneth.ryesky@qc.cuny.edu or khresq@sprintmail.com.

1 Promulgating regulations is an interactive process between the IRS and the Department of the Treasury proper, Treas. Reg. § 601.601. For simplicity, this Commentary refers to that collaborative process in terms of the IRS promulgating the regulations. Following conventions frequently employed by the taxation bar and bench, this Commentary uses "I.R.C." (Internal Revenue Code) and "Treas. Reg." (Treasury Regulations) in lieu of, respectively, "26 U.S.C." and "26 C.F.R." See, e.g. Otto Candies LLC v. United States, 288 F. Supp. 2d 730, n. 274 at 766 (E.D. La. 2003). 2 REG–138006–12, RIN 1545–BL33, Explanation of Provisions, § II(B)(4), 78 F.R. 218, 225 (2 January 2013). 3 I.R.C. § 4980H.

Kenneth H. Ryesky, Esq. Comments REG-138006-12 28 January 2013 Page 2

Disclaimer: This Commentary reflects the Commentator's personal views, and does not necessarily represent the official position of any person, entity, organization or institution with which the Commentator is or has been associated, employed or retained. III. COMMENTS ON THE PROPOSED REGULATIONS: A. Overview of the Proposed Regulations: The rather prolix new Proposed Regulations 4 are being promulgated in order to implement certain provisions of the exceedingly verbose and complex Patient Protection and Affordable Care Act. 5 Specifically, the Proposed Regulations are intended to implement a legislative scheme to require employers to share the responsibility of providing health insurance coverage to their workforces. The intricate mechanism of the scheme includes the imposition of a tax 6 upon large employers who fail to offer adequate healthcare insurance benefits to their employees. Mindful that the Proposed Regulations contain lacunae and ambiguity with respect to issues regarding Adjunct faculty members at educational institutions, the IRS has specifically solicited further commentary to address such issues. B. Engagement of Adjunct Faculty: Adjunct faculty members are individuals who are engaged to teach at colleges and universities, but who are employed on a basis other than full-time tenured (or tenure tracked) faculty members. 7 The traditional rationale for employing Adjunct faculty is that it enables the college and the students to benefit from the valuable real world experience and expertise of individuals whose situations do not otherwise fit into the traditional full-time faculty mold. 8 4 Treas. Reg. §§ 54.4980H–0, 54.4980H–1, 54.4980H–2, 54.4980H–3, 54.4980H–4, 54.4980H–5, and 54.4980H–6. 5 Publ. L. 111-148, as amended. 6 Notwithstanding its characterization as a tax in the face of logical incredulity amongst the populace and, arguably, contrary Congressional assertions, the Supreme Court has found the general scheme to be a valid exercise of Congress's taxation powers under the Constitution. National Federation of Independent Business v. Sebelius, 567 U.S. ___, 132 S. Ct. 2566, 183 L. Ed. 2d 450 (2012). 7 Terms including but not limited to "Adjunct Faculty," "Part-Time Faculty," "Contingent Faculty," "Ad Hoc Faculty," "Special Lecturers," and Sessional Instructors" are used to refer to such individuals. This Commentary shall use the terms "Adjunct" or "Adjunct faculty," with the inclusive intent of embracing all such professional educators, and regrets any inflammation of any political or emotional contentiousness attached by some individuals to one nomenclatural designation or another, see , e.g. Helm v. Ancilla Domini College, 2012 U.S. Dist. LEXIS 1661 AT *8 - *9 (N.D. Ind. 2012). 8 See Knight v. Alabama, 900 F. Supp. 272, 302 (N.Dist. Ala. 1995); Chang v. University of Rhode Island, 606 F. Supp. 1161, 1227 (D.R.I. 1985) ("URI is prone to hire adjunct or specialized clinical

