[House Report 108-805]
[From the U.S. Government Publishing Office]
Union Calendar No. 490
108th Congress, 2d Session - - - - - - - - - - - - House Report 108-805
REPORT ON THE ACTIVITIES
of the
COMMITTEE ON THE JUDICIARY
of the
HOUSE OF REPRESENTATIVES
during the
ONE HUNDRED EIGHTH CONGRESS
pursuant to
Clause 1(d) Rule XI of the Rules of the
House of Representatives
January 3, 2005.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
COMMITTEE ON THE JUDICIARY
House of Representatives
ONE HUNDRED EIGHTH CONGRESS
------
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
WILLIAM L. JENKINS, Tennessee ZOE LOFGREN, California
CHRIS CANNON, Utah SHEILA JACKSON LEE, Texas
SPENCER BACHUS, Alabama MAXINE WATERS, California
JOHN N. HOSTETTLER, Indiana MARTIN T. MEEHAN, Massachusetts
MARK GREEN, Wisconsin WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida ROBERT WEXLER, Florida
MELISSA A. HART, Pennsylvania TAMMY BALDWIN, Wisconsin
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana ADAM B. SCHIFF, California
J. RANDY FORBES, Virginia LINDA T. SANCHEZ, California
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
------
Philp G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
Subcommittees of the Committee on the Judiciary
------
Crime, Terrorism, and Homeland Security
HOWARD COBLE, North Carolina, Chairman
TOM FEENEY, Florida ROBERT C. SCOTT, Virginia
BOB GOODLATTE, Virginia ADAM B. SCHIFF, California
STEVE CHABOT, Ohio SHEILA JACKSON LEE, Texas
MARK GREEN, Wisconsin MAXINE WATERS, California
RIC KELLER, Florida MARTIN T. MEEHAN, Massachusetts
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
------
Commercial and Administrative Law
CHRIS CANNON, Utah, Chairman
HOWARD COBLE, North Carolina MELVIN L. WATT, North Carolina
JEFF FLAKE, Arizona JERROLD NADLER, New York
JOHN R. CARTER, Texas TAMMY BALDWIN, Wisconsin
MARSHA BLACKBURN, Tennessee WILLIAM D. DELAHUNT, Massachusetts
STEVE CHABOT, Ohio ANTHONY D. WEINER, New York
TOM FEENEY, Florida
------
Courts, the Internet, and Intellectual Property
LAMAR SMITH, Texas, Chairman
HENRY J. HYDE, Illinois HOWARD L. BERMAN, California
ELTON GALLEGLY, California JOHN CONYERS, Jr., Michigan
BOB GOODLATTE, Virginia RICK BOUCHER, Virginia
WILLIAM L. JENKINS, Tennessee ZOE LOFGREN, California
SPENCER BACHUS, Alabama MAXINE WATERS, California
MARK GREEN, Wisconsin MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida WILLIAM D. DELAHUNT, Massachusetts
MELISSA A. HART, Pennsylvania ROBERT WEXLER, Florida
MIKE PENCE, Indiana TAMMY BALDWIN, Wisconsin
J. RANDY FORBES, Virginia ANTHONY D. WEINER, New York
JOHN R. CARTER, Texas
------
Immigration, Border Security, and Claims
JOHN N. HOSTETTLER, Indiana, Chairman
JEFF FLAKE, Arizona SHEILA JACKSON LEE, Texas
MARSHA BLACKBURN, Tennessee LINDA T. SANCHEZ, California
LAMAR SMITH, Texas ZOE LOFGREN, California
ELTON GALLEGLY, California HOWARD L. BERMAN, California
CHRIS CANNON, Utah JOHN CONYERS, Jr., Michigan
STEVE KING, Iowa
MELISSA A. HART, Pennsylvania
The Constitution
STEVE CHABOT, Ohio, Chairman
STEVE KING, Iowa JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana MELVIN L. WATT, North Carolina
MELISSA A. HART, Pennsylvania ADAM B. SCHIFF, California
TOM FEENEY, Florida
J. RANDY FORBES, Virginia
LETTER OF TRANSMITTAL
----------
House of Representatives,
Committee on the Judiciary,
Washington, DC, January 3, 2005.
Hon. Jeff Trandahl,
Clerk of the House of Representatives,
Washington, DC.
Dear Mr. Trandahl: Pursuant to clause 1(d) of rule XI of
the Rules of the House of Representatives, I am transmitting
the report on the activities of the Committee on the Judiciary
of the U.S. House of Representatives in the 108th Congress.
Sincerely,
F. James Sensenbrenner, Jr., Chairman.
C O N T E N T S
----------
Page
Jurisdiction of the Committee on the Judiciary................... 1
Tabulation of Legislation and Activity........................... 3
Printed Hearings................................................. 4
Committee Prints................................................. 8
House Documents.................................................. 8
Summary of Activities of the Committee on the Judiciary.......... 9
Public Laws.................................................. 9
Private Laws................................................. 14
Conference Appointments...................................... 15
Full Committee Activities.................................... 19
Legislative Activities:
Antitrust:
H.R. 1073, To repeal section 801 of the Revenue Act
of 1916............................................ 20
Establishment of the Task Force on Antitrust:
H.R. 1086, the ``Standards Development Organization
Advancement Act of 2003''.......................... 22
Oversight hearing activity:
Antitrust Enforcement Agencies: The Antitrust
Division of the Department of Justice and Bureau of
competition of the federal Trade Commission........ 24
Liability:
H.R. 5, To improve medical care by reducing the
burden the liability system places on health care.. 27
H.R. 1036, the `` Protection of Lawful Commerce in
Arms Act of 2003''................................. 28
H.R. 1084, To provide liability protection for
nonprofit volunteer pilot organizations............ 29
H.R. 1787, To remove liability barriers to donating
fire equipment to volunteer fire companies......... 29
H.R. 3369, the Non-profit Athletic Organization
Protection Act''................................... 30
H.R. 4280, To improve medical care by reducing the
burden the liability system places on health care.. 30
Matters held at Full Committee:
H. Res. 287, Directing the Attorney General to
transmit records related to the use of Federal
agency resources in tasks relating to Members of
the Texas Legislature.............................. 31
H. Res. 499, Requesting the President and directing
the Secretary of State to transmit records relating
to disclosures regarding Valerie Plame............. 31
H. Res. 662, Recognizing that Flag Day originated in
Ozaukee County, Wisconsin.......................... 31
H. Res. 700, Directing the Attorney General to
transmit to the House of Representatives documents
in the possession of the Attorney General relating
to prisoners, and detainees in Iraq, Afghanistan,
and Guatanamo Bay.................................. 32
H.R. 10 and S. 2845, 9/11 Recommendations
Implementation Act................................. 32
H.R. 16, To authorize salary adjustments for Justices
and judges of the United States.................... 40
H.R. 534, Human Cloning Prohibition Act of 2003...... 40
H.R. 1115, Class Action Fairness Act of 2003......... 41
H.R. 1437, To improve the United States Code......... 42
H.R. 1904, Healthy Forests Restoration Act of 2003... 42
H.R. 2738, United States-Chile Free Trade Agreement
Implementation Act................................. 44
H.R. 2739, United States-Singapore Free Trade
Agreement Implementation Act....................... 54
H.R. 3036, Department of Justice Appropriations
Authorization Act, Fiscal Years 2004 through 2006.. 64
H.R. 3247, To provide consistent enforcement
authority to the Bureau of Land Management, the
National Park Service, the United States Fish and
Wildlife Service, and the Forest Service........... 66
H.R. 3313, the ``Marriage Protection Act of 2004.''.. 67
H.R. 4319, Title 46 Codification Act of 2004......... 68
H.R. 4661, Internet Spyware (I-SPY) Prevention Act of
2004............................................... 68
H.R. 5107, Justice for All Act of 2004............... 68
H.R. 5363, To authorize salary adjustments for
Justices and judges of the United States for fiscal
year 2005.......................................... 69
H.J. Res. 106, Proposing an Amendment to the
Constitution of the United States relating to
marriage........................................... 70
H. Con. Res 414, To recognize the 50th anniversary of
the Brown v. Board of Education decision........... 70
H.J. Res. 63, the ``Compact of Free Association
Amendments of 2003.''.............................. 70
S. 1233, National Great Black Americans Commemoration
Act of 2003........................................ 72
S. 2363, to revise and extend the Boys and Girls
clubs of America................................... 73
Other Matters of the Committee:
H.R. 6, Energy legislation........................... 73
H.R. 1588, National Defense Authorization Act........ 75
H.R. 2115, the Flight 100--Century of Aviation
Reauthorization Act................................ 76
H.R. 2731, the ``Occupational Safety and Health Small
Employer Access to Justice Act of 2003............. 76
H.R. 4200, National Defense Authorization Act For
Fiscal Year 2005................................... 77
H.R. 4341, the ``Postal Accountability and
Enhancement Act''.................................. 78
H.R. 4818, Omnibus Consolidated Appropriations Act of
FY 2005............................................ 80
Oversight Activities:
List of oversight hearings........................... 80
Direct Satellite Broadcast Competition in the
Multichannel Video Programming Distribution........ 81
Competition in College Athletic Conferences and
Antitrust Aspects of the Bowl Championship Series.. 83
Saving the Savings Clause: Congressional Intent, the
Trinko Case, and the Role of the Antitrust Laws in
Promoting Competition in the Telecom Sector........ 85
Antitrust Law and Competition in the
Telecommunications Marketplace..................... 85
Department of Justice and the Conduct of the ``War
Against Terrorism'' and Implementation of the USA
PATRIOT Act........................................ 88
Safeguarding Americans from a Legal Culture of Fear:
Approaches to Limiting Lawsuit Abuse............... 95
Compliance with the Enhanced Border Act.............. 96
Consular Identification Cards........................ 97
Implementation of Title III of the USA PATRIOT ACT... 99
Department of Homeland Security Budget Shortfalls.... 100
Letter to Commissioner of the Social Security
Administration..................................... 103
GAO Report on Totalization........................... 105
Relationships between FBI Agents and Confidential
Informants......................................... 106
Allegations of Misconduct in the Sixth Circuit....... 108
Summary of activities of the subcommittees of the Committee on
the Judiciary:
Subcommittee on Courts, The Internet, and Intellectual
Property:
Tabulation and disposition of bills referred to the
subcommittee........................................... 109
Jurisdiction of the subcommittee......................... 109
Legislative Activities:
Courts:
H.R. 29, A bill to convert a temporary judgeship
for the district of Nebraska to a permanent
judgeship, and for other purposes.............. 110
H.R. 112, To amend title 28, United States Code,
to provide for an additional place of holding
court in the district of Colorado.............. 110
H.R. 1302, the ``Federal Courts Improvement Act
of 2003''...................................... 110
H.R. 1303, A bill to amend the E-Government Act
of 1972 with respect to rulemaking authority of
the Judicial Conference........................ 111
H.R. 1768, the ``Multidistrict Litigation
Restoration Act of 2003''...................... 111
H.R. 1839, the ``Youth Smoking Prevention and
State Revenue Enforcement Act''................ 112
H.R. 2714, the ``State Justice Institute
Reauthorization Act of 2003''.................. 112
H.R. 2723, the ``Ninth Circuit Court of Appeals
Judgeship and Reorganization Act of 2003''..... 112
H.R. 2824, the ``Internet Tobacco Sales
Enforcement Act''.............................. 113
H.R. 3486, A bill to create 4 new permanent
judgeships for the eastern district of
California..................................... 113
H.R. 3799, the ``Constitution Restoration Act of
2004''......................................... 113
H.R. 3851, A bill to authorize an additional
permanent judgeship for the district of Hawaii. 114
S. 878, A bill to authorize an additional
permanent judgeships in the district of Idaho,
and for other purposes......................... 114
H.R. 4247, the ``Ninth Circuit judgeship and
Reorganization Act of 2004''................... 114
H.R. 4301, A bill to authorize an additional
district judgeship for the district of Nebraska 115
H.R. 4571, the ``Lawsuit Abuse Reduction Act of
2004''......................................... 115
H.R. 4646, A bill to amend title 28, United
States Code, to provide for the holding of
federal district court in Plattsburgh, New
York, and for other purposes................... 115
H.R. 5273, A bill to convert certain temporary
judgeships to permanent judgeships, to create
an additional judgeship for the district of
Nebraska and for the eastern district of
California, and for other purposes............. 116
H.R. 5274, A bill to create an additional
judgeship for the eastern district of
California, and for other purposes............. 116
S. 1720, A bill to provide for Federal Court
proceedings in Plano, Texas.................... 116
S. 2742, A bill to extend certain authority to
the Supreme Court Police, modify the venue of
prosecutions relating to Supreme Court building
and grounds, and authorize the acceptance of
gifts to the United States Supreme Court....... 117
Intellectual Property:
H.R. 1417, the ``Copyright Royalty and
Distribution Reform Act of 2004''.............. 117
H.R. 2344, the ``Intellectual Property Protection
Restoration Act of 2003''...................... 118
H.R. 2517, the ``Piracy Deterrence and Education
Act of 2003''.................................. 118
H.R. 2752, the ``Author, Consumer, and Computer
Owner Protection and Security (ACCOPS) Act of
2003''......................................... 119
H.R. 3261, the ``Database and Collections of
Information Misappropriation Act''............. 119
H.R. 3569, the ``National Film Preservation Act
of 2003''...................................... 120
H.R. 3632, the ``Anti-counterfeiting Amendments
Act of 2004''.................................. 120
H.R. 3754, the ``Fraudulent Online Identity
Sanctions Act''................................ 120
H.R. 4077, the ``Piracy Deterrence and Education
Act of 2004''.................................. 121
H.R. 4518, the Satellite Home Viewer Extension
and Reauthorization Act of 2004''.............. 121
H.R. 4586, the ``Family Movie Act''.............. 122
H.R. 5136, the ``Preservation of Orphan Works
Act''.......................................... 122
S. 1932, the ``Artists'' Rights and Theft
Prevention Act of 2004''....................... 123
Patents and Trademarks:
H.R. 1561, the ``United States Patent and
Trademark Fee Modernization Act of 2003''...... 123
H.R. 2391, the ``Cooperative Research and
Technology Enhancement (CREATE) Act of 2003''.. 124
Oversight Activities:
Summary of the committee's oversight plan and the
Subcommittee's response thereto.................... 124
The Federal Judicial System.......................... 124
The U.S. copyright system............................ 125
The U.S. patent and trademark systems................ 126
List of oversight hearings........................... 127
Peer-to-peer Piracy on University Campuses........... 127
Copyright Piracy Prevention and the Broadcast Flag... 127
International Copyright Piracy: Links to Organized
Crime and Terrorism................................ 128
The Federal Judiciary: Is There a Need for Additional
Federal Judges?.................................... 128
Patent Quality Improvement........................... 128
Reauthorization of the Satellite home viewer
Improvement Act.................................... 129
Section 115 of the Copyright Act: In Need of an
Update?............................................ 129
Committee Print to Amend the Federal Trademark
Dilution Act....................................... 129
Derivative Rights, Moral Rights, and movie Filtering
Technology......................................... 130
Operation of the U.S. Copyright Office............... 130
Patent Quality Improvement: Post-Grant Opposition.... 130
Internet Streaming of Radio Broadcasts: Balancing the
Interests of Sound Recording Copyright Owners With
Those of Broadcasters.............................. 131
Peer-to-Peer (P2P) Piracy on University Campuses: An
Update............................................. 131
Summary of activities of the subcommittees of the Committee on
the Judiciary:
Subcommittee on the Constitution:
Tabulation and disposition of bills referred to the
subcommittee........................................... 133
Jurisdiction of the subcommittee......................... 133
Legislative Activities:
H. Res. 132, Newdow v. United States Congress........ 133
H. Res. 568, Appropriate use of Foreign Judgements in
American Court Decisions........................... 134
H. Res. 676, Recognizing and honoring the 40th
Anniversary of the Civil Rights Act of 1964........ 134
H. Res. 853, Recognizing the Boy Scouts of America
for the public service the organization performs
for neighborhoods and communities across the United
States............................................. 135
H.R. 760, the ``Partial Birth Abortion Ban Act of
2003''............................................. 135
H.R. 1755, the ``Child Custody Protection Act''...... 136
H.R. 1775, To designate the oak tree as the national
tree of the United States.......................... 136
H.R. 1997, the ``Unborn Victims of Violence Act of
2004''............................................. 137
H.R. 2028, the ``Pledge Protection Act of 2004''..... 137
H.R. 2844, the ``Continuity in Representation Act of
2004''............................................. 138
H.R. 3095, the ``Community Recognition Act of 2004''. 138
H.J. Res. 4, Proposing an amendment to the
constitution of the United States authorizing
Congress to prohibit the physical desecration of
the flag of the United States...................... 139
H.J. Res. 22, the ``Balanced Budget Amendment''...... 140
H.J. Res. 48, the ``Victims'' Rights Amendment''..... 140
H.J. Res. 56, the ``Federal Marriage Amendment''..... 141
H.J. Res. 83, the ``Continuity in Representation
Amendment''........................................ 141
Oversight Activities:
Summary of Oversight Plan............................ 141
List of oversight hearings........................... 142
Oversight of the United States Commission on Civil
Rights............................................. 142
Reauthorization of the Civil Rights Division of the
United States Department of Justice................ 143
Anti-Terrorism Investigations and the Fourth
Amendment After September 11: Where and When Can
the Government Go to Prevent Terrorist Attacks?.... 143
Potential Congressional Response to the Supreme
Court's Decision in State Farm Mutual Automobile
Insurance Co. v. Campbell: Checking and Balancing
Punitive Damages................................... 144
GAO's Report on the Implementation of Executive Order
12630 and the State of Federal Agency Protections
of Private Property Rights......................... 144
Civil Rights Division of the U.S. Department of
Justice............................................ 145
The Defense of Marriage Act.......................... 145
Legal Threats to Traditional Marriage: Implications
for Public Policy.................................. 146
Limiting Federal Court Jurisdiction to Protect
Marriage for the States............................ 147
The 9/11 Report and Implications for Privacy and
Civil Liberties.................................... 147
Due Process and the NCAA............................. 148
Status of the Implementation of the Pigford v.
Glickman Settlement................................ 148
Presidential Succession Act.......................... 149
``Notice'' Provision in the Pigford v. Glickman
Consent Decree..................................... 150
Summary of activities of the subcommittees of the Committee on the
Judiciary:
Subcommittee on Crime, Terrorism, and Homeland Security:
Tabulation and disposition of bills referred to the
subcommittee........................................... 151
Jurisdiction of the subcommittee......................... 151
Legislative Activities:
H.R. 1161, the ``Child Obscenity and Pornography
Prevention Act''................................... 151
H.R. 1104, the ``Child Abduction Prevention Act''.... 153
S. 151, the ``PROTECT Act''.......................... 153
H.R. 21, the ``Unlawful Internet Gambling Funding
Prohibition Act''.................................. 155
H.R. 1223, the ``Internet Gambling Licensing and
Regulation Commission Act''........................ 156
H.R. 1707, the ``Prison Rape Reduction Act of 2003... 156
H.R. 919, the ``Hometown Heroes Survivors Benefits
Act of 2003''...................................... 157
H.R. 2214 the ``Reduction in Distribution of Spam Act
of 2003''.......................................... 158
H.R. 3214, the ``Advancing Justice Through DNA
Technology Act of 2003''........................... 159
H.R. 3266, the ``Faster and Smarter Funding for First
Responders Act''................................... 159
H.R. 3158, the ``Prepare America to Respond
Effectively Act of 2003''.......................... 161
H.R. 2512, the ``First Responders Funding Reform Act
of 2003''.......................................... 161
H.R. 3866, the ``Anabolic Steroid Control Act of
2004''............................................. 162
H.R. 1731, the ``Identity Theft Penalty Enhancement
Act''.............................................. 163
H.R. 3693, the ``Identity Theft Investigation and
Prosecution Act of 2003''.......................... 164
S. 1743, the ``Private Security Employment
Authorization Act of 2003''........................ 164
S. 1301, the ``Video Voyeurism Prevention Act of
2004''............................................. 164
H.R. 1678, the ``Anti-Hoax Terrorism Act of 2004''... 165
H.R. 2934, the ``Terrorist Penalties Enhancement Act
of 2004''.......................................... 165
H.R. 3179, the ``Anti-Terrorism Intelligence Tools
Improvement Act of 2003''.......................... 166
H.R. 218, the ``Law Enforcement Officers Safety Act
of 2004''.......................................... 167
S. 1194, the ``Mentally Ill Offender Treatment and
Crime Reduction Act of 2004''...................... 167
H.R. 4547, the ``Defending America's Most Vulnerable:
Safe Access to Drug treatment and Child Protection
Act of 2004''...................................... 168
Oversight Activities:
List of oversight hearings........................... 168
Law Enforcement Issues Generally..................... 169
Implementation of the USA PATRIOT Act................ 170
Metropolitan Detention Center........................ 172
Detainees at Guantanamo Bay.......................... 173
Review of National Criminal History Improvement
Program............................................ 174
DoJ and Falun Gong................................... 174
COPS Program......................................... 175
``Interoperability'' Among First Responders.......... 175
Misleading Testimony Before the Subcommittee/Judge
Rosenbaum.......................................... 177
FBI Employee Turnover................................ 177
Terrorist Explosive Device Analytical Center......... 177
FBI's Misidentification of Suspected Terrorist....... 178
Child Protection..................................... 178
Identification and Employment Authorization.......... 179
Supreme Court in Department of Interior v. Klamath... 179
ATF Facilities....................................... 179
Federal Sentencing Guidelines/Blakely v. Washington.. 180
U.S. Marshals Service................................ 181
DEA Auditor and Laptop............................... 181
Information Sharing with State and Local Law
Enforcement........................................ 182
National Security Entry-Exit Registration System..... 182
9/11 Commission Report, Recommendations, and
Legislation........................................ 182
Violence Against Women............................... 183
Federal Air Marshals Service......................... 183
Summary of activities of the subcommittees of the Committee on
the Judiciary:
Subcommittee on Immigration, Border Security, and Claims:
Tabulation and disposition of bills referred to the
subcommittee........................................... 185
Jurisdiction of the subcommittee......................... 186
Legislative Activities:
Immigration:
H.R. 2152, Extending the Special Immigrant
Religious Worker Program....................... 186
Naturalization Through Service in the Armed
Forces......................................... 186
H.R. 2620, the trafficking Victims Protection
Reauthorization Act of 2003''.................. 188
S. 1685, Extending and Expanding the Basic Pilot
Program for Employment Eligibility Verification 189
H.R. 4417, Modifying Certain Deadlines Pertaining
to Machine-Readable, Tamper-Resistant Entry and
Exit Documents................................. 190
H.R. 4011, the ``North Korean Human Rights Act of
2004''......................................... 191
H.R. 4306, Amending the Immigration and
Nationality Act to Improve the Process for
Verifying an Individual's Eligibility for
Employment..................................... 191
S. 2302, Improving Access to Physicians in
Medically Underserved Areas.................... 192
L-1 Visa and H-1B Visa Reform Act................ 193
H.R. 2655, Amending the Irish Peace Process
Cultural and Training Program Act of 1998...... 197
Legislation Passed By the Judicairy Committee:
H.R. 775, the ``Security and Fairness Enhancement
for America Act of 2003''...................... 198
Federal Charters..................................... 199
Private Bills........................................ 199
Oversight Activities:
List of oversight hearings........................... 200
Public Safety and Immigration Consequences of local
Immigration ``Sanctuary'' Policies................. 200
Nonimmigrant Student Tracking: Implement and Proposed
Modifications...................................... 200
John Allen Muhammad, Passport Fraud, and the Western
Hemisphere......................................... 205
Lateral Repatriation and the Release of Non-Mexican
Nationals Along the Southwest Border............... 208
Alien Gang Activity.................................. 209
Immigration Backlog.................................. 209
Alien Sexual Predators............................... 211
US VISIT Entry Exit System........................... 213
Alien Smuggling...................................... 214
Diversity Visas...................................... 216
Citizenship.......................................... 216
Redesign of the Naturalization Exam.................. 217
Adoption............................................. 218
Application Fraud.................................... 218
Consular Malfeasance................................. 218
Visa Security Issues................................. 218
Legal Interpretations................................ 219
Southern Border Security............................. 220
Gang Violence........................................ 221
Illegal Hiring of undocumented workers............... 221
Refugees............................................. 221
Asylum............................................... 222
Funding Immigration.................................. 222
Pre-clearance for Aviation Security.................. 223
Summary of activities of the subcommittees of the Committee on
the Judiciary:
Subcommittee on Commercial and Administrative Law:
Tabulation and disposition of bills referred to the
subcommittee........................................... 225
Jurisdiction of the subcommittee......................... 225
Legislative activities:
Privacy:
H.R. 338, the ``Defense of Privacy Act''......... 225
H.R. 361, the ``Sports Agent Responsibility and
Trust Act''.................................... 226
Bankruptcy:
H.R. 975, the ``Bankruptcy Abuse Prevention and
Consumer Protection Act of 2003''.............. 227
S. 1920, the ``Bankruptcy Abuse Prevention and
Consumer Protection Act of 2004''.............. 229
H.R. 1375, the ``Financial Services Regulatory
Relief Act of 2003''........................... 229
H.R. 1428, the ``Bankruptcy Judgeship Act of
2003''......................................... 230
H.R. 1529, the ``Involuntary Bankruptcy
Improvement Act of 2003''...................... 230
H.R. 2645, the ``Family Farmer Bankruptcy Relief
Act of 2003''.................................. 231
State Taxation Affecting Interstate Commerce:
H.R. 49, the ``Internet Tax Nondiscrimination
Act''.......................................... 233
H.R. 3220, the ``Business Activity Tax
Simplification Act of 2003''................... 235
Tort Reform:
H.R. 339, the ``Personal Responsibility in Food
Consumption Act of 2004'' Administrative Law... 235
H.R. 4917, the ``Federal Regulatory Improvement
Act of 2004''.................................. 236
Oversight activities:
List of oversight hearings........................... 237
Privacy in the Hands of the Government: The Privacy
Officer for the Department of Homeland Security.... 238
Reauthorization of the Administrative Conference of
the United States.................................. 241
Administration of Large Business Bankruptcy
Reorganizations.................................... 242
Privacy and Civil Liberties in the Hands of the
Government Post-September 11, 2001: Recommendations
of the 9/11 Commission and the U.S. Department of
Defense Technology and Privacy Advisory Committee.. 243
Regulatory Aspects of Voice Over the Internet
Protocol........................................... 246
Streamlined Sales Tax Agreement: States' Efforts to
Facilitate Sales Tax Collection from Remote Vendors 259
Reauthorization of the United States Department of
Justice Executive Office for United States
Attorneys, Office of the Solicitor General,
Executive Office for United States Trustees, Civil
Division, Environment and Natural Resources
Division........................................... 260
Legal Services Corporation: Inquiry into the
Activities of the California Rural Legal Assistance
Program and Testimony Relating to the Merits of
Client Co-Pay...................................... 263
Union Calendar No. 490
108th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 108-805
======================================================================
REPORT ON THE ACTIVITIES OF THE COMMITTEE ON THE JUDICIARY
_______
January 3, 2005.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
R E P O R T
Jurisdiction of the Committee on the Judiciary
The jurisdiction of the Committee on the Judiciary is set
forth in Rule X, 1.(k) of the rules of the House of
Representatives for the 108th Congress:
* * * * * * *
Rule X.--Establishment and Jurisdiction of Standing Committees
THE COMMITTEES AND THEIR JURISDICTION
1. There shall be in the House the following standing
committees, each of which shall have the jurisdiction and
related functions assigned to it by this clause and clauses 2,
3, and 4. All bills, resolutions, and other matters relating to
subjects within the jurisdiction of the standing committees
listed in this clause shall be referred to those committees, in
accordance with clause 2 of rule XII, as follows:
* * * * * * *
(k) Committee on the Judiciary
(1) The judiciary and judicial proceedings, civil and
criminal.
(2) Administrative practice and procedure.
(3) Apportionment of Representatives.
(4) Bankruptcy, mutiny, espionage, and
counterfeiting.
(5) Civil liberties.
(6) Constitutional amendments.
(7) Federal courts and judges, and local courts in
the Territories and possessions.
(8) Immigration and naturalization.
(9) Interstate compacts, generally.
(10) Claims against the United States.
(11) Meetings of Congress, attendance of Members and
their acceptance of incompatible offices.
(12) National penitentiaries.
(13) Patents, the Patent Office, copyrights, and
trademarks.
(14) Presidential succession.
(15) Protection of trade and commerce against
unlawful restraints and monopolies.
(16) Revision and codification of the Statutes of the
United States.
(17) State and Territorial boundaries.
(18) Subversive activities affecting the internal
security of the United States.
Tabulation of Legislation and Activity
----------
LEGISLATION REFERRED TO COMMITTEE
Public Legislation:
House bills................................................... 733
House joint resolutions....................................... 67
House concurrent resolutions.................................. 27
House resolutions............................................. 48
______
875
=================================================================
________________________________________________
Senate bills.................................................. 42
Senate joint resolutions...................................... 1
Senate concurrent resolutions................................. 4
______
47
=================================================================
________________________________________________
Subtotal.................................................... 922
=================================================================
________________________________________________
Private Legislation:
House bills (claims).......................................... 12
House bills (copyrights)...................................... 0
House bills (immigration)..................................... 73
House resolutions (claims).................................... 1
______
86
=================================================================
________________________________________________
Senate bills (claims)......................................... 0
Senate bills (immigration).................................... 7
______
7
=================================================================
________________________________________________
Subtotal.................................................... 93
=================================================================
________________________________________________
Total....................................................... 1015
ACTION ON LEGISLATION NOT REFERRED TO COMMITTEE
Held at desk for House action:
Senate bills.................................................. 10
______
10
Conference appointments:
House bills................................................... 6
Senate bills.................................................. 0
______
6
=================================================================
________________________________________________
Total....................................................... 16
FINAL ACTION
House concurrent resolutions approved (public).................... 1
House resolutions approved (public)............................... 11
Public legislation vetoed by the President........................ 0
Public Laws....................................................... 59
Private Laws...................................................... 4
Printed Hearings
Serial No. and Title
__________
1. Balanced Budget Amendment. Subcommittee on the Constitution.
March 6, 2003. (H.J. Res. 22).
2. Peer-to-Peer Piracy on University Campuses. Subcommittee on
Courts, the Internet, and Intellectual Property. February 26, 2003.
3. Help Efficient, Accessible, Low-Cost, Timely Healthcare (HEALTH)
Act of 2003. Committee on the Judiciary. March 4, 2003. (H.R. 5).
4. New York City's ``Sanctuary'' Policy and the Effect of Such
Policies on Public Safety, Law Enforcement, and Immigration.
Subcommittee on Immigration, Border Security, and Claims. February 27,
2003.
5. Piracy Prevention and the Broadcast Flag. Subcommittee on
Courts, the Internet, and Intellectual Property. March 6, 2003.
6. Standards Development Organization Advancement Act of 2003. Task
Force on Antitrust. April 9, 2003. (H.R. 1086).
7. Copyright Royalty and Distribution Reform Act of 2003.
Subcommittee on Courts, the Internet, and Intellectual Property. April
1, 2003. (H.R. 1417).
8. Nonimmigrant Student Tracking: Implementation and Proposed
Modifications. Subcommittee on Immigration, Border Security, and
Claims. April 2, 2003.
9. International Copyright Piracy: A Growing Problem with Links to
Organized Crime and Terrorism. Subcommittee on Courts, the Internet,
and Intellectual Property. March 13, 2003.
10. Child Abduction Prevention Act and the Child Obscenity and
Pornography Prevention Act of 2003. Subcommittee on Crime, Terrorism,
and Homeland Security. March 11, 2003. (H.R. 1104 and H.R. 1161).
11. Department of Homeland Security Transition: Bureau of
Immigration and Customs Enforcement. Subcommittee on Immigration,
Border Security, and Claims. April 10, 2003.
12. United States Patent and Trademark Fee Modernization Act of
2003. Subcommittee on Courts, the Internet, and Intellectual Property.
April 3, 2003. (H.R. 1561).
13. Internet Tax Nondiscrimination Act. Subcommittee on Commercial
and Administrative Law. April 1, 2003. (H.R. 49).
14. Partial-Birth Abortion Ban Act of 2003. Subcommittee on the
Constitution. March 25, 2003. (H.R. 760).
15. House Military Naturalization Bills. Subcommittee on
Immigration, Border Security, and Claims. May 6, 2003. (H.R. 1685, H.R.
1714, H.R. 1799, H.R. 1275, H.R. 1814, and H.R. 1850).
16. Protection of Lawful Commerce in Arms Act. Subcommittee on
Commercial and Administrative Law. April 2, 2003. (H.R. 1036).
17. Sports Agent Responsibility and Trust Act. Subcommittee on
Commercial and Administrative Law. May 15, 2003. (H.R. 361).
18. John Allen Muhammad, Document Fraud, and the Western Hemisphere
Passport Exception. Subcommittee on Immigration, Border Security, and
Claims. May 13, 2003.
19. Youth Smoking Prevention and State Revenue Enforcement Act.
Subcommittee on Courts, the Internet, and Intellectual Property. May 1,
2003. (H.R. 1839).
20. Flag Protection Amendment. Subcommittee on the Constitution.
May 7, 2003. (H.J. Res. 4).
21. War on Terrorism: Immigration Enforcement Since September 11,
2001. Subcommittee on Immigration, Border Security and Claims. May 8,
2003.
22. Direct Broadcast Satellite Service in the Multichannel Video
Distribution Market. Committee on the Judiciary. May 8, 2003.
23. Class Action Fairness Act of 2003. Committee on the Judiciary.
May 15, 2003. (H.R. 1115).
24. Bankruptcy Abuse Prevention and Consumer Protection Act of
2003, and the Need for Bankruptcy Reform. Subcommittee on Commercial
and Administrative Law. March 4, 2003. (H.R. 975).
25. Unlawful Internet Gambling Funding Prohibition Act and the
Internet Gambling Licensing and Regulation Commission Act. Subcommittee
on Crime, Terrorism, and Homeland Security. April 29, 2003. (H.R. 21
and H.R. 1223).
26. Reauthorization of the Civil Rights Division of the United
States Department of Justice. Subcommittee on the Constitution. May 15,
2003.
27. Bankruptcy Judgeship Act of 2003. Subcommittee on Commercial
and Administrative Law. May 22, 2003. (H.R. 1428).
28. Reauthorization of the U.S. Department of Justice: Executive
Office for U.S. Attorneys, Civil Division, Environment and Natural
Resources Division, Executive Office for U.S. Trustees, and Office of
the Solicitor General. Subcommittee on Commercial and Administrative
Law. April 8, 2003.
29. Deadly Consequences on Illegal Alien Smuggling. Subcommittee on
Immigration, Border Security, and Claims. June 24, 2003.
30. Federal Judiciary: Is There a Need for Additional Federal
Judges? Subcommittee on Courts, the Internet, and Intellectual
Property. June 24, 2003.
31. Consular Identification Cards. Subcommittee on Immigration,
Border Security, and Claims. June 19, 26, 2003.
32. Intellectual Property Protection Restoration Act of 2003.
Subcommittee on Courts, the Internet, and Intellectual Property. June
17, 2003. (H.R. 2344).
33. Cooperative Research and Technology Enhancement (CREATE) Act of
2003. Subcommittee on Courts, the Internet, and Intellectual Property.
June, 10 2003. (H.R. 2391).
34. Immigration Relief Under the Convention Against Torture for
Serious Criminals and Human Rights Violators. Subcommittee on
Immigration, Border Security, and Claims. July 11, 2003.
35. Anti-Terrorism Investigations and the Fourth Amendment After
September 11, 2001. Subcommittee on the Constitution. May 20, 2003.
36. Prison Rape Reduction Act of 2003. Subcommittee on Crime,
Terrorism, and Homeland Security. April 29, 2003. (H.R. 1707).
37. Piracy Deterrence and Education Act of 2003. Subcommittee on
Courts, the Internet, and Intellectual Property. July 17, 2003. (H.R.
2517).
38. Patent Quality Improvement. Subcommittee on Courts, the
Internet, and Intellectual Property. July 24, 2003.
39. Unborn Victims of Violence Act of 2003 or Laci and Conner's
Law. Subcommittee on the Constitution. July 8, 2003. (H.R. 1997).
40. Personal Responsibility in Food Consumption Act. Subcommittee
on Commercial and Administrative Law. June 19, 2003. (H.R. 339).
41. Hometown Heroes Survivors Benefits Act. Subcommittee on Crime,
Terrorism, and Homeland Security. June 26, 2003. (H.R. 919).
42. Reduction in Distribution of SPAM Act of 2003. Subcommittee on
Crime, Terrorism, and Homeland Security. July 8, 2003. (H.R. 2214).
43. Reauthorization of the United States Department of Justice:
Criminal Law Enforcement. Subcommittee on Crime, Terrorism, and
Homeland Security. May 6, 14, 2003.
44. Anti-Hoax Terrorism Act of 2003. Subcommittee on Crime,
Terrorism, and Homeland Security. July 10, 2003. (H.R. 1678).
45. Defense of Privacy Act and Privacy in the Hands of the
Government. Subcommittee on Commercial and Administrative Law jointly
with the Subcommittee on the Constitution. July 22, 2003. (H.R. 338).
46. Advancing Justice Through Forensic DNA Technology. Subcommittee
on Crime, Terrorism, and Homeland Security. July 17, 2003.
47. Should There be a Social Security Totalization Agreement with
Mexico? Subcommittee on Immigration, Border Security, and Claims.
September 11, 2003.
48. Potential Congressional Responses to the Supreme Court's
Decision in State Farm Mutual Automobile Ins. Co. v. Campbell: Checking
and Balancing Punitive Damages. Subcommittee on the Constitution.
September 23, 2003.
49. Crime Victims Constitutional Amendment. Subcommittee on the
Constitution. September 30, 2003. (H.J. Res. 48).
50. Internet Domain Name Fraud--The U.S. Governments Role in
Ensuring Public Access to Accurate Whois Data. Subcommittee on Courts,
the Internet, and Intellectual Property. September 4, 2003.
51. Database and Collections of Information Misappropriations.
Subcommittee on Courts, the Internet, and Intellectual Property of the
Committee on the Judiciary jointly with the Subcommittee on Commerce,
Trade, and Consumer Protection of the Committee on Energy and Commerce.
September 23, 2003. (Committee on Energy and Commerce Serial No. 108-
46).
52. Visa Overstays: A Growing Problem for Law Enforcement.
Subcommittee on Immigration, Border Security, and Claims. October 16,
2003.
53. GAO's Recent Report on the Implementation of Exectutive Order
12630 and the State of Federal Agency Protections of Private Property
Rights. Subcommittee on the Constitution. October 16, 2003.
54. Ninth Circuit Court of Appeals Judgeship and Reorganization Act
of 2003. Subcommittee on Courts, the Internet, and Intellectual
Property. October 21, 2003. (H.R. 2723).
55. Antitrust Enforcement Agencies: The Antitrust Division of the
Department of Justice and the Bureau of Competition of the Federal
Trade Commission. Task Force on Antitrust. July 24, 2003.
56. Clear Law Enforcement for Criminal Alien Removal Act of 2003
(CLEAR ACT). Subcommittee on Immigration, Border Security and Claims.
October 1, 2003. (H.R. 2671).
57. Streamlined Sales and Use Tax Agreement: States' Efforts to
Facilitate Sales Tax Collection from Remote Vendors. Subcommittee on
Commercial and Administrative Law. October 1, 2003.
58. Competition in College Athletic Conferences and Antitrust
Aspects of the Bowl Championship Series. Committee on the Judiciary.
September 4, 2003.
59. United States Department of Justice. Committee on the
Judiciary. June 5, 2003.
60. Prospects for American Workers: Immigration's Impacts.
Subcommittee on Immigration, Border Security, and Claims. October 30,
2003.
61. Anti-Counterfeiting Amendments of 2003. Subcommittee on Courts,
the Internet, and Intellectual Property. February 12, 2004. (H.R.
3632).
62. Saving the Savings Clause: Congressional Intent, the Trinko
Case, and the Role of Antitrust Laws in Promoting Competition in the
Telecom Sector. Committee on the Judiciary. November 19, 2003.
63. Fraudulent Online Identity Sanctions Act. Subcommittee on
Courts, the Internet, and Intellectual Property. February 4, 2004.
64. Terrorist Threat Integration Center (TTIC) and Its Relationship
with the Departments of Justice and Homeland Security. Committee on the
Judiciary jointly with the Select Committee on Homeland Security, July
22, 2003.
65. Homeland Security: The Balance Between Crisis and Consequence
Management through Training and Assistance. Subcommittee on Crime,
Terrorism, and Homeland Security. November 20, 2003. (H.R. 2512, H.R.
3266, H.R. 3158).
66. Civil Rights Division of the U.S. Department of Justice.
Subcommittee on the Constitution. March 2, 2004.
67. Appropriate Role of Foreign Judgements in the Interpretation of
American Law. Subcommittee on the Constitution. March 25, 2004. (H.
Res. 568).
68. Funding for Immigration in the President's 2005 Budget.
Subcommittee on Immigration, Border Security, and Claims. February 25,
and March 11, 2004.
69. Reauthorization of the Satellite Home Viewer Improvement Act.
Subcommittee on the Courts, the Internet, and Intellectual Property.
February 24, 2004.
70. Defense of Marriage Act. Subcommittee on the Constitution.
March 30, 2004.
71. Anabolic Steroid Control Act of 2004. Subcommittee on Crime,
Terrorism, and Homeland Security. March 16, 2004. (H.R. 3866).
72. Committee Print to Amend the Federal Trademark Dilution Act.
Subcommittee on Courts, the Internet, and Intellectual Property. April
22, 2004.
73. Alien Removals Under Operation Predator. Subcommittee on
Immigration, Border Security, and Claims. March 4, 2004.
74. Identity Theft Penalty Enhancement Act, and the Identity Theft
Investigation and Prosecution Act of 2003. Subcommittee on Crime,
Terrorism, and Homeland Security. March 23, 2004. (H.R. 1731, H.R.
3693).
75. Section 115 of the Compliance Act: In Need of an Update?
Subcommittee on Courts, the Internet, and Intellectual Property. March
11, 2004.
76. Legal Threats to Traditional Marriage: Implications for Public
Policy. Subcommittee on the Constitution. April 22, 2004.
77. U.S.-VISIT--A Down Payment on Homeland Security. Subcommittee
on Immigration, Border Security, and Claims. March 18, 2004.
78. How Would Millions of Guest Workers Impact Working Americans
and Americans Seeking Employment? Subcommittee on Immigration, Border
Security, and Claims. March 24, 2004.
79. Reauthorization of the U.S. Department of Justice: Executive
Office for U.S. Attorneys, Civil Division, Environment and Natural
Resources Division, Executive Office for U.S. Trustees, and Office of
the Solicitor General. Subcommittee on Commercial and Administrative
Law. March 9, 2004.
80. Operations of the U.S. Copyright Office. Subcommittee on
Courts, the Internet, and Intellectual Property. June 3, 2004.
81. To Prescribe the Oath of Reunification and Allegiance for
Purposes of the Immigration and Nationality Act. Subcommittee on
Immigration, Border Security, and Claims. April 1, 2004. (H.R. 3191).
82. Diversity Visa Program and Its Susceptibility to Fraud and
Abuse. Subcommittee on Immigration, Border Security, and Claims. April
29, 2004.
83. Law Enforcement Efforts Within the Department of Homeland
Security. Subcommittee on Crime, Terrorism, and Homeland Security.
February 3, 2004.
84. Business Activity Tax Simplification Act of 2003. Subcommittee
on Commercial and Administrative Law. May 13, 2004. (H.R. 3220).
85. Privacy in the Hands of the Government: The Privacy Officer for
the Department of Homeland Security. Subcommittee on Commercial and
Administrative Law. February 10, 2004.
86. Progress in Consolidating Terrorist Watchlists--The Terrorist
Screening Center (TSC). Subcommittee on Crime, Terrorism, and Homeland
Security of the Committee on the Judiciary jointly with the
Subcommittee on Intelligence and Counterterrorism of the Select
Committee on Homeland Security. March 25, 2004.
87. Terrorist Penalties Enhancement Act of 2003. Subcommittee on
Crime, Terrorism, and Homeland Security. April 21, 2004. (H.R. 2934).
88. Pushing the Border Out on Alien Smuggling: New Tools and
Intelligence Initiatives. Subcommittee on Immigration, Border Security,
and Claims. May 18, 2004.
89. Private Security Officer Employment Authorization Act of 2003.
Subcommittee on Crime, Terrorism, and Homeland Security. March 30,
2004. (S. 1743).
90. Federal Marriage Amendment (The Musgrave Amendment).
Subcommittee on the Constitution. May 13, 2004. (H.J. Res. 56).
91. Patent Quality Improvement: Post Grant Opposition. Subcommittee
on Courts, the Internet, and Intellectual Property. June 24, 2004.
92. Limiting Federal Court Jurisdiction to Protect Marriage for the
States. Subcommittee on the Constitution. June 24, 2004.
93. Derivative Rights, Moral Rights, and Movie Filtering
Technology. Subcommittee on Courts, the Internet, and Intellectual
Property. May 20, 2004.
94. Family Movie Act of 2004. Subcommittee on Courts, the Internet,
and Intellectual Property. June 17, 2004. (H.R. 4586).
95. Safeguarding Americans From a Legal Culture of Fear: Approaches
to Limiting Lawsuit Abuse. Committee on the Judiciary. June 22, 2004.
96. Families and Businesses in Limbo: The Detrimental Impact of the
Immigration Backlog. Subcommittee on Immigration, Border Security, and
Claims. June 17, 23, 2004.
97. Law Enforcement Officers Safety Act of 2003. Subcommittee on
Crime, Terrorism, and Homeland Security. June 15, 2004. (H.R. 218).
98. Mentally Ill Offender Treatment and Crime Reduction Act of
2003. Subcommittee on Crime, Terrorism, and Homeland Security. June 22,
2004. (S. 1194).
99. Internet Streaming of Radio Broadcasts: Balancing the Interests
of Sound Recording Copyright Owners With Those of Broadcasters.
Subcommittee on Courts, the Internet, and Intellectual Property. July
15, 2004.
100. Legal Services Corporation: Inquiry into the Activities of the
California Rural Legal Assistance Program and Testimony Relating to the
Merits of Client Co-pay. Subcommittee on Commercial and Administrative
Law. March 31, 2004.
101. Child Custody Protection Act. Subcommittee on the
Constitution. July 20, 2004. (H.R. 1755).
102. Regulatory Aspects of Voice Over Internet Protocol (VoIP).
Subcommittee on Commercial and Administrative Law. July 23, 2004.
103. Defending America's Most Vulnerable: Safe Access to Drug
Treatment and Child Protection Act of 2004. Subcommittee on Crime,
Terrorism, and Homeland Security. July 6, 2004. (H.R. 4547).
104. Anti-Terrorism Intelligence Tools Improvement Act of 2003.
Subcommittee on Crime, Terrorism, and Homeland Security. May 18, 2004.
(H.R. 3179).
105. Constitution Restoration Act of 2004. Subcommittee on Courts,
the Internet, and Intellectual Property. September 13, 2004. (H.R.
3799).
106. Due Process and the NCAA. Subcommittee on the Constitution.
September 14, 2004.
107. Good Samaritan Volunteer Firefighter Assistance Act of 2003,
the Nonprofit Athletic Organization Protection Act of 2003, and the
Volunteer Pilot Organization Protection Act. Committee on the
Judiciary. July 20, 2004. (H.R. 1787, H.R. 3369, and H.R. 1084).
108. Status of the Implementation of the Pigford v. Glickman
Settlement. Subcommittee on the Constitution. September 28, 2004.
109. Reauthorization of the Administrative Conference of the United
States. Subcommittee on Commercial and Administrative Law. May 20, 2004
and June 24, 2004.
110. Presidential Secession Act. Subcommittee on the Constitution.
October 6, 2004.
111. Should Congress Extend the October 2004 Statutory Deadline for
Requiring Foreign Visitors to Present Biometric Passports? Committee on
the Judiciary. April 21, 2004.
112. Peer-to-Peer Piracy on University Campuses: An Update.
Subcommittee on Courts, the Internet, and Intellectual Property.
October 5, 2004.
113. Privacy and Civil Liberties in the Hands of the Government
Post-September 11, 2001: Recommendations of the 9/11 Commission and the
U.S. Department of Defense Technology and Privacy Advisory Committee.
Subcommittee on Commercial and Administrative Law jointly with the
Subcommittee on the Constitution. August 20, 2004.
114. Administration of Large Business Bankruptcy Reorganizations:
Has Competition for Big Cases Corrupted the Bankruptcy System?
Subcommittee on Commercial and Administrative Law. July 21, 2004.
115. Recommendations of the 9/11 Commission. Subcommittee on Crime,
Terrorism, and Homeland Security. August 23, 2004.
116. Federal Offender Reentry and Protecting Children from Criminal
Recidivists. Subcommittee on Crime, Terrorism, and Homeland Security.
October 7, 2004.
117. ``Notice'' Provision in the Pigford v. Glickman Consent
Decree. Subcommittee on the Constitution. November 18, 2004.
Committee Prints
Serial No. and Title
__________
1. Federal Rules of Appellate Procedure. December 1, 2003.
2. Federal Rules of Civil Procedure. December 1, 2003.
3. Federal Rules of Criminal Procedure. December 1, 2003.
4. Federal Rules of Evidence. December 1, 2003.
House Documents
H. Doc. No. and Title
__________
108-37. Legislative Proposal for the Millennium Challenge Act of
2003. Communication from the President of the United States
transmitting a legislative proposal to establish the Millenium
Challenge Account and the Millennium Challenge Corporation. Referred
jointly to the Committees on International Relations, Ways and Means,
the Judiciary, Resources, and Government Reform. February 11, 2003.
(Executive Communication No. 644).
108-56. Amendments to the Federal Rules of Civil Procedure.
Communication from the Chief Justice, the Supreme Court of the United
States, transmitting amendments to the Federal Rules of Civil Procedure
that have been adopted by the Court, pursuant to 28 U.S.C. 2072. March
27, 2003. (Executive Communication No. 1493).
108-57. Amendments to the Federal Rules of Evidence. Communication
from the Chief Justice, the Supreme Court of the United States,
transmitting amendments to the Federal Rules of Evidence that have been
adopted by the Court, pursuant to 28 U.S.C. 2072. March 27, 2003.
(Executive Communication No. 1494).
108-58. Amendments to the Federal Rules of Bankruptcy Procedure.
Communication from the Chief Justice, the Supreme Court of the United
States, transmitting amendments to the Federal Rules of Bankruptcy
Procedure that have been adopted by the Court, pursuant to 28 U.S.C.
2075. March 27, 2003. (Executive Communication No. 1495).
108-59. Amendments to the Federal Rules of Appellate Procedure.
Communication from the Chief Justice, the Supreme Court of the United
States, transmitting amendments to the Federal Rules of Appellate
Procedure that have been adopted by the Court, pursuant to 28 U.S.C.
2072. March 27, 2003. (Executive Communication No. 1496).
108-89. Notification of the Required Changes to the United States-
Singapore Free Trade Agreement. Communication from the President of the
United States transmitting notification of changes to existing law
required to bring the United States into compliance with obligations
under the United States-Singapore Free Trade Agreement, pursuant to
Pub. L. 107-210, Sec. 2105(a)(1)(B). Referred jointly to the Committees
on Ways and Means and the Committee on the Judiciary. July 7, 2003.
(Executive Communication No. 3007).
108-90 Notification of the Required Changes to the United States-
Chile Free Trade Agreement. Communication from the President of the
United States transmitting notification of changes to existing law
required to bring the United States into compliance with obligations
under the United States-Chile Free Trade Agreement, pursuant to Pub. L.
107-210, Sec. 2105(a)(1)(B). Referred jointly to the Committee on Ways
and Means and the Committee on the Judiciary. July 7, 2003. (Executive
Communication No. 3006).
108-100. The United States-Singapore Free Trade Agreement. Message
from the President of the United States transmitting a draft proposed
legislation and supporting documents to implement the United States-
Singapore Free Trade Agreement (FTA), pursuant to 19 U.S.C.
3805(a)(1)(A) and (B). Referred jointly to the Committee on Ways and
Means and the Committee on the Judiciary. July 16, 2003. (Presidential
Message No. 40).
108-101. The United States-Chile Free Trade Agreement. Message from
the President of the United States transmitting a draft proposed
legislation and supporting documents to implement the United States-
Chile Free Trade Agreement (FTA), pursuant to 19 U.S.C. 3805(a)(1)(A)
and (B). Referred jointly to the Committee on Ways and Means and the
Committee on the Judiciary. July 16, 2003. (Presidential Message No.
41).
108-131. Memorandum of Understanding Between the Secretaries of
State and Homeland Security Concerning Implementation of Section 428 of
the Homeland Security Act of 2002, pursuant to Pub. L. 107-296, Sec.
428(e)(8)(A). Referred jointly to the Committee on the Judiciary and
the Select Committee on Homeland Security. October 1, 2003.
(Presidential Message No. 46).
108-181. Amendments to the Federal Rules of Bankruptcy Procedure.
Communication from the Chief Justice, the Supreme Court of the United
States, transmitting amendments to the Federal Rules of Bankruptcy
Procedure that have been adopted by the Court, pursuant to 28 U.S.C.
2075. April 28, 2004. (Executive Communication No. 7864).
108-182. Amendments to the Federal Rules of Criminal Procedure.
Communication from the Chief Justice, the Supreme Court of the United
States, transmitting the Federal Rules of Criminal Procedure that have
been adopted by the Court, pursuant to 28 U.S.C. 2072. April 28, 2004.
(Executive Communication No. 7865).
Summary of Activities of the Committee on the Judiciary
----------
Legislation Enacted Into Law
A variety of legislation within the Committee's
jurisdiction was enacted into law during the 108th Congress.
The public and private laws, along with approved resolutions,
are listed below and are more fully detailed in the subsequent
sections of this report recounting the activities of the
Committee and its individual subcommittees.
PUBLIC LAWS
Public Law 108-6--To authorize salary adjustments for
Justices and judges of the United States for fiscal year 2003.
(H.R. 16) (Approved February 13, 2003).
Public Law 108-20--To provide benefits and other
compensation for certain individuals with injuries resulting
from administration of smallpox countermeasures, and for other
purposes. ``Smallpox Emergency Personnel Protection Act of
2003''. (H.R. 1770) (Approved April 30, 2003; effective date
November 25, 2002, for tort liability provisions).
Public Law 108-21--To prevent child abduction and the
sexual exploitation of children, and for other purposes.
``Prosecutorial Remedies and Other Tools to end the
Exploitation of Children Today Act of 2003'', or ``PROTECT
Act'', ``Code Adam Act of 2003'', ``Secure Authentication
Feature and Enhanced Identification Defense Act of 2003'' or
``SAFE ID Act'', ``Illicit Drug Anti-Proliferation Act of
2003''. (S. 151) (Approved April 30, 2003; effective dates
vary).
Public Law 108-29--To further the protection and
recognition of veterans' memorials, and forother purposes.
``Veterans' Memorial Preservation and Recognition Act of 2003''. (S.
330) (Approved May 29, 2003).
Public Law 108-38--Expressing the sense of Congress with
respect to raising awareness and encouraging prevention of
sexual assault in the United States and supporting the goals
and ideals of National Sexual Assault Awareness and Prevention
Month. (S.J. Res. 8) (Approved June 26, 2003).
Public Law 108-61--To sanction the ruling Burmese military
junta, to strengthen Burma's democratic forces and support and
recognize the National League of Democracy as the legitimate
representative of the Burmese people, and for other purposes.
``Burmese Freedom and Democracy Act of 2003''. (H.R. 2330)
(Approved July 28, 2003; effective date thirty days after
enactment for ban against trade provision).
Public Law 108-68--To amend the PROTECT Act to clarify
certain volunteer liability. (S. 1280) (Approved August 1,
2003).
Public Law 108-73--To extend for six months the period for
which chapter 12 of title 11 of the United States Code is
reenacted. ``Family Farmer Bankruptcy Relief Act of 2003''.
(H.R. 2465) (Approved August 15, 2003; effective date July 1,
2003).
Public Law 108-77--To implement the United States-Chile
Free Trade Agreement. (H.R. 2738) (Approved September 3, 2003).
Public Law 108-78--To implement the United States-Singapore
Trade Agreement. ``United States-Singapore Free Trade Agreement
Implementation Act''. (H.R. 2739) (Approved September 3, 2003;
effective dates vary).
Public Law 108-79--To provide for the analysis of the
incidence and effects of prison rape in Federal, State, and
local institutions and to provide information, resources,
recommendations, and funding to protect individuals from prison
rape. ``Prison Rape Elimination Act of 2003''. (S. 1435)
(Approved September 4, 2003).
Public Law 108-99--To amend the Immigration and Nationality
Act to extend for an additional 5 years the special immigrant
religious worker program. (H.R. 2152) (Approved October 15,
2003; effective date October 1, 2003).
Public Law 108-105--To prohibit the procedure commonly
known as partial-birth abortion. ``Partial-Birth Abortion Ban
Act of 2003''. (S. 3) (Approved November 5, 2003; effective
date November 6, 2003).
Public Law 108-136--To authorize appropriations for fiscal
year 2004 for military activities of the Department of Defense,
for military construction, and for defense activities of the
Department of Energy, to prescribe strengths for such fiscal
year for the Armed Forces, and for other purposes. ``National
Defense Authorization Act for Fiscal Year 2004''. ``Randolph-
Sheppard Act'', ``Services Acquisition Reform Act of 2003'',
``Military Construction Authorization Act for Fiscal Year
2004'', ``Maritime Security Act of 2003'', ``Nuclear Security
Initiative Act of 2003''. (H.R. 1588) (Approved November 24,
2003; effective dates vary).
Public Law 108-148--To improve the capacity of the
Secretary of Agriculture and the Secretary of the Interior to
plan and conduct hazardous fuels reduction projects on National
Forest System lands and Bureau of Land Management lands aimed
at protecting communities, watersheds, and certain other at-
risk lands from catastrophic wildfire, to enhance efforts to
protect watersheds and address threats to forest and rangeland
health, including catastrophic wildfire, across the landscape,
and for other purposes. ``Healthy Forests Restoration Act of
2003''. (H.R. 1904) (Approved December 3, 2003).
Public Law 108-156--To extend and expand the basic pilot
program for employment eligibility verification, and for other
purposes. ``Basic Pilot Program Extension and Expansion Act of
2003''. (S. 1685) (Approved December 3, 2003).
Public Law 108-157--To provide for Federal court
proceedings in Plano, Texas. (S. 1720) (Approved December 3,
2003).
Public Law 108-167--To authorize salary adjustments for
Justices and judges of the United States for fiscal year 2004.
(H.R. 3349) (Approved December 6, 2003).
Public Law 108-174--To reauthorize the ban on undetectable
firearms. (H.R. 3348) (Approved December 9, 2003).
Public Law 108-176--To amend title 49, United States Code,
to reauthorize programs for the Federal Aviation
Administration, and for other purposes. (H.R. 2115) (Approved
December 12, 2003).
Public Law 108-178--To improve the United States Code.
(H.R. 1437) (Approved December 15, 2003; effective date August
21, 2002).
Public Law 108-182--To ensure that a public safety officer
who suffers a fatal heart attack or stroke while on duty shall
be presumed to have died in the line of duty for purposes of
public safety officer survivor benefits. ``Hometown Heroes
Survivors Benefits Act of 2003''. (S. 459) (Approved December
15, 2003).
Public Law 108-187--To regulate interstate commerce by
imposing limitations and penalties on the transmission of
unsolicited commercial electronic mail via the Internet.
``Controlling the Assault of Non-Solicited Pornography and
Marketing Act of 2003'' or the ``CAN-SPAM Act of 2003''. (S.
877) (Approved December 16, 2003; effective date January 1,
2004, except for section 9).
Public Law 108-188--To approve the Compact of Free
Association, as amended, between the Government of the United
States of America and the Government of the Federated States of
Micronesia, and the Compact of Free Association, as amended,
between the Government of the United States of America and the
Government of the Republic of the Marshall Islands, and to
appropriate funds to carry out the amended Compacts. ``Compact
of Free Association Amendments Act of 2003''. (H.J. Res. 63)
(Approved December 17, 2003; effective dates vary).
Public Law 108-193--To authorize appropriations for fiscal
years 2004 and 2005 for the Trafficking Victims Protection Act
of 2000, and for other purposes. ``Trafficking Victims
Protection Reauthorization Act of 2003''. (H.R. 2620) (Approved
December 19, 2003).
Public Law 108-198--To prohibit the offer of credit by a
financial institution to a financial institution examiner, and
for other purposes. ``Preserving Independence of Financial
Institution Examinations Act of 2003''. (S. 1947) (Approved
December 19, 2003).
Public Law 108-212--To amend title 18, United States Code,
and the Uniform Code of Military Justice to protect unborn
children from assault and murder, and for other purposes.
``Unborn Victims of Violence Act of 2004'' or ``Laci and
Conner's Law''. (H.R. 1997) (Approved April 1, 2004).
Public Law 108-237--To encourage the development and
promulgation of voluntary consensus standards by providing
relief under the antitrust laws to standards development
organizations with respect to conduct engaged in for the
purpose of developing voluntary consensus standards, and for
other purposes. ``Standards Development Organization
Advancement Act of 2004''. (H.R. 1086) (Approved June 22,
2004).
Public Law 108-238--To authorize assistance for the
National Great Blacks in Wax Museum and Justice Learning
Center. ``National Great Black Americans Commemoration Act of
2004''. (S. 1233) (Approved June 22, 2004).
Public Law 108-275--To amend title 18, United States Code,
to establish penalties for aggravated identity theft, and for
other purposes. ``Identity Theft Penalty Enhancement Act''.
(H.R. 1731) (Approved July 15, 2004).
Public Law 108-277--To amend title 18, United States Code,
to exempt qualified current and former law enforcement officers
from State laws prohibiting the carrying of concealed handguns.
``Law Enforcement Officers Safety Act of 2004''. (H.R. 218)
(Approved July 22, 2004).
Public Law 108-281--To amend the E-Government Act of 2002
with respect to rulemakingauthority of the Judicial Conference.
(H.R. 1303) (Approved August 2, 2004).
Public Law 108-299--To modify certain deadlines pertaining
to machine-readable, tamper-resistant entry and exit documents.
(H.R. 4417) (Approved August 9, 2004).
Public Law 108-304--To designate certain conduct by sports
agents relating to the signing of contracts with student
athletes as unfair and deceptive acts or practices to be
regulated by the Federal Trade Commission. ``Sports Agent
Responsibility and Trust Act''. (H.R. 361) (Approved September
24, 2004).
Public Law 108-326--To clarify the tax treatment of bonds
and other obligations issued by the Government of American
Samoa. (H.R. 982) (Approved October 16, 2004).
Public Law 108-333--To promote human rights and freedom in
the Democratic People's Republic of Korea, and for other
purposes. ``North Korean Human Rights Act of 2004''. (H.R.
4011) (Approved October 18, 2004).
Public Law 108-344--To revise and extend the Boys and Girls
Clubs of America. (S. 2363) (Approved October 18, 2004).
Public Law 108-347--To provide for the promotion of
democracy, human rights, and rule of law in the Republic of
Belarus and for the consolidation and strengthening of Belarus
sovereignty and independence. ``Belarus Democracy Act of
2004''. (H.R. 854) (Approved October 20, 2004).
Public Law 108-356--To extend certain authority of the
Supreme Court Police, modify the venue of prosecutions relating
to the Supreme Court building and grounds, and authorize the
acceptance of gifts to the United States Supreme Court. (S.
2742) (Approved October 21, 2004).
Public Law 108-357--To amend the Internal Revenue Code of
1986 to remove impediments in such Code and make our
manufacturing, service, and high-technology businesses and
workers more competitive and productive both at home and
abroad. ``American Jobs Creation Act of 2004''. (H.R. 4520)
(Approved October 22, 2004; effective dates vary).
Public Law 108-358--To amend the Controlled Substances Act
to clarify the definition of anabolic steroids and to provide
for research and education activities relating to steroids and
steroid precursors. ``Anabolic Steroids Control Act of 2004''.
(S. 2195) (Approved October 22, 2004; effective dates vary).
Public Law 108-369--To extend for eighteen months the
period for which chapter 12 of title 11, United States Code, is
reenacted. ``Family Farmer Bankruptcy Relief Act of 2004''. (S.
2864) (Approved October 25, 2004; effective date January 1,
2004).
Public Law 108-370--To amend the International Child
Abduction Remedies Act to limit the tort liability of private
entities or organizations that carry out responsibilities of
the United States Central Authority under that Act.
``Prevention of Child Abduction Partnership Act''. (S. 2883)
(Approved October 25, 2004).
Public Law 108-371--To modify and extend certain
privatization requirements of the Communications Satellite Act
of 1962. (S. 2896) (Approved October 25, 2004).
Public Law 108-372--To reauthorize the State Justice
Institute. ``State Justice Institute Reauthorization Act of
2004''. (H.R. 2714) (Approved October 25, 2004).
Public Law 108-375--To authorize appropriations for fiscal
year 2005 for military activities of the Department of Defense,
to prescribe military personnel strengths for fiscal year 2005,
and for other purposes. ``Ronald W. Reagan National Defense
Authorization Act for Fiscal Year 2005''. (H.R. 4200) (Approved
October 28, 2004; effective dates vary).
Public Law 108-390--To amend section 274A of the
Immigration and Nationality Act to improve the process for
verifying an individual's eligibility for employment. (H.R.
4306) (Approved October 30, 2004; effective dates vary).
Public Law 108-401--To amend title 5, United States Code,
to authorize appropriations for the Administrative Conference
of the United States for fiscal years 2005, 2006, and 2007, and
for other purposes. ``Federal Regulatory Improvement Act of
2004''. (H.R. 4917) (Approved October 30, 2004).
Public Law 108-405--To protect crime victims' rights, to
eliminate the substantial backlog of DNA samples collected from
crime scenes and convicted offenders, to improve and expand the
DNA testing capacity of Federal, State, and local crime
laboratories, to increase research and development of new DNA
testing technologies, to develop new training programs
regarding the collection and use of DNA evidence, to provide
post-conviction testing of DNA evidence to exonerate the
innocent, to improve the performance of counsel in State
capital cases, and for other purposes. ``Justice for All Act''.
(H.R. 5107) (Approved October 30, 2004).
Public Law 108-414--To foster local collaborations which
will ensure that resources are effectively and efficiently used
within the criminal and juvenile justice systems. ``Mentally
Ill Offender Treatment and Crime Reduction Act of 2004''. (S.
1194) (Approved October 30, 2004).
Public Law 108-419--To amend title 17, United States Code,
to replace copyright arbitration royalty panels with Copyright
Royalty Judges, and for other purposes. ``Copyright Royalty and
Distribution Reform Act of 2004''. (H.R. 1417) (Approved
November 30, 2004).
Public Law 108-441--To improve access to physicians in
medically underserved areas. (S. 2302) (Approved December 3,
2004).
Public Law 108-446--To reauthorize the Individuals with
Disabilities Act, and for other purposes. ``Individuals with
Disabilities Education Improvement Act of 2004''. (H.R. 1350)
(Approved December 3, 2004).
Public Law 108-449--To amend and extend the Irish Peace
Process Cultural and Training Program Act of 1998. (H.R. 2655)
(Approved December 10, 2004).
Public Law 108-453--To amend title 35, United States Code,
to promote cooperative research involving universities, the
public sector, and private enterprises. ``Cooperative Research
and Technology Enhancement (CREATE) Act of 2004''. (S. 2192)
(Approved December 10, 2004).
Public Law 108-455--To extend the authority of the United
States District Court for the Southern District of Iowa to hold
court in Rock Island, Illinois. (S. 2873) (Approved December
10, 2004).
Public Law 108-458--To reform the intelligence community
and the intelligence and intelligence-related activities of the
United States Government, and for other purposes. (S. 2845)
(Approved December 17, 2004).
Public Law 108-482--To prevent and punish counterfeiting of
copyrighted copies and phonorecords, and for other purposes.
``Intellectual Property Protection and Courts Amendments Act of
2004''. (H.R. 3632) (Approved December 23, 2004).
Public Law 108-491--To authorize salary adjustments for
Justices and judges of the United States for fiscal year 2005.
(H.R. 5363) (Approved December 23, 2004).
PRIVATE LAWS
Private Law 108-1--For the relief of Lindita Idrizi Heath.
(S. 103) (Approved July 22, 2004).
Private Law 108-3--For the relief of Richi James Lesley.
(H.R. 712) (Approved October 30, 2004).
Private Law 108-4--For the relief of Durreshahwar
Durreshahwar, Nida Hasan, Asna Hasan, Anum Hasan, and Iqra
Hasan. (H.R. 867) (Approved October 30, 2004).
Private Law 108-5--For the relief of Tanya Andrea Goudeau.
(H.R. 530) (Approved December 23, 2004).
CONCURRENT AND SIMPLE RESOLUTIONS APPROVED
H. Con. Res. 414.--Expressing the sense of the Congress
that, as Congress recognizes the 50th anniversary of the Brown
v. Board of Education decision, all Americans are encouraged to
observe this anniversary with a commitment to continuing and
building on the legacy of Brown. Agreed to by the House May 13,
2004; agreed to by the Senate May 19, 2004.
H. Res. 56.--Supporting the goals of the Japanese American,
German American, and Italian American communities in
recognizing a National Day of Remembrance to increase public
awareness of the events surrounding the restriction, exclusion,
and internment of individuals and families during World War II.
Agreed to by the House March 4, 2004.
H. Res. 132.--Expressing the sense of the House of
Representatives that the Ninth Circuit Court of Appeals ruling
in Newdow v. United States Congress is inconsistent with the
Supreme Court's interpretation of the first amendment and
should be overturned, and for other purposes. Agreed to by the
House March 20, 2003.
H. Res. 180.--Supporting the goals and ideals of ``National
Correctional Officers and Employees Week'' and honoring the
service of correctional officers and employees. Agreed to by
the House May 20, 2003.
H. Res. 234.--Condemning bigotry and violence against Arab-
Americans, Muslim-Americans, South Asian-Americans, and Sikh-
Americans. Agreed to by the House October 7, 2003.
H. Res. 389.--Honoring the young victims of the Sixteenth
Street Baptist Church bombing, recognizing the historical
significance of the tragic event, and commending the efforts of
law enforcement personnel to bring the perpetrators of this
crime to justice on the occasion of its 40th anniversary.
Agreed to by the House October 6, 2004.
H. Res. 412.--Honoring the men and women of the Drug
Enforcement Administration on the occasion of its 30th
Anniversary. Agreed to by the House March 4, 2004.
H. Res. 423.--Recognizing the 5th anniversary of the
signing of the International Religious Freedom Act of 1998 and
urging a renewed commitment to eliminating violations of the
internationally recognized right to freedom of religion and
protecting fundamental human rights. Agreed to by the House
November 19, 2003.
H. Res. 662.--Recognizing that Flag Day originated in
Ozaukee County, Wisconsin. Agreed to by the House June 14,
2004.
H. Res. 676.--Recognizing and honoring the 40th anniversary
of congressional passage of the Civil Rights Act of 1964.
Agreed to by the House June 24, 2004.
H. Res. 757.--Expressing the sense of the House of
Representatives on the anniversary of the terrorist attacks
launched against the United States on September 11, 2001.
Agreed to by the House September 9, 2004.
H. Res. 853.--Recognizing the Boy Scouts of America for the
public service the organization performs for neighborhoods and
communities across the United States. Agreed to by the House
November 20, 2004.
Conference Appointments
Members of the Committee were named by the Speaker as
conferees on the following bills which were not referred to the
Committee but which contained legislative language within the
Committee's Rule X jurisdiction:
H.R. 6 (S. 14)--To enhance energy conservation and research
and development, to provide for security and diversity in the
energy supply for the American people, and for other purposes.
``Energy Policy Act of 2003''. Passed the House April 11, 2003
(247 ayes; 175 noes). Passed the Senate, amended, July 31, 2003
(84 yeas; 14 nays). The Senate requested a conference July 31,
2003. The Senate appointed conferees September 4, 2003. The
House agreed to a conference September 4, 2003. The House
appointed conferees September 5, 2003 (including from the
Committee on the Judiciary). Conference report filed in the
House November 18 (leg. day 17), 2003 (H. Rept. 108-375). The
House agreed to the conference report November 18, 2003 (246
yeas; 180 nays).
H.R. 1350 (S. 1248)--To reauthorize the Individuals with
Disabilities Education Act, and for other purposes. ``Improving
Education Results for Children With Disabilities Act of 2003''.
Passed the House, amended, April 30, 2003 (251 ayes; 171 noes).
Passed the Senate, amended, May 13, 2004 (95 yeas; 3 nays). The
House requested a conference October 8, 2004. The House
appointed conferees October 8, 2004 (including from the
Committee on the Judiciary). The Senate agreed to a conference
October 11, 2004. The Senate appointed conferees October 11,
2004. Conference report filed in the House November 17, 2004
(H. Rept. 108-779). The House agreed to the conference report
November 19, 2004 (397 yeas; 3 nays). The Senate agreed to the
conference report November 19, 2004 (unanimous consent).
Approved by the President December 3, 2004--Public Law 108-446.