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But, with increasing frequency over the past few decades, colleges and universities have engaged Adjunct faculty for budgetary reasons, using the Adjuncts as a cheap source of labor 9 with the unabashed intention of trying to avoid the costs of insurance, pension and other perquisites of employment normally accorded to full-time faculty members; 10 and often begrudging even the paltry compensation they do pay to their Adjunct faculty. 11 The percentage of Adjunct faculty at America's postsecondary schools has increased from 22.2% in 1970 to slightly over 50% in 2011. 12 C. Hours of Service for Adjunct Faculty Members: 1. Adjunct Faculty Work Schedules and Routines: In describing the schedules and work routines of Adjunct faculty, it must be stressed that there is a broad range of variation across the universe of educational institutions. There are,

faculty in fields (e.g., nursing, dental hygiene) laden with heavy clinical components."); Javier A. Galván, "Practical Suggestions to Internationalize the General Education Curriculum," J. Hispanic Higher Educ. 85, 89 (2006); James Stenerson, et al., "The Role of Adjuncts in the Professoriate," Peer Review, p. 23, at 24 (Summer 2010); see also Shawn G. Kennedy, "College Changing along with the Students," N.Y. Times, March 29, 1981, p. LI-21 (quoting Jay J. Diamond, a dean at Nassau County Community College: "Many of our adjunct faculty members are lawyers, businessmen and engineers and we consider their expertise and experience valuable … They allow us to stay up-to-date."). 9 See, e.g. NLRB v. Cooper Union, 783 F.2d 29, n. 3 at 32 (2d Cir. 1986), cert. denied 479 U.S. 815 (1986); Barnabas v. Board of Trustees of the University of the District of Columbia, 686 F. Supp. 2d 95, 99 (D.D.C. 2010); Vandever v. Junior College District, 708 S.W.2d 711 (Mo. App. 1986); Cheryl Halcrow & Myrna R. Olson, "Adjunct Faculty: Valued Resource or Cheap Labor?" Focus on Colleges, Universities, and Schools 2(1), p. 1 (2008); Robin Wilson, "Contracts Replace the Tenure Track for a Growing Number of Professors," Chronicle of Higher Education, June 12, 1998, p. A-12; Phyllis Bernstein, "Colleges Use More Adjuncts," N.Y. Times, November 17, 1985, p. LI-25). 10 See, e.g. Tubergen v. Western Piedmont Comm. College, 2004 U.S. Dist. LEXIS 6955 at *8 (W.D. N.C. 2004); Davis v. Maryville College, 1989 U.S. Dist. LEXIS 13982 at *4 (E.D. Mo. 1989). Pennsylvania Highlands Community College v. State Employees' Retirement System, 2012 Pa. Commw. LEXIS 337 (Pa.Commw. 2012). 11 See Commonwealth v. Miller, 466 A.2d 791 (Pa. Commw. 1983) (reciting that Millersville State University had made written offer to an Adjunct of $2,139.47 for the semester, but, after the teaching assignment was completed by the Adjunct faculty member, claimed a mathematical error, that the total pay should have only been $809.36, and after paying the Adjunct $1,623.46 demanded that she return $814.10). 12 National Center for Education Statistics, Digest of Education Statistics, 2012, Table 263, advance release available at <http://nces.ed.gov/programs/digest/d12/tables/dt12_263.asp>.

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however, some generalizations which can apply to a significant portion (though not necessarily all) schools. The Adjuncts' position appointment is typically on a semester-by-semester basis.13 The typical calculus of Adjunct compensation is credit hours taught in a given semester 14 (though there have been other approaches, including a per enrolled student capitation rate 15). Regardless of the method their compensation is calculated, the amount of compensation tends to be notoriously paltry.16 While such approaches may be convenient for fiscal accounting and standardization purposes, they do not take into account the fact that the process of college-level (and, for that matter, elementary and secondary school level) instruction begins before the class convenes, and does not end until long after the class is dismissed for the day (or, in the case of many Adjunct faculty members, the evening). Like their full-time colleagues, Adjunct faculty members need to prepare for each lecture, need to meet with students, and need to keep current with the latest developments in their fields of expertise. 17 Adjunct faculty must obviously grade assignments and exams, and, as trends in collegiate education such as the "Writing Across the Curriculum" movement expand,18 the grading time demands upon the faculty who teach writing-intensive and/or mathematics-intensive interdisciplinary courses can only be materially intensified. 19