H.R. 1588 (S. 1050)--To authorize appropriations for fiscal
year 2004 for military activities of the Department of Defense,
to prescribe military personnel strengths for fiscal year 2004,
and for other purposes. ``National Defense Authorization Act
for Fiscal Year 2004''. Passed the House, amended, May 22, 2003
(361 ayes; 68 noes). Passed the Senate, amended, June 4, 2003.
The Senate requested a conference June 4, 2003, and appointed
conferees. The House agreed to a conference July 16, 2003, and
appointed conferees (including from the Committee on the
Judiciary). Conference report filed in the House November 7
(leg. day November 6), 2003 (H. Rept. 108-354). The House
agreed to the conference report November 7, 2003 (362 yeas; 40
nays, 2 ``present''). The Senate agreed to the conference
report November 12, 2003 (95 yeas; 3 nays). Approved by the
President November 24, 2003--Public Law 108-136.
H.R. 2115 (S. 824)--To amend title 49, United States Code,
to reauthorize programs for the Federal Aviation
Administration, and for other purposes. ``Flight 100--Century
of Aviation Reauthorization Act''. Passed the House, amended,
June 11, 2003 (418 yeas; 8 nays). Passed the Senate, amended,
June 12, 2003. The Senate requested a conference June 12, 2003,
and appointed conferees. The House agreed to a conference July
15, 2003, and appointed conferees (including from the Committee
on the Judiciary). Conference report filed in the House July
25, 2003 (H. Rept. 108-240). Further conference report filed in
the House October 29, 2003 (H. Rept. 108-334). The House agreed
to the further conference report (H. Rept. 108-334) October 30,
2003. (211 ayes; 207 noes). The Senate agreed to the further
conference report (H. Rept. 108-334) November 21, 2003.
Approved by the President December 12, 2003--Public Law 108-
176.
H.R. 4200 (S. 2400)--To authorize appropriations for fiscal
year 2005 for military activities of the Department of Defense,
for military construction, and for defense activities of the
Department of Energy, to prescribe personnel strengths for such
fiscal year for the Armed Forces, and for other purposes.
``National Defense Authorization Act for Fiscal Year 2005''.
Passed the House, amended, May 20, 2004 (391 yeas; 34 nays).
Passed the Senate, amended, June 23, 2004. The Senate requested
a conference and appointed conferees June 24, 2003. The House
agreed to a conference and appointed conferees September 28,
2004 (including from the Committee on the Judiciary).
Conference held September 29, 2004. Conference report filed in
the House October 8, 2004 (H. Rept. 108-676). The House agreed
to the conference report October 9, 2004 (359 yeas; 14 nays).
The Senate agreed to the conference report October 9, 2004
(unanimous consent). Approved by the President October 28,
2004--Public Law 108-375.
H.R. 4520 (S. 1637)--To amend the Internal Revenue Code of
1986 to remove impediments in such Code and make our
manufacturing, service, and high-technology businesses and
workers more competitive and productive both at home and
abroad. ``American Jobs Creation Act of 2004''. Passed the
House, amended, June 17, 2004 (251 yeas; 178 nays). Passed the
Senate, amended, July 15, 2004 by voice vote. The Senate
requested a conference and appointed conferees July 15, 2004.
The House agreed to a conference and appointed conferees
September 29, 2004 (including from the Committee on the
Judiciary). Conference held September 29, October 4, 5, 6,
2004. Conference report filed in the House October 7, 2004 (H.
Rept. 108-755). The House agreed to the conference report
October 7, 2004 (280 yeas; 141 nays). The Senate agreed to the
conference report October 11, 2004 (69 yeas; 17 nays). Approved
by the President October 22, 2004--Public Law 108-357.
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr.,
Wicsonsin, Chairman \1\
JOHN CONYERS, Jr., Michigan HENRY J. HYDE, Illinois
HOWARD L. BERMAN, California HOWARD COBLE, North Carolina
RICK BOUCHER, Virginia LAMAR S. SMITH, Texas
JERROLD NADLER, New York ELTON GALLEGLY, California
ROBERT C. SCOTT, Virginia BOB GOODLATTE, Virginia
MELVIN L. WATT, North Carolina STEVE CHABOT, Ohio
ZOE LOFGREN, California WILLIAM L. JENKINS, Tennessee
SHEILA JACKSON LEE, Texas CHRIS CANNON, Utah
MAXINE WATERS, California SPENCER BACHUS, Alabama
MARTIN T. MEEHAN, Massachusetts JOHN N. HOSTETTLER, Indiana
WILLIAM DELAHUNT, Massachusetts MARK GREEN, Wisconsin
ROBERT WEXLER, Florida RIC KELLER, Florida
TAMMY BALDWIN, Wisconsin MELISSA A. HART, Pennsylvania
ANTHONY D. WEINER, New York JEFF FLAKE, Arizona
ADAM B. SCHIFF, California MIKE PENCE, Indiana
LINDA T. SANCHEZ, California J. RANDY FORBES, Virginia
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
----------
\1\ F. James Sensenbrenner, Jr., Wisconsin, elected to the Committee as
Chairman pursuant to House Resolution 24, approved by the House January
8, 2003.
Republican Members elected to the Committee pursuant to House
Resolution 33, approved by the House January 28, 2003.
\2\ John Conyers, Jr., elected to the Committee as ranking minority
Member pursuant to House Resolution 22, approved by the House January
8, 2003.
Democratic Members elected to the Committee pursuant to House
Resolution 35, approved by the House January 28, 2003.
Tabulation of activity on legislation held at the full Committee
Legislation held at the full Committee............................ 77
Legislation failed to be ordered reported to the House............ 1
Legislation reported favorably to the House....................... 25
Legislation reported adversely to the House....................... 2
Legislation discharged from the Committee......................... 8
Legislation pending in the House.................................. 9
Legislation failed passage by the House........................... 2
Legislation passed by the House................................... 25
Legislation pending in the Senate................................. 17
Legislation enacted into public law as part of another measure.... 17
Legislation enacted into public law............................... 8
House concurrent resolutions approved............................. 1
House resolutions approved........................................ 1
Legislation on which hearings were held........................... 5
Days of legislative hearings...................................... 3
Days of oversight hearings........................................ 7
Full Committee Activities
During the 108th Congress the full Committee on the
Judiciary Committee maintained its original jurisdiction with
respect to a number of legislative and oversight matters. This
included exclusive jurisdiction over antitrust and liability
issues, including medical malpractice and product liability,
legal reform generally, and such other matters as determined by
the Chairman.
Legislative Activities
ANTITRUST
The Committee on the Judiciary has jurisdiction over all
laws relating to antitrust. United States antitrust laws are
tailored to ensure the competitive functioning of the
marketplace--i.e. competition in the marketplace and not the
protection of any individual competitor. There are two
principal antitrust laws in the United States--the Sherman Act
and the Clayton Act. Both are enforceable by the Antitrust
Division of the Department of Justice (DOJ), the Federal Trade
Commission (FTC), and private persons. Other federal agencies
have authority to examine competitive aspects of market
transactions within their jurisdiction. During the 108th
Congress, the full Judiciary Committee retained original
jurisdiction over antitrust legislative and oversight matters.
H.R. 1073, To repeal section 801 of the Revenue Act of 1916
Summary.--H.R. 1073 repeals the Antidumping Act of 1916 as
enacted in Section 801 of the Revenue Act of 1916.\2\ The 1916
Act has never formed the basis of a final ruling on the merits
in any federal case. Nonetheless, on September 26, 2000, the
Dispute Settlement Body (DSB) of the World Trade Organization
(WTO) held that the 1916 Act violated United States obligations
under the General Agreement on Tariffs and Trade (GATT), the
Antidumping Agreement, and the WTO
---------------------------------------------------------------------------
\2\ Revenue Act of 1916, ch. 463, Sec. 801, 39 Stat. 756, 798-99
(1916) (codified at 15 U.S.C. Sec. 72 (2004)).
Agreement.
---------------------------------------------------------------------------
Decisions by the WTO are not self-executing. As a result,
on March 4, 2003, Chairman Sensenbrenner and Committee on Ways
and Means Chairman Thomas introduced H.R. 1073 in order to
bring the United States into conformity with the WTO ruling by
repealing the 1916 Act. H.R. 1073 does not affect legal claims
filed after the WTO decision or pending before enactment of the
legislation. In addition, H.R. 1073 does not disturb existing
antidumping remedies contained in U.S. trade law that survived
the WTO ruling. As a result, U.S. industry may continue to
avail itself of the comprehensive and internationally-compliant
antidumping remedies enacted by the United States.
Under the 1916 Act, the importation of an article from a
foreign country into the United States constitutes unlawful
dumping if three elements are met. First, the price in the
United States must be ``substantially less'' than the ``actual
market price or wholesale price of such articles * * * in the
principal markets of the country of their production.'' \3\
Second, the international price discrimination must be ``common
and systematic.'' \4\ Third, the price discrimination must
occur ``with the intent of destroying or injuring an industry
in the United States, or preventing the establishment of an
industry in the United States, or of restraining or
monopolizing any part of trade and commerce in such articles in
the United States.'' \5\ If any person is held to have violated
all three elements, the 1916 Act allows for the implementation
of both criminal and civil penalties, including imprisonment of
up to one year and treble damages.
---------------------------------------------------------------------------
\3\ 15 U.S.C. Sec. 72 (2002).
\4\ Id.
\5\ Id.
---------------------------------------------------------------------------
The significance of the 1916 Act was largely eclipsed by
subsequent antidumping legislation. Five years after passing
the 1916 Act, Congress enacted more comprehensive Antidumping
Act of 1921 which was repealed by the Trade Agreements Act of
1979 which provided a new set of remedies.\6\ These antidumping
remedies remain unaffected by the September 26, 2000 WTO
decision. As a result, U.S. industry may continue to avail
itself of the more comprehensive and internationally- compliant
antidumping remedies contained in the 1979 Act and other United
States trade legislation.
---------------------------------------------------------------------------
\6\ Id.
---------------------------------------------------------------------------
Legislative History.--H.R. 1073 was introduced by Chairman
Sensenbrenner on March 4, 2003. Committee on Ways and Means
Chairman Thomas co-sponsored the legislation. On January 28,
2003, the Judiciary Committee reported H.R. 1073 by voice vote
(H. Rept. No. 108-415). H.R. 1073 was subsequently incorporated
into H.R. 1047, the ``Miscellaneous Trade and Technical
Corrections Act of 2004,'' which was signed into law by the
President on December 3, 2004 and became Public Law No. 108-
429.
Establishment of the Task Force on Antitrust
The Committee on the Judiciary Task Force on Antitrust was
created by a Judiciary Committee Resolution adopted on March
26, 2003. The resolution establishing the Task Force on
Antitrust read as follows: ``The Task Force will conduct
hearings and investigations relating to the Committee's
jurisdiction under clause 1(k)(15) of House Rule X--Protection
of trade and commerce against unlawful restraints and
monopolies--and other related matters as directed by the
Chairman. Its purpose is to facilitate the consideration of
antitrust matters before the Committee.
All House and Committee rules concerning hearing procedures
will apply. Chairman Sensenbrenner and Ranking Member Conyers
are the Chairman and Ranking Member of the Task Force and may
designate a Member of the Committee to preside over its
hearings. All Members of the Judiciary Committee are also
members of the Task Force. This Task Force will be effective
for six (6) months or until September 26, 2003.''
The Task Force on Antitrust conducted a legislative hearing
on H.R. 1086, the ``Standards Development Organization
Advancement Act of 2004'' on April 9, 2003, and an oversight
hearing titled ``The Antitrust Enforcement Agencies: The
Antitrust Division of the Department of Justice and the Bureau
of Competition of the Federal Trade Commission'' on July 24,
2003.
H.R. 1086, the ``Standards Development Organization Advancement Act of
2004''
Summary.--Standard development organizations play a pivotal
role in promoting free market competition. Technical standards
form the basis of product competition by ensuring a common
interface between technically-substitutable products.
``Voluntary consensus standards'' are technical standards
written by hundreds of non-profit standard developing
organizations such as the American Society of Mechanical
Engineers, the American Society for Testing and Materials, and
the National Fire Protection Association. While in most
countries standards are promulgated by government agencies, the
United States has shifted toward a model whereby standard
development organizations (SDOs) develop voluntary consensus
standards for use by industry and various levels of government.
These standards are then codified in industry and government
codes.
While standards are widely viewed to enhance competition,
standard-setting activities might give rise to legitimate
antitrust concerns if anticompetitive conduct such as output
restrictions upon horizontal competition, market divisions,
vertical restraints, or exclusionary conduct occur.\7\ As the
Supreme Court has recognized: ``[An] agreement on a product
standard is, after all, implicitly an agreement not to
manufacture, distribute or purchase certain types of products *
* * Accordingly, private standard-setting organizations have
traditionally been objects of antitrust scrutiny.\8\
---------------------------------------------------------------------------
\7\ Samuel Miller, Antitrust and Standard-Setting, Prac. L. Inst.,
July 21, 2001.
\8\ Allied Tube and Conduit Corp. v. Indian Head, Inc. 486 U.S.
492, 500 (1988).
---------------------------------------------------------------------------
Antitrust challenges to standard-setting activities are
currently evaluated under the ``rule of reason''--a judicially-
created doctrine that seeks to balance the pro-competitive and
anticompetitive market effects of a challenged practice before
determining whether a violation of the antitrust laws has
occurred.\9\ The rationale for the application of this
relatively lenient antitrust standard is that SDOs, as non-
profits that serve a cross-section of an industry, are unlikely
to engage in anticompetitive conduct to create market
dominance. Potential anticompetitive conduct is also mitigated
by the manner in which voluntary consensus standards are
developed and implemented. In order to be utilized by Federal
agencies, the process of developing voluntary standards must
adhere to principles of openness, voluntariness, balance,
cooperation, transparency, consensus, and due process. These
requirements were most recently articulated in OMB Circular A-
119 (February 19, 1998).\10\
---------------------------------------------------------------------------
\9\ See Northwest Wholesale Stationers, Inc. v. Pacific Stationery
and Printing Company, 472 U.S. 284 (1985).
\10\Federal Participation in the Development and Use of Voluntary
Consensus Standards and in Conformity Assessment Activities, 63 Fed.
Reg. 8545 (February 19, 1998); available at http://www.whitehouse.gov/
omb/circulars/a119/a119.html.
---------------------------------------------------------------------------
Notwithstanding these safeguards, treble damages may still
be awarded against SDOs if their conduct is determined to be
anticompetitive under the rule of reason. Until recently,
standard-setting activities were largely directed and managed
by government entities that were completely immune from
antitrust scrutiny. Beginning in the 1990s, Congress concluded
that government could no longer keep pace with rapid
technological and market change, and that government-directed,
standard-setting activity was often cumbersome, duplicative,
and inefficient. To address this concern, Congress passed the
National Technology Transfer and Advancement Act of 1995 \11\
(NTTAA). NTTAA's express goal was to encourage government
agencies to assist in the development of voluntary consensus
standards and to adopt such standards in favor of often
outmoded government standards whenever possible.\12\ While the
NTTAA has been successful by almost every measure, SDOs
continue to be vulnerable to litigation even after its passage.
---------------------------------------------------------------------------
\11\ Pub. L. No. 104-113, 110 Stat. 775 (1995).
\12\ H.R. Rept. No. 104-390 (1995).
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H.R. 1086, the ``National Cooperative Standards Development
Act of 2004,'' amends the National Cooperative Research Act
(NCRA) to extend that Act's limited antitrust protections to
specified activities of standard development organizations
relating to the development of voluntary consensus standards.
These amendments preserve and promote the ability of SDOs to
issue standards by: (1) codifying the ``rule of reason'' for
antitrust scrutiny of their activities; (2) eliminating the
threat of treble damages for specified standards development
activity if SDOs disclose the scope and nature of this activity
to the Department of Justice and Federal Trade Commission; and
(3) providing for the recovery of attorney fees to
substantially prevailing parties.
As enacted, H.R. 1086 also contains important, bipartisan
amendments that deter antitrust violations while strengthening
antitrust enforcement efforts. Title II harmonizes the
treatment of criminal antitrust offenders and white collar
criminals by increasing maximum prison terms for criminal
antitrust violations from three to ten years while increasing
maximum individual fines for antitrust violations from $350,000
to $1 million. These enhancements serve to deter
anticompetitive misconduct.
Title II also increases maximum corporate fines for
antitrust violations from $10 million to $100 million. This
considerable increase sends a clear signal to corporate
officers and board rooms that a decision to violate the
antitrust laws can rarely if ever be considered a profitable
one. Title II of the legislation also contains important
modifications to the antitrust leniency program utilized by the
Department of Justice to facilitate the detection and
prosecution of antitrust violations. Under existing law,
parties that cooperate with federal antitrust authorities to
uncover antitrust violations may not be subject to government
prosecution, but remain liable for civil claims brought by
private parties. H.R. 1086 creates an additional incentive for
corporations to disclose antitrust violations by limiting their
antitrust liability in related civil claims to actual damages.
Furthermore, while a cooperating party would be liable only for
damages attributable to that party's conduct, non-cooperating
conspirators will remain jointly and severally liable for
actual and treble damages for their misconduct. As a result,
the full scope of antitrust remedies against non-participating
parties will remain available to the government and private
antitrust plaintiffs.
Finally, H.R. 1086 clarifies the Tunney Act. The Tunney Act
gives federal district courts some authority to review the
merits of civil antitrust settlements with the United States
before entering final consent decrees. Specifically, district
courts in which the antitrust suit was brought must assess
whether these decrees are ``in the public interest.'' H.R. 1086
provides legislative guidance to district courts by listing
specific factors to be considered during this analysis. In
addition, this legislation facilitates the transmission of
comments received during Tunney Act proceedings by allowing
federal judges to order their publication by electronic or
other means.
On Wednesday, April 9, 2003, the Committee's Task Force on
Antitrust held a legislative hearing on H.R. 1086. The
following witnesses testified: the Honorable James M. Shannon,
President, National Fire Protection Association; David Karmol,
Vice President, Public Affairs, American National Standards
Institute; Earl Everett, Director, Department of Labor,
Division of Safety Engineering, State of Georgia.
Legislative History.--H.R. 1086 was introduced by Chairman
Sensenbrenner on March 5, 2003. Original cosponsors included:
Ranking Member Conyers, Science Committee Chairman Boehlert,
and Science Committee Ranking Member Hall. On May 22, 2003,
H.R. 1086 was reported from the Committee on the Judiciary by
voice vote (H.R. Rept. No.108-125). On June 4, 2003, the
Judiciary Committee filed a supplemental report (H.R. Rept.
No.108-125 Part II). On June 10, 2003, the House passed, as
amended, H.R. 1086 by voice vote. On November 6, 2003, the
Senate Judiciary Committee reported H.R. 1086 with an amendment
in the nature of a substitute (without report). On April 2,
2004, the Senate passed H.R. 1086 as amended by unanimous
consent. H.R. 1086 was signed by the President on June 22,
2004, and became Public Law No. 108-237.
OVERSIGHT HEARING ACTIVITY BY THE TASK FORCE ON ANTITRUST
Antitrust Enforcement Agencies: The Antitrust Division of the
Department of Justice and Bureau of Competition of the Federal
Trade Commission, July 24, 2003 (Serial No. 55)
On Thursday, July 24, 2003, the Committee's Task Force on
Antitrust held an oversight hearing titled ``The Antitrust
Enforcement Agencies: The Antitrust Division of the Department
of Justice and the Bureau of Competition of the Federal Trade
Commission.'' The hearing focused on antitrust enforcement
activities, priorities, and recent developments at both
agencies. The following witnesses testified: the Honorable R.
Hewitt Pate, Assistant Attorney General, Antitrust Division;
and the Honorable Timothy J. Muris, Chairman, Federal Trade
Commission.
Federal antitrust enforcement agencies
The antitrust laws are enforced by both the FTC's Bureau of
Competition and the Antitrust Division of the Department of
Justice. In order to prevent duplication of effort, the two
agencies seek to coordinate their activities before opening any
case.
Antitrust Division--Department of Justice
Although the Department of Justice was the primary
antitrust enforcement agency following passage of the Sherman
Act, the Antitrust Division was not formally established until
1933. The DOJ Antitrust Division prosecutes serious and willful
violations of the antitrust laws by filing criminal suits that
can lead to large fines and jail sentences. When criminal
prosecution is not appropriate, the Division institutes a civil
action seeking a court order forbidding future violations of
the law and requiring steps to remedy the anticompetitive
effects of past violations. The Division provides guidance to
the business community, much of it jointly with the Federal
Trade Commission. This guidance takes the form of new and
subsequently revised and expanded joint statements of policy
that relate to the health care industry, guidelines for the
licensing of intellectual property, and guidelines on
international operations, and other matters.
Last year, the Antitrust Division had an annual budget of
$133.13 million, and over 700 full time employees. For Fiscal
Year 2004, the President has requested $141,898,000 for the
Division. In Fiscal Year 2002, the Division conducted 107
Sherman Act investigations, 129 Clayton Act merger
investigations, received nearly 1,200 Hart-Scott-Rodino
premerger notifications, initiated 178 criminal, civil, non-
merger, and merger inquiries, issued 573 civil investigation
demands (CIDs), and filed 7 civil and 33 criminal antitrust
cases.
Federal Trade Commission
Established in 1914, the Federal Trade Commission (FTC)
enforces a variety of federal antitrust and consumer protection
laws. The Commission seeks to ensure that the nation's markets
function competitively and free of undue restrictions. The
Commission also works to enhance the smooth operation of the
marketplace by attempting to eliminate acts or practices that
are unfair or deceptive. In general, the Commission's efforts
are directed toward stopping actions that threaten consumers'
opportunities to exercise informed choice. The FTC's antitrust
arm, the Bureau of Competition, seeks to prevent business
practices that restrain competition.
The Bureau carries out this mission by investigating
alleged law violations and, when appropriate, recommending
formal enforcement action. If the Commission does decide to
take action, the Bureau will help to implement that decision
through litigation in federal court or before administrative
law judges. The Bureau also serves as a research and policy
resource on competition issues. Unlike the DOJ Antitrust
Division, the FTC has no power to convene grand juries or
initiate criminal investigations, but it can and does refer
possible criminal violations to the Antitrust Division.
The Bureau of Competition seeks to prevent anticompetitive
mergers and other anticompetitive business practices in the
marketplace. The Bureau reviews proposed mergers and other
business practices for possible anticompetitive effects, and,
when appropriate, recommends formal law enforcement action. The
Bureau also serves as a research and policy resource on
competition topics and provides guidance to business on
complying with the antitrust laws. Over the last several years,
the FTC has focused on segments of the economy that have the
greatest impact on behalf of consumers, such as: prescription
drugs and health care, energy, food, and utilities.
The Commission's merger enforcement activity focuses
primarily on mergers between direct competitors (``horizontal''
mergers), because these are most likely to harm consumers. The
Commission also examines mergers involving firms at different
levels of the same industry (``vertical'' mergers) and those
involving firms that exert a procompetitive influence because
of the possibility of their entering a market (``potential
competition'' mergers). The Bureau also investigates antitrust
complaints that do not involve mergers. These arrangements
involve direct competitors (``horizontal'' restraints, e.g.
price fixing, non-competition arrangements), as well as
suppliers and customers (``vertical'' arrangements, e.g. tie-
ins), and attempts at monopolization.
The FTC also organizes public workshops to examine emerging
issues, such as competition and pricing on the Internet, the
pricing of gasoline and other refined petroleum products,
intellectual property and antitrust, health care and antitrust,
and other current issues. For example, the FTC issued a
comprehensive generic drug report in 2002, \13\ and conducted a
series of 24 public meetings with the Antitrust Division
concerning examining antitrust implications of intellectual
property law.\14\
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\13\ See Generic Drug Entry Prior to Patent Expiration, an FTC
Study, July, 2002, available at http://www.ftc.gov/os/2002/07/
genericdrugstudy.pdf.
\14\ See Competition and Intellectual Property Law and Policy in
the Knowledge-Based Economy, available at http://www.ftc.gov/opp/
intellect/.
---------------------------------------------------------------------------
The FTC's Bureau of Competition employs over 500 employees.
The President has requested $81,433,000 for FY 2004, a $3
million increase over last year's request. Last year, the
Commission received $173,000,000 in HSR filing fees. In Fiscal
Year 2002, the FTC opened 59 nonmerger investigations. In
Fiscal Year 2001, more than 4,900 merger notifications were
filed during the year, the largest number ever. This continued
a ten-year trend in which the number of filings more than
tripled since 1991. The total value of reported transactions in
FY 2000 exceeded $3 trillion--more than a tenfold increase over
the past decade.
Over the last several years, the agency successfully
challenged the proposed acquisition of the loose leaf chewing
tobacco business of National Tobacco Company, L.P., by Swedish
Match North America Inc. This acquisition would have combined
the nation's largest and third-largest makers and sellers of
loose leaf chewing tobacco, giving Swedish Match approximately
60 percent of sales and creating a market in which two firms
would control 90 percent of sales. The parties dropped the
transaction after the district court issued a preliminary
injunction. The FTC also challenged Heinz's proposed
acquisition of Beech-Nut, a merger of the second and third
largest manufacturers of baby food, and the proposed
acquisition of Winn Dixie supermarkets by Kroger Foods.
Antitrust issues raised at the hearing
Telecommunications and the triennial review
On February 2, 2003, the Federal Communications Commission
(FCC) adopted new rules for telecommunications network
unbundling obligations for incumbent local phone carriers.
Among other things, the FCC established a new impairment
standard to help determine when competitive local exchange
carriers (CLECs) are deprived access to an incumbent local
exchange carrier (ILEC) platform and market-specific
variations, including considerations of customer class,
geography, and service. The Commission eliminated earlier
obligations which permitted broadband line sharing via fiber
loops. While the FCC's Triennial Review proceedings radically
changed the competitive landscape of the telecommunications
market, the Antitrust Division and FTC did not submit formal
antitrust analyses to the FCC during its proceedings.
Section 271
Section 271 of the Telecommunications Act of 1996 requires
the Antitrust Division to review competitive conditions in
regional telephone markets before granting authority to
Regional Bell Operating Companies (RBOCs) to compete in the
long distance telephone market. These market- opening
provisions have served to advance competition and are designed
to ensure that RBOCs do not abuse their former monopoly status
in an anticompetitive manner.
Biennial Review (Media Ownership)
On June 2, 2003, the FCC voted to substantially relax media
ownership rules pursuant to its Biennial Review authority under
the Telecommunications Act of 1996. These new rules represent
the most comprehensive reform of media ownership limitations in
the last several decades. The proposed media ownership rules
would raise the present 35 percent national audience cap to
allow the nation's four national television networks and other
station owners to buy enough television stations to reach 45
percent of the national audience. These rules also permit
greater cross-ownership of television stations and newspaper
outlets, but preserve existing limitations on consolidation of
existing networks. Notwithstanding the antitrust implications
of media ownership proceedings, the Telecommunications Act
contains no formal statutory role for the Antitrust Division to
examine the competitive aspects of Biennial Review proceedings.
Liability
H.R. 5--the ``Help Efficient, Accessible, Low-Cost, Timely Healthcare
(HEALTH) Act of 2003''
Summary.--Medical professional liability insurance rates
have soared, causing major insurers to either drop coverage or
raise premiums to unaffordable levels. Doctors and other health
care providers are being forced to abandon patients and
practices, particularly in high-risk specialties such as
emergency medicine, brain surgery, and obstetrics and
gynecology. H.R. 5 is modeled after California's quarter-
century old health care litigation reforms. The reforms of
California's Medical Injury Compensation Reform Act
(``MICRA''), which are included in the HEALTH Act, include a
$250,000 cap on noneconomic damages; limits on the contingency
fees lawyers can charge; and authorization for defendants to
introduce evidence showing the plaintiff received compensation
for losses from outside sources (to prevent double recoveries).
The HEALTH Act also includes provisions creating a ``fair
share'' rule, by which damages are allocated fairly, in direct
proportion to fault; reasonable guidelines--but not caps--on
the award of punitive damages; and a safe harbor from punitive
damages for products that meet applicable FDA safety
requirements.
Legislative History.--H.R. 5, the ``Help Efficient,
Accessible, Low-cost Healthcare (HEALTH) Act of 2003,'' was
introduced by Rep. James C. Greenwood on February 5, 2003. On
March 4, 2003, the Committee held a hearing on H.R. 5 at which
testimony was received from the following witnesses: Sherry
Keller, Conyers, Georgia; Leanne Dyess, Member, Coalition for
Affordable and Reliable Health Care; Donald J. Palmisano, MD,
JD, President-elect, American Medical Association; and Lawrence
E. Smarr, President, Physician Insurers Association of America.
On March 5, 2003, the Committee met in open session and ordered
favorably reported the bill H.R. 5 with an amendment by a
recorded vote of 15 to 13, a quorum being present. (H. Rept.
No. 108-32, Part I). On March 13, 2003, H.R. 5 passed the House
by a vote of 229 to 196, and 1 voting present. No further
action was taken on the bill.
H.R. 1036--the ``Protection of Lawful Commerce in Arms Act of 2003''
Summary.--H.R. 1036, the ``Protection of Lawful Commerce in
Arms Act,'' provides protections for those in the firearms
industry from lawsuits arising out of the criminal or unlawful
acts of people who criminally or unlawfully misuse their
products. In the last several years, lawsuits have been filed
against the firearms industry on theories of liability that
would hold them liable for the actions of others who use their
products in a criminal or unlawful manner.
H.R. 1036 provides that a ``qualified civil liability
action'' cannot be brought in any State or Federal court.
``Qualified civil liability action'' is defined as a civil
action brought by any person against a manufacturer or seller
of firearms or ammunition for damages or injunctive relief
resulting from the criminal or unlawful misuse of such
products. However, a ``qualified civil liability act'' does not
include: an action against a person who transfers a firearm or
ammunition knowing that it will be used to commit a crime of
violence or a drug trafficking crime, or a comparable or
identical State felony law; an action brought against a seller
for negligent entrustment or negligence per se; actions in
which a manufacturer or seller of a qualified product violates
a State or Federal statute applicable to sales or marketing
when such violation was a proximate cause of the harm for which
relief is sought; actions for breach of contract or warranty in
connection with the purchase of a firearm or ammunition; and
actions for damages resulting directly from a defect in design
or manufacture of a firearm or ammunition.
Legislative History.--H.R. 1036, the ``Protection of Lawful
Commerce in Arms Act of 2003,'' was introduced by Rep. Cliff
Stearns on February 27, 2003. On April 2, 2003, the
Subcommittee on Commercial and Administrative Law held a
hearing on H.R. 1036 at which testimony was received from the
following witnesses: Carlton Chen, General Counsel, Colt
Manufacturing Company, Inc.; Walter Olson, Senior Fellow, the
Manhattan Institute; David Lemongello, Nutley, New Jersey; and
Lawrence G. Keane, Vice President and General Counsel of the
National Shooting Sport Foundation. On April 3, 2003, the
Committee met in open session and ordered favorably reported
the bill H.R. 1036 with amendment by a recorded vote of 21 to
11, a quorum being present. (H. Rept. No. 108-59). On April 9,
2003, H.R. 1036 passed the House by a vote of 285 to 140. No
further action was taken on the bill.
H.R. 1084, the ``Volunteer Pilot Organization Protection Act''
Summary.--H.R. 1084 amends the Volunteer Protection Act of
1997 to include volunteer pilots and volunteer pilot
organizations within the scope of its protections. Under
present law, nonprofit volunteer pilot organizations and their
pilots that provide life-saving medical flights without
compensation, and institutions that refer patients to volunteer
pilot organizations are presently subject to legal jeopardy.
H.R. 1084 amends Sec. 4 of the VPA to ensure that volunteer
pilot organizations and their employees, officers, and
volunteer pilots acting within the scope of the mission of such
organizations are explicitly covered by the VPA.
Legislative History.--H.R. 1084 was introduced by Rep. Ed
Schrock, Rep. Randy Forbes, and four other co-sponsors on March
5, 2003 and referred to the Committee on the Judiciary. The
fullCommittee on the Judiciary held one day of hearings on H.R.
1084 and two related bills, on July 20, 2004. On September 8, 2004, the
full Committee on the Judiciary met in open session and ordered
favorably reported the bill H.R. 1084, with an amendment, by a voice
vote. The Committee's report on H.R. 1084 was filed on September 13,
2004 as H. Rept. No. 108-679 and the bill was placed on the Union
Calendar. On September 14, 2004, Chairman Sensenbrenner moved that the
House consider and pass H.R. 1084, as amended, under suspension of the
rules. H.R. 1084 then passed the House under suspension of the rules on
a roll call vote of 385-12. The bill was received in the Senate and
placed on the legislative calendar, but H.R. 1084 had no further
consideration by the Senate before the end of the 108th Congress.
H.R. 1787, the ``Good Samaritan Volunteer Firefighter Assistance Act of
2004''
Summary.--H.R 1787 exempts a person who donates fire
control or fire rescue equipment to a volunteer fire company
(defined as at least 30% of members receiving little or no
compensation) from liability for civil damages for injuries,
damages, or losses proximately caused by the donated equipment.
The bill creates two exceptions from the general protection if
the donor is either the manufacturer of the equipment or
engages in gross negligence or intentional misconduct.
Legislative History.--H.R. 1787 was introduced by Rep. Mike
Castle, and 25 other co-sponsors on April 11, 2003 and referred
to the Committee on the Judiciary. The full Committee on the
Judiciary held one day of hearings on H.R. 1787 and two related
bills, on July 20, 2004. On September 8, 2004, the full
Committee on the Judiciary met in open session and ordered
favorably reported the bill H.R. 1787, with an amendment, by a
voice vote. The Committee's report on H.R. 1787 as amended was
filed on September 13, 2004 as H. Rept. No. 108-680 and the
bill was placed on the Union Calendar. On September 14, 2004,
Chairman Sensenbrenner moved that the House consider and pass
H.R. 1787, as amended, under suspension of the rules. H.R. 1787
then passed the House under suspension of the rules on a roll
call vote of 397-3. The bill was received in the Senate and
placed on the legislative calendar, but H.R. 1787 enjoyed no
further consideration by the Senate before the end of the 108th
Congress. The text of H.R. 1787 was also later added as a floor
amendment to H.R. 10, the ``9/11 Recommendations Implementation
Act'' by Rep. Castle. This provision was not included in the
final House-Senate conferenced version of intelligence reform
legislation, S. 2845.
H.R. 3369, the ``Non-profit Athletic Organization Protection Act''
Summary.--H.R. 3369 Exemps non-profit athletic
organizations and their officers and employees acting in their
official capacity from liability for harm caused by an act or
omission of such organization in the adoption of rules for
sanctioned or approved athletic competitions or practices. The
general protection preempts inconsistent State laws but makes
exceptions for certain State laws requiring adherence to risk
management and training procedures, State general respondeat
superior laws, or State laws waiving liability limits in cases
brought by an officer of the State or local government. The
language mirrors provisions of the ``Volunteer Protection Act''
(``VPA'').\15\
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\15\ 42 U.S.C. Sec. 14501 et. seq. (2003)
---------------------------------------------------------------------------
Legislative History.--H.R. 3369 was introduced by Rep. Mark
Souder, and 4 other co-sponsors on October 21, 2003 and
referred to the Committee on the Judiciary. The full Committee
on the Judiciary held one day of hearings on H.R. 3369 and two
related bills, on July 20, 2004. On September 8, 2004, the full
Committee on the Judiciary met in open session and ordered
favorably reported the bill H.R. 3369 without amendment, by a
roll call vote of 14 to 7. The Committee's report on H.R. 3369
was filed on September 13, 2004 as H. Rept. No. 108-681 and the
bill was placed on the Union Calendar. On September 14, 2004
Chairman Sensenbrenner moved that the House consider and pass
H.R. 3369, as amended, under suspension of the rules. On the
subsequent roll call vote H.R. 3369 received a majority of
votes but failed to garner the necessary 2/3 vote required
under a motion to suspend the rules by a roll call vote of 217-
176. The House took no further action on H.R. 3369 and the
Senate failed to act on any companion legislation during the
108th Congress.
H.R. 4280, the ``Help Efficient, Accessible, Low-cost, Timely
Healthcare (HEALTH) Act of 2004''
Summary.--H.R. 4280 is almost identical to H.R. 5. See H.R.
5 for further details.
Legislative History.--On May 5, 2004, H.R. 4280 was
introduced by Rep. James C. Greenwood. On May 5, 2004, H.R.
4280 was referred to the Committee but no action was taken
there. On May 12, 2004, H.R. 4280 passed the House by a vote of
229 to 197.
Matters Held at Full Committee
H. Res. 287, Directing the Attorney General to transmit records related
to the use of Federal agency resources in tasks relating to
Members of the Texas Legislature.
Summary.--Congressman Gene Green introduced H. Res. 287 on
June 19, 2003. This resolution directed the Attorney General to
transmit to the House of Representatives within 30 days after
the adoption of this resolution all physical and electronic
records and documents in his possession related to any use of
agency resources, the theft of any records, and the use of U.S.
congressional staff in any task or action involving or relating
to Members of the Texas Legislature between May 11, 2003 and
May 16, 2003, with the exception of any information that, upon
disclosure, would harm U.S. national security interests.
Legislative History.--On June 19, 2003, H. Res. 287 was
referred to the House Judiciary Committee. The Committee held a
markup on July 9, 2003 and ordered the resolution reported
adversely as amended by a vote of 19 yeas to 15 nays. (H. Rept.
No. 108-215)
H. Res. 499, Requesting the President and directing the Secretary of
State to transmit records relating to disclosures regarding
Valerie Plame
Summary.--Congressman Rush D. Holt introduced H. Res. 499
on January 21, 2004. This resolution requested the President
and directed the Secretary of State, the Secretary of Defense,
and the Attorney General to transmit to the House of
Representatives no later than 14 days after the date of the
adoption of this resolution documents in the possession of the
President and those officials relating to the disclosure of the
identity and employment of Ms. Valerie Plame.
Legislative History.--H. Res. 499 was referred to the House
Judiciary Committee on January 21,2004. On February 25, 2004,
the Judiciary Committee held a markup and ordered the bill reported
adversely by a vote of 17 yeas to 8 nays (H. Rept. No. 108-413). H. Res
499 was also referred to the committees on Intelligence, International
Relations, and Armed Services. Each committee filed a report in
conjunction with the resolution.
H. Res. 662, Recognizing that Flag Day originated in Ozaukee County,
Wisconsin
Summary.--H. Res. 662 declares that the House of
Representatives: (1) urges the people of the United States to
study, reflect on, and celebrate the importance of the flag of
the United States; (2) encourages them to display the U.S.
flag; and (3) recognizes that Flag Day originated in Ozaukee
County, Wisconsin.
Legislative History.--H. Res. 662 was introduced on June 3,
2204 by Representative F. James Sensenbrenner, Jr. and had 4
cosponsors. On June 14, 2004 the resolution was passed under
the suspension of the rules by voice vote.
H. Res. 700, Directing the Attorney General to transmit to the House of
Representatives documents in the possession of the Attorney
General relating to prisoners, and detainees in Iraq,
Afghanistan, and Guatanamo Bay
Summary.--Congressman John Conyers, Jr. introduced H. Res.
700 on June 25, 2004. This resolution directed the Attorney
General to transmit to the House of Representatives, not later
than 14 days after the date of adoption of this resolution, all
physical and electronic records and documents in his possession
relating to the treatment of prisoners and detainees in Iraq,
Afghanistan, and Guantanamo Bay.
Legislative History.--H. Res. 700 was referred to the House
Judiciary Committee on June 25, 2004. On July 21, 2004, the
Judiciary Committee held a markup and ordered H. Res. 700
reported adversely, as amended, by a vote of 15-12. (H. Rept.
108-658).
H.R.10/S. 2845, the ``9/11 Commission Implementation Act of 2004''
Summary.--House Speaker J. Dennis Hastert introduced H.R.
10 on September 24, 2004. The terrorist attacks of September
11, 2001 took the lives of more than 3,000 Americans and
represented the most catastrophic terrorist attack on the
United States in its history. The terrorists exploited
deficiencies in America's law enforcement, immigration, and
intelligence agencies, which limited the dissemination of
information that might have protected the nation against the
attack. In the wake of the attacks, the Committee has conducted
39 hearings and markups to examine proposals to remedy
legislative, procedural, and structural vulnerabilities to
terrorism in our nation's immigration system. The Committee has
also conducted 46 hearings and markups to strengthen federal
law enforcement and antiterrorism efforts, and it has taken
firm steps to ensure that security efforts do not transgress
cherished civil liberties. Furthermore, the Committee has
conducted rigorous oversight of antiterrorism reform efforts at
the Departments of Justice and Homeland Security, and enacted
antiterrorism legislation including the USA PATRIOT Act and the
Homeland Security Act.
On November 27, 2002, President Bush signed legislation
creating the National Commission on Terrorist Attacks Upon the
United States (``9/11 Commission'' or ``Commission''). The
Commission's principal responsibility was to examine and report
on the facts and causes relating to the terrorist attacks of
September 11, 2001, and to suggest measures to better secure
the nation. On July 22, 2004, the Commission delivered its
unanimous recommendations to Congress. During August and
September, 2004, a variety of congressional committees held
hearings on the recommendations. On September 29, 2004, Speaker
Hastert introduced H.R. 10, the ``9/11 Recommendations
Implementation Act.'' The legislation consisted of five titles
entitled: Reform of the Intelligence Community; Terrorism
Prevention and Prosecution; Border Security and Terrorist
Travel; International Cooperation and Coordination; and
Government Restructuring. Several provisions within the
legislation fall within the jurisdiction of the Committee on
the Judiciary. The Subcommittee on Crime, Terrorism, and
Homeland Security dealt primarily with the law enforcement
provisions contained in Title II of H.R. 10. (This became Title
VI in the conference report of S. 2845). H.R. 10 contained
provisions that would have enhanced penalties for terrorism
hoaxes, increased penalties for supporting, financing, or
cooperating with terrorist organizations, and expanded the
scope of laws that prohibit the shipment or use of weapons of
mass destruction. Additional sections would have provided
additional funding to combat terrorist financing and would have
enhanced the use of biometric technology to reduce terrorist
threats against air travel. At the Committee's markup of H.R.
10, amendments were adopted requiring that threat be the
primary determining factor in distributing homeland security
grants (Rep. Weiner), reauthorizing COPS and allowing COPS
funds to be used to hire ``terrorism cops'' (Rep. Weiner), and
authorizing funding for non-profits threatened by terrorism
(Rep. Nadler and Rep. Weiner).)
During the conference on H.R. 10 and the Senate companion
bill, S. 2845, certain law enforcement and immigration
provisions were removed. The final conference report contains,
among other things, the following sections that were considered
by the Subcommittee: the improvement of the FBI's intelligence
capabilities; individual terrorists as agents of foreign
powers; money laundering and terrorist financing; criminal
history background checks; grand jury information sharing;
providing material support to terrorism; the ``Stop Terrorist
and Military Hoaxes Act of 2004;'' the ``Weapons of Mass
Destruction Prohibition Improvement Act of 2004;'' the
``Prevention of Terrorist Access to Destructive Weapons Act of
2004;'' and the pretrial detention of terrorists.
H.R. 10 also included nationally applicable ``mutual aid
provisions'' that would enable party states to enter into
mutual aid agreements to allow their first responders to carry
with them into other states the liability regime of their home
states. Other provisions in H.R. 10 allow states nationwide to
enter into ``litigation management agreements'' in which they
could agree that, in the event first responders from several
states respond to a terrorist attack in another state, they
could decide on the liability regime that would apply in that
circumstance to claims brought against their first responders,
including putting any such claims in federal court, a ban on
punitive damages, and a collateral source offset rule.
Summary of immigration provisions of bill as passed the house.
H.R. 10 as passed by the House contained the following
immigration provisions:
1. Section 3001. Verification of Returning Citizens.
Regulations implementing the Immigration and Nationality Act
allow U.S. citizens to reenter the United States from countries
in the Western Hemisphere (other than Cuba) without passports.
The bill would have required that by October 2006 all U.S.
citizens returning from the Western Hemisphere other than
Canada and Mexico must present U.S. passports. In the interim,
U.S. citizens would have to present a document designated by
the Secretary of Homeland Security. For U.S. citizens returning
from Canada and Mexico, the Secretary of Homeland Security
would have to designate documents that are sufficiently secure.
2. Section 3002. Documents Required by Aliens from
Contiguous Countries. Foreign visitors usually need passports
or U.S. visas or border crossing cards to enter the United
States. However, the Immigration and Nationality Act allows the
Administration to waive this requirement for nationals of
contiguous countries--which it has done for Canadians.
Therefore, U.S. inspectors at northern ports-of-entry can allow
persons identifying themselves as Canadians to enter the U.S.
without having to show any documents whatsoever. The bill would
require that by the beginning of 2007, aliens claiming to be
Canadian who seek to enter the U.S. must present a passport or
other secure identification.
3. Section 3003. Strengthening the Border Patrol. The bill
would have authorized an increase in the Border Patrol of 2,000
agents a year for each of the next five years.
4. Section 3004. Increase in Immigration Enforcement
Investigators. The Bureau of Immigration and Customs
Enforcement only has about 2,000 investigators nationwide. The
bill would increase the number of ICE investigators enforcing
our immigration laws by 800 a year for each of the next five
years. One half of the new investigators would have been
dedicated to enforcing employer sanctions and removing illegal
aliens from the workplace.
5. Section 3005. Increase in Detention Bed Space. The bill
would have increased detention bed space for immigration
detention and removal operations by not less than 2,500 beds in
2006 and 2007.
6. Section 3006. Prevention of Improper Use of Foreign
Identification Documents. The bill would have barred all
federal employees from accepting identification cards presented
by aliens other than a document issued by the Attorney General
or the Secretary of Homeland Security under the authority of
the immigration laws, a domestically-issued document that the
Secretary of Homeland Security designates as reliable and that
cannot be issued to an alien unlawfully present in the U.S., or
an unexpired foreign passport.
7. Section 3007. Expedited Removal for Illegal Aliens.
Under expedited removal, a DHS officer at a port-of-entry can
immediately return an alien lacking proper documents to his or
her country of origin unless the alien asks for asylum and can
establish a ``credible fear'' of persecution. The
Administration has the authority to utilize expedited removal
in the case of any alien who had entered the U.S. illegally and
had not been present here for two years. Until recently, the
INS and DHS never made use of this power.
The bill would have required DHS to utilize expedited
removal in the case of all aliens who have entered the U.S.
illegally and have not been present here for five years.
8. Section 3008. Limit Asylum Abuse by Terrorists. The bill
would have overturned certain precedents of the Ninth Circuit.
The bill would have provided a nonexhaustive list of factors
that an immigration judge could consider in assessing
credibility, such as the demeanor, candor, or responsiveness of
the applicant or witness, the consistency between the
applicant's or witness's written and oral statements, the
internal consistency of each such statement, and any
inaccuracies or falsehoods in such statements. Also, aliens who
allege they would be persecuted because of terrorist ties would
no longer have been presumed to fear persecution on account of
political opinion. Rather, such applicants would have had to
establish that race, religion, nationality, membership in a
particular social group, or political opinion was or will be a
central reason for their claimed persecution. Finally, the bill
would have reasserted that the burden of proof in an asylum
case is on the applicant and that the testimony of the
applicant may be sufficient to sustain such burden without
corroboration, but only if it is credible, is persuasive, and
refers to specific facts that demonstrate that the applicant is
a refugee.
Where it is reasonable that an applicant would present
corroborating evidence (without having to leave the U.S.), such
evidence would have had to be provided unless a reasonable
explanation is given as to why such information is not
provided.
9. Section 3009. Revocation of Visas. The State Department
may revoke visas after they have been issued. Revocation is
problematic, however, when the alien has entered the U.S. by
the time the visa has been revoked because there is no
provision that allows DHS to remove an alien whose visa has
been revoked. This policy is a particular problem in terrorism
cases because information linking an alien to terrorism is
often classified, and classified information cannot be used to
prove deportability. The bill would have allowed the government
to deport a nonimmigrant alien whose visa has been revoked. The
section will prevent an alien whose visa has been revoked to
challenge the underlying revocation in court, where the
government might again be placed in a position of either
exposing its sources or permitting a potentially dangerous
alien to remain in the United States.
10. Section 3010. Streamlined Removal Process. For criminal
aliens and aliens who are not permanent residents, review of
immigration orders would have been in the circuit court and the
scope of review would have been limited to: (1) whether the
individual was an alien; (2) whether he was deportable under
the INA; (3) whether he was ordered removed under the INA; and
(4) whether he met the criteria for withholding of removal or
Torture Convention protection.
11. Sections 3031-32. Detention of Terrorists and Criminal
Aliens. The Convention Against Torture prohibits the return of
an alien to a country where there are substantial grounds for
believing that he would be in danger of being tortured. The
bill would have provided that aliens who were barred from
receiving asylum and who were ordered removed could be detained
pending removal, in the Secretary of Homeland Security's
nonreviewable discretion. In making this determination, the
Secretary should have considered the length of sentence and
severity of the offense, the loss and injury to the victim and
the future risk the alien poses to the community. To the extent
that a federal judge found this provision unconstitutional and
ordered the release of any such detained alien, the Secretary
of State was required to seek assurances from the home
government that the alien will not be tortured upon
deportation.
12. Section 3033. Removal of Aliens. The bill would have
allowed DHS to remove an alien to a country of which the alien
was a citizen or national unless the country prevented the
alien from entering.
13. Sections 3034-35. Inadmissibility and Deportability of
Aliens Due to Terrorist-Related Activities. Not all terrorism-
related grounds of inadmissibility are also grounds of
deportability. This means that some terrorists and their
supporters can be kept out of the United States, but as soon as
they set foot in the U.S. on tourist visas, we cannot deport
them for the very same offenses. The bill would have made
aliens deportable for these offenses to the same extent that
they would be inadmissible to the United States. Under current
law, if an alien provides funding or other material support to
a terrorist organization that has not yet been designated by
the Secretary of State, the alien can escape deportation if he
can show that he did not know that the funds or support would
further the organization's terrorist activity, i.e., his
donation did not immediately go to buying explosives. The bill
would have stated that an alien who provided funds or other
material support to a terrorist organization would be
deportable unless he did not know, and should not reasonably
have known, that the organization was a terrorist organization.
14. Section 3041. Bringing in and Harboring Certain Aliens.
The bill would have increased criminal penalties for alien
smuggling.
15. Section 3082. Expanded Pre-Inspection at Foreign
Airports. Currently, DHS inspects passengers who are traveling
to the U.S. at 14 foreign airports. The bill would have
expanded this program to include up to an additional 25
airports. Section 3082 stated that the selection criteria for
airports should also have included the objective of preventing
the entry of potential terrorists.
16. Section 3083. Immigration Security Initiative. The
Immigration Security Initiative is a DHS-operated program that
assists airline personnel at foreign airports in identifying
fraudulent travel documents. The program's objective is to
identify passengers, including potential terrorists, who seek
to enter the U.S. using fraudulent documents, prior to these
passengers being allowed to board flights for the United
States. Currently, the program is in place in only two foreign
airports. This section would have expanded the program to at
least 50 foreign airports.
17. Section 3084. Responsibilities and Functions of
Consular Officers. The bill would have improved the operation
of U.S. consular offices in preventing the entry of terrorists.
First, it would have increased the number of consular officers
by 150 per year for fiscal years 2006 to 2009. Second, it would
have placed limitations on the use of foreign nationals to
screen nonimmigrant visa applicants. Third, it would have
required that the training program for consular officers
include training in detecting fraudulent documents. Lastly,
this section would have required the Secretary of State to
place antifraud specialists in the one hundred posts that have
the greatest frequency of presentation of fraudulent documents.
18. Section 3090. Biometric Entry and Exit Data System.
This section called on the Secretary of Homeland Security to
develop a plan to accelerate the full implementation of the
requirement of an automated entry and exit data system at U.S.
ports of entry. The section also called for the Secretary of
DHS to implement a plan to expedite the processing of
registered travelers at ports of entry.
19. Sections 3121-26. Treatment of Aliens Who Commit Acts
of Torture, Extrajudicial Killings, or Other Atrocities Abroad.
The bill would have made aliens who have participated in
genocide or who have committed torture or extrajudicial
killings inadmissible and deportable.
20. Section 3131. Security Barriers. In 1996, Congress
required the building of a 14 mile border fence in San Diego.
The bill would have required DHS to waive certain federal laws,
including environmental and Native American sovereignty laws,
necessary to ensure construction of the fence.
21. Section 4051. Designation of Foreign Terrorist
Organizations. The Secretary of State is authorized in
consultation with the Treasury Secretary and the Attorney
General to designate an entity as a ``foreign terrorist
organization''. Designations last for two years, and may be
renewed by the Secretary. An organization placed on the FTO
list is subject to financial and immigration sanctions,
including the blocking of assets, the prosecution of supporters
who provide funds, refusal of visas, and deportation of
members. An FTO may seek judicial review of the designation.
Designations require a detailed administrative record, often
based on classified information. Each redesignation requires
interagency review and preparation of a voluminous
administrative record that can take months. Further, certain
FTOs reconstitute themselves and change their names often, and
that current law requires a burdensome redesignation to reflect
these changes. It would have permitted a designation to remain
in effect until revoked by Congress or the Secretary, or set
aside by the D.C. Circuit. It would have provided a specified
procedure by which groups could petition the Secretary for
review every two years, as well as with a simplified procedural
requirement by which the Secretary would review each group
every five years.
Summary of immigration provisions of bill as enacted in the conference
report (H. Conf. Rept. 108-796)
The following immigration provisions were included in the
final conference report that became law:
1. Sections 5101-05. Advanced Technology Northern Border
Security Pilot Program. The Secretary of Homeland Security may
carry out a pilot program to test various advanced technologies
that would improve border security between ports of entry along
the northern border of the U.S.
2. Section 5201. Border Surveillance. The Secretary of
Homeland Security shall submit a comprehensive plan for the
systematic surveillance of the southwest border by remotely
piloted aircraft.
3. Section 5202. Increase in Border Patrol Agents. The
conference report provides a numerical increase equal to that
contained in the bill as passed the House, with an additional
provision that an additional number of agents shall be assigned
to the northern border equal to not less than 20% of the net
increase in agents in each fiscal year.
4. Section 5203. Increase in ICE Investigators. The
conference report provides a numerical increase equal to that
contained in the bill as passed the House, but no number of
agents is required to enforce employer sanctions.
5. Section 5204. Increase in Detention Beds. The conference
report increases the number of DHS immigration detention beds
by not less than 8,000 in each of fiscal years 2006 through
2010 above the number for which funds were allotted for the
preceding fiscal years.
6. Sections 5301-03. In Person Interviews of Visa
Applicants. The conference report requires every alien who is
seeking a nonimmigrant visa to be interviewed by a consular
officer (with certain exceptions and available waivers).
7. Section 5304. Revocation of Visas. The conference report
allows aliens to seek judicial review of a revocation in the
context of a removal proceeding where such revocation provides
the sole ground of removal.
8. Section 5401. Criminal Penalties for Alien Smuggling.
This provision is similar to the House-passed version.
9. Section 5402. Deportation of Aliens Who Have Received
Military Type Training from Terrorist Organizations. This
provision, creating a ground of deportability for aliens who
have received military-type training from or on behalf of
terrorist organizations designated as such by the federal
government, is a more limited version of section 3034 of the
House-passed bill.
Section 5403. Study and Report on Terrorists in the Asylum
System. The GAO shall conduct a study to evaluate the extent to
which weaknesses in the U.S. asylum system have been or could
be exploited by terrorists.
10. Sections 5501-06. Treatment of Aliens who Commit Acts
of Torture, Extrajudicial Killings, or Other Atrocities Abroad.
These provisions are identical to those in the House-passed
bill.
Section 7118. Designation of Foreign Terrorist
Organizations. These provisions are similar to those in the
House-passed bill.
11. Section 7203. Responsibilities and Functions of
Consular Officers. The provision of the conference report is
similar to the provision of the House-passed bill. It also
provides that all immigrant visa applications shall be reviewed
and adjudicated by a consular officer and that anti-fraud
specialists be placed at those diplomatic and consular posts at
which visas are issued that experience the greatest frequency
of presentation of fraudulent documents by visa applicants (as
opposed to a set number of posts).
12. Section 7206. Immigration Security Initiative. The
provision is identical to that of the House-passed bill.
13. Section 7207. Certification Regarding Technology for
Visa Waiver Participants. No later than October 26, 2006, the
Secretary of State shall certify which visa waiver program
countries are developing a program to issue to persons seeking
to enter such countries pursuant to a visa, a machine readable
visa that is tamper-resistant and contains biometric features
verifiable at its ports of entry.
14. Section 7208. Biometric Entry and Exit Data System.
This provision is similar to the provision in the House-passed
bill.
15. Section 7209. Travel Documents. This provision is
similar to Sec. Sec. 3001 and 3002 of the House-passed bill.
The Secretary of State shall develop and implement a plan to
require biometic passports or other identification at least as
secure, for all travel into the U.S. by U.S. citizens, to be
implemented no later than January 2008, and to develop and
implement a plan to require biometic passports or other
identification at least as secure, for all travel into the U.S.
by Canadians, to be implemented no later than January 2008. In
addition, the provision bars a resumption of the transit
without visa program until the Secretary of State completely
implements a security plan to fully ensure secure transit
passage areas to prevent aliens proceeding in immediate and
continuous transit through the U.S. from illegally entering the
U.S.
16. Section 7210. Exchange of Terrorist Information and
Increased Preinspection at Foreign Airports. As to
preinspection, the provision is similar to that of the House-
passed bill. It requires the establishment of preinspection
stations in at least 25 additional foreign airports.
17. Section 7220. Identification Standards. The provision
provides that within six months of enactment, the Secretary of
Homeland Security shall propose minimum standards for
identification documents required of domestic commercial
airline passengers for boarding purposes, and may propose
modifications in the future. Any proposed standards must be
approved by both the House and the Senate under specified
expedited procedures before they can go into effect. If the
proposed standards are not approved by Congress, then within
one year after rejection by a vote of either House of Congress,
adult domestic airline passengers seeking to board an aircraft
shall present (1) a valid, unexpired passport, (2) a
domestically issued document that the Secretary of Homeland
Security designates as reliable for identification purposes,
(3) any immigration document issued by the Attorney General or
the Secretary of Homeland Security, or (4) a document issued by
the country of nationality of any alien not required to possess
a passport for admission to the U.S. that the Secretary of
Homeland Security designates as reliable for identification
purposes.
Privacy Provisions
The 9/11 Commission recognized that enhanced law
enforcement and antiterrorism efforts should be balanced. In
its final report, the Commission cautioned that while
protecting our homeland, ``Americans should be mindful of
threats to vital personal and civil liberties.'' \16\ It
continued: ``This balancing is no easy task, but we must
constantly strive to keep it right. This shift of power and
authority to the government calls for an enhanced system of
checks and balances to protect the precious liberties that are
vital to our way of life.'' \17\
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\16\ The 9/11 Commission Report--Final Report of the National
Commission on Terrorist Attacks Upon the United States, at 394 (2004).
\17\ Id.
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To this end, the Commission made the following three
recommendations intended to protect our citizens' privacy:
As the President determines the guidelines for information
sharing among government agencies and by those agencies with
the private sector, he should safeguard the privacy of
individuals about whom information is shared.\18\
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\18\ Id.
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The burden of proof for retaining a particular governmental
power should be on the executive, to explain (a) that the power
actually materially enhances security and (b) that there is
adequate supervision of the executive's use of the powers to
ensure protection of civil liberties. If the power is granted,
there must be adequate guidelines and oversight to properly
confine its use.\19\
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\19\ Id. at 394-395.
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At this time of increased and consolidated government
authority, there should be a board within the executive branch
to oversee adherence to the guidelines we recommend and the
commitment the government makes to defend our civil
liberties.\20\
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\20\ Id. at 395.
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S. 2845 contains two privacy-related provisions. Section
1061 of the bill requires the appointment of a Privacy and
Civil Liberties Oversight Board within the Executive Office of
the President. In addition, Sec. 1062 sets forth a sense of the
Congress that an executive department or agency with law
enforcement or antiterrorism functions should designate a
privacy and civil liberties officer.
Legislative History.--H.R. 10 was favorably reported out of
the House Judiciary Committee on September 29, 2004, and
subsequently passed the House by a vote of 282-134. The Senate
passed similar legislation, S. 2845, the ``National
Intelligence Reform Act of 2004,'' by a vote of 96-2 on October
6, 2004. Conferees were appointed, and the conference report
was filed on December 7, 2004. That same day, the House agreed
to the conference report by a vote of 336-75. On December 8,
2004, the Senate agreed to the report by a vote of 89-2. The
bill was signed by the President on December 17, 2004, and
became Public Law No. 108-458.
H.R. 16, A bill to authorize salary adjustments for Justices and judges
of the United States for fiscal year 2004
Summary.--Introduced by Representative F. James
Sensenbrenner, Jr., H.R. 16 addresses the statutory mandate of
Sec. 140 of Pub. L. No. 97-92 by specifically authorizing a
cost-of-living adjustment (COLA) for federal judges in advance
of, or concurrent with, an appropriation.
Legislative History.--On January 7, 2003, H.R. 16 was
referred to the House Committee on the Judiciary. The following
day the House passed H.R. 16, without amendment, by voice vote.
On January 30, 2003, the Senate passed H.R. 16, without
amendment, by unanimous consent. On February 13, 2003, the
President signed the bill into law. (Public Law No. 108-6)
H.R. 534, the ``Human Cloning Prohibition Act of 2003''
Summary.--Congressman Dave Weldon introduced H.R. 534 on
February 5, 2003. H.R. 534, the ``Human Cloning Prohibition Act
of 2003,'' amended Title 18 of the United States Code by
establishing a comprehensive ban on human cloning and
prohibiting the importation of a cloned embryo, or any product
derived from such embryo. Any person or entity convicted of
violating this prohibition on human cloning would be subject to
a fine or imprisonment of not more than 10 years, or both. In
addition, H.R. 534 provided civil penalties of not less than
$1,000,000 for any person who received a pecuniary gain from
cloning humans. H.R. 534 did not prohibit the use of cloning
technology to produce molecules, DNA, cells, tissues, organs,
plants, or animals other than humans.
Legislative History.--H.R. 534 was referred to the House
Judiciary Committee on February 5, 2003. On February 12, 2003,
the Committee marked up H.R. 534, ordering the bill reported to
the House, without amendment, by a vote of 19 yeas to 12 nays.
(H. Rept. No. 108-18) On February 27, 2003, the House passed
H.R. 534, as amended, by a vote of 241 to 155. There was no
further action taken during the 108th Congress.
H.R. 1115, the ``Class Action Fairness Act of 2003''
Summary.--H.R. 1115: (1) allows Federal courts to hear
large interstate class actions; and (2) establishes new rules
for consumers against abusive class action settlements.
The class action device is one of the most important
procedural mechanisms within our civil justice system. It can
promote efficiency by allowing plaintiffs with similar claims
to adjudicate their cases in one proceeding. The device also
enables the adjudication of claims when a large number of
people suffer small harms, claims that might otherwise go
unredressed because the expense of individual litigation would
far exceed any possible benefit.
H.R. 1115 has three core components: First, it amends the
current Federal diversity-of-citizenship jurisdiction statute
(28 U.S.C. Sec. 1332) to allow large interstate class actions
to be adjudicated in Federal courts. Currently, Federal courts
have jurisdiction over (a) lawsuits dealing with a Federal
question, and (b) cases meeting current diversity jurisdiction
requirements (i.e., matters in which all plaintiffs are
citizens of jurisdictions different from all defendants, and
each claimant has an amount in controversy in excess of
$75,000). H.R. 1115 would change the diversity jurisdiction
requirement for class actions, generally permitting access to
Federal courts in class actions wherethere is ``minimal
diversity'' (that is, any member of the proposed class is a citizen of
a State different from any defendant), and the aggregate amount in
controversy among all class members exceeds $2 million.
Second, H.R. 1115 implements a ``Consumer Class Action Bill
of Rights.'' The bill of rights would: (1) enhance judicial
scrutiny of coupon settlements; (2) provide judicial scrutiny
over settlements that would result in a net monetary loss to
plaintiffs; (3) prohibit unjustified payments, also known as
bounties, to class representatives; and (4) protect out-of-
State class members against settlements that favor class
members based upon geographic proximity to the courthouse.
Third, H.R. 1115, as amended, immediately puts into effect
upon enactment of the bill several critical amendments to Rule
23 of the Federal Rules of Civil Procedure proposed by the
Supreme Court that are intended to ensure the clarity of class
notice and prevent abuse of the class action device.
Legislative History.--H.R. 1115 was introduced by Rep. Bob
Goodlatte, Chairman F. James Sensenbrenner, Jr. and 10 other
co-sponsors on March 6, 2003 and referred to the House
Judiciary Committee. The full Committee held a hearing on H.R.
1115 on May 15, 2003. On May 21, 2003, the Committee favorably
reported the bill H.R. 1115, as amended, by a vote of 20 to14.
and the Committee report on the legislation was filed on June
9, 2004 as H. Rept. No. 108-144. On June 12, 2004, the full
House considered H.R. 1115 as reported by the Committee under a
Rule (H. Res. 269) along with amendments. Chairman
Sensenbrenner, the manager of the legislation, and Rep. Boucher
offered one amendment on the floor that was accepted, other
floor amendments were rejected. The House then passed H.R. 1115
by a roll call vote of 253-170. H.R. 1115 was received in the
Senate but was not acted upon by the Senate. Several successive
versions of companion legislation were introduced in the Senate
by Senator Grassley (S. 274, S. 1751 and S. 2062) and the first
version was reported out of the Senate Judiciary Committee. The
Senate attempted to invoke cloture to proceed to S. 1751 on
October 22, 2003 which failed by a vote of 59-39. The Senate
attempted to invoke cloture to proceed to S. 2062 on July 8,
2004 which failed by a vote of 44-43. The Senate took no
further action on any version of class action reform
legislation in the 108th Congress.
H.R. 1437, To improve the United States Code
Summary.--The purpose of H.R. 1437 is to improve the United
States Code by making necessary technical changes without
making any substantive change in existing law. Public Law No.
107-217, which was enacted on August 21, 2002, revised,
codified, and enacted without substantive change certain
general and permanent laws related to public buildings,
property, and works as title 40, United States Code, ``Public
Buildings, Property, and Works.'' This bill makes technical
changes to Public Law No. 107-217 and related provisions.
Legislative History.--On March 25, 2003 Chairman F. James
Sensenbrenner, Jr, introduced H.R. 1437. On May 7, 2003 the
Committee reported H.R. 1437 by voice vote and, on May 15,
2003, it filed H.R. Rept. No. 108-103. On July 21, 2003, the
bill was passed the House under the suspension of the rules and
referred to the Senate Committee on the Judiciary. On November
21, 2003 the Senate passed H.R. 1437 by unanimous consent. The
President signed the bill into law on December 15, 2003.
(Public Law No. 108-178)
H.R. 1904, the ``Healthy Forests Restoration Act of 2003''
Summary.--The purpose of H.R. 1904, the ``Healthy Forests
Restoration Act of 2003,'' is to: (1) allow the Secretary of
Agriculture and the Secretary of the Interior to implement
hazardous fuel reduction projects on National Forest System
lands designated protect communities and watersheds from
catastrophic wildfire; and (2) promote other efforts regarding
watersheds and address threats to forest and range land health,
such as wildfire and insect infestation. The following sections
of the legislation were among those within the jurisdiction of
the Committee on the Judiciary.
Sec. 104. Environmental Analysis: Pursuant to Sec. 104(a)
and (b), the Secretary concerned must plan and conduct
authorized hazardous fuels reduction projects in accordance
with the National Environmental Policy Act of 1969, but she is
not required to develop any alternative to the proposed agency
action in the environmental assessment or impact statement
which is otherwise required by the Act. Subsections (c) through
(e) enumerate public notice and meeting requirements imposed on
the concerned Secretary that are designed to encourage public
participation and to facilitate collaboration among governments
and interested parties in the development of authorized
hazardous fuels reduction projects. Subsection (f) requires the
Secretary concerned to sign a decision document for each
authorized hazardous fuels reduction project while subsection
(g) states that the Secretary monitor implementation of each
project.
Sec. 105. Special Forest Service Administrative Review
Process: Subsection (a) states that the Secretary of
Agriculture, 90 days after the date of enactment, must issue
final regulations to establish an administrative process that
will serve as the sole means by which a person can seek
administrative redress regarding an authorized hazardous fuels
reduction project. Subsection (b) creates standing for a person
seeking such redress by requiring that she must have submitted
substantive and specific written comments during the
preparation stage of the project. Subsection (c) makes clear
that the Appeals Reform Act of 1993 pertaining to Forest
Service administrative appeals does not apply for those
projects contemplated by H.R. 1904.
Sec. 106. Special Requirements Regarding Judicial Review of
Authorized Hazardous Fuels Reduction Projects: Subsection (a)
mandates that any legal challenge to an authorized hazardous
fuels reduction project must be filed before the end of the 15-
day period beginning on the date on which the Secretary
concerned publishes in the local paper of record notice of the
final agency action on the matter.
This time limit supersedes any other filing deadline under
law and may not be waived by a district court. Subsection (b)
states that any preliminary injunction granted regarding an
authorized hazardous fuels reduction project shall be limited
to 45 days. Pursuant to subsection (c), a court may renew a
preliminary injunction, taking into account congressional
intent that the court expedite, to the maximum extent
practicable, the ongoing legal proceedings with the goal of
rendering a final determination on jurisdiction, and if
jurisdiction exists, a final determination on the merits,
within 100 days from the date the proceeding is filed.
Finally, parties are required to submit relevant updates on
any changes that may have occurred during the period of
injunction to a court that is considering a request to renew
the injunction. If the injunction is renewed, the Secretary
concerned must notify the House Committee on Resourcesand the
House Committee on Agriculture as well as the Senate Committee on
Energy and Natural Resources and the Senate Committee on Agriculture,
Nutrition, and Forestry.
Sec. 107. Standard for Injunctive Relief for Agency Action
to Restore Fire-Adapted Forest or Rangeland Ecosystems: Section
107 states that when an aggrieved person seeks a prohibitory or
mandatory injunction against agency action governing
restoration of a fire-adapted forest or rangeland ecosystem,
including an authorized fuels reduction project, the court
reviewing the request must: (1) consider the public interest in
avoiding long-term harm to the ecosystem; and (2) give
deference to any agency finding that the balance of harm and
the public interest in avoiding the short-term effects of the
agency action is outweighed by the public interest in avoiding
long-term harm to the ecosystem.
Sec. 108. Rules of Construction: Unless otherwise indicated
in Title I, and per Sec. 104 of the bill, the planning and
conducting of authorized hazardous fuels reduction projects
must be done in accordance with the National Environmental
Policy Act of 1969. Subsection (a) states that nothing in Title
I shall be construed to affect or bias a Secretary's use of
other statutory or administrative authorities to plan or
conduct a hazardous fuels reduction project on federal land.
There is ongoing litigation within the 9th Circuit regarding
the ``Roadless Area Conservation Rule'' and the potential
prohibition of road construction in approximately one-third of
the National Forest System. Subsection (b) states that nothing
in Title I of the bill shall prejudice or otherwise affect the
consideration or disposition of this action.
Legislative History.--H.R. 1904 was introduced by
Representative Scott McInnis on May 1, 2003. After being
reported by the House Committee on Resources on May 9, 2003,
H.R. 1904 was referred to the Committee on the Judiciary for
consideration of provisions within its jurisdiction. On May 16,
2003, the Committee on the Judiciary reported H.R. 1904 by a
vote of 18-13 (H.R. Rept. No. 108-96, Part II). On May 20,
2003, H.R. 1904 passed the House with an amendment by a vote of
256-170. On October 30, 2003, the legislation passed the Senate
with an amendment by a vote of 80-14. On November 21, 2003, the
House passed the conference report and the Senate did the same
by unanimous consent on the same day. President Bush signed the
legislation on December 3, 2003, and it became Public Law
No.108-148.
H.R. 2738, the ``United States-Chile Free Trade Agreement''
Summary.--On June 6, 2003, the United States and Chile
entered into a Free Trade Agreement (FTA). H.R. 2738 approves
the U.S.-Chile FTA submitted to Congress on July 15, 2003 and
makes changes to United States law necessary to ensure
compliance with the agreement. The legislation contains four
titles: Title I, ``Approval of and General Provisions Relating
to the Agreement;'' Title II, ``Customs Provisions;'' Title
III, ``Relief from Imports;'' and Title IV, ``Temporary Entry
of Business Persons.'' The Committee's consideration of H.R.
2738 was limited to Title IV of the legislation. Title IV
establishes 1,400 annual professional worker visas for Chilean
citizens to enter the United States on a temporary basis.
H.R. 2738 was considered pursuant to the ``Bipartisan Trade
Promotion Authority Act of 2002'' \21\ and the Trade Act of
1974.\22\ As a result, the legislation was considered on an
expedited basis which did not permit committees of jurisdiction
to amend the legislation after its formal introduction.
However, the Committee made several changes to draft
implementing legislation transmitted to the Committee for a
pre-introduction ``mock markup'' on July 10, 2003. These
changes were substantially reflected in H.R. 2738.
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\21\ 19 U.S.C. Sec. 3805 et. seq. (2002).