13 See, e.g. Collins v. Cleveland State Univ. , 2008 U.S. Dist. LEXIS 117181 at *1 (N.D. Ohio 2008); Naval v. Herbert H. Lehman College, 2004 U.S. Dist. LEXIS 26007 at *18 (S.D.N.Y. 2004); Davis v. Maryville College, 1989 U.S. Dist. LEXIS 13982 at *4 (E.D. Mo. 1989); Prigmore v. Miracosta Community College District, 2004 Cal. App. Unpub. LEXIS 5429 at *4 (Cal.App. 2004). 14 See, e.g. Sobba v. Pratt Community College & Area Vocational School, 117 F. Supp. 2d 1043, 1046 (D. Kans. 2000); Delbridge v. Maricopa Community College District, 893 P.2d 55, 57 (Ariz. 1994); Sferlazza v. Commissioner of Labor, 69 A.D.3d 1184, 891 N.Y.S.2d 757, (3d Dep't 2010). 15 See Saulsberry v. St. Mary's University, 318 F.3d 862, 863 - 864 (8th Cir. 2003). 16 See Chapman v. 2 King Street Apartments Corp., 2005 N.Y. Misc. LEXIS 1731 at *22 (Sup.Ct. N.Y. Co. 2005). 17 See, e.g. Connie Russell, "Perpetually Updating," Journal of College Science Teaching, May/June 2010, p. 82; The Faculty Workload Question. By: Winkler, Allan M., Change, 00091383, July/August 1992, Vol. 24; see also Penk v. State Board of Higher Education, 1985 U.S. Dist. LEXIS 22624 at *9 (D. Oregon 1985), aff'd 816 F.2d 458 (9th Cir. 1987), cert. denied 484 U.S. 971 (1987); Gilster v. Primebank, 2012 U.S. Dist. LEXIS 114447 at *131 - *132 (N.D. Iowa Aug. 14, 2012). 18 See, e.g. Heather Dana, Carol Hancock & JoDee Phillips, "The Future Of Business: Merit In Writing Across The Curriculum," American Journal of Business Education 4(10), p. 51 (October 2011). 19 See, e.g. Cinnamon Hillyard, "Comparative Study of the Numeracy Education and Writing Across the Curriculum Movements: Ideas for Future Growth," Numeracy 5(2), art. 2, at p. 5 (2012).

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Adjunct faculty, like their full-time colleagues, also need to attend to various instruction-related matters such as procuring audio-visual equipment, visiting the library, and even traveling from their offices to the classroom. Such activities can be time-consuming if remotely located at opposite ends of the campus. 20 Where, as is frequently the case, the Adjunct faculty member is not availed adequate office space or internet access by the institution, time necessarily spent in the teaching process can be all the greater. 21 And where the Adjunct faculty member teaches more than one course on any given day, the time that elapses between the classes cannot be ignored. That some might view Adjunct faculty members as "off duty" during this period, while few would seriously say that a full-time faculty member is not actively employed between classes, constitutes a double standard, the irony of which is not lost upon America's Adjunct faculty cadres. In such regard, while many detractors and belittlers of Adjunct faculty are quick to emphasize that publication and scholarly research are not part of the Adjuncts' duties, the colleges and universities are just as quick to tout and showcase, if not claim title to, their Adjuncts' scholarly works. 22 Though it usually is not part of their formal duties, many Adjunct faculty do engage in scholarly research and publication; 23 indeed, many Adjuncts are recruited and retained on account of such scholarship. And travel time must necessarily be consumed when the Adjunct teaches at more than one institution or campus on the same day. 24 2. Computing Hours of Service for Adjunct Faculty: The Washington Supreme Court has enunciated, in a highly analogous matter, that actual work circumstances and conditions must be considered in determining the Adjunct faculty 20 See, e.g. John Soares, "Office Hours in the Pool Hall," Chronicle of Higher Education, 11 January 2013, p. D18. 21 See, e.g. Soares, prior note; Matter of Sylvester L. Tuohy, New York State Tax Tribunal, Docket DTA No. 818430 (13 February 2003) <http://www.nysdta.org/Decisions/818430.dec.htm>. 22 See, e.g. University of West Virginia Board of Trustees v. Vanvoorhies, 84 F. Supp. 2d 759, 763 (N.D. W. Va. 2000). 23 The Commentator, by no means the most prolific scholar among Adjuncts, has had his own scholarly works cited or quoted in judicial opinions, Congressional hearings, and in official reports issued by the Israeli Knesset and by Her Majesty's Treasury. 24 See Anthea Tillyer, "Educational Technology and 'Roads Scholars,'" Academe, July/August 2005, p. 49 <http://web.archive.org/web/20070403220720/http://www.aaup.org/publications/Academe/2005/05ja/05jatill.htm>; Nanette Asimov, "New Norm is 'Freeway Flyers,' not Tenure Track, San Francisco Chronicle, 30 Jun3 2011, p. A1. If the two campuses are part of the same university (e.g., City University of New York), then the I.R.C. 4980H(c)(2)(C)(i) aggregation rules would also apply.