\22\ 19 U.S.C. Sec. 2191 et. seq. (2002).
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Summary of U.S.-Chile FTA Provisions Pertaining to the
Jurisdiction of the Committee on the Judiciary. Although the
Committee's formal legislative consideration of H.R. 2738 was
limited to Title IV of the legislation, which implemented
changes to United States immigration law, the U.S.-Chile FTA
contained intellectual property and competition chapters that
also fall within the jurisdiction of the Committee.
Intellectual property rights (IPR)
Chile is a signatory to the Trade Related Intellectual
Property Rights (TRIPS), but has not yet ratified its
implementing provisions. In addition, Chile has signed two
World Intellectual Property Organization (WIPO) treaties, but
has also not fully complied with these obligations. The U.S.-
Chile FTA reaffirms obligations under TRIPS and adds another
layer of protection which would potentially increase revenues
to a number of industries including: motion picture, sound
recording, business software, book publishing, pharmaceuticals,
and agricultural chemicals.
Chapter 17 of the Agreement requires Chile to ratify or
accede to several international IPR agreements, including the
International Convention for the Protection of New Varieties of
Plants (UPOV 1991), the Trademark Law Treaty, the Brussels
Convention relating to the Distribution of Program-Carrying
Satellite Signals, and the Patent Cooperation Treaty. The FTA
also enhances enforcement of intellectual property rights. Non-
discrimination obligations apply to all types of intellectual
property. The FTA ensures government involvement in resolving
disputes between trademarks and Internet domain names
(important to prevent ``cyber-squatting'' of trademarked domain
names). It also applies the principle of ``first-in-time,
first-in-right'' to trademarks and geographical indicators
(place-names) applied to products.
The Agreement streamlines the trademark filing process by
allowing applicants to use their own national patent and
trademark offices for filing trademark applications. The FTA
ensures that only authors, composers, and other copyright
owners have the right to make their works available online.
Copyright owners maintain rights to temporary copies of their
works on computers. Copyrighted works and phonograms are
protected for extended terms, consistent with U.S. standards
and international trends. The FTA also contains anti-
circumvention provisions aimed at preventing tampering with
technologies (such as embedded codes on discs) that are
designed to prevent piracy and unauthorized distribution over
the Internet. It also ensures that governments use only
legitimate computer software (in order to set a positive
example for private users). Chile is to prohibit the production
of optical discs (CDs, DVDs or software) without a source
identification code unless authorized by the copyright holder
in writing.
Under the FTA, protection for encrypted program-carrying
satellite signals extends to the signals themselves as well as
the programming. This is designed to prevent piracy of
satellite television programming. Both sides agreed to
criminalize unauthorized reception and redistribution of
satellite signals. The Agreement also contains limited
liability for Internet Service Providers (ISPs)--reflecting the
balance struck in the U.S. Digital Millennium Copyright Act
between legitimate ISP activity and the infringement of
copyrights. In essence, both sides are to provide immunity to
Internet service providers for complying with notification and
take-down procedures when material suspected to be infringing
on copyright is hosted on their servers. The FTA provides for a
patent term to be extended to compensate for up-front
administrative or regulatory delays in granting the original
patent, consistent with U.S. practice. The grounds for revoking
a patent are limited to the same grounds required to originally
refuse a patent.
The Agreement provides further protections for patents
covering biotech plants and animals. Chile is to accede to the
International Convention for the Protection of New Varieties of
Plants. It also provides for protection against imports of
pharmaceutical products without a patent-holder's consent by
allowing lawsuits when contracts are breached. Under the FTA,
test data and trade secrets submitted to a government for the
purpose of product approval are to be protected against
disclosure for a period of 5 years for pharmaceuticals and 10
years for agricultural chemicals. The FTA also closes potential
loopholes to these provisions and is designed to ensure that
government marketing-approval agencies will not grant approval
to patent-violating products.
In addition, the Agreement provides for criminal penalties
for companies that make pirated copies from legitimate
products. The Chilean government guarantees that it has
authority to seize, forfeit, and destroy counterfeit and
pirated goods and the equipment used to produce them. IPR laws
are to be enforced against traded goods, including trans-
shipments, to deter violators from using U.S. or Chilean ports
or free-trade zones to traffic in pirated products. The FTA
mandates both statutory and actual damages under Chilean law
for IPR violations (as a deterrent against piracy) and provides
that monetary damages be awarded even if actual economic harm
(retail value, profits made by violators) cannot be determined.
Chile is to cooperate in preventing pirated and counterfeit
goods from being imported into the United States. Finally, the
FTA sharply restricts Chile from using compulsory licenses to
copy patented drugs and sets up new barriers to the import of
patented drugs sold at lower prices in third countries.
Competition policy and antitrust
H.R. 2738 contains no changes to United States antitrust
law. However, a summary of provisions related to competition
and antitrust contained in the U.S.-Chile FTA is set forth
below. Chapter 16 of the Agreement helps ensure that the
opportunities created by trade liberalization are supported by
healthy competitive domestic markets, allowing the firms of
each country to compete unhampered by anticompetitive business
conduct in either country's territory. Firms that are subject
to antitrust enforcement action will be guaranteed some basic
procedural safeguards. Since these protections already exist in
the United States, no changes to United States law are
necessary. While state monopolies and state enterprises do not
account for a significant portion of either country's economy,
the provisions governing these entities will help eliminate the
potential for either party to favor domestic firms in the sale
or purchase of goods and services.
Specifically, Chapter 16 ensures that both countries:
1. Enforce domestic antitrust law that prohibits
anticompetitive business conduct.
2. Cooperate in the enforcement of antitrust law.
3. Ensure that any private or public monopolies designated
by either country, and any state enterprises, be subject to
disciplinary action for abusing their status or otherwise
discriminating in a manner that harms the interests of the
other country.
4. Explicitly recognize that anticompetitive conduct
threatens the free flow of bilateral trade and investment, and
seek to secure the benefits of the FTA by prohibiting such
conduct, encouraging economically sound competition policies,
and furthering transparency and cooperation.
5. Expand NAFTA's competition provisions by affirming that
antitrust laws be enforced in a neutral manner that do not
discriminate on the basis of nationality.
6. Ensure basic procedural rights for firms that are
subject to antitrust enforcement actions: each country will
provide a right to be heard and to present evidence before
imposing a sanction or remedy.
7. Provide for consultations and further transparency by
allowing either country to request from the other specific
public information regarding antitrust enforcement activity,
official monopolies and state enterprises, and any exemptions
from their antitrust laws.
8. Finally, it is important to note that the provisions
regarding antitrust law and enforcement are not subject to
dispute settlement.
Temporary entry
Title IV of the pre-introduction draft implementing
legislation for the U.S.-Chile FTA that the Administration
forwarded to the Committee for its ``mock markup'' on July 10,
2003, effectuated U.S. commitments under Chapter 14 of the
U.S.-Chile FTA pertaining to the temporary entry of business
persons. However, this draft legislation was considerably
amended during the Committee's ``mock markup'' on July 10,
2003. These Committee recommendations were then incorporated
into the introduced version of H.R. 2738. These changes are
highlighted in the ``Pre-Introduction `Mock Markup' of U.S.-
Chile FTA Implementing Legislation and Committee Amendments
Incorporated Into H.R. 2738'' section of this report.
In general, Chapter 14 of the U.S.-Chile FTA is consistent
with existing provisions of the Immigration and Nationality Act
(INA). The four categories of persons eligible for admission
under the Agreement's expedited procedures correspond to
existing INA nonimmigrant and related classifications. In order
to provide for the admission of business visitors and intra-
company transferees, no changes in U.S. statutes are required.
Limited technical changes are needed to provide for the
admission of traders and investors and professionals.
Legislation is also required to implement Article 14.3(2) of
the Agreement regarding labor disputes.
Traders and investors
Under Section B of Annex 14.3 of the Agreement, citizens of
Chile are eligible for temporary entry as traders and
investors. This category provides for admission under
requirements identical to those governing admission under INA
Sec. 101(a)(15)(E) (8 U.S.C. Sec. 1101(a)(15)(E)), which
permits entry for persons to carry on substantial trade in
goods or services or to develop and direct investment
operations.
Section 101(a)(15)(E) of the INA currently conditions
admission into the United States upon authorization pursuant to
a treaty of commerce and navigation. Since the Agreement is not
a treatyof commerce and navigation, and no such treaty exists
between the United States and Chile, legislation is necessary to accord
treaty trader and investor status to Chilean citizens qualifying for
entry under Section B.
Section 401 of the draft legislation does not amend section
101(a)(15)(E). Instead, it used a mechanism similar to that
provided in Sec. 341(a) of the North American Free Trade
Agreement Implementation Act, which in turn was based upon the
Act of June 18, 1954 (68 Stat. 264, 8 U.S.C. Sec. 1184(a)). The
Act of June 18, 1954 conferred treaty trader and investor
status upon nationals of the Philippines on a reciprocal basis
secured by an agreement entered into by the President of the
United States and the President of the Philippines.
Professionals
Section 402(a) of the draft bill amended Sec. 101(a)(15) of
the INA (8 U.S.C. Sec. 1101(a)(15)), which defines categories
of persons entitled to enter the United States as
nonimmigrants. Section 402(a) of the bill inserted a new
subparagraph (W) at the end of INA Sec. 101(a)(15).
Subparagraph (W) would have established a new category of
aliens entitled to enter the United States temporarily as
nonimmigrants. These aliens would have been citizens of
countries with which the United States had entered into free
trade agreements and who sought to come to the United States
temporarily to engage in business activities at the
professional level. Entry into the United States under
subparagraph (W) would have been subject to regulations issued
by the Secretary of Homeland Security implementing numerical
limitations provided for in the applicable agreement, as set
forth in new paragraph (8) of INA Sec. 214(g), as added by the
bill. The Department of Labor would have issued regulations
governing temporary entry of professionals under this proposed
provision of law. This amendment to the INA would have
implemented Section D of Annex 14.3 of the Agreement.
New INA Sec. 101(a)(15)(W) also provided for the entry of
spouses and children accompanying or following to join business
persons entering under this category. The purpose of this
provision was to grant express authorization for current
Immigration and Naturalization Service practice, which is to
admit such persons, but not allow them to be employed in the
United States unless they independently met all applicable INA
requirements.
Persons seeking temporary entry into the United States
under Sec. 101(a)(15)(W) would have been:
1. Considered to be seeking nonimmigrant status.
2. Subject to general requirements relating to admission of
nonimmigrants, including those pertaining to the issuance of
entry documents and the presumption set out in INA Sec. 214(b)
(8 U.S.C. Sec. 1184(b)), and accorded nonimmigrant status on
admission.
It should be noted that while there are many similarities
in the way professionals would have been treated under
Sec. 101(a)(15)(W) of the INA, as proposed by the bill, and the
way H-1B professionals are treated, a determination of
admissibility under subparagraph (W) would have neither
foreclosed nor established eligibility for entry as an H-1B
professional. Further, Sec. 101(a)(15)(W) would not have
authorized a professional to establish a business or practice
in the United States in which the professional will be self-
employed.
Numerical limitations
Paragraph six of Section D of Annex 14.3 of the Agreement
permits the United States to establish an annual numerical
limit on temporary entries under the Agreement of Chilean
professionals. Under the proposed paragraph (8) of INA
Sec. 214(g) that would have been added by Sec. 402(a) of the
draft bill, the Secretary of Homeland Security would have
issued regulations establishing an annual limit of up to 1,400
new temporary entry applications from Chilean professionals, as
provided in Appendix 14.3(D)(6) of the Agreement.
Labor attestations
Under Sec. (D)(5) of Annex 14.3 of the Agreement, the
United States may require that an attestation of compliance
with labor and immigration laws be made a condition for the
temporary entry of Chilean professionals. This provision allows
U.S. labor and immigration officials to ensure that U.S.
employers are not hiring Chilean professionals as a way to put
pressure on U.S. employees to accept lower wages or less
favorable terms and conditions of employment.
Section 402(b) of the draft legislation would have
implemented the attestation requirement under the Agreement.
Section 402(b) of the draft bill would have amended Sec. 212 of
the INA (8 U.S.C. Sec. 1182) by adding a new subsection (s) to
the end of that section. INA Sec. 212(s)(1), which would have
been added by Sec. 402(b) of the bill, required a U.S. employer
seeking a temporary entry visa for a Chilean professional to
file an attestation with the Secretary of Labor. The
attestation would have consisted of four core elements similar
to those required for attestations under the ``H-1B'' visa
program. See 8 U.S.C. Sec. 1182(n)(1)(A)-(C). Thus, an employer
would have been required to attest that:
1. It would pay the employee the higher of (a) the actual
wage paid to all other individuals with similar experience and
qualifications for the specific employment in question, or (b)
the prevailing wage level for the occupational classification
in the area of employment.
2. It will provide working conditions for the employee that
will not adversely affect the working conditions of workers
similarly employed.
3. There is no strike or lockout in the course of a labor
dispute in the occupational classification at the place of
employment.
4. The employer has provided notice of its attestation to
its employees' bargaining representative in the occupational
classification in the area for which the employee is sought or,
absent such a representative, has otherwise notified its
employees.
The remainder of new INA Sec. 212(s) contains provisions
for enforcing the labor attestation requirement. Like the
contents of the attestation itself, the enforcement
requirements are based on requirements under the ``H-1B'' visa
program. INA Sec. 212(s)(2)(A) requires an employer to make
copies of labor attestations (and such accompanying documents
as are necessary) available for public examination at the
employer's principal place of business or worksite. INA
Sec. 212(s)(2)(B) requires the Secretary of Labor to compile a
list of all labor attestations filed including, with respect to
each attestation, the wage rate, number of alien professionals
sought for employment, period of intended employment, and date
of need. INA Sec. 212(s)(2)(C) provides that the Secretary of
Labor shall accept a labor attestation within seven days of
filing and issue the certificationnecessary for an alien to
enter the United States as a nonimmigrant under INA Sec. 101(a)(15)(W),
unless the attestation is incomplete or obviously inaccurate.
INA Sec. 212(s)(3)(A) requires the Secretary of Labor to
establish a process for the receipt, investigation, and
disposition of complaints respecting an employer's failure to
meet a condition specified in a labor attestation or an
employer's misrepresentation of material facts in such an
attestation. Section 212(s)(3) also sets forth penalties that
may be imposed for violation of the labor attestation
requirements, including monetary fines and denial of
applications for visas under INA section 101(a)(15)(W) for
specified periods. INA Sec. 212(s)(4) defines certain terms
used in INA Sec. 212(s).
Labor disputes
Article 14.3(2) of the Agreement establishes an important
safeguard for the domestic labor force in the United States and
Chile, respectively. It permits either government to refuse to
issue an immigration document authorizing employment where the
temporary entry of a business person might affect adversely the
settlement of a labor dispute or the employment of a person
involved in such dispute. Article 14.3(2) thus allows the
United States to deny temporary entry to a Chilean business
person whose activities in the United States require employment
authorization if admission might interfere with an ongoing
labor dispute. If the United States invokes Article 14.3(2), it
must inform the business person in writing of the reasons for
its action and notify Chile.
Section 403 of the draft bill implements Article 14.3(2) of
the Agreement by amending INA Sec. 214(j) (8 U.S.C.
Sec. 1184(j)), designating current subsection (j) as paragraph
(1) and inserting a new paragraph (2). New paragraph (2) of INA
Sec. 214(j) provides authority to refuse nonimmigrant
classification under specified circumstances to a Chilean
business person seeking to enter the United States under and
pursuant to the Agreement. In particular, nonimmigrant
classification must be refused if there is a strike or lockout
affecting the relevant occupational classification at the
Chilean business person's place of employment or intended place
of employment in the United States, unless that person
establishes, pursuant to regulations issued by the Secretary of
Homeland Security after consultations with the Secretary of
Labor, that the business person's entry will not adversely
affect the settlement of the strike or lockout or the
employment of any person involved in the strike or lockout.
New paragraph (2) also requires the provision of notice to
the affected Chilean business persons and to Chile of a
determination to deny nonimmigrant classification, as required
under Article 14.3(3) of the Agreement. INA Sec. 214(j)(2) as
inserted by the bill applies only to requests for temporary
entry by traders and investors, intra-company transferees, and
professionals---i.e., the categories of nonimmigrants that
require employment authorization under U.S. law (corresponding
to Sections B, C, and D of Annex 14.3 of the Agreement).
Employment in the U.S. labor market is not permitted for
business visitors, as defined in INA Sec. 101(a)(15)(B) (8
U.S.C. Sec. 1101(a)(15)(B)) (corresponding to Section A of
Annex 14.3 of the Agreement); violations of status under that
provision that involve labor disputes are fully redressable
under existing law.
Section 214(j)(2) is similar to existing INA provisions
that prohibit admission in certain circumstances where
interference with a labor dispute may result. For example,
under INA Sec. 212(n)(1)(B) (8 U.S.C. Sec. 1182(n)(1)(B)), the
U.S. employer sponsoring an alien for admission must certify
that there is no strike or lockout in the occupational
classification at the place of employment. Additionally,
Sec. 214(j)(2) will supplement INA Sec. 237(a)(1)(C) (8 U.S.C.
Sec. 1227(a)(1)(C)) and related INA provisions that now
authorize deportation of an alien admitted under a particular
nonimmigrant category if the alien ceases to perform the type
of work permitted under that category or misrepresented the
nature of the work at the time of admission. The Department of
Labor will provide strike certifications to the Department of
Homeland Security, as it has provided to the Immigration and
Naturalization Service under existing provisions, pursuant to 8
C.F.R. 214.2(h)(17).
Administrative action
Chile will be added to the list of countries, maintained by
the Department of State, whose citizens are eligible for treaty
trader and treaty investor status under INA Sec.
101(a)(15)(E). With respect to professionals provided for under
Section D of Annex 14.3 of the Agreement, in all cases where a
state license is required to engage in a particular activity in
the United States, such professionals will be required to
obtain the appropriate state license. Pursuant to INA
Sec. 101(a)(15)(W) as added by Sec. 402(a) of the bill, the
Secretary of Homeland Security will issue regulations
implementing the numerical limits set forth in Appendix
14.3(D)(6) of the Agreement. The Secretary of Labor will issue
regulations implementing the labor attestation provisions in
new subsection (s) of INA Sec. 212. The administrative agencies
responsible for administering the other amendments to the INA
described above will promulgate regulations to implement those
amendments.
Summary of immigration provisions
Under Section B of Annex 14.3 of the Free Trade Agreement,
citizens of Chile are eligible for temporary entry as traders
and investors. The Immigration and Nationality Act currently
conditions admission into the United States upon authorization
pursuant to a treaty of commerce and navigation. Since the
Agreement is not a treaty of commerce and navigation, and no
such treaty exists between the United States and Chile,
legislation is necessary to accord treaty trader and investor
status to Chilean citizens qualifying for entry under Section
B. Section 401 of H.R. 2738 accomplishes this by relying on a
mechanism similar to that provided in Sec. 341(a) of the North
American Free Trade Agreement Implementation Act, which in turn
was based upon the Act of June 18, 1954 (68 Stat. 264, 8 U.S.C.
Sec. 1184(a)). The Act of June 18, 1954 conferred treaty trader
and investor status upon nationals of the Philippines on a
reciprocal basis secured by an agreement entered into by the
President of the United States and the President of the
Philippines.
Section 402(a) of H.R. 2738 implements Section D of Annex
14.3 of the Free Trade Agreement by creating a new ``H-1B1''
nonimmigrant visa category for aliens who are citizens of
countries with which the United States has entered into free
trade agreements and who seek to come to the United States
temporarily to engage in business activities at the
professional level. Section 402(a) of the bill establishes an
annual limit of up to 1,400 new temporary entry applications
from Chilean professionals, as provided in Appendix 14.3(D)(6)
of the Agreement.
Under Sec. (D)(5) of Annex 14.3 of the Agreement, the
United States may require that an attestation of compliance
with labor and immigration laws be made a condition for the
temporary entry of Chilean professionals. Section 402(b) of
H.R. 2738 implemented the attestation requirement under the
Agreement, requiring a U.S. employer seeking a temporary entry
visa for a Chilean professional to file an attestation with the
Secretary of Labor consisting of four core elements similar to
those required for attestations under the H-1B visa program.
Like the contents of the attestation itself, the
enforcement requirements are based on requirements under the H-
1B visa program. Unlike the H-1B program, the period of
authorized admission for H-1B1 aliens is one year, and may be
extended in one year increments.
Article 14.3(2) of the Agreement establishes an important
safeguard for the domestic labor forces of the United States
and Chile, respectively. It permits either government to refuse
to issue an immigration document authorizing employment where
the temporary entry of a business person might affect adversely
the settlement of a labor dispute or the employment of a person
involved in such dispute. Article 14.3(2) thus allows the
United States to deny temporary entry to a Chilean business
person whose activities in the United States require employment
authorization if admission might interfere with an ongoing
labor dispute. If the United States invokes article 14.3(2), it
must inform the business person in writing of the reasons for
its action and notify Chile. Section 403 implemented article
14.3(2) of the Agreement by providing that nonimmigrants can be
refused entry if there is a labor dispute affecting the
relevant occupational classification at the Chilean business
person's place of employment or intended place of employment in
the United States, unless that person establishes, pursuant to
regulations issued by the Secretary of Homeland Security after
consultations with the Secretary of Labor, that the business
person's entry would not adversely affect the settlement of the
labor dispute or the employment of any person involved in the
labor dispute.
Pre-Introduction ``mock markup'' of U.S.-Chile FTA
implementing legislation and committee amendments
incorporated into H.R. 2738
On July 10, 2003, the Committee held a pre-introduction
``mock markup'' of draft implementing legislation submitted by
the Administration to the Committee. The Committee's
consideration of this draft legislation was limited to Title IV
of the draft implementing legislation.
Judiciary Committee amendments to draft implementing
legislation
The Committee reported several amendments to the
immigration provisions by voice vote. The amendments were
reflected in the final version of H.R. 2738 enacted into law.
First, the Committee reported an amendment by
Representative King to transfer the new ``W'' professional
worker visa category for citizens of Chile to
Sec. 101(a)(15)(H)(i)(b)(1) of the Immigration and Nationality
Act, rather than Sec. 101(a)(15)(W) as provided for in the
draft implementing legislation. Representative King's amendment
also ensured that in future years, the national H-1B visa cap
will be reduced in two situations. First, the number of H-1B
visas available in a fiscal year will be reduced by the number
of Chilean citizens granted extensions of H-1B1 status in that
fiscal year after having previously been granted five or more
consecutive prior extensions. Second, the number of H-1B visas
available in a fiscal year will be reduced by the number of H-
1B1 visas allocated (1,400 for citizens of Chile). However, if
at the end of a fiscal year, the 6,800 slots reserved for
citizens of Chile and Singapore have not been exhausted, the
number of H-1B visas available for that fiscal year will be
adjusted upwards by the number of unused Chile and Singapore
visas. These newly available H-1B visas may be issued within
the first 45 days of the next fiscal year to aliens who had
applied for such visas during the fiscal year for which the
adjustment was made.
The Committee also reported an amendment offered by
Representatives Berman and Conyers requiring that an
application for every second extension for an H-1B1 visa be
accompanied by a new employer attestation. This will have the
effect of requiring the employer to update the prevailing wage
determination at such time. The amendment also requires that an
employer pay a fee when H-1B1 status is initially granted and
after every second extension of that status. The fee shall be
the same as the fee an employer must pay when petitioning for
an H-1B visa. However, if no fee is being assessed under the H-
1B program, no fee shall be imposed under the H-1B1 program.
Finally, the implementing legislation now clarifies that an
employer generally cannot sponsor an alien for an E, L, or H-
1B1 visa if there is any labor dispute occurring in the
occupational classification at the place of employment,
regardless of whether the labor dispute is classified as a
strike or lockout. In this regard, worker protections in H.R.
2738 are broader than those contained in the H-1B visa
category.
Following the Committee's markup consideration of H.R.
2738, Chairman Sensenbrenner and Ranking Member Conyers sent a
bipartisan letter co-signed by several Members of the Committee
expressing strong Committee opposition to the inclusion of
immigration-related provisions requiring changes to existing
U.S. law in any subsequent free trade agreements submitted to
Congress for its consideration. The Committee continues to
closely monitor the negotiation of international trade
agreements to ensure that no immigration provisions requiring
changes to United States immigration law are presented.
Legislative History.--H.R. 2738 was introduced on July 15,
2003, by House Majority Leader Delay. On July 16, 2003, the
Judiciary Committee ordered H.R. 2738 reported (H.R. Rept. No.
108-224, Part II). On July 24, 2003 the House passed H.R. 2738
by a vote of 270 yeas to 156 nays. On July 31, 2003, the Senate
passed H.R. 2738 without amendment by a vote of 65 yeas to 32
nays. H.R. 2738 was signed by the President on September 3,
2003, and became Public Law No. 108-77.
H.R. 2739, the ``United States-Singapore Free Trade Agreement''
Summary.--On May 26, 2003, United States and Singapore
entered into a bilateral Free Trade Agreement (FTA), concluding
a negotiation process that began in December of 2000. H.R. 2739
approves the U.S.-Singapore FTA submitted to Congress on July
15, 2003 and makes changes to United States law necessary to
ensure compliance with the agreement. The legislation contains
four titles: Title I, ``Approval of and General Provisions
Relating the Agreement;'' Title II, ``Customs Provisions;''
Title III, ``Relief from Imports;'' and Title IV, ``Temporary
Entry of Business Persons.'' The Committee's consideration of
H.R. 2739 was limited to Title IV of the legislation. Title IV
establishes 5,400 annual professional worker visas for
Singaporean citizens to enter the United States on a temporary
basis.
H.R. 2739 was considered pursuant to the ``Bipartisan Trade
Promotion Authority Act of 2002''\23\ and the Trade Act of
1974.\24\ As a result, the legislation was considered on an
expedited basis which did not permit committees of jurisdiction
to amend the legislation after its formal introduction.
However, the Committee made several changes to draft
implementing legislation transmitted to the Committee for a
pre-introduction ``mock markup'' on July 10, 2003. These
changes were substantially reflected in the final version of
H.R. 2739 enacted into law.
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\23\ 19 U.S.C. Sec. 3805 et. seq. (2002).
\24\ 19 U.S.C. Sec. 2191 et. seq. (2003).
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Summary of U.S.-Singapore FTA provisions pertaining to the
jurisdiction of the Committee on the Judiciary
Although the Committee's formal legislative consideration
of H.R. 2739 was limited to Title IV of the legislation, which
implemented changes to United States immigration law, the U.S.-
Singapore FTA also contained intellectual property and
competition chapters that fall within the jurisdiction of the
Committee.
Intellectual property rights (IPR)
Chapter 16 of the U.S.-Singapore FTA contains several
provisions which enhance protections for IPR. The FTA requires
Singapore to more aggressively enforce laws prohibiting piracy
of intellectual property and establishes that non-
discrimination obligations apply for all types of intellectual
property. The FTA ensures government involvement in resolving
disputes between trademarks and Internet domain names
(important to prevent ``cyber-squatting'' of trademarked domain
names). It also applies the principle of ``first-in-time,
first-in-right'' to trademarks and geographical indicators
(place-names) applied to products.
The Agreement streamlines the trademark filing process by
allowing applicants to use their own national patent and
trademark offices for filing trademark applications. The FTA
ensures that only authors, composers, and other copyright
owners have the right to make their works available online.
Copyright owners maintain rights to temporary copies of their
works on computers. (This was aimed at protecting music,
videos, software, or text from widespread unauthorized sharing
via the Internet). Copyrighted works and phonograms are
protected for extended terms, consistent with U.S. standards
and international trends. The FTA also contains anti-
circumvention provisions aimed at preventing the tampering with
technologies (such as embedded codes on discs) that are
designed to prevent piracy and unauthorized distribution over
the Internet. It also ensures that governments use only
legitimate computer software (in order to set a positive
example for private users). Singapore is to prohibit the
production of optical discs (CDs, DVDs or software) without a
source identification code unless authorized by the copyright
holder in writing.
Under the FTA, protection for encrypted program-carrying
satellite signals extends to the signals themselves as well as
the programming. This is designed to prevent piracy of
satellite television programming. Both sides agreed to
criminalize unauthorized reception and re-distribution of
satellite signals. The Agreement also contains limited
liability for Internet Service Providers (ISPs)--reflecting the
balance struck in the U.S. Digital Millennium Copyright Act
between legitimate ISP activity and the infringement of
copyrights. In essence, both sides are to provide immunity to
Internet service providers for complying with notification and
take-down procedures when material suspected to be infringing
on copyright is hosted on their servers. The FTA provides for a
patent term to be extended to compensate for up-front
administrative or regulatory delays in granting the original
patent, consistent with U.S. practice. The grounds for revoking
a patent are limited to the same grounds required to originally
refuse a patent.
In addition, the Agreement requires the government of
Singapore to establish criminal penalties for pirated copies
from legitimate products. The Singaporean government guarantees
that it has authority to seize, forfeit, and destroy
counterfeit and pirated goods and the equipment used to produce
them. IPR laws are to be enforced against traded goods,
including trans-shipments, to deter violators from using U.S.
or Singaporean ports or free-trade zones to traffic in pirated
products. The FTA mandates both statutory and actual damages
under Singaporean law for IPR violations (as a deterrent to
piracy) and provides that monetary damages be awarded even if
actual economic harm (retail value, profits made by violators)
cannot be determined. Singapore is to cooperate in preventing
pirated and counterfeit goods from being imported into the
United States. The FTA sharply restricts Singapore from using
compulsory licenses to copy patented drugs and establishes
barriers to the import of patented drugs sold at lower prices
in third countries.
Competition policy and antitrust
Chapter 12 of the U.S.-Singapore FTA commits Singapore to
enact a law regulating anti-competitive business conduct and to
create a competition commission by January 2005. Specific
conduct guarantees are imposed to ensure that commercial
enterprises in which the Singapore government has effective
influence will operate on the basis of commercial
considerations and that such enterprises will not discriminate
in their treatment of U.S. firms. Singapore thus commits to
maintain its existing policy of not interfering with the
commercial decisions of Government Linked Companies (GLCs) and
to provide annual information on GLCs with substantial revenues
or assets. This requirement is particularly important because
GLCs comprise a relatively large part (nearly 40 percent) of
Singapore's economy. A summary of provisions related to
competition and antitrust contained in the U.S.-Singapore FTA
is set forth below.
Chapter 12 of the Agreement helps ensure that the
opportunities created by trade liberalization are supported by
healthy competitive domestic markets, allowing the firms of
each country to compete freely and unhampered by
anticompetitive business conduct in either country's territory.
Firms that are subject to antitrust enforcement action will be
guaranteed basic procedural safeguards. Since these protections
already exist in the United States, no changes to United States
law are necessary. While state monopolies and state enterprises
do not account for a significant portion of either country's
economy, the provisions governing these entities will help
eliminate the potential for either party to favor domestic
firms in the sale or purchase of goods and services.
Specifically, Chapter 12 ensures that both countries:
1. Enforce domestic antitrust law that prohibits
anticompetitive business conduct.
2. Cooperate in the enforcement of antitrust law.
3. Ensure that any private or public monopolies designated
by either country, and any state enterprises, be subject to
disciplinary action for abusing their status or otherwise
discriminating in a manner that harms the interests of the
other country.
4. Explicitly recognize that anticompetitive conduct
threatens the free flow of bilateral trade and investment, and
seeks to secure the benefits of the FTA by prohibiting such
conduct, encouraging economically sound competition policies,
and furthering transparency and cooperation.
5. Expand NAFTA's competition provisions by affirming that
antitrust laws be enforced in a neutral manner that does
discriminate on the basis of nationality.
6. Ensure basic procedural rights for firms that are
subject to antitrust enforcement actions: each country will
provide a right to be heard and to present evidence before
imposing a sanction or remedy.
7. Provide for consultations and furthers transparency by
allowing either country to request from the other specific
public information regarding antitrust enforcement activity,
official monopolies and state enterprises, and any exemptions
from their antitrust laws.
8. It is important to note that the provisions regarding
antitrust law and enforcement are not subject to dispute
settlement under the Agreement.
Temporary entry
Title IV of the U.S.-Singapore Free Trade Agreement draft
implementing legislation forwarded to the Committee by the
Administration for its July 10, 2003 ``mock markup'' reflected
U.S. commitments under Chapter 14 of the U.S.-Singapore FTA
pertaining to the temporary entry of business persons. However,
this draft legislation was considerably amended during the
Committee's ``mock markup'' on July 10, 2003. These Committee
recommendations were subsequently incorporated into the
introduced version of H.R. 2739. These changes are highlighted
in the ``Pre-Introduction ``Mock Markup'' of U.S.-Singapore FTA
Implementing Legislation and Committee Amendments Incorporated
Into H.R. 2739'' section of this report.
In general, Chapter 14 is consistent with existing
provisions of the Immigration and Nationality Act (``INA'').
The four categories of persons eligible for admission under the
Agreement's expedited procedures correspond to existing INA
nonimmigrant and related classifications. To provide for the
admission of the first two categories, business visitors and
intra-company transferees, no changes in U.S. statutes are
required. Limited technical changes are needed to provide for
the admission of traders and investors and professionals.
Legislation is also required to implement Article 14.3(2) of
the Agreement regarding labor disputes.
Traders and investors
Under Section B of Annex 14.3 of the Agreement, citizens of
Singapore are eligible for temporary entry as traders and
investors. This category provides for admission under
requirements identical to those governing admission under INA
Sec. 101(a)(15)(E) (8 U.S.C. Sec. 1101(a)(15)(E)), which
permits entry for persons to carry on substantial trade in
goods or services or to develop and direct investment
operations.
Section 101(a)(15)(E) currently conditions admission into
the United States upon authorization pursuant to a treaty of
commerce and navigation. Since the Agreement is not a treaty of
commerce and navigation, and no such treaty exists between the
United States and Singapore, legislation is necessary to accord
treaty trader and investor status to Singaporean citizens
qualifying for entry under Section B.
Section 401 of the draft legislation would not have amended
Sec. 101(a)(15)(E). Instead, it relied on a mechanism similar
to that provided in Sec. 341(a) of the North American Free
Trade Agreement Implementation Act, which in turn was based
upon the Act of June 18, 1954 (68 Stat. 264, 8 U.S.C.
Sec. 1184(a)). The Act of June 18, 1954 conferred treaty trader
and investor status upon nationals of the Philippines on a
reciprocal basis secured by an agreement entered into by the
President of the United States and the President of the
Philippines.
Professionals
Section 402(a) of the draft bill would have amended
Sec. 101(a)(15) of the INA (8 U.S.C. Sec. 1101(a)(15)), which
defines categories of persons entitled to enter the United
States as nonimmigrants. Section 402(a) of the draft bill would
have inserted a new subparagraph (W) at the end of INA
Sec. 101(a)(15). Subparagraph (W) would have established a new
category of aliens entitled to enter the United States
temporarily as nonimmigrants. These aliens would have been
citizens of countries with which the United States has entered
into free trade agreements and who sought to come to the United
States temporarily to engage in business activities at the
professional level. Entry into the United States under
subparagraph (W) would have been subject to regulations issued
by the Secretary of Homeland Security implementing numerical
limitations provided for in the applicable agreement, as set
forth in new paragraph (8) of INA Sec. 214(g), as added by the
bill. The Department of Labor would have issued regulations
governing temporary entry of professionals under this proposed
provision of law. This amendment to the INA would have
implemented Section D of Annex 14.3 of the Agreement.
New INA Sec. 101(a)(15)(W) also would have provided for the
entry of spouses and children accompanying or following to join
business persons entering under this category. The purpose of
this provision was to grant express authorization for current
Immigration and Naturalization Service practice, which is to
admit such persons, but not allow them to be employed in the
United States unless they independently met all applicable INA
requirements.
Persons seeking temporary entry into the United States
under Sec. 101(a)(15)(W) would have been:
1. Considered to be seeking nonimmigrant status.
2. Subject to general requirements relating to admission of
nonimmigrants, including those pertaining to the issuance of
entry documents and the presumption set out in INA Sec. 214(b)
(8 U.S.C. Sec. 1184(b)).
3. Accorded nonimmigrant status on admission.
It should be noted that while there are many similarities
in the way professionals would have been treated under
Sec. 101(a)(15)(W) of the INA, as proposed by the draft bill
and the way H-IB professionals are treated, a determination of
admissibility under subparagraph (W) would have neither
foreclosed nor established eligibility for entry as an H-1B
professional. Further, Sec. 101(a)(15)(W) would not have
authorized a professional to establish a business or practice
in the United States in which the professional will be self-
employed.
Numerical limitations
Paragraph six of Section D of Annex 14.3 of the Agreement
permits the United States to establish an annual numerical
limit on temporary entries under the Agreement of Singaporean
professionals.
Under the proposed new paragraph (8) of INA Sec. 214(g),
that would have been added by Sec. 402(a) of the bill, the
Secretary of Homeland Security will issue regulations
establishing an annual limit of up to 5,400 new temporary entry
applications from Singaporean professionals, as provided in
Appendix 14.3(D)(6) of the Agreement.
Labor attestations
Under Sec. (D)(5) of Annex 14.3 of the Agreement, the
United States may require that an attestation of compliance
with labor and immigration laws be made a condition for the
temporary entry of Singaporean professionals. This provision
allows U.S. labor and immigration officials to ensure that U.S.
employers are not hiring Singaporean professionals as a way to
put pressure on U.S. employees to accept lower wages or less
favorable terms and conditions of employment.
Section 402(b) of the draft legislation would have
implemented the attestation requirement under the Agreement.
Section 402(b) of the draft bill would have amended Sec. 212 of
the INA (8 U.S.C. Sec. 1182) by adding a new subsection (s) to
the end of that section. INA Sec. 212(s)(1), which would have
been added by Sec. 402(b) of the bill, required a U.S. employer
seeking a temporary entry visa for a Singaporean professional
to file an attestation with the Secretary of Labor. The
attestation would have consisted of four core elements similar
to those required for attestations under the ``H-1B'' visa
program. See 8 U.S.C. Sec. 1182(n)(1)(A)-(C). Thus, an employer
would have attested that:
1. It would pay the employee the higher of (a) the actual
wage paid to all other individuals with similar experience and
qualifications for the specific employment in question, or (b)
the prevailing wage level for the occupational classification
in the area of employment.
2. It would provide working conditions for the employee
that would not adversely affect the working conditions of
workers similarly employed.
3. There was no strike or lockout in the course of a labor
dispute in the occupational classification at the place of
employment.
4. The employer had provided notice of its attestation to
its employees' bargaining representative in the occupational
classification in the area for which the employee was sought
or, absent such a representative, has otherwise notified its
employees.
The remainder of the proposed new INA Sec. 212(s) contained
provisions for enforcing the labor attestation requirement.
Like the contents of the attestation itself, the enforcement
requirements were based on requirements under the ``H-1B'' visa
program. INA Sec. 212(s)(2)(A) required an employer to make
copies of labor attestations (and such accompanying documents
as are necessary) available for public examination at the
employer's principal place of business or worksite. INA
Sec. 212(s)(2)(B) required the Secretary of Labor to compile a
list of all labor attestations filed including, with respect to
each attestation, the wage rate, number of alien professionals
sought for employment, period of intended employment, and date
of need. INA Sec. 212(s)(2)(C) provided that the Secretary of
Labor would accept a labor attestation within seven days of
filing and issue the certification necessary for an alien to
enter the United States as a nonimmigrant under INA
Sec. 101(a)(15)(W), unless the attestation was incomplete or
obviously inaccurate.
INA Sec. 212(s)(3)(A) required the Secretary of Labor to
establish a process for the receipt, investigation, and
disposition of complaints respecting an employer's failure to
meet a condition specified in a labor attestation or an
employer's misrepresentation of material facts in such an
attestation. Section 212(s)(3) also set forth penalties that
may be imposed for violation of the labor attestation
requirements, including monetary fines and denial of
applications for visas under INA section 101(a)(15)(W) for
specified periods. INA Sec. 212(s)(4) defined certain terms
used in INA Sec. 212(s).
Labor disputes
Article 14.3(2) of the Agreement establishes an important
safeguard for the domestic labor forces of the United States
and Singapore, respectively. It permits either government to
refuse to issue an immigration document authorizing employment
where the temporary entry of a business person might affect
adversely the settlement of a labor dispute or the employment
of a person involved in such dispute. Article 14.3(2) thus
allows the United States to deny temporary entry to a
Singaporean business person whose activities in the United
States require employment authorization if admission might
interfere with an ongoing labor dispute. If the United States
invokes Article 14.3(2), it must inform the business person in
writing of the reasons for its action and notify Singapore.
Section 403 of the draft bill implemented Article 14.3(2)
of the Agreement by amending INA Sec. 214(j) (8 U.S.C.
Sec. 1184(j)), designating current subsection (j) as paragraph
(1) and inserting a new paragraph (2). New paragraph (2) of INA
Sec. 214(j) provided authority to refuse nonimmigrant
classification under specified circumstances to a Singaporean
business person seeking to enter the United States pursuant to
the Agreement. In particular, nonimmigrant would have been
refused if there was a strike or lockout affecting the relevant
occupational classification at the Singaporean business
person's place of employment or intended place of employment in
the United States, unless that person established, pursuant to
regulations issued by the Secretary of Homeland Security after
consultations with the Secretary of Labor, that the business
person's entry would not have adversely affected the settlement
of the strike or lockout or the employment of any person
involved in the strike or lockout.
New paragraph (2) also required the provision of notice to
the affected Singaporean business persons and to Singapore of a
determination to deny nonimmigrant classification, as required
under Article 14.3(3) of the Agreement. INA Sec. 214(j)(2) as
inserted by the draft legislation applies only to requests for
temporary entry by traders and investors, intra-company
transferees, and professionals--i.e., the categories of
nonimmigrants that require employment authorization under U.S.
law (corresponding to Sections B, C, and D of Annex 14.3 of the
Agreement). Employment in the U.S. labor market would not have
been permitted for business visitors, as defined in INA
Sec. 101(a)(15)(B) (8 U.S.C. Sec. 1101(a)(15)(B))
(corresponding to Section A of Annex 14.3 of the Agreement);
violations of status under that provision that involve labor
disputes are fully redressable under existing law.
Section 214(j)(2) would have been similar to existing INA
provisions that prohibit admission in certain circumstances
where interference with a labor dispute may result. For
example, under INA Sec. 212(n)(1)(B) (8 U.S.C.
Sec. 1182(n)(1)(B)), the U.S. employer sponsoring an alien for
admission must certify that there is no strike or lockout in
the occupational classification at the place of employment.
Additionally, Sec. 214(j)(2) would have supplemented INA
Sec. 237(a)(1)(C) (8 U.S.C. Sec. 1227(a)(1)(C)) and related INA
provisions that now authorize deportation of an alien admitted
under a particular nonimmigrant category if the alien ceased to
perform the type of work permittedunder that category or
misrepresented the nature of the work at the time of admission. The
Department of Labor would have provided strike certifications to the
Department of Homeland Security, as it has provided them to the
Immigration and Naturalization Service under existing provisions,
pursuant to 8 C.F.R. Sec. 214.2(h)(17).
Administrative action
Singapore would have been added to the list of countries,
maintained by the Department of State, whose citizens are
eligible for treaty trader and treaty investor status under INA
Sec. 101(a)(15)(E). With respect to professionals provided for
under Section D of Annex 14.3 of the Agreement, in all cases
where a state license is required to engage in a particular
activity in the United States, such professionals would have
been required to obtain the appropriate state license. Pursuant
to INA Sec. 101(a)(15)(W) as proposed by section 402(a) of the
draft bill, the Secretary of Homeland Security would have
issued regulations implementing the numerical limits set forth
in Appendix 14.3(D)(6) of the Agreement. The Secretary of Labor
would have issued regulations implementing the labor
attestation provisions in new subsection (s) of INA Sec. 212.
The administrative agencies responsible for administering the
other amendments to the INA described above would have
promulgated regulations to implement those amendments.
Summary of immigration provisions
Under Section B of Annex 14.3 of the Free Trade Agreement,
citizens of Singapore are eligible for temporary entry as
traders and investors. This category provides for admission
under requirements identical to those governing admission as E
visa nonimmigrants, which permits entry for persons to carry on
substantial trade in goods or services or to develop and direct
investment operations. The Immigration and Nationality Act
currently conditions admission into the United States upon
authorization pursuant to a treaty of commerce and navigation.
Since the Agreement is not a treaty of commerce and navigation,
and no such treaty exists between the United States and
Singapore, legislation is necessary to accord treaty trader and
investor status to Singaporean citizens qualifying for entry
under Section B. Section 401 of H.R. 2739 accomplishes this by
relying on a mechanism similar to that provided in section
341(a) of the North American Free Trade Agreement
Implementation Act, which in turn was based upon the Act of
June 18, 1954 (68 Stat. 264, 8 U.S.C. 1184(a)). The Act of June
18, 1954 conferred treaty trader and investor status upon
nationals of the Philippines on a reciprocal basis secured by
an agreement entered into by the President of the United States
and the President of the Philippines.
Section 402(a) of H.R. 2739 implements Section D of Annex
14.3 of the Free Trade Agreement by creating a new ``H-1B1''
nonimmigrant visa category for aliens who are citizens of
countries with which the United States has entered into free
trade agreements and who seek to come to the United States
temporarily to engage in business activities at the
professional level. Section 402(a) of the bill establishes an
annual limit of up to 5,400 new temporary entry applications
from Singaporean professionals, as provided in Appendix
14.3(D)(6) of the Agreement.
Under Sec. (D)(5) of Annex 14.3 of the Agreement, the
United States may require that an attestation of compliance
with labor and immigration laws be made a condition for the
temporary entry of Singaporean professionals. Section 402(b) of
H.R. 2739 implements the attestation requirement under the
Agreement, requiring a U.S. employer seeking a temporary entry
visa for a Singaporean professional to file an attestation with
the Secretary of Labor consisting of four core elements similar
to those required for attestations under the H-1B visa program.
Thus, an employer would have to attest that:
It would pay the employee the higher of: (a) the actual
wage paid to all other individuals with similar experience and
qualifications for the specific employment in question, or (b)
the prevailing wage level for the occupational classification
in the area of employment.
It would provide working conditions for the employee that
would not adversely affect the working conditions of workers
similarly employed. There is no strike or lockout in the course
of a labor dispute in the occupational classification at the
place of employment. The employer has provided notice of its
attestation to its employees' bargaining representative in the
occupational classification in the area for which the employee
is sought or, absent such a representative, has otherwise
notified its employees. Like the contents of the attestation
itself, the enforcement requirements are based on requirements
under the H-1B visa program. Unlike the H-1B program, the
period of authorized admission for H-1B1 aliens is one year,
and may be extended in one year increments.
Pre-Introduction ``mock markup'' of U.S.-Singapore FTA
implementing legislation and committee amendments
incorporated into H.R. 2739
On July 10, 2003, the Committee held a pre-introduction
``mock markup'' of draft implementing legislation submitted by
the Administration to the Committee. The Committee's
consideration of this draft legislation was limited to Title IV
of the draft implementing legislation. During this meeting,
Chairman Sensenbrenner, Ranking Member Conyers, and several
Members of the Committee made it clear that they opposed the
inclusion of immigration provisions in H.R. 2739 and that they
would not support any future FTA that included substantive
changes to United States immigration law.
Judiciary Committee amendments to draft implementing
legislation
The Committee reported several amendments to the
immigration provisions by voice vote. The amendments were
reflected in H.R. 2739.
First, the Committee reported an amendment by
Representative King to transfer the new ``W'' professional
worker visa category for citizens of Singapore to
Sec. 101(a)(15)(H)(i)(b)(1) of the Immigration and Nationality
Act, rather than Sec. 101(a)(15)(W) as provided for in the
draft implementing legislation. Representative King's amendment
also ensured that in future years, the national H-1B visa cap
will be reduced in two situations. First, the number of H-1B
visas available in a fiscal year will be reduced by the number
of Singaporean citizens granted extensions of H-1B1 status in
that fiscal year after having previously been granted five or
more consecutive prior extensions. Second, the number of H-1B
visas available in a fiscal year will be reduced by the number
of H-1B1 visas allocated (5,400 for citizens of Singapore).
However, if at the end of a fiscal year, the 6,800 slots
reserved for citizens of Chile and Singapore have not been
exhausted, the number of H-1B visas available for that fiscal
year will be adjusted upwards by the number of unused Chile and
Singapore visas. These newly available H-1B visas may be issued
within the first 45 days of the next fiscal year to aliens who
had applied for such visas during the fiscal year for which the
adjustment was made.
The Committee also reported an amendment offered by
Representatives Berman and Conyers requiring that an
application for every second extension for an H-1B1 visa be
accompanied by a new employer attestation. This will have the
effect of requiring the employer to update the prevailing wage
determination at such time. The amendment also requires that an
employer pay a fee when H-1B1 status is initially granted and
after every second extension of that status. The fee shall be
the same as the fee an employer must pay when petitioning for
an H-1B visa. However, if no fee is being assessed under the H-
1B program, no fee shall be imposed under the H-1B1 program.
Finally, the implementing legislation now clarifies that an
employer generally cannot sponsor an alien for an E, L, or H-
1B1 visa if there is any labor dispute occurring in the
occupational classification at the place of employment,
regardless of whether the labor dispute is classified as a
strike or lockout. In this regard, worker protections in H.R.
2739 are broader than those contained in the H-1B visa
category.
Following the Committee's markup consideration of H.R.
2739, Chairman Sensenbrenner and Ranking Member Conyers sent a
bipartisan letter co-signed by several Members of the Committee
expressing strong Committee opposition to the inclusion of
immigration-related provisions requiring changes to existing
U.S. law in any subsequent free trade agreements submitted to
Congress for its consideration. The Committee continues to
closely monitor the negotiation of international trade
agreements to ensure that no immigration provisions requiring
changes to United States immigration law are presented.
Legislative History.--H.R. 2739 was introduced on July 21,
2003 by Tom DeLay, the House Majority Leader and referred to
the committee. On July 16, 2003, the Judiciary Committee
ordered H.R. 2738 reported. On July 22, 2003, the Judiciary
Committee reported H.R. 2738 (H. Rept. No. 108-225, Part II).
On July 24, the House passed H.R. 2738 with a vote of 272 yeas
to 155 nays. On July 31, 2003, the Senate passed H.R. 2738
without amendment by a vote of 66 Yeas to 32 Nays. H.R. 2738
was signed by the President on September 3, 2003, and became
Public Law No. 108-78.
H.R. 3036, the ``Department of Justice Appropriations Authorization
Act, FY 2004 to 2006''
Summary.--Chairman F. James Sensenbrenner, Jr. introduced
H.R. 3036 on September 9, 2003. H.R. 3036 would authorize
appropriations for the Department of Justice for Fiscal Years
2004 through 2006. The bill as introduced contained three
titles. Title I would provide the authorizations for
appropriations for the various activities of the Department.
Title II would make various reforms to the Department's grant
programs to assure accountability and evaluation of these
programs. Title III would make miscellaneous changes to various
Department authorizing statutes. At the Committee's markup,
Title IV, relating to DNA database enhancement, and Title V,
relating to the Koby Mandell Act, were added.
Congressional authorization of appropriations for the
Justice Department is required by law. (Public Law No. 94-503,
Title II, Sec. 204, 90 Stat. 2427 (1976)) Title I contained
authorizations of appropriations for the Department's various
programs for Fiscal Years 2004 through 2006. These
authorizations followed the President's budget request for the
Department for Fiscal Year 2004. For Fiscal Year 2005, the
authorizations represented the President's budget request plus
a 2% increase. For Fiscal Year 2006, the authorizations
represented the Fiscal Year 2005 authorization plus a 2%
increase. The Committee went beyond the Administration's
request in one respect. The Committee provided for additional
funds for the Office of the Inspector General. The Committee
expects the OIG to use these additional funds in fulfilling its
duties under Sec. 1001 of the ``U.S.A. PATRIOT Act,'' Public
Law 107-56. In addition, the authorization for the Federal
Bureau of Investigation in all three years included language
limiting the FBI's participation in the Terrorist Threat
Integration Center (``TTIC'') to the analysis of intelligence
information.
Title II would generally reform the Department's grant
programs, most of which are run through the Office of Justice
Programs (``OJP'') or the Community Oriented Policing Services
(``COPS'') Office. The Committee believes that many of the
programs that these two offices administer are worthwhile and
should be continued. The Committee also believes that the
Department has made many administrative reforms in the last
several years that have greatly increased the efficiency of
these programs. The reforms in H.R. 3036 were intended to build
on that progress and should not be interpreted to indicate any
lack of support for that work. In fact, most of the measures
included in Title II originated from a proposal formally
submitted to the Congress by the Administration on June 4,
2003.
Title III would make a number of miscellaneous technical
changes to statutes involving the Department. It would also
make several more substantive changes. Section 304 was intended
to ensure that the Justice Department uses the most cost-
effective training and meeting facilities for its employees.
Section 305 would establish a statutory privacy officer within
the Department to ensure that the Department safeguards
personally identifiable information and complies with fair
information practices pursuant to 5 U.S.C. Sec. 552a. Section
306 was intended to ensure the United States Trustee Program (a
component of the Justice Department) actively identifies
matters warranting criminal referrals and undertakes efforts to
prevent bankruptcy fraud and abuse. Section 307 would require
the Attorney General to submit an annual report to Congress
specifying the number of United States persons or residents
detained on suspicion of terrorism and specifying the standards
developed by the Department of Justice for recommending or
determining that a person should be tried as a criminal
defendant or should be designated as an enemy combatant.
Title IV was added by an amendment offered by
Representative Schiff and adopted by the Committee. It contains
several provisions relating to enhancing DNA databases. First,
it would amend the ``DNA Analysis Backlog Elimination Act of
2000'' to require any state that receives grants under that Act
to include every person convicted of a violent felony under its
state law within its DNA database. Second, it would amend the
provisions of the ``Violent Crime Control and Law Enforcement
Act of 1994'' so that the DNA of persons arrested for crimes
and the DNA of persons from whom DNA samples have been lawfully
taken under state law may be included in the DNA database
authorized under that Act. Third, it would amend the ``DNA
Analysis Backlog Elimination Act of 2000'' to require any state
that receives grants under that Act not to prohibit or limit
its law enforcement officers from comparing lawfully obtained
DNA samples with the information in the Combined DNA Index
System. Finally, it would permanently reauthorize such sums as
may be necessary to fund the DNA Backlog Grant Programs first
authorized under the ``DNA Analysis Backlog Elimination Act of
2000.''
Title V was added by an amendment offered by Representative
Weiner and adopted by the Committee. It would establish an
office within the Department of Justice to undertake specific
steps to facilitate the capture of terrorists who have harmed
American citizens overseas and to ensure that all American
victims of overseas terrorism are treated equally. It would
require the President to establish within the Department of
Justice an office to carry out the following activities: (1)
create a Bringing Terrorists to Justice program that will offer
rewards to captureterrorists involved in harming American
citizens overseas; (2) establish a program to provide notification for
American victims of overseas terrorism or their immediate family to
update them on the status of efforts to capture the terrorists who
harmed them; (3) work with other agencies to expand legal restrictions
on terrorists to reap profits from books or movies concerning their
crimes; (4) determine if terrorists who have harmed American citizens
overseas are serving in police or security forces and request other
agencies involved in providing assistance to those forces to halt
assistance until such terrorists are removed from their positions; (5)
undertake an assessment of the pattern of indictments of terrorists who
have harmed American citizens overseas to determine the reasons for the
absence of indictments in some regions; (6) monitor public actions by
governments and regimes overseas to honor terrorists who have harmed
American citizens overseas and encourage other agencies to halt their
assistance to such governments and regimes; and (7) coordinate with
other agencies to seek the transfer to United States custody of
terrorists who have harmed American citizens overseas if they are
released from the custody of other governments. It also authorizes such
sums as may be necessary to carry out the purposes of Title V for
Fiscal Year 2003 and subsequent Fiscal Year and makes amounts
appropriated under the section available until expended.
At the markup, Members of the Committee, including Chairman
Sensenbrenner and Rep. Weiner, agreed in principle to
consolidate a variety of programs within the COPS office into
one single grant program encompassing all of the grant purposes
that these programs currently encompass. As with the Byrne-
LLEBG merger, this consolidation would allow state and local
governments more flexibility to spend the money for programs
that work in their locality while easing the administrative
burden of applying to a different program for each different
purpose. This language was later negotiated and included in the
bill as part of the manager's amendment adopted during house
floor consideration.
Legislative History.--H.R. 3036 was referred to the House
Judiciary Committee on September 9, 2003. The Committee held a
markup and reported the bill to the House, as amended, by a
voice vote on September 10, 2003 (H. Rpt. No. 108-426). On
March 30, 2004, Chairman Sensenbrenner moved to suspend the
rules and pass the bill as amended, and the motion was agreed
to by a voice vote. The bill was received in the Senate on
March 31, 2004 and no further action was taken on the bill.
H.R. 3247, the ``Trail Responsibility and Accountability for the
Improvement of Lands (TRAIL) Act''
Summary.--Congressman Thomas Tancredo introduced H.R. 3247
on October 2, 2003. H.R. 3247 attempted to provide consistent
enforcement authority to each of the four major land management
agencies that respond to violations of regulations regarding
the management, use, and protection of public lands under the
jurisdiction of these agencies. Additionally, the bill would
clarify the purposes for which collected fines may be used and
would also incorporate the amended text of H.R 1038, the
``Public Lands Fire Regulations Enforcement Act of 2003,'' as
it relates to increasing the criminal penalties that may be
imposed for a violation of fire regulations applicable to the
public lands. (The Judiciary Committee favorably reported H.R.
1038, with an amendment, by voice vote on September 15, 2003).
Currently, each of the four major federal land management
agencies (the Bureau of Land Management, the U.S. Forest
Service, the National Park Service, and the U.S. Fish and
Wildlife Service) have different penalties for similar
violations of laws that protect public lands. This legislation
would provide consistent penalties for violations under each of
their organic acts or any regulation issued under those acts.
H.R. 3247 would apply two general classes of fines and
penalties, under 18 U.S.C. Sec. Sec. 3571 and 3581, for those
who are guilty of certain crimes on federal lands. H.R. 3247
would also designate the use of all collected fines to cover
the cost of any improvement, protection, or rehabilitation work
needed because of the action leading to the fine. Collected
fines could also be used to increase public awareness of
regulations or to cover administrative or legal expenses
rendered necessary by the actions which lead to the fine. Any
excess funds would be returned to the U.S. Treasury.
H.R. 3247 would establish a minimum fine of $500 for a
violation of fire rules and regulations on lands under the
jurisdiction of the Bureau of Land Management, National Park
System Lands, and National Forest System Lands, if the
violation of the rule or regulation was the result of reckless
conduct, occurred in an area subject to a complete ban on open
fires, and resulted in damage to public or private property.
Legislative History.--On May 20, 2004, H.R. 3247 was
sequentially referred to the House Judiciary Committee for a
period ending not later than June 30, 2004. On June 23, 2004,
the Committee held a markup and ordered the bill reported as
amended by a voice vote.\25\ On September 28, 2004, the bill
was considered under suspension and passed the House by a voice
vote. The bill was received in the Senate on September 29,
2004. The Resources Committee reported H.R. 3247 with an
amendment and filed H. Rept No. 108-511, Part I on May 20,
2004.
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\25\ H. Rep. No. 108-511 (2004).
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H.R. 3313--the ``Marriage Protection Act of 2004''
Summary.--H.R. 3313 would prevent federal courts from
striking down the provision of the Defense of Marriage Act (28
U.S.C. Sec. 1738C) (``DOMA'') that provides that no state shall
be required to accept same-sex marriage licenses granted in
other states. At least 38 states specifically reject by statute
the recognition of same-sex marriage licenses granted out-of-
state. Congress passed in DOMA by a vote of 342-67 in the House
and 85-14 in the Senate.
Legislative History.--H.R. 3313, the ``Marriage Protection
Act of 2004,'' was introduced by Rep. John Hostettler on
October 16, 2003. On June 24, 2004, the Constitution
Subcommittee held a hearing on H.R. 3313 and the subject of
``Limiting Federal Court Jurisdiction to Protect Marriage for
the States'' at which testimony was received from the following
witnesses: Phyllis Schlafly, Founder and President, Eagle
Forum; Michael Gerhardt, Arthur B. Hanson Professor of Law,
William & Mary Law School; Martin H. Redish, Louis and Harriet
Ancel Professor of Law and Public Policy, Northwestern Law
School; and William E. Dannemeyer, Former U.S. Representative.
On July 14, 2004, the Committee met in open session and ordered
favorably reported the bill H.R. 3313 with an amendment by a
recorded vote of 21 to 13, a quorum being present. (H. Rept.
No. 108-614). On July 22, 2004, H.R. 3313 was passed by the
House by a vote of 233 to 194.
H.R. 4319, Title 46 Codification Act of 2004
Summary.--H.R. 4319 is a joint product of the Department of
Transportation and the Office of the Law Revision Counsel of
the House of Representatives. On November 10, 2002, the
Secretary of Transportation transmitted to Congress proposed
legislation to complete the codification of title 46, United
States Code. The Secretary's transmittal was referred to the
Committee on the Judiciary of the House of Representatives. The
Committee in turn requested the Office of the Law Revision
Counsel, which has responsibility for preparing codification
legislation pursuant to Sec. 285b of Title 2, United States
Code, to review the Secretary's proposed legislation and to
work with the Department of Transportation in preparing a bill
for introduction. This bill is the product of that cooperative
effort.
Legislative History.--On May 12, 2004, H.R. 4319 was
introduced by Chairman F. James Sensenbrenner, Jr. and Ranking
Member John Conyers, Jr. On September 8, 2004 the committee
reported the bill with an amendment by voice vote and filed H.
Rept. No. 108-690. On September 28, 2004, H.R. 4319 passed the
House under the suspension of the rules as amended, by a voice
vote. H.R. 4319 was received in the Senate on September 29,
2004. No further action was taken on the bill.
H.R. 4661, the ``Internet Spyware Prevention (I-SPY) Act of 2004''
Summary.--H.R. 4661 enhances existing fraud and computer
crime law with strong criminal penalties targeting the most
egregious abuses perpetrated upon Internet users by persons who
maliciously employ various covert software applications,
programs, applets, or code commonly known as ``spyware.'' H.R.
4661, as amended, also provides resources and guidance to the
Department of Justice for the dedicated prosecution of these
offenses as well as fraudulent online identity theft
(``phishing'') offenses, and similar computer crimes.
Legislative History.--H.R. 4661 was introduced by Rep. Bob
Goodlatte, Rep. Zoe Lofgren, and Rep. Lamar S. Smith on June
23, 2003 and referred to the Committee on the Judiciary. On
September 9, 2004 the full Committee on the Judiciary met in
open session and ordered favorably reported the bill H.R. 4661,
with an amendment, by a voice vote. The Committee's report on
H.R. 4661, as amended, was filed on September 23, 2004 as H.
Rept. No. 108-698 and the bill was placed on the Union
Calendar. On October 6, 2004 Rep. Goodlatte on behalf of
Chairman Sensenbrenner moved that the House consider and pass
H.R. 4661 as amended under suspension of the rules. H.R. 4661
then passed the House under suspension of the rules on a roll
call vote of 415-0. The bill was received in the Senate and
placed on the legislative calendar, but H.R. 4661 had no
further consideration by the Senate before the end of the 108th
Congress.
H.R. 5107, the ``Justice for All Act of 2004''
Summary.--Chairman Sensenbrenner introduced H.R. 5107 on
September 21, 2004. This legislation incorporated the text of
H.R. 3214 as passed by the House and legislation similar to the
Senate-passed Victims'rights bill, S. 2329.
H.R. 5107 enhanced the rights and protections for all
persons involved in the criminal justice system through two
different, but complementary mechanisms: (1) a new set of
rights for victims of crime, which are both enforceable in a
court of law and supported by fully-funded victims' assistance
programs; and (2) a comprehensive DNA bill that seeks to ensure
that the true offender is caught and convicted for the crime.
Title I enumerated eight rights for crime victims and provided
an enforcement mechanism for those rights. It also authorized
$155 million in funding over the next 5 years for victims'
assistance programs at the Federal and state level.
Titles II, III, and IV addressed three interrelated DNA
problems. Title II provided for the elimination of the large
backlog of DNA evidence that has not been analyzed. It also
provided resources to remedy the lack of training, equipment,
technology, and standards for handling DNA and other forensic
evidence. Title II addressed the backlog by reauthorizing and
expanding the DNA Analysis Backlog Elimination Act of 2000. It
increased the authorized funding levels for the DNA Analysis
Backlog Elimination program to $151 million annually for the
next 5 years. Title III authorized funding for training for law
enforcement, correctional, court, and medical personnel on the
use of DNA evidence. Title III also authorized grant programs
to reduce other forensic science backlogs, research new DNA
technology, and promote the use of DNA technology to identify
missing persons. Lastly, Title III provided funds to the
Federal Bureau Investigation (``FBI'') for the administration
of its DNA programs.
Title IV established rules for post-conviction DNA testing
of Federal prison inmates and required the preservation of
biological evidence in Federal criminal cases while the
defendant remains incarcerated. It provided incentive grants to
States that adopt adequate procedures for providing post-
conviction DNA testing and preserving biological evidence.
Additionally, it authorized funding to help States provide
competent legal services for both the prosecution and the
defense in death penalty cases and provided funds for post-
conviction DNA testing.
Legislative History.--The House Judiciary Committee held a
markup of H.R. 5107 on September 22, 2004 and ordered the bill
reported to the House by a voice vote (H. Rpt. No. 108-711). On
October 6, 2004, Chairman Sensenbrenner introduced an amendment
to the bill, and the bill passed as amended, by a vote of 393-
14. On October 9, 2004, the bill passed the Senate by unanimous
consent and became Public Law No. 108-405 on October 30, 2004.
H.R. 5363, A bill to authorize salary adjustments for Justices and
judges of the United States for fiscal year 2005
Summary.--Introduced by Representative F. James
Sensenbrenner, Jr., H.R. 5363 addresses the statutory mandate
of Sec. 140 of Pub. L. No. 97-92 by specifically authorizing a
cost-of-living adjustment (COLA) for federal judges in advance
of or concurrent with an appropriation.
Legislative History.--On November 16, 2004, H.R. 5363 was
referred to the House Committee on the Judiciary. The following
day the House passed the bill, without amendment, by voice
vote. On December 8, 2004, the Senate passed H.R. 5363, without
amendment, by unanimous consent. The President signed H.R. 5363
on December 23, 2004, which became Public Law No. 108-491. The
text of H.R. 5363 was also included in H.R. 4818, the
``Consolidated Appropriations Act of 2005'' (both houses of
Congress agreed to the accompanying conference report to H.R.
4818, H. Rept. 108-792, on November 20, 2004). On December 8,
2004 the President signed the bill into law. (Public Law No.
108-447)
H.J. Res. 106--Federal Marriage Amendment
Summary.--H.J. Res. 106 is a slightly modified form of H.J.
Res. 56 that amends the Constitution to state that marriage is
the union of one man and one woman.
Legislative History.--H.J. Res. 106 was introduced by Rep.
Marilyn Musgrave on September 23, 2003. It was referred to the
Committee on September 23, 2004. No action was taken on H.J.
Res. 106 in Committee. On September 30, 2004, H.J. Res. 106
failed to pass the House by a vote of 227-186, a two-thirds
vote being necessary to pass an amendment to the Constitution.
H. Con. Res. 414--Expressing the sense of the Congress, that as
Congress recognizes the 50th anniversary of the Brown v. Board
of Education decision, all Americans are encouraged to observe
this anniversary with a commitment to continuing and building
on the legacy of Brown
Summary.--The purpose of this concurrent resolution was to
commemorate the 50th anniversary of the United States Supreme
Court's decision in Brown v. Board of Education, which held
that ``separate but equal'' educational institutions were
unconstitutional. The resolution recognized the bravery of the
four plaintiffs who brought the cases that were consolidated
into Brown, as well as the pioneering role that Mexican-
American plaintiffs played in developing the case law to
overturn Plessy v. Ferguson. The resolution also recognizes the
importance of the Brown decision in the fight against
discrimination in the United States.
Legislative History.--Congressman Conyers of Michigan
introduced H. Con. Res. 414 on May 4, 2004, and it was
subsequently referred to the Committee on the Judiciary. On May
12, 2004, the Committee met in open session and ordered the
concurrent resolution reported, without amendment, by a vote of
27 to 0. The Committee filed the report, H. Rept. No. 108-485,
on May 12, 2004. On May 13, 2004, the House of Representatives
considered H. Con. Res. 414 and passed it by 406 to 1. The
resolution subsequently was referred to the Senate Committee on
the Judiciary. On May 19, 2004, the Senate Judiciary Committee
discharged the resolution by unanimous consent, and the full
Senate agreed to it without amendment by unanimous consent.
H.J. Res. 63--the ``Compact of Free Association Amendments of 2003''
Summary.--In 1982, the U.S. government and the government
of the Federated States of Micronesia concluded a Compact of
Free Association, which would make the Federated States an
independent nation in free association with the U.S. In 1983,
this compact was approved by the people of Micronesia in a
plebiscite. In 1983, the U.S. government and the government of
the Marshall Islands concluded a Compact of Free Association,
which would make the Marshall Islands an independent nation in
free association with the U.S. Later that year, this compact
was approved by the people of the Marshall Islands in a
plebiscite. The Compacts provided that the U.S. would support
the new nations economically with the goal of making them self-
sufficient. As to defense matters, the Compacts provided that
the U.S. would defend the nations against attack. The U.S.
would also be able to establish by agreement military bases in
their territory, foreclose access to, or use of, the nations by
military personnel or for the military purposes of third
countries (military denial), and bar the nations from taking
actions that were incompatible with U.S. defense interests
(defense veto). As to the Marshall Islands, a major subsidiary
agreement allowed the U.S. continued use of the Kwajalein
missile test range.
The current Compacts provide that most citizens of the
Federated States of Micronesia and the Marshall Islands ``may
enter into, lawfully engage in occupations, and establish
residence as a nonimmigrant in the United States.'' In recent
years, the U.S. government has expressed a number of concerns
regarding the immigration provisions of the current Compacts.
First, the ability of aliens claiming to be citizens of the
nations to enter the U.S. without having to have passports is
an open invitation for abuse by terrorists. Second, the
government of the Marshall Islands has in the past sold
citizenship and passports to non-native ``investors''. Third,
Americans have taken advantage of the ability of citizens of
the nations to enter the U.S. without visas to bring in adopted
children without having to meet the requirements of the
Immigration and Nationality Act regarding foreign adoptions
that are designed to safeguard the interests of the child and
his or her biological parents. Fourth, labor recruiters who
arrange jobs in the United States for citizens of the nations
have been abusing these workers, such as by not revealing the
real nature of the jobs they will perform, charging prohibitive
liquidated damages if the workers leave employment before the
end of their employment contracts, and by leaving workers with
no ability to return home at the conclusion of their jobs.
H.J. Res. 63 amends the Compacts pursuant to these
negotiated agreements:
1. Passports will be required to enter the U.S.
2. No person who has been granted citizenship in the
Federated States of Micronesia or the Marshall Islands, or has
been issued a Federated States of Micronesia or Marshall
Islands passport pursuant to any investment, passport sale, or
similar program, shall be eligible for admission as a
nonimmigrant under the Compacts.
3. A naturalized citizen of the Federated States of
Micronesia or the Marshall Islands is only eligible for the
benefits of nonimmigrant entry into the U.S. under the Compacts
if he is (1) the spouse or unmarried minor child of a citizen
of the Federated States of Micronesia or the Marshall Islands
(who was a citizen of the Trust Territory of the Pacific
Islands before the effective date of the relevant Compact or
who was born in the islands after the effective date of the
relevant Compact) and has been an actual resident of the
Federated States of Micronesia or the Marshall Islands for not
less than five years after being naturalized and who holds a
certificate of actual residence, and, if a spouse, has been
married to the citizen for at least five years, or (2) an
actual resident for not less than five years after being
naturalized (as of April 30, 2003), who continues to be an
actual resident and who holds a certificate of actual residence
and whose name is included on a list furnished by the
government of the Federated States of Micronesia or the
Marshall Islands not later than the effective date of the
relevant amended Compact. In addition, no naturalized citizen
is eligible for the rights under the Compacts if the
circumstances associated with the naturalization are such as to
allow a reasonable inference on the part of appropriate
officials of the United States that the naturalization was
acquired primarily in order to obtain entry rights into the
United States.
4. Any child who is coming to the U.S. pursuant to an
adoption outside the country or for the purpose of adoption in
the U.S., is ineligible for admission as a nonimmigrant under
the Compacts. The child would have to be brought to the U.S.
pursuant to the applicable provisions of the Immigration and
Nationality Act.
5. In order to address the U.S. government's concerns
regarding labor recruitment practices, separate agreements,
which shall come into effect simultaneously with the Compacts,
shall govern requirements relating to labor recruitment
practices.
Legislative History.--On July 8, 2003, Representative James
A. Leach introduced H.J. Res. 63 (by request). H.J. Res. 63 was
referred to the Committees on International Relations,
Resources, and the Judiciary. The Committee on International
relations filed a legislative report H. Rept. No. 108-262, Part
I. The Committee on Resources filed a legislative report H.
Rept. 108-262, Part II. On September 15, 2003, reported out
with an amendment H.J. Res. 63 by voice vote. The resolution
was passed by the House on October 28, 2003 by a voice vote. On
November 6, 2003 the Senate passed the resolution by unanimous
consent, with amendments to the title and text. On November 20,
2003 the House passed the amendments from the Senate by a 417-2
vote. The President signed the resolution on December 17, 2003
and it became Public Law No. 108-188.