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member's eligibility for employer health insurance contributions. 25 This ideal may well be impracticable to the extent that it implicitly entails a case-by-case determination. Nevertheless, the blatant fiscal purpose of academia's engagement of Adjunct faculty in the first place cannot be ignored in crafting a rule for the computation of Adjuncts' service hours. Two approaches, already proffered by previous commentators, are (A) multiplying the credit hours taught by some factor; or (B) use the percentage of credit hours taught by the Adjunct of the total credit hours taught by the typical full-time faculty member. 26 Each of these has merit in their respective simplicity of application, but care must be taken that realistic numbers are employed in the first place. The rules must be crafted so that whatever salary dollars the educational organization may save in engaging Adjunct faculty, the educational organization can claim no effective reduction in total person-hours of service. The 3:1 credit hour ratio often bandied about does not always fairly cover the time an Adjunct is engaged in the teaching process, particularly in teaching the writing-intensive and math-intensive courses which demand much scrutiny and feedback regarding the course assignments. D. "Seasonal" Workers and Adjunct Employment: The "seasonal workers" in the employ of the employer are disregarded in determining who is a "large employer" subject to the shared responsibility tax.27 "Seasonal workers" are those who work on a seasonal basis, and Congress has delegated to the Secretary of Labor the task of defining what constitutes a "seasonal basis." 28 The shared responsibility provisions of I.R.C. § 4980H accordingly create a new genre of employee status determination. After consulting with the Department of Labor, the IRS has determined that a definition expansive beyond the agricultural and retail occupations will be accorded to who is a seasonal worker. 29 This, in and of itself, is of concern because it leaves the adjective "seasonal" open to abuse by the same employing educational organizations that have made an industry-wide practice of abusing their Adjunct faculty in so many other respects. To be sure, the IRS is treading carefully, having specifically reserved a final definition of "seasonal employee" in the

25 Mader v. Health Care Authority, 70 P.3d 931, 939 - 940 (Wash. 2003).. 26 REG–138006–12, RIN 1545–BL33, Explanation of Provisions, § II(B)(4), 78 F.R. 218, 225 (2 January 2013). 27 I.R.C. § 4980H(c)(2)(B). 28 I.R.C. § 4980H(c)(2)(B)(ii). 29 REG–138006–12, RIN 1545–BL33, Explanation of Provisions, § I.A.6 at 78 F.R. 222 (2 January 2013). .