S. 1233, the ``National Great Black Americans Commemoration Act of
2004''
Summary.--Senator Barbara Mikulski introduced S. 1233, the
``National Great Black Americans Commemoration Act'' on June
11, 2003. The purpose of S. 1233 was to authorize assistance
for the National Great Blacks in Wax Museum and Justice
Learning Center. The Great Blacks in Wax Museum, Inc. in
Baltimore, Maryland, a nonprofit organization, was founded in
1983 by Drs. Elmer and Joanne Martin, two Baltimore educators
who used their personal savings to purchase wax figures, which
they displayed in schools, churches, shopping malls, and
festivals in the mid-Atlantic region. It is the nation's first
wax museum presenting the history of great Black Americans,
including those who have served in Congress, in senior
executive branch positions, in the law, the judiciary and other
fields, as well as others who have made significant
contributions to benefit the Nation.
The museum plans to expand its existing facilities to
establish a 120,000 square foot National Great Blacks in Wax
Museum and Justice Learning Center, which is intended to serve
as a national museum and center for presentation of wax figures
and related interactive educational exhibits portraying the
history of great Black Americans. The committee agreed to amend
the legislation to provide for $5 million and to limit the use
of funds to education on civil rights and juvenile justice.
Legislative History.--The Senate passed S. 1233 by
unanimous consent on July 14, 2003. S. 1233 was discharged from
the House Judiciary Committee on April 2, 2004. On June 1,
2004, the bill was amended by the House and passed under
suspension of the rules. On June 3, 2004, the Senate agreed to
the House amendment by unanimous consent, and the bill became
Public Law No. 108-238 on June 22, 2004.
S. 2363, To Revise and Extend the Boys and Girls Clubs of America
Summary.--Senator Orrin G. Hatch introduced S. 2363, to
revise and extend the Boys and Girls Clubs of America on April
29, 2004. The Economic Espionage Act of 1996 (42 U.S.C.
Sec. 13751 note) established a program to provide Department of
Justice grant support for starting new Boys and Girls Clubs in
distressed areas. When the bill was introduced, the law called
for the establishment of 1,200 new clubs by the end of 2005. S.
2363 increased this number by 300 for a total of 1,500.
Previous law also called for a goal of 4,000 total clubs by
January 1, 2007. S. 2363 increased that goal to at least 5,000
such facilities in operation by January 1, 2010. Additionally,
the bill extended through FY 2010 the authority of the Director
of the Bureau of Justice Assistance of the Department of
Justice to make grants to the organization to establish such
facilities. It authorized appropriations for FY 2006 through FY
2010, beginning with $80 million in FY 2006 and increasing each
year by increments of $5 million, reaching $100 million in FY
2010.
Legislative History.--S. 2363 was introduced by Senator
Hatch and Senator Leahy on April 29, 2004. On June 3, 2004, the
Senate Committee on the Judiciary reported S. 2363 favorably,
and the same day, the Senate passed the bill without amendment
by unanimous consent. The bill was referred to the House
Committee on the Judiciary on June 4, 2004. On June 3, 2004,
the Senate passed S. 2363 by unanimous consent. On June 4,
2004, the bill was referred to the House Judiciary Committee.
On July 7, 2004, the Committee held a markup and ordered the
bill reported to the House by a voice vote (H. Rept. No. 108-
601). On September 28, 2004, Chairman Sensenbrenner moved to
suspend the rules and pass the bill. This motion was agreed to
by a vote of 374-19. The bill became Public Law No. 108-344 on
October 18, 2004.
OTHER MATTERS HELD OF THE FULL COMMITTEE
H.R. 6, the ``Energy Policy Act of 2003''
Summary.--H.R. 6 represents comprehensive energy reform
legislation. The legislation consists of ten broad titles, many
of which were similar to H.R. 4, which passed the House during
the 107th Congress. These titles are: Title I, Energy
Conservation; Title II, Oil and Gas; Title III, Hydroelectric
Relicensing; Title IV, Nuclear Matters; Title V, Vehicles and
Fuels; Title VI, DOE Programs; Title VII, Electricity; Title
VIII, Coal; Title IX, Renewable Fuels Standards; and Title X,
Automobile Efficiency.
There were several provisions in Senate-passed H.R. 6 for
which members of the Committee were appointed as conferees.
Section 206 would provide a more clearly defined standard of
antitrust review for electric utilities to develop, implement,
and enforce reliability standards. Section 253 would have
established a Department of Consumer Advocacy within the
Department of Justice to represent the interests of energy
customers on matters concerning the rates or services of public
utilities and natural gas companies.
Section 532 of the Senate Amendment consists of three
components. The first component amends the Bankruptcy Code to
exempt from any creditor claims (with certain exceptions) funds
or other assets held by a Nuclear Regulatory Commission (NRC)
licensee or any other person intended to be used to comply with
an NRC regulation or order regarding the decontamination and
decommissioning of a nuclear power reactor licensed under
certain provisions of the Atomic Energy Act, until the
decontamination and decommissioning of the nuclear power
reactor is completed to NRC's satisfaction. The second
component of Sec. 532 provides that an obligation of a
licensee, former licensee, or other person to use funds or
other assets to satisfy a responsibility (as described in the
preceding paragraph) may not be rejected, avoided, or
discharged in bankruptcy or in any liquidation, reorganization,
receivership, or other insolvency proceeding under Federal or
State law. The third component prohibits private insurance
premiums and standard deferred premiums maintained pursuant to
Sec. 170b of the Atomic Energy Act of 1954 from being used to
satisfy the claim of a creditor in a bankruptcy case until the
indemnification agreement executed in accordance with
Sec. 170(c) of such Act is terminated. At the Committee's
request, these provisions were deleted from the legislation in
conference.
Section 708 of Senate-passed H.R. 6 contains language
intended to expedite the ``approval, construction, and initial
operation of an Alaska natural gas transportation project.''
Section 708 would create expedited judicial review of claims
related to construction of the pipeline and make the D.C.
Circuit Court of Appeals the court of original jurisdiction for
legal challenges to construction of this pipeline. Section 767
enhances fines for willful destruction of oil or gas pipelines,
while Sec. 783 enhanced criminal penalties for destroying
pipeline facilities. Section 105(c)(1) requires participating
entities to establish a baseline for greenhouse emissions and
to annually report to appropriate agencies their direct and
indirect greenhouse gas emissions beginning on April 1 of the
third calendar year after enactment. Finally, Sec. 1109 of the
Senate amendment would permit the Attorney General, at the
request of designated agencies such as the Environmental
Protection Agency and the Department of Transportation, to
bring a civil action against a party for failing to comply with
the greenhouse gas emission limitations contained in the bill.
Finally, the Committee worked closely on provisions pertaining
to liability standards for the design, manufacture, and
distribution of MTBE.
Legislative History.--H.R. 6 was introduced by Committee on
Energy and Commerce Chairman Billy Tauzin on April 7, 2003. On
April 11, 2003, the House passed H.R. 6 by a recorded vote of
247 yeas to 175 nays. On July 31, 2003, the Senate passed H.R.
6 by a vote of 84 yeas to 14 nays. On November 18, 2003, the
Conference Report was agreed to by the House by a vote of 246
yeas to 180 nays. However, the Senate could not overcome a
filibuster of the legislation, and it was not enacted into law.
H.R. 1588, the ``National Defense Authorization Act for Fiscal Year
2004''
Summary.--Congressman Duncan Hunter introduced H.R. 1588 on
April 3, 2003. This bill authorized appropriations for Fiscal
Year 2004 for, among other things, the Department of Defense's
military activities; for the Department of Energy's defense
activities; and for military construction.
Section 852 of the bill provided Federal support through
the establishment of a program for State and local governments
to purchase anti-terrorism technology or services and a program
to make ``SAFER'' grants to hire firefighters for local
communities. Subsection 852(a) through section 852(e) addressed
the procurement procedures for state and local governments that
wish to participate. Section 852(f) established a program
almost identical to the COPS program for firefighters called
the ``SAFER'' grant program to be administered by the
Department of Homeland Security to provide grants to local
communities to increase the number of permanent positions for
firefighters. In the original legislation, the grants would
have provided for four equal annual installments with the
eligible entity matching 25% of the grant in the second year,
50% in the third year, and 75% in the fourth year. To take
advantage of the grants, an eligible entity should provide a
plan regarding how it will continue to fund the positions after
the four years. Entities smaller than 50,000 would not be
subject to the plan requirements. Preferential treatment could
be given to an entity that agreed to provide more funds than
the federal match requires.
Representative Weldon offered an amendment to replace
Sec. 852(f). The Weldon amendment required the grant program to
be administered by FEMA and the grants to be made directly to
the fire departments. The Weldon amendment required the entity
receiving the grant to provide less of a match than in the
original bill-10% in the first year; 20% in the second year;
50% in the third year; and 70% in the fourth year. The Weldon
amendment authorized appropriations from FY 2004 through FY
2010 beginning with $1 billion and increasing each year. It
capped the funding for any one firefighter at $100,000 over
four years indexed annually for inflation. The Weldon amendment
was agreed to in the conference report.
Legislative History.--On July 16, 2003, the Speaker
appointed conferees from the Committee on the Judiciary for
consideration of Sec. 661-665 and 851-853 of the Senate
amendment and modifications committed to conference. On
November 7, 2003, the House agreed to the conference report by
a vote of 362-40, and on November 12, 2003, the Senate agreed
to the conference report by a vote of 95-3. The bill became
Public Law No. 108-136 on November 24, 2003.
H.R. 2115, the ``Flight 100--Century of Aviation Reauthorization Act''
Summary.--H.R. 2115 would authorize appropriations for
programs administered by the Federal Aviation Administration.
Most of the bill's authorizations would extend for four years:
the 2004-2007 period. Members of the Committee were appointed
as conferees on several provisions within its jurisdiction,
including those pertaining to antitrust, law enforcement, and
administrative law. Specifically, Sec. 301, Delay Reduction
Meetings, permits the Secretary of the Department of
Transportation to request that air carriers meet with
Administrator of the Federal Aviation Administration to discuss
flight reductions at severely congested airports. This section
also authorizes the Secretary of the Department of
Transportation to establish a pilot program to authorize
discussions and agreements between two or more air carriers for
the purpose of reducing flight delays during periods of
inclement weather. During the conference, at the Committee's
request, the criteria under which these discussions may take
place were limited, as was the duration of the program. In
addition, the Secretary of Transportation is required to review
this temporary program to ensure against any collusive activity
or anticompetitive misconduct. These provisions became Sec. 423
of the conference report. Finally, Sec. 405 of the Senate-
passed version of H.R. 2115 provides authority for pilots of
cargo aircraft to carry firearms: This language was included in
Sec. 609 of the conference report.
Legislative History.--H.R. 2215 was introduced on May 15,
2003 by Transportation and Infrastructure Committee Chairman
Young. It was reported by the Transportation Committee on June
6, 2003 (H.R. Rept. No. 108-143). On June 11, 2003, it passed
the House by a vote of 418-8. It passed the Senate on June 12,
2003 by a vote of 94-0. The House passed the Conference Report
for H.R. 2215 on October 30, 2003 by a vote of 211-207. The
Senate passed the Conference Report by unanimous consent on
November 21, 2003. The legislation was signed into law by the
President on December 12, 2003 and became Public Law No. 108-
176.
H.R. 2731, the ``Occupational Safety and Health Small Employer Access
to Justice Act of 2003''
Summary.--Introduced by Representative Charlie Norwood,
H.R. 2731 amends the Occupational Safety and Health Act of 1970
to provide for the award of attorney's fees and costs to very
small employers when they prevail in litigation prompted by the
issuance of citations by the Occupational Safety and Health
Administration.
Legislative History.--On May 5, 2004, the House Committee
on Education and the Workforce ordered favorably reported H.R.
2731, with an amendment, by a roll call vote of 24-20 (H. Rept.
108-489, Part I). On May 13, 2004, the bill was referred
sequentially to the House Committee on the Judiciary for a
period ending not later than May 17, 2004. On May 17, 2004, the
Committee on the Judiciary discharged itself from consideration
of H.R. 2731. On May 18, 2004, the House passed H.R. 2731, with
an amendment, by a roll call vote of 233-194. That same day the
bill was laid on the table and its text appended to H.R. 2728,
the ``Occupational Safety and Health Small Business in Court
Day Act of 2004,'' pursuant to H. Res. 645, the rule by which
H.R. 2731 was considered. The House passed H.R. 2728, with an
amendment, by a roll call vote of 251-177 on May 18, 2004. The
Senate received the measure and placed the bill on the Senate
Legislative Calendar. The Senate took no further action on this
bill.
H.R. 3550, the ``Transportation Equity Act''
Summary.--H.R. 3550 would authorize funds for Federal-aid
highways, highway safety, truck safety, public transportation,
transportation research, transportation planning and project
delivery, hazardous materials transportation, and other surface
transportation programs carried out by the United States
Department of Transportation, to be financed primarily through
the Federal Highway Trust Fund.
There were several provisions of this legislation for which
members of the Committee were appointed as conferees. Chairman
Sensenbrenner and Representative Lamar S. Smith were appointed
conferees for the following sections: Sections 105, 1207, 1602,
1812, 2011, 3023, 4105, 4108, 4201, 4202, 4204, 5209, 5501,
6001, 6002, 7012, 7019-7022, and 7024 of the House bill, and
sections 1512, 1513, 1802, 3006, 3022, 3030, 4104, 4110, 4174,
4226, 4231, 4234, 4265, 4307, 4308, 4315, 4424, 4432, 4440-
4442, 4445, 4447, 4462, 4463, 4633, and 4661 of the Senate
amendment.
Legislative History.--H.R. 3550 was introduced by
Transportation and Infrastructure Committee Chairman Young on
November 20, 2003. On March 29, 2004, H.R. 3550 was referred
sequentially to, and discharged by, the Judiciary Committee. On
April 2, 2004, the House passed H.R. 3550 by a vote of 357-65.
On May 19, 2004, the Senate passed H.R. 3550 with an amendment
by unanimous consent. However, the House-Senate conference
could not resolve outstanding differences between the House and
Senate-passed versions of the legislation, and it was not
enacted into law.
H.R. 4200, the ``National Defense Authorization Act for Fiscal Year
2005''
Summary.--H.R. 4200 was introduced by Representative Duncan
Hunter on April 22, 2004. The Senate counterpart, S. 2400,
included Sec. 3401-10, which added a new hate crime provisions
to Title 18 and provided for DoJ grants and other means to
address hate crimes. These provisions were stripped out during
the House and Senate conference of these bills.
Additionally, the FY 2005 Defense Authorization bill
contained significant amendments to the Energy Employees
Occupational Illness Compensation Program Act (EEOICPA). The
language as passed by the House only contained minor
improvements to the portion of the program that addressed
Department of Energy assistance to workers in obtaining state
workers' compensation. The Senate language was much more
expansive and included removing administration of the workers
compensation section from DOE and placing in under the
Department of Labor as well as restructuring that section to
change it from an assistance program to assistance and
potential federal payment program should compensation through
other means be unavailable.
In conference, the whole program was revamped in several
major ways. First, it created a new Part E of EEOICPA,
administered by DOL, which will make federal payments to
eligible individuals instead of state workers' compensation
assistance. That benefit was also extended to uranium workers
covered by the Radiation Exposure Compensation Act. All monies
for the payments necessary to satisfy the claims of RECA
workers were also transferred to the funding mechanism under
EEOICPA, and therefore, no longer subject to appropriations.
Workers who worked at private facilities formally used by DOE
are now able to pursue a claim under EEOICPA if the facility
was listed as contaminated in a 2003 report by NIOSH or if
listed in a new follow up report this legislation requires of
NIOSH.
Employees covered under this amended program will receive
$2,500 for each one percent permanent impairment caused by
covered conditions, based on AMA Impairment Guides. They may
also be compensated for wage-loss based upon a lump- sum amount
for each year (prior to reaching the Social Security retirement
age) where their earnings fell below the average of their last
three years' earnings before they suffered a wage loss as a
result of a covered illness. If they made less than 50% of the
average 3 year earnings as a result of a covered illness, they
receive $15,000. If they made more than 50% but less than 75%
of their calculated average as a result of a covered illness,
they receive 10,000 for each of those years. Survivors (spouses
and children who meet the dependency criteria) are entitled to
$125,000 if a covered condition caused or contributed to the
employee's death. Substantial periods of wage-loss before
retirement age (an aggregate ten or twenty years) suffered by
the employee can qualify a survivor for an extra $25,000 or
$50,000. If a claim has been filed, but an employee dies from a
cause other than a covered condition before getting benefits,
the survivors can get either the benefits the employee would
have received or survivor benefits.
Legislative History.--On May 20, 2004, the House passed
H.R. 4200 by a vote of 391-34. On June 6, 2004, the Senate
struck all after the enacting clause and substituted the text
of S. 2400, which passed by unanimous consent. Conferees were
appointed, and the conference report was filed on October 8,
2004.\26\ On October 9, 2004, the House agreed to the
conference report by a vote of 359-14, and the Senate agreed to
the report by unanimous consent. On October 28, 2004, the act
became Public Law No. 108-375.
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\26\ H. Rep. No. 108-767 (2004).
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H.R. 4341, the ``Postal Accountability and Enhancement Act''
Summary.--The ``Postal Accountability and Enhancement Act''
reflects the Bush Administration's principles for postal
reform, and incorporates nearly all of the seventeen
legislative recommendations made by the President's Commission
on the U.S. Postal Service. The legislation mandates
transparency in the Service's finances, costs, and operations.
The legislation creates a modern system of rate regulation,
establishes fair competition rules and a powerful new
regulator, addresses the Postal Service's universal service
obligation and the scope of the mail monopoly, and improves the
collective bargaining process. However, unlike the unlimited
and unfettered pricing flexibility recommended for the Postal
Service by the President's Commission for competitive product
offerings, the bill imposes important controls to protect the
public interest from unfair competition.
H.R. 4341 was reported by unanimous consent by the
Committee on Government Reform and Oversight on May 12, 2004
(H.R. Rep. No. 108-672). The Committee on the Judiciary
received a sequential referral to consider provisions within
the Committee's subject matter jurisdiction. A summary of these
provisions follows:
1. Section 205 revises the complaint and appellate review
of the Postal Regulatory Commission--which is charged with
setting postage rates and helping define activities in which
the Postal Service may compete with private industry. Section
301 establishes an off-budget fund within the Treasury
Department for revenues and expenditures associated with
services offered by the Postal Service on a competitive basis.
Section 303 prohibits the Postal Service from issuing
regulations that preclude competition or compel the disclosure
of protected intellectual property.
2. Section 304 ensures that laws regulating the conduct of
private commercial activities also apply to competitive
activities undertaken by the Postal Service, including the
antitrust laws, bankruptcy laws, the Federal Trade Commission
Act, and laws pertaining to sovereign immunity. During markup
consideration of H.R. 4341, the Committee reported an amendment
offered by Chairman Sensenbrenner and Ranking Member Conyers to
strike language that would have defined the Postal Service, to
the extent it engages in competitive activity, as a ``person''
for purposes of the bankruptcy laws.
3. Section 502 provides authority for the Postal Regulatory
Commission to issue subpoenas to compel disclosure of evidence
in its proceedings, and to refer failures to adhere to
Commission directives to federal district court. Section 703
requires the Federal Trade Commission to prepare a report
detailing how federal and state laws apply differently to
competitive activities of the Postal Service and private
companies. Section 801 provides permanent authority for the
Postal Service to employ postal police to protect property and
persons on Postal Service property, and gives the Attorney
General authority to collect penalties and clean up costs
associated with the unlawful mailing of hazardous materials.
Finally, section 809 prohibits the mailing of hazardous
materials and clarifies penalties for their shipment. Finally,
the Committee reported an amendment offered by Crime,
Terrorism, and Homeland Security Subcommittee Chairman Coble to
place these changes to existing law in Title 18 of the United
States Code.
Legislative History.--H.R. 4341 was introduced on May 12,
2004 by Representative McHugh, and sequentially referred to the
Judiciary Committee. On September 23, 2004, the Committee
reported H.R. 4341 as amended by voice vote (H.R. Rept. No.
108-672, Part II). The legislation did not receive a floor
vote.
H.R. 4818, the ``Omnibus Consolidated Appropriations Act of FY 2005''
Summary.--H.R. 4818, the ``Omnibus Consolidated
Appropriations Act of FY 2005'' sets forth certain limits and
prohibitions on the use of appropriations for specified
activities of the Federal Government. H.R. 4818 set forth the
appropriations for many agencies under the oversight of the
Judiciary Committee, including but not limited to the
Department of Justice. Among the other matters contained in the
bill that are a part of the Judiciary's Committee jurisdiction
are, but are not limited to: the Satellite Home Viewer
Extension Act, the Patent and Trademark Modernization Act, H-1B
and L Visa reform, and naming the Oak tree as the national
tree. Also language was included to add to each agency to
designate a chief privacy officer to assume primary
responsibility for privacy and data protection policy.
Legislative History.--H.R. 4818 was introduced and referred
to the Committee on Appropriations on July 13, 2004. On
November 11, 2004, a conference report was filed H. Conf.
Report No. 108-792. The conference report contained 8 of the
spending bills approved by Congress annually. The President
signed the bill on December 8, 2004. (Pub. L. No. 108-447)
OVERSIGHT ACTIVITIES
Pursuant to Rule X, Clause 2(d), the Committee adopted an
oversight plan for the 108th Congress. The oversight plan
incorporated the matters which the Committee deemed, at the
beginning of the Congress, to be worthy of its attention. Some
of the matters contained in the oversight plan were addressed
in the context of legislative hearings. The following is a list
of the oversight hearings held by the full committee. The
oversight activities of the subcommittee will be discussed
separately in their respective sections.
List of oversight hearings
Direct Broadcast Satellite in the Multichannel Video
Distribution Market, May 8, 2003 (Serial No. 22)
United States Department of Justice, June 5, 2003 (Serial No.
59)
The Terrorist Threat Intergration Center (TTIC) and its
Relationship with the Departments of Justice and
Homeland Security, July 22, 2003 (Serial No. 64)
Competition in College Athletic Conferences and Antitrust
Aspects of the Bowl Championship Series, September
4, 2003 (Serial No. 58)
Savings the Savings Clause: Congressional Intent, the Trinko
Case, and the Role of the Antitrust Laws in
Promoting Competition in the Telecom Sector,
November 19, 2003 (Serial No. 62)
Should the Congress extend the October, 2004 Statutory Deadline
for requiring Foreign visitors to Present Biometric
Passports?, April 21, 2004 (Serial No. 111)
Safeguarding Americans from a Legal Culture of Fear: Approaches
to Limiting Lawsuit Abuse, June 22, 2004 (Serial
No. 95)
Full Committee Antitrust Oversight Hearings
Direct satellite broadcast competition in the mulitchannel video
programming distribution market
On Thursday, May 8, 2003, the Committee held a hearing on
``Direct Broadcast Satellite Service Competition in the
Multichannel Video Programming Distribution Marketplace.'' The
following witnesses testified: K. Rupert Murdoch, Chairman and
Chief Executive Officer, News Corporation; Kevin Arquit,
Partner, Simpson, Thacher & Bartlett, Former Director, Bureau
of Competition, Federal Trade Commission; Neal Schong,
President Uvision, Vice Chairman, American Cable Association;
Gene Kimmelman, Director, Consumers Union.
Multichannel video programming distribution (MVPD) refers
to the transmission of video services through cable television
outlets, multichannel multipoint distribution services (such as
line-of-sight microwave stations), and space-based satellites.
DBS (Direct Broadcast Service) is a satellite service that
allows operators to transmit entertainment content over the
high power, high frequency (Ku Band) portion of the radio
spectrum. DBS offers subscribers high density programming
options, small receiving dishes, and CD-quality digital audio
and video. DBS providers are also capable of delivering
satellite-based broadband service. Other DTH satellite
providers operate at a lower portion of the radio spectrum (C-
band). As a result, they transmit less data, and require much
larger receiving dishes. With the commercial emergence of DBS
in 1994, the number of C-Band DTH subscribers has rapidly
declined. The largest C-band operator, PrimeStar, was absorbed
by DBS provider DirecTV in 1999.
Market features of the multichannel video programming
distribution market
Approximately 85 percent of all U.S. television households
have cable, DBS, or another multi-channel video programming
service. There are over 70 million U.S. cable subscribers. The
number of digital cable subscribers reached 19.2 million during
the last quarter of 2002. The last several years have seen
tremendous consolidation in the cable industry. Presently, more
than 50 percent of the U.S. cable market is dominated by two
companies. Over the last few years cable rates have increased
well above the rate of inflation. There are currently over 20
million DBS subscribers in the U.S. The FCC has issued nine
licenses to DBS providers since 1994. These companies include
Advanced Communications, Continental, Satellite Corp., Direct
Broadcast Satellite Corp. (DSBC), DirectSat, DirecTV, Dominion
Video Satellite, EchoStar, Tempo Satellite Inc. (TSI), and
United States Satellite Broadcasting (USSB). Since 1994, the
number of licensed DBS providers has fallen steadily. Presently
there are only two ``facilities-based'' DBS providers: DirecTV,
a subsidiary of the General Motors Hughes Corporation; and
Littleton, Colorado-based, EchoStar Communications, which
initiated its DISH Network service in 1996. As a result, over
90 percent of the DBS market is controlled by two providers.
The remaining DBS providers, which include the National Rural
Telecommunications Cooperative (NRTC) and Pegasus
Communications, retransmit DirecTV signals to some rural areas.
In 2003, DirecTV had about 11.1 million subscribers, while
EchoStar had approximately 6.5 million subscribers.
The battle for DirecTV
In early 1999, General Motors announced plans to sell its
Hughes DirecTV subsidiary. News Corp. was viewed as the leading
contender for the asset. Because it possessed no American DTH
holdings, few regulatory hurdles were expected. Over the next
eighteen months, News Corp. arranged financing and finalized
plans for a merger. EchoStar entered the contest for DirecTV
with an unsolicited bid in September of 2000. In late October,
after nearly eighteen months of negotiation, News Corp. made a
final offer to acquire DirecTV for $26-29 billion. After
General Motor's board declined to accept the offer, News Corp.
withdrew from negotiations. On October 29, 2001, EchoStar's bid
for DirecTV, valued at approximately $25 billion, was accepted
by General Motors. The DirecTV/EchoStar merger would have
created a U.S. satellite distribution monopoly, but EchoStar
contended that a merger would strengthen competition in the
broader multichannel video distribution market by creating a
stronger competitor to cable. The Judiciary Committee held a
hearing on competition in the multichannel video distribution
market on December 1, 2001, at which EchoStar's CEO, consumer
groups, and antitrust authorities testified.\27\ On October 10,
2002, the FCC unanimously rejected the merger; on October 31,
2002, the Antitrust Division filed suit to block the merger.
After a final effort to tailor the merger to satisfy antitrust
scrutiny, EchoStar relinquished its efforts to acquire DirecTV.
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\27\ Direct Broadcast Satellite Service and Competition in the
Multichannel Video Distribution Market: Hearing Before the House
Committee on the Judiciary, 107th Cong. (2001).
---------------------------------------------------------------------------
Following EchoStar's failure to acquire DirecTV, a new
bidding war for the DBS provider emerged. News Corp. quickly
emerged as the leading bidder.
Potential competitive issues presented by News Corp.'s
acquisition of DirecTV
News Corp.'s acquisition of DirecTV raises vertical
integration questions. News Corp. is one of the world's largest
media organizations. In addition to the Fox television network
and regional sports channels, News Corp. owns the 20th Century
Fox movie studio, Fox News Channel, the FX cable channel, Sky
News, Fox Sports, and other assets. News Corp. presently lacks
any U.S.-based DBS assets. Unlike the proposed merger between
EchoStar and DirecTV, which would have created a horizontally-
integrated monopoly in the DBS market and reduced the number of
competitors in the multichannel video distribution market, the
News Corp./DirecTV merger creates a vertically-integrated firm
in which News Corp. has a controlling interest in programming
and distribution assets. Present media companies are
vertically-integrated. For example, AOL Time Warner owns
significant programming (Warner Brothers Studios, CNN, New Line
Cinema, etc.) and distribution (Time Warner Cable, TBS, TNT,
TCM, etc.) assets.
At the Committee's May 8, 2003 hearing, News Corp.
President and CEO K. Rupert Murdoch made a number of
commitments to address concerns about its potential to withhold
programming from competing multichannel video programming
distributors. News Corp. agreed to adhere to current FCC
program access requirements, and committed to providing its
programming to competitors on a nondiscriminatory basis.
Specifically, News Corp. agreed to abide by FCC program access
rules, which apply to companies that control and distribute
programming. News Corp. further agreed to aggressively expand
local-into-local services to DirecTV subscribers and committed
to programming on a nondiscriminatory basis. News Corp.
committed to reinvigorating digital and broadband interactive
services offered by DirecTV.
On December 19, 2003, the Department of Justice announced
that it would not challenge News Corp.'s acquisition of a
controlling interest in DirecTV. On the same day, the FCC
approved the acquisition. However, the FCC imposed several
unique conditions designed to curb News Corp.'s ability to
discriminate against broadcast and cable competitors by either
raising fees for access to certain programs, or favoring its
Fox broadcasting network and its cable channels. The Committee
continues to monitor the state of competition in the MVPD
marketplace.
``Competition in College Athletic Conferences and Antitrust Aspects of
the Bowl Championship Series''
On September 4, 2003, the Committee on the Judiciary held
an oversight hearing on: ``Competition in College Athletic
Conferences and Antitrust Aspects of the Bowl Championship
Series.'' The following witnesses testified: Myles Brand,
President, National Collegiate Athletic Association; James E.
Delany, Commissioner, Big Ten; Dr. Scott Cowen, President,
Tulane University and Chairman, Presidential Coalition for
Athletics Reform; and Steve Young, NFL Super Bowl championship
quarterback, former Division I-A college football player, and
ABC Sports commentator. Donna Shalala, the President of the
University of Miami, was invited to the hearing but declined to
testify.
The NCAA is not immune from antitrust scrutiny. The
National Collegiate Athletic Association (NCAA) has a role in
establishing eligibility requirements for member participation
in athletic programs and for preserving the integrity and
fairness of intercollegiate athletic competition. However, the
NCAA does not determine which teams compete for Division I-A
national college football championship or post-season major
bowls. Division I-A college football is the only sport that
does not have a playoff system to determine national
championships. Rather, eligibility to compete for the national
football championship and other high profile national match-ups
are determined by variables including membership in certain
athletic conferences, a team's number of wins and losses, the
strength of its schedule, private arrangements between athletic
conferences and independent bowls, coaches' and media polls,
and economic considerations.
Last year, the college conference system for Division I-A
football was thrown into disarray after the defection of the
University of Miami from the Big East to the Atlantic Coast
Conference (ACC.) Several observers contended that the
rationale for this defection was financially motivated, and a
lawsuit has been filed against the defecting schools and the
ACC. This defection has heightened concern that Division I-A
college football has become a financially-driven enterprise
rather than a forum for amateur athletes to compete in the best
tradition of college athletics. Some have contended that the
Bowl Championship Series (BCS) exemplifies the financially-
driven, anticompetitive nature of intercollegiate athletics.
The BCS was established in 1997 with the intent to create a
more objective basis for selecting national champions and other
bowl participants. Notwithstanding this development, the
Division I-A bowl selection process for college football has
led some to question the legitimacy and fairness of this
process. Post-season college football generates hundreds of
millions for participating conferences and institutions, much
of it derived from exclusive television broadcast licensing
agreements. Over 90 percent of revenue derived from BCS bowl
games is distributed to BCS-affiliated institutions. The
current bowl selection process has anti-competitive,
exclusionary features that raise substantial antitrust
questions. The antitrust aspects of the current bowl system
were the focus of the Committee's hearing.
Bowl Championship Series (BCS)
The BCS was created in 1997 and became effective at the
commencement of the 1998 athletic season. It was established to
address several concerns that had been raised about the
fairness of the College Bowl Alliance and was designed to
produce a true Division I-A college football championship. The
BCS shares many features of the Bowl Alliance. The principal
difference is the inclusion of the Rose Bowl, and the
termination of the Rose Bowl's exclusive tie-in with the Big
Ten and Pacific Ten. Under the terms of the BCS, the two teams
that finish as the two top-ranked teams in the BCS's official
rankings meet in either the Rose, Fiesta, Sugar, or Orange
Bowls, with the championship game rotated among each of the
bowls. BCS rankings are derived from: poll rankings (an average
of the Associated Press media poll and the USA Today/ESPN
coaches poll; computer rankings (consisting of weighting of the
Jeff Sagarin poll, as well as the Seattle Times and New York
Times rankings); a team's won/lost record; strength of schedule
(comprised of the won/lost records of a team's opponents as
well as won/lost records of a team's opponent's opponents); and
additional computer analysis.\28\
---------------------------------------------------------------------------
\28\ http://anccfb.go.com/road/rules/asp See BCS Rules--About the
BSC.
---------------------------------------------------------------------------
Four months after the Committee's hearing, representatives
from the NCAA, and BCS and non-BCS-affiliated institutions
agreed on a revised framework for Division I-A postseason
football. This new framework, announced on February, 29, 2004,
permits increased opportunities for Division IA colleges to
participate in BCS bowl games, adjusts revenue distribution
formulas to recognize the participation of those institutions
not presently in the BCS conferences, and broadens the
involvement of all Division I-A conferences in the design and
administration of the BCS. Finally, an agreement was reached to
establish a fifth BCS bowl game, provided sufficient market
interest exists. The Committee will continue to monitor market
conditions in this field.
``Saving the Savings Clause: Congressional Intent, the Trinko Case, and
the Role of the Antitrust Laws in Promoting Competition in the
Telecom Sector''
On November 19, 2003, the Committee held a hearing titled
``Saving the Savings Clause: Congressional Intent, the Trinko
Case, and the Role of the Antitrust Laws in Promoting
Competition in the Telecom Sector.'' The following witnesses
testified at the hearing; the Honorable R. Hewitt Pate,
Assistant Antitrust General, Antitrust Division, United States
Department of Justice; Alfred C. Pfeiffer, Jr., Partner,
Bingham McCutchen, on Behalf of the Association for Local
Telecommunications Services and the Competitive
Telecommunications Association; John Thorne, Executive Vice
President & Deputy General Counsel, Verizon; Christopher
Wright, Partner, Harris, Wiltshire & Grannis LLP, Former
General Counsel, Federal Communications Commission.
Antitrust Law and Competition in the Telecommunications Marketplace
The House Committee on the Judiciary and the antitrust laws
have played a critical role in fostering competition in the
telecommunications industry. Antitrust law formed the legal
basis for the historic divestiture of AT&T in 1982. However,
even after the break up of AT&T, local service was still
largely the province of Regional Bell Operating Companies
(RBOCS). The Telecommunications Act of 1996 represented the
most decisive expression of congressional resolve to bring
local competition to the telecom sector.\29\ The Act contained
several market-opening provisions designed to provide
competitive opportunities for nonincumbent carriers that lacked
access to the physical infrastructure built by decades of
government-created monopoly control of the local exchange.
---------------------------------------------------------------------------
\29\ Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat.
56 (1996) (codified as amended in scattered sections of 47 U.S.C.)
(hereinafter ``1996 Act'' or ``Act'').
---------------------------------------------------------------------------
When considering the 1996 Act, Congress recognized the
continued vitality of the antitrust laws in preserving
competition in this marketplace. As a result, the 1996 Act
contained an explicit savings clause that preserved the
application of the antitrust laws in this field. The savings
clause states: ``* * * Nothing in this Act or the amendments
made by this Act shall be construed to modify, impair, or
supersede the applicability of any of the antitrust laws.''
\30\
---------------------------------------------------------------------------
\30\ Id. at Sec. 601(c)(1).
---------------------------------------------------------------------------
To reaffirm the centrality of the antitrust laws in the
liberalized regulatory regime established by the 1996 Act, the
Judiciary Committee and Congress preserved an explicit
antitrust savings clause in the legislation. In legislative
language that provides clear congressional guidance to both
regulators and judges, the antitrust savings clause contained
in Sec. 601(c)(1) of the 1996 Act provided that: ``* * *
Nothing in this Act or the amendments made by this Act shall be
construed to modify, impair, or supersede the applicability of
any of the antitrust laws.'' In order to further ensure that
the plain language of the Act could not be ignored or
misinterpreted, the 1996 Act also contained a general savings
clause that stated: ``This Act and the amendments made by this
Act shall not be construed to modify, impair, or supersede
Federal, State, or local law unless expressly so provided in
such act or amendments.'' \31\ The legislative record
surrounding consideration of the 1996 Act left no doubt that
Congress intended to preserve the application of the antitrust
laws in the telecommunications sector.