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Regulation as instantly proposed. 30 Moreover, the IRS seems to be cognizant, at a basic level, of the issues of the "seasonal employee" status as it may be applied and misapplied to Adjunct faculty, explaining, with respect to new employees, that "[i]t is not a reasonable good faith interpretation of the term seasonal employee to treat an employee of an educational organization, who works during the active portions of the academic year, as a seasonal employee." 31 Because the Adjunct faculty situation varies greatly from school to school, crafting a fair but workable standard for the educational organizations to follow is quite challenging. In determining whether an individual is an employee (and not an independent contractor), one factor weighed is the permanency of the relationship. 32 The fact that Adjunct faculty members had de facto expectations, though not definitive, of continued or future employment has weighed in a National Labor Relations Board's determination to include such Adjuncts in the bargaining unit for employment contract negotiation purposes. 33 I.R.C. § 4980H does not specifically mandate health insurance coverage for Adjunct faculty. What I.R.C. § 4980H does present is an additional opportunity for the educational institutions to abuse their Adjunct faculty by crediting Adjuncts with less labor than the employer actually receives from Adjunct faculty, and thereby evade/avoid the tax imposed under § 4980H. This opportunity needs to be foreclosed through sound regulations by the IRS, promulgated with an understanding of both the Adjuncts' work situation and the practices and propensities of the educational institutions that employ Adjunct faculty. Most educational organizations habitually re-engage their Adjuncts from semester to semester, notwithstanding the one-semester or one-year provisions in each appointment or reappointment. 34 This militates against seasonal employment status for the organization's Adjuncts. 35 30 Proposed Treas. Reg. § 54.4980H–1(a)(33), at 78 F.R. 242. 31 REG–138006–12, RIN 1545–BL33, Explanation of Provisions, § II.C.2.b, at 78 F.R. 227. 32 E.g. NLRB v. United Insurance Co. of America, 390 U.S. 254, 259 (1968); United States v. Silk, 331 U.S. 704, 716 (1947); Potter v. Commissioner, T.C. Memo 1994-356. The Potter case also exemplifies the tax disadvantages current tax law imposes upon Adjunct faculty members. 33 E. W. Wiggins Airways, Inc. and Local 254, Service Employees' International Union, AFL-CIO, 210 N.L.R.B. 996, 997 (1974) 34 See, e.g. Perry v. Sindermann, 408 U.S. 593 (1972); Nichols v. University of Southern Mississippi, 669 F. Supp. 2d 684, 688 (S.D. Miss. 2009); Young v. McLeod, 841 So. 2d 245, 253 (Ala. Civ. App. 2001), rev'd on other grounds 841 So. 2d 260 (Ala. 2001). 35 Cf., e.g. Vermont State Colleges Faculty Federation v. Vermont State Colleges, 152 Vt. 343, 566 A.2d 955 (1989) (finding that Adjunct faculty having reasonable expectations of reemployment are state employees eligible for bargaining unit representation).

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And, given academia's irresponsible implementations and abuses of Adjunct faculty as discussed below, what have too often become the "customary practices" 36 of academia should not be blindly accepted as "reasonable, good faith" 37 practices in determining whether an Adjunct faculty member is "seasonal." Schools should not be permitted to consign their Adjuncts to seasonal status by selectively scheduling particular courses so that an Adjunct is not offered employment in consecutive semesters. 38 Along similar lines, educational organizations should not be permitted to stagger the teaching schedules of Adjunct faculty who teach multi-part serial courses (e.g., Business Law I, Business Law II and Business Law III) to bring the Adjuncts into the "seasonal" category where the bona fide qualifications to teach all courses in the series are substantially the same. IV. CONCLUSION: The Commentator and others have expounded elsewhere on how the engagement of Adjunct faculty by America's colleges and universities carries some significant deleterious ramifications, in academia and beyond, which have only recently begun to be addressed with any seriousness. 39 Much if not most of the negative impact stems from academia's abuses of its

36 See Treas. Reg. § 1.217-2(c)(4)(iv)(a). 37 See REG–138006–12, RIN 1545–BL33, Explanation of Provisions, § I.A.6 at 78 F.R. 222 (2 January 2013); Proposed Treas. Reg. § 54.4980H–1(a)(34), at 78 F.R. 242 (2 January 2013). . 38 There conceivably may be compelling reason why a particular course, by its very nature, cannot be taught except during a particular time of the year, such as a field biology course, offered in the spring, that explores the spring thaw in the rivers and ponds. Such situations would be exceptional, and, if claimed, would need to be clearly and convincingly substantiated by the educational institution. 39 See, e.g. Kenneth H. Ryesky, "Part Time Soldiers: Deploying Adjunct Faculty in the War against Student Plagiarism," 2007 BYU Educ. & L. J. 119 (2007) <http://writingatqueens.org/files/2011/11/KHR-PTSoldier-Art-1.pdf>; Devon Haynie, "Increasing Use of Adjuncts Sparks Worries," Community College Week, 20 August, 2012, p. 8; Steve Street, Maria Maisto, Esther Merves and Gary Rhoades, "Who is Professor 'Staff' and how can this person teach so many classes?", Policy Report #2, Center for the Future of Higher Education (August 2012) < http://futureofhighered.org/uploads/ProfStaffFinal.pdf>; Susan de la Vergne, "Why Colleges Should Invest in the Development of Adjuncts," Chronicle of Higher Education, 6 January 2012; American Association of University Professors, Committee on Contingency and the Profession, "Tenure and Teaching-Intensive Appointments" (November-December 2009) <http://www.aaup.org/NR/rdonlyres/3B21B7EB-86D7-498D-9498-10978175B5DA/0/TenureTeachersRpt.pdf>; Kemah Eugene Paul Washington, "Towards a Deeper Understanding of Community College Part-Time Faculty: Perceptions of Roles and Expectations," Doctoral Dissertation, North Carolina State University (2011) <http://repository.lib.ncsu.edu/ir/bitstream/1840.16/6896/1/etd.pdf>.

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Adjuncts in the name of fiscal economy. It is stressed that the deleterious effects stem not from the involvement of Adjunct faculty per se, but by academia's abject failure to follow up and properly and adequately integrate into the organization the Adjuncts it does hire. The continuing increase in the percentage of Adjuncts on America's college campuses is occurring for the wrong reasons. If properly engaged, supported, and integrated into the organization, the teaching of courses by Adjunct faculty can be quite salutary indeed. But academia as a whole does not properly support the Adjunct faculty members it engages, and does not seriously regard the necessity of its Adjuncts being availed the vital resources they need in order to appropriately instruct America's college students. America's colleges and universities have amply demonstrated that whatever pedagogic merits may or may not pertain to any particular engagement of an Adjunct faculty member for a particular course of instruction, academia cannot be expected to take any initiatives on its own to look beyond the enticements of short-term fiscal savings availed in the engagement process. The basic intent of the Internal Revenue Code is to provide for economic growth and a higher standard of living for America. 40 Without the proper constraints and guidance, the provisions of I.R.C. § 4980H will, in all likelihood, be abused, widespread, by educational organizations so as to avoid their rightful responsibilities intended under the statute. The implementing regulations to I.R.C. § 4980H need to anticipate the schemes and practices which the educational organizations would surely attempt to invoke to such ends, and need to draw lines to control such abuses, so that Congressional intent behind the statute can be actualized and not perverted. 28 January 2013 Respectfully submitted,

Kenneth H. Ryesky, Esq.

40 H. R. Rpt. 83-1337, at 1 - 2 (9 March 1954), (reprinted in 1954 U.S.C.C.A.N. 4017, 4025); 83rd Cong., Sen. Fin. Comm. Report on Internal Revenue Code of 1954 (1954), (reprinted in 1954 U.S.C.C.A.N. 4629, 4629). The introductory materials to the respective House and Senate documents were mostly verbatim to one another. The Tax Reform Act of 1986, Pub. L. 99-514, 100 Stat. 2095 (1986), redesignated the Internal Revenue Code of 1954 as the Internal Revenue Code of 1986. The 1986 Code was "not intended to change any substantive provision of the [1954 Code] not otherwise modified by [the Tax Reform Act of 1986]," H. Conf. Rep. No. 99-841 at II-837, reprinted at 1986 U.S.C.C.A.N. 4925.