---------------------------------------------------------------------------
\31\ See supra, note. 12.
---------------------------------------------------------------------------
For example, the Senate Report accompanying the 1996 Act
states: [T]he provisions of this bill shall not be construed to
grant immunity from any future antitrust action against any
entity referred to in the bill.'' \32\ In addition, Congress
concluded that the savings clause ``prevents affected parties
from asserting that the bill impliedly preempts other laws.''
\33\ Several Members also affirmed the continued application of
the antitrust laws. Senator Thurmond stated: ``[The Act
contains an] unequivocal antitrust savings clause that
explicitly maintains the full force of the antitrust laws in
this vital industry. Application of the antitrust laws is the
most reliable, time-tested means of ensuring that competition,
and the innovation that it fosters, can flourish to benefit
consumers and the economy.\34\ Ranking Member Conyers observed:
``[T]he bill contains an all-important antitrust savings clause
which ensures that any and all telecommunications merger and
anticompetitive activities * * * by maintaining the role of the
antitrust laws, the bill helps to ensure that the Bells cannot
use their market power to impede competition and harm
consumers.'' \35\ Senator Leahy stated: ``Relying on antitrust
principles is vital to ensure that the free market will work to
spur competition and reduce government involvement in the
industry.'' \36\
---------------------------------------------------------------------------
\32\ S. Rep. No. 104-23, at 17 (1995).
\33\ Joint Explanatory Statement of the Committee of Conference, S.
652, H. Rep. No. 104-458, S. Rep. No. 104-230, at 201 (1996)
(``Conference Report'').
\34\ 142 Cong. Rec. S687-01 (daily ed. February 1, 1996) (statement
of Sen. Thurmond).
\35\ 142 Cong. Rec. H1145-06 (daily ed. February 1, 1996)
(statement of Rep. Conyers).
\36\ 141 Cong. Rec. S18586-06 (daily ed. December 14, 1995)
(statement of Sen. Leahy).
---------------------------------------------------------------------------
When signing the legislation, President Clinton stated
that: ``The Act's emphasis on competition is also reflected in
its antitrust savings clause. This clause ensures that even for
activities allowed under or required by the legislation, or
activities resulting from FCC rulemaking or orders, the
antitrust laws continue to apply fully.'' \37\ In addition, the
FCC formally acknowledged that its regulations did not provide
the ``exclusive remedy'' for anticompetitive conduct.\38\ The
FCC expressly concluded that: ``parties have several options
for seeking relief if they believe that a carrier has violated
the standards under section 251 or 252 * * * ``[W]e clarify * *
* that nothing in sections 251 and 252 or our implementing
regulations is intended to limit the ability of persons to seek
relief under the antitrust laws.'' \39\ As late as 2001, FCC
Chairman Powell concluded that ``[g]iven the vast resources of
many of the nation's ILECs,'' the FCC's current fining
authority of $1.2 million per offense ``is insufficient to
punish and deter violations in many instances.'' \40\
---------------------------------------------------------------------------
\37\ Statement of President William J. Clinton upon signing S. 652,
32 Weekly Comp. Pres. Doc. 218 (February 8, 1996).
\38\ First Report and Order, In re Implementation of the Local
Competition Provisions in the Telecommunications Act of 1996, 11
F.C.C.R. 15499, para. 124 (Aug. 8, 1996) (R2-7-A174).
\39\ Id. at para. 129 (R2-7-A175).
\40\ Letter from Chairman Powell to House and Senate Appropriations
Committees of May 4, 2001.
---------------------------------------------------------------------------
Notwithstanding the clarity of this congressional directive
and its considerable legislative history, some courts have
concluded that the pervasiveness of the regulatory scheme
created by the 1996 Act displaced the application of the
antitrust laws. For example, in Goldwasser v. Ameritech Corp.,
the Seventh Circuit held that an RBOC's failure to comply with
the provisions of the 1996 Act was not subject to a remedy
under the antitrust laws.\41\ In Law Offices of Curtis Trinko
v. Verizon, the Second Circuit overturned a lower court
decision that held that a complaint alleging sustained
anticompetitive conduct partly predicated on violations of the
1996 Act could not be categorized as a violation of the
antitrust laws. The Supreme Court granted certiorari on March
3, 2003, and oral arguments took place on October 14, 2003.\42\
---------------------------------------------------------------------------
\41\ 222 F.3d 390 (7th Cir. 2000).
\42\ 305 F.3d 89 (2d Cir. 2002), cert. granted, 123 S. Ct. 1480
(2003).
---------------------------------------------------------------------------
The Committee's November 19, 2003 hearing on this subject
examined the role of the antitrust laws in preserving
competition in the telecom sector, the intent of Congress when
it included an antitrust savings clause in the 1996 Act, the
relationship between the antitrust laws and the 1996 Act in
promoting competition in the telecommunications marketplace,
and possible legislative remedies to judicial circumvention of
the antitrust savings clause contained in the 1996 Act. On
January 13, 2004, in Supreme Court held that Trinko's alleged
breach of Verizon's Telecommunication Act duties to share its
network with competitors did not state a claim under the
Sherman Act.\43\ The Court reasoned that the 1996 Act did not
alter antitrust law nor add new claims and that Verizon did not
violate preexisting antitrust standards. The Court held that
``we do not believe that traditional antitrust principles
justify adding the present case to the few existing exceptions
from the proposition that there is no duty to aid
competitors.''
---------------------------------------------------------------------------
\43\ 540 U.S. 398 (2004).
---------------------------------------------------------------------------
While the Court upheld the antitrust savings clause on its
face, the decision made it nearly impossible to state an
antitrust claim for anticompetitive conduct within the
regulatory ambit of the 1996 Act. In reaching its conclusion,
the Court looked to the perceived institutional capacity of
regulators to remedy anticompetitive misconduct. Specifically,
the majority decision stated: ``One factor of particular
importance is the existence of a regulatory structure designed
to deter and remedy anticompetitive harm. Where such a
structure exists, the additional benefit to competition
provided by antitrust enforcement will tend to be small, and it
will be less plausible that the antitrust laws contemplate such
additional scrutiny. * * *'' The Court also stated that the
``regulatory framework that exists in this case demonstrates
how, in certain circumstances, `regulations significantly
diminished the likelihood of major antitrust harm.' '' The
Court concluded that ``against the slight benefits of antitrust
intervention here, we must weigh a realistic assessment of its
costs.'' This judicial analysis constitutes precisely what the
antitrust savings clause in the Telecom Act precluded.
On May 20, 2004, Chairman Sensenbrenner introduced H.R.
4412, the ``Clarification of Antitrust Remedies in
Telecommunications Act of 2004.'' The legislation merely
provides that unlawful monopolistic behavior that may also
violate the regulatory obligations of the Telecom Act may
constitute an antitrust violation. The legislation provides an
antitrust remedy for these violations irrespective of the
existence of regulations that apply to this industry. In so
doing, the legislation merely reiterates the plain meaning of
the antitrust savings clause and the broad bipartisan intent of
Congress to preserve the application of the antitrust laws in
the telecommunications field irrespective of the existence of
the Telecom Act.
Over the last five decades, the Committee on the Judiciary
has played a central role promoting competition in the
telecommunications market. It will continue to closely monitor
competition in the telecommunications marketplace, and will be
an active player in legislative consideration of amendments to
the Telecom Act during the 109th Congress.
Oversight of the Department of Justice and the conduct of the ``War
Against Terrorism'' and implementation of the USA PATRIOT Act
On Thursday, June 5, 2003, the Committee on the Judiciary
held an oversight hearing on the Department of Justice. The
sole witness at the hearing was Attorney General John D.
Ashcroft. The hearing focused on the Department of Justice's
conduct of the ``War Against Terrorism'' and its implementation
of the USA PATRIOT Act. The hearing reflected the Committee's
continuing commitment to monitor the implementation of
antiterrorism legislation, to conduct active oversight of the
Department of Justice, and to ensure that Federal law
enforcement authorities are provided with the resources to
effectively assess, prevent, and respond to terrorist threats
while preserving fundamental liberties. Following the hearing,
Chairman Sensenbrenner submitted 83 multi-tiered follow up
questions to Attorney General Ashcroft on behalf of Committee
Members. Attorney General Ashcroft provided a 35-page list of
responses and an 84 page attachment in response to the
Committee request.
The USA PATRIOT Act and Federal Antiterrorism Initiatives
in the War Against Terrorism. To better equip Federal law
enforcement with the resources necessary to confront these
modern threats, Chairman Sensenbrenner introduced H.R. 2975
(107th), to ``Provide Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001,'' (PATRIOT Act) on October
2, 2001. H.R. 2975 was unanimously reported by the Judiciary
Committee. After informal negotiations, the House and Senate
incorporated two versions of the PATRIOT Act into H.R. 3162
(107th), the ``Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001,'' (USA PATRIOT Act). This legislation incorporated
provisions of H.R. 3004 (107th), the ``Financial Anti-Terrorism
Act,'' which increased penalties for money laundering and
financing terrorist organizations; and H.R. 3160 (107th), the
``Bioterrorism Prevention Act of 2001,'' which provided law
enforcement personnel greater resources to assess and prevent
biological attacks on American soil. The USA PATRIOT Act was
signed into law by President Bush on October 26, 2001. \44\
---------------------------------------------------------------------------
\44\ Pub. L. No. 107-56, 115 Stat 272 (codified as amended in
scattered sections of 18 U.S.C (2003)).
---------------------------------------------------------------------------
In addition to the USA PATRIOT Act, Congress passed the
``Homeland Security Act of 2002'' to better safeguard Americans
against terrorist attacks. This legislation incorporated
several bills which have assisted the Federal government's war
against terrorism. These include: H.R. 3482 (107th), the
``Cyber Security Enhancement Act of 2002,'' which increased
penalties for cybercrimes and cyberterrorism; H.R. 4864
(107th), the ``Anti-Terrorism Explosives Act,'' which
strengthened penalties for the unlawful possession of explosive
materials and required all persons who wish to obtain
explosives, even for limited use, to obtain a permit. The
``Homeland Security Act of 2002,'' was signed into law by
President Bush on November 25, 2002.\45\ Finally, the events of
September 11 lent impetus to the passage of legislation to
tighten security at America's airports,\46\ fundamentally
reform the Immigration and Naturalization Service,\47\ and to
enhance border security.\48\
---------------------------------------------------------------------------
\45\ Pub. L. No. 107-296, 116 Stat 2135 (codified as amended in
scattered sections of 18 U.S.C. (2003)).
\46\ Air Transportation Safety and System Stabilization Act, Pub.
L. No. 107-42, 115 Stat. 230 (2001).
\47\ Barbara Jordan Immigration Reform and Accountability Act,
107th Cong. (2002)(enacted as part of the Homeland Security Act).
\48\ Enhanced Border Security and Visa Entry Reform Act of 2002,
Pub. L. No. 107-173, 116 Stat. 543 (2002).
---------------------------------------------------------------------------
Summary of criminal provisions contained in the USA PATRIOT
Act \49\
---------------------------------------------------------------------------
\49\ This section derived from: Charles Doyle, The USA PATRIOT Act:
A Legal Analysis, American Law Division, Congressional Research
Service, April 15, 2002, available at: http://www.congress.gov/erp/rl/
pdf/RL31377.pdf.
---------------------------------------------------------------------------
The PATRIOT Act provides enhanced investigative tools to
Federal law enforcement authorities and improves information
sharing between law enforcement and intelligence communities.
In addition, the legislation amended several outdated Federal
criminal statutes which had undermined the effective
prevention, investigation, and prosecution of increasingly
sophisticated criminal and terrorist threats. The legislation
increases penalties for Federal terrorism offenses, eliminates
the statute of limitations for terrorism-related crimes, and
extends post-incarceration supervised release for persons
convicted of these offenses. The legislation also amends
Federal money laundering laws to deprive potential terrorists
of financial support, establishes additional terrorism
offenses, updates bioterrorism laws, and establishes revised
criminal procedures for the prosecution of terrorism.
Criminal investigations
Federal communications privacy law features a three tiered
system, erected for the dual purpose of protecting the
confidentiality of private telephone, face-to-face, and
computer communications while enabling authorities to identify
and intercept criminal communications. Title III of the Omnibus
Crime Control and Safe Streets Act of 1968 supplies the first
level. It prohibits electronic eavesdropping on telephone
conversations, face-to-face conversations, or computer and
other forms of electronic communications in most instances.
Title III gives authorities a narrowly defined process for
electronic surveillance to be used in serious criminal cases.
When approved by senior Justice Department officials, law
enforcement officers may seek a court order authorizing them to
monitor conversations concerning any of a statutory list of
offenses (predicate offenses). Title III court orders contain
instructions describing the permissible duration and scope of
the monitoring, a description of the conversations which may be
monitored, and a discussion of efforts taken to minimize the
potential for monitoring noncriminal conversations. The court
notifies the parties to any conversations seized under the
order after the order expires.
The USA PATRIOT Act modifies these procedures in the
following ways:
1. Updates the criminal code to reflect new technology by
providing statutory authority for pen register and trap and
trace (non-content information) orders for electronic
communications (e.g., e-mail).
2. Sanctions court ordered access to any ``tangible item''
rather than only business records held by lodging, car rental,
and locker rental businesses.
3. Authorizes nationwide execution of court orders for pen
registers, trap and trace devices, and access to stored e-mail
or communication records.
4. Treats stored voice mail like stored e-mail (rather than
like telephone conversations).
5. Permits authorities to intercept communications to and
from a trespasser within a computer system (with the permission
of the system's owner).
6. Adds terrorist and computer crimes to the present
predicate offense list for wiretap authority.
7. Encourages cooperation between law enforcement and
foreign intelligence investigators.
8. Establishes a claim against the U.S. for certain
communications privacy violations by government personnel.
9. Terminates the authority found in many of these
provisions and several of the foreign intelligence amendments
with a sunset provision of December 31, 2005.
Foreign intelligence investigations
The USA PATRIOT Act affords the U.S. intelligence community
greater access to information obtained during a criminal
investigation, and establishes and expands safeguards against
official abuse. In addition, the legislation:
1. Increases the number of judges on the Foreign
Intelligence Surveillance Act (FISA) court from 7 to 11.
2. Allows application for a FISA surveillance or search
order when gathering foreign intelligence is a significant
reason for the application rather than the reason.
3. Expands the prohibition against FISA orders based solely
on the exercise of a citizen's First Amendment rights.
Money laundering
Federal authorities utilize regulations, criminal
sanctions, and forfeiture to stem money laundering. The USA
PATRIOT Act bolsters Federal efforts in each of these areas.
Treasury regulations
The legislation expands the authority of the Secretary of
the Treasury to regulate the activities of U.S. financial
institutions, particularly their relations with foreign
individuals and entities. The Act requires the Treasury
Secretary to promulgate regulations which:
1. Require securities brokers and dealers as well as
commodity merchants, advisors and pool operators to file
suspicious activity reports (SARs).
2. Require businesses, which were only to report cash
transactions involving more than $10,000 to the IRS, to file
SARs as well.
3. Impose additional ``special measures'' and ``due
diligence'' requirements to combat foreign money laundering.
4. Prohibit U.S. financial institutions from maintaining
correspondent accounts for foreign shell banks.
5. Prevent financial institutions from allowing their
customers to conceal their financial activities by taking
advantage of the institutions' concentration account practices.
6. Establish minimum new customer identification standards
and recommending an effective means to verify the identity of
foreign customers.
7. Encourage financial institutions and law enforcement
agencies to share information concerning suspected money
laundering and terrorist activities.
8. Require financial institutions to maintain anti-money
laundering programs which must include at least a compliance
officer; an employee training program; the development of
internal policies, procedures and controls; and an independent
audit feature.
Enhanced penalties
The USA PATRIOT Act also contains a number of new money
laundering crimes, as well as amendments and increased
penalties for earlier crimes. Specifically, the legislation:
1. Outlaws laundering (in the U.S.) any of the proceeds
from foreign crimes of violence or political corruption.
2. Prohibits laundering the proceeds from cybercrime or
supporting a terrorist organization.
3. Increases the penalties for counterfeiting.
4. Provides explicit authority to prosecute overseas fraud
involving American credit cards.
5. Permits prosecution of money laundering in the place
where the predicate offense occurs.
Forfeiture
The Act creates two types of forfeitures and modifies
several confiscation-related procedures. It allows confiscation
of the property of any individual or entity that participates
in or plans an act of domestic or international terrorism; it
also permits confiscation of property derived from or used to
facilitate domestic or international terrorism. Specifically,
the legislation:
1. Establishes a mechanism to acquire long arm
jurisdiction, for purposes of forfeiture proceedings, over
individuals and entities.
2. Allows confiscation of property located in this country
for a wider range of crimes committed in violation of foreign
law.
3. Permits U.S. enforcement of foreign forfeiture orders.
4. Calls for the seizure of correspondent accounts held in
U.S. financial institutions for foreign banks who are in turn
holding forfeitable assets overseas.
5. Denies corporate entities the right to contest a
confiscation if their principal shareholder is a fugitive.
Summary of immigration provisions in the USA PATRIOT Act
\50\
---------------------------------------------------------------------------
\50\ See Charles Doyle, The USA PATRIOT Act: A Legal Analysis,
American Law Division, Congressional Research Service, April 15, 2002,
available at: .
---------------------------------------------------------------------------
The USA PATRIOT Act contains several immigration-related
provisions. The legislation contains a number of provisions
designed to: prevent alien terrorists from entering the United
States; enable authorities to detain and deport alien
terrorists and those who support them; and to preserve
immigration relief for lawfully present alien victims of the
attacks of September 11, 2001.
Border Protection
Border Protection provisions in the USA PATRIOT Act:
1. Authorize appropriations necessary to triple the number
of Border Patrol, Customs Service, and Immigration and
Naturalization Service (INS) personnel stationed along the
Northern Border.
2. Authorize appropriations necessary to provide the State
Department and INS with criminal record identification
information relating to visa applicants and other applicants
for admission to the United States.
3. Instruct the Attorney General to report on the
feasibility of the use of a biometric identifier scanning
system for overseas consular posts and points of entry into the
United States.
4. Direct the Secretary of State to determine whether
consular shopping is a problem, to take any necessary
corrective action, and to report the action taken.
5. Express the sense of the Congress that the
Administration should fully implement the integrated entry and
exit data system created by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 as expeditiously as
possible.
6. Require the Attorney General to fully implement and
expand the foreign student visa monitoring program.
Detention and removal
The USA PATRIOT Act enhances the authority of the Federal
Government to detain and remove aliens:
1. Expands the terrorist activity ground of inadmissibility
to bar aliens who: support terrorist activities; are immediate
family members of inadmissible terrorists; and associate with
terrorist organizations.
2. Requires the Attorney General to place an alien
terrorist in removal proceedings and detain alien terrorist
suspects for up to seven days after certifying that he has
reasonable grounds to believe that the suspects either are
engaged in conduct which threatens the national security of the
United States or are inadmissible or deportable on grounds of
terrorism, espionage, sabotage, or sedition.
3. The Attorney General's determinations are subject to
review only under writs of habeas corpus issued by a Federal
district court but appealable only to the United States Court
of Appeals for the District Columbia. These provisions are
contained in Sec. 412 of the USA PATRIOT Act.
Immigration enforcement initiatives since September 11,
2001
NSEERS (National Security Entry Exit Registration System)
NSEERS was formally initiated on September 11, 2002. It
involves registration for two different groups of aliens--
certain aliens arriving at U.S. ports of entry, and certain
aliens already present in the United States. At ports of entry,
inspectors are required to register aliens from specified
terrorist-sponsoring countries along with aliens who meet
certain security criteria. During the registration process, the
alien's photograph and fingerprints are taken and the alien's
personal data are entered into IDENT, the immigration database.
With respect to aliens already present in the United
States, the Attorney General has required aliens from certain
countries, based on information provided by U.S. intelligence
agencies, to report to their immigration field office to verify
their address and their basis for visiting the United States.
Absconder Apprehension Initiative
In January 2002, the investigation, detention and removal
components of the former INS launched the Absconder
Apprehension Initiative. This program is designed to apprehend
and remove aliens who have been found in violation of U.S.
immigration laws, been ordered deported, and subsequently
absconded before the court order could be carried out. The
first phase of the initiative targeted some 5,900 aliens. The
second phase focuses on the apprehension and removal of more
than 300,000 aliens with un-executed final orders of removal.
To facilitate locating these aliens, the Bureau of Immigration
and Customs Enforcement (BICE, now at DHS) enters their names
into the FBI's National Crime Information Center (NCIC) so that
other Federal, state, and local law enforcement officers can
hold an alien whose name comes up in the database during other
types of law enforcement activity such as traffic stops.
Anti-Smuggling
Available information indicates terrorist organizations
often use smuggling rings to move around the globe. For
domestic security, the Administration has focused anti-
smuggling resources in ``Operation Southern Focus,'' which was
launched in January 2002. It targets large-scale smuggling
organizations specializing in the movement of U.S.-bound aliens
from countries of concern. Since the beginning of the
operation, eight significant alien smugglers have been arrested
and charged with alien smuggling violations.
Privacy issues and the USA PATRIOT Act
Library records
Several of the September 11 terrorists frequently used
computers at public libraries to access the Internet.\51\
Easier access to library records for appropriate law
enforcement purposes may be necessary because when a suspect
uses a public computer in a library, it becomes more difficult
to isolate and trace evidence of criminal activity to that
individual. It becomes even more difficult if the library does
not require its clients to sign in with their name, date, and
time before they are allowed to use a computer. Thus, a person
who uses a library's public computer in support of criminal
activity may be afforded greater anonymity than someone who
uses his or her own computer. The USA PATRIOT Act was tailored
to update Federal surveillance laws to make it more difficult
for terrorists to use public places, including public
libraries, to plot and carry out terrorist attacks. However,
even before passage of this legislation, Federal prosecutors
were permitted to subpoena library records under the Federal
Rules of Criminal Procedure or obtain Title III search
warrants.
---------------------------------------------------------------------------
\51\ See David Fallis and Ariana Eunjung Cha, ``Agents Following
Suspects' Lengthy Electronic Trail; Web of Connections Used to Plan
Attack,'' The Washington Post (October 4, 2001), at A24 (``The
[September 11 terrorist] suspects used public computer terminals at
libraries in Florida. In Del Ray Beach, two of the suspected hijackers
glared at a librarian as she watched them surf the Web for an hour.'').
---------------------------------------------------------------------------
Following enactment of the USA PATRIOT Act, ``any tangible
items'' (which presumably could include library loan records
and library computer use records) can be obtained by the
government ``for an investigation to obtain foreign
intelligence information not concerning a United States person
or to protect against international terrorism or clandestine
intelligence activities, provided that such investigation of a
United States person is not conducted solely upon the basis of
activities protected by the first amendment to the
Constitution.'' \52\ The amendments expanding FISA authority to
include the collection of ``any tangible things'' expire on
December 31, 2005.\53\
---------------------------------------------------------------------------
\52\ 50 U.S.C. Sec. 1861(a)(1).
\53\ See Pub. L. No. 107-56, Title II, Sec. 224 (October 26, 2001),
115 Stat. 295.
---------------------------------------------------------------------------
The Justice Department's revised investigative guidelines
Prior to the issuance of the revised Guidelines by Attorney
General Ashcroft on March 30, 2002, FBI investigations were
covered by Guidelines approved by Attorney General Thornburgh
on March 21, 1989.\54\ The 1989 Guidelines provided that
``[u]ndisclosed participation in the activities of an
organization by an undercover employee or cooperating private
individual in a manner that may influence the exercise of
rights protected by the First Amendment must be approved by FBI
[Headquarters], with notification to Department of Justice.''
\55\
---------------------------------------------------------------------------
\54\ The Attorney General's Guidelines on General Crimes,
Racketeering Enterprise and Domestic Security/Terrorism
Investigations'' (March 21, 1989) (``1989 Guidelines'').
\55\ Id. at 17.
---------------------------------------------------------------------------
According to Attorney General Ashcroft:
FBI men and women in the field [were] frustrated
because many of our own internal restrictions have
hampered our ability to fight terrorism * * * Under the
[old] guidelines, FBI investigators cannot surf the web
the way you or I can. Nor can they simply walk into a
public event or a public place to observe ongoing
activities. They have no clear authority to use
commercial data services that any business in America
can use. These restrictions are a competitive advantage
for terrorists who skillfully utilize sophisticated
techniques and modern computer systems to compile
information for targeting and attacking innocent
Americans.\56\
---------------------------------------------------------------------------
\56\ Remarks of Attorney General John Ashcroft on Attorney General
Guidelines (May 30, 2002).
The revised Guidelines now provide the following:
FBI access to public events: ``For the purpose of detecting
or preventing terrorist activities, the FBI is authorized to
visit any place and attend any event that is open to the
public, on the same terms and conditions as members of the
public generally. No information obtained from such visits
shall be retained unless it relates to potential criminal or
terrorist activity.'' \57\
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\57\ Supra, note 19 at 22.
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Utilization and Analysis of Publicly Available Information:
``The FBI is authorized to operate and participate in
identification, tracking, and information systems for the
purpose of identifying and locating terrorists, excluding or
removing from the United States alien terrorists and alien
supporters of terrorist activity as authorized by law,
assessing and responding to terrorist risks and threats, or
otherwise detecting, prosecuting, or preventing terrorist
activities. Systems within the scope of this paragraph may draw
on and retain pertinent information from any source permitted
by law, including information derived from past or ongoing
investigative activities; other information collected or
provided by governmental entities, such as foreign intelligence
information and lookout list information; publicly available
information, whether obtained directly or through services or
resources (available nonprofit or commercial) that compile or
analyze such information; and information voluntarily provided
by private entities. Any such system operated by the FBI shall
be reviewed periodically for compliance with all applicable
statutory provisions, Department regulations and policies, and
Attorney General Guidelines.'' \58\
---------------------------------------------------------------------------
\58\ Id. at 21-22.
---------------------------------------------------------------------------
Research conducted on the Internet: ``For the purpose of
detecting or preventing terrorism or other criminal activities,
the FBI is authorized to conduct online search activity and to
access online sites and forums on the same terms and conditions
as members of the public generally.'' \59\
---------------------------------------------------------------------------
\59\ Id. at 22.
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Safeguarding Americans from a legal culture of fear: Approaches to
limiting lawsuit abuse
On June 22, 2004, the full Committee held an oversight
hearing on ``Safeguarding Americans from a Legal Culture of
Fear: Approaches to Limiting Lawsuit Abuse.'' Witnesses
included: Karen R. Harned, Executive Director, National
Federation of Independent Business; Philip Howard, Chair,
Common Good; Victor Schwartz, General Counsel, American Tort
Reform Association; and Theodore Eisenberg, Professor of Law,
Cornell Law School.
Karen Harned testified, among other things, that hundreds
of thousands of small businesses across the country do not have
human resource specialists, compliance officers, or attorneys
on staff. These businesses cannot pass on to consumers the
costs from taxes, regulations, and liability insurance without
suffering losses. For small-business owners, even the threat of
a lawsuit can mean significant time away from their business,
time that could be better spent growing their enterprise and
employing more people.
Philip Howard testified, among other things, that according
to a Harris Poll, five out of six doctors do not trust the
system of justice. As a result, doctors are ordering billions
of dollars worth of unnecessary tests and procedures--not to
address the health of their patients but to protect themselves
from potential lawsuits. In schools, teachers are unable to
maintain discipline in their classrooms, fearful that they may
be sued by students or parents. A recent Public Agenda poll,
sponsored by Common Good, found that 78% of teachers have been
threatened with legal proceedings by their students.
Victor Schwartz testified, among other things, that
slightly more than ten years ago, the Federal Rules Advisory
Committee, an extension of the federal judiciary which has the
primary responsibility to formulate the Federal Rules of Civil
Procedure, announced an amended and weakened Rule 11. The
Advisory Committee recommended weakening the rule despite the
result of a survey it conducted of federal court judges, those
who deal with the problem of lawsuit abuse on a day-to-day
basis. That survey found that 95% of judges believed that the
now abandoned version of Rule 11 had not impeded development of
the law. Eighty percent found that the prior rule had an
overall positive effect and should not be changed. Three-
quarters of those judges surveyed felt that the former Rule
11's benefits in deterring frivolous lawsuits and compensating
those victimized by such claims justified the use of judicial
time.
Theodore Eisenberg testified, among other things, that tort
reform proposals are based on questionable views of the
operation of the tort system; that the United States is not the
most litigious country; that estimates of tort system costs
supplied to Congress and the media are deeply flawed; and that
Rule 11's experiment with fee-shifting revealed the tort system
to have a low rate of abuse compared to other areas of law and
fell particularly hard on civil rights claimants.
Oversight hearing on compliance with the Enhanced Border Act
On April 21, 2004, the Committee on the Judiciary held an
oversight hearing entitled ``Should the Congress Extend the
October, 2004 Statutory Deadline for Requiring Foreign Visitors
to Present Biometric Passports?'' The Honorable Colin Powell,
Secretary of State, and the Honorable Tom Ridge, Secretary of
Homeland Security, testified at the hearing.
The hearing examined whether the deadlines set by the
Enhanced Border Security and Visa Reform Act of 2002, also
known as the Border Security Act, and the USA PATRIOT Act could
be met by the United States Government and by key foreign
trading partners. The Secretary of State testified about
diplomatic initiatives to educate foreign countries about the
pending deadlines and the possible need to extend those
deadlines to prevent an interruption of international travel to
the United States. The Secretary of Homeland Security testified
with regard to the level of technical preparation required to
electronically validate biometric passports as well as the
schedule for installing chip readers at international airports
and ports of entry.
Oversight on the problem of visa overstays
On June 3, 2004, Chairman F. James Sensenbrenner, Jr.
released a report from the General Accounting Office (GAO)
which found that the number of foreign visitors who overstay
their visas exceeds 2.3 million and that the Department of
Homeland Security's (DHS) estimates of visa overstays is
probably low. The GAO study also documents that DHS interior
enforcement to identify and deport people overstaying their
visas is virtually non-existent.
Oversight of consular identification cards
Committee oversight of the use of consular cards began in
April 2002, when staff approached the INS to determine what
steps the agency planned to take in response to foreign-
government efforts to seek local acceptance of consular
identification cards, which at least one foreign government was
publicly promoting for identification purposes. At that time,
INS stated that it lacked jurisdiction over foreign missions in
the United States, asserting that such authority was probably
vested in the State Department.
After determining that the Office of Foreign Missions was
the most likely component of the State Department to oversee
these activities, staff contacted State to determine what steps
the department was planning to take in response to foreign-
government efforts to seek domestic acceptance of consular
cards.
In June 2002, State informed staff that it would establish
an interagency group to promulgate a policy on the domestic
acceptance of consular identification cards. This group did not
actually meet for the first time, however, until January 7,
2003. Staff met with State Department on January 8, 2003, to
discuss issues raised at the meeting the day before.
On January 21, 2003, a press report appeared indicating
that the General Services Adminstration (GSA) had commenced a
project to accept the Mexican consular identification card, the
matricula consular, on a pilot basis for admission to the
Philip Burton Federal Building in San Francisco. On January 22,
2003, GSA stated that it was suspending the pilot, explaining:
The matter of foreign consular identification cards
is under discussion both within the State Department
and among federal government agencies, including the
General Services Administration. * * * While this
matter is under deliberation, GSA has suspended the
trial acceptance of consular identification cards for
admittance to certain federal facilities. * * * GSA
will no longer accept consular-issued identification
cards as a means of identification, pending further
study.
Staff continued to meet regularly with State Department and
other executive branch representatives to discuss consular card
issues and the status of the deliberations of the interagency
working group.
In response to an article in the April 17, 2003 edition of
the San Bernadino County Sun, the Subcommittee on Immigration,
Border Security, and Claims began to undertake its own
collection of information on the issuance and domestic
acceptance of consular identification cards in the United
States.
To assess (1) whether Customs and Border Protection (CBP)
and Immigration and Customs Enforcement (ICE) had additional
information on aliens who were arrested with multiple valid
matriculas and (2) whether DHS had presented that information
to the interagency working group on consular cards, on April
28, 2003, Chairman Sensenbrenner sent a letter to the DHS. In
that letter, Chairman Sensenbrenner requested that CBP and ICE
provide the Committee ``no later than May 12, 2003, with a list
of all incidents in which aliens, both legal and illegal, were
encountered by those respective bureaus in possession of more
than one facially valid matricula, including the date of the
encounter and the number of documents each alien possessed.''
CBP and ICE were also directed to ``provide the Committee with
copies of all written, and descriptions of all oral, guidance
that the Department has provided to States and localities that
are considering recognizing the matricula as a valid
identification document, and if no such guidance has been
issued, why it has not issued such guidance.''
In response to a subsequent Committee request, in August
2004 the GAO issued a report on the issuance and acceptance of
consular identification cards. The report found that from 2002
through 2003, Mexico issued 2.2 million consular identification
cards, while Guatemala issued about 89,000. In addition,
Argentina now issues cards to its citizens in the United States
and other nations are considering similar programs.
The GAO report pointed to weaknesses in U.S. government
policy regarding foreign governments' issuance of consular
identification cards to aliens illegally present in the United
States. GAO recommended that the Homeland Security Council
``direct its task force to develop and implement consistent
guidance that would reconcile potential conflicts among federal
agencies and complete their efforts to develop policy to enable
state and local governments, financial institutions, and others
to assess the authenticity of [consular identification] cards
issued by foreign governments.''
Committee oversight of this matter has continued, leading
to the Committee's contribution of Sec. 3006 to H.R. 10, the 9/
11 Recommendations Implementation Act. This provision limited
the documents that an alien could present for purposes of
establishing identity to a federal employee to domestically
issued documents and foreign passports. In the conference
report for that bill, this requirement was pared down to a
direction to the Secretary of Homeland Security to propose
standards for documents that could be presented to board an
airliner in the United States, a designation that is to be
submitted to the Congress for an approval resolution. If not
approved, only domestically issued documents and foreign
passports can be presented for such purpose.
Oversight of the implementation of Title III of the USA PATRIOT Act
The Committee and Subcommittee on Immigration, Border
Security, and Claims have rigorously monitored the
implementation of sections of the USA PATRIOT Act dealing with
money laundering and terrorist financing.
In a February 28, 2003, letter to the Attorney General,
Chairman Sensenbrenner and Ranking Member Conyers pointed out
that there were serious problems with Treasury Department
regulations to implement Title III of the USA PATRIOT Act,
which is captioned ``International Money Laundering Abatement
and Antiterrorist Financing Act of 2001.'' Section 326 of the
USA PATRIOT Act added a new subsection (l) to 31 U.S.C.
Sec. 5318 of the Bank Secrecy Act that requires the Secretary
of the Treasury to prescribe regulations ``setting forth the
minimum standards for financial institutions and their
customers regarding the identity of the customer that shall
apply in connection with the opening of an account at a
financial institution.'' Section 326 of that Act provides that
the regulations must require, at a minimum, financial
institutions to implement reasonable procedures for: (1)
verifying the identity of any person seeking to open an
account, to the extent reasonable and practicable; (2)
maintaining records of the information used to verify the
person's identity, including name, address, and other
identifying information; and (3) determining whether the person
appears on any lists of known or suspected terrorists or
terrorist organizations provided to the financial institution
by any government agency. The provisions in Title III of the
USA PATRIOT Act are intended to facilitate the prevention,
detection, and prosecution of international money laundering
and the financing of terrorism.
The letter explained that the interim regulations published
by the Treasury Department, through the Financial Crimes
Enforcement Network (FinCEN), actually reduced existing
safeguards with regard to money laundering by illegal aliens,
including both illegal entrants and alien visa overstays (such
as three of the 9/11 terrorists). Under prior Treasury
regulations, aliens were required to obtain Social Security
numbers or Taxpayer Identification Numbers (TINS) before
opening an account at a federally insured bank. This meant that
aliens had to obtain identifying numbers through government
agencies that would also apply tests to confirm that they had a
legitimate reason to be in the United States.
Upon inquiry, the Committee was informed in a meeting with
officials of the Treasury Department that neither the Justice
Department nor the State Department had provided any written
objection to this broad enfranchisement of foreign government
identification documents. If the Justice Department officials
responsible for liaison with the Department of Treasury
concurred with this understanding of the effect of these
regulations, the Committee suggested that the Department's
views be provided in writing to the Treasury Department, as
soon as possible.
On May 23, 2003, Chairman Sensenbrenner sent a letter to
Dr. Richard Falkenrath, Assistant Director of the Homeland
Security Council in the Executive Office of the President. In
that letter, the Chairman explained the concerns with the May
9, 2003, Treasury Department regulation implementing Sec. 326
of the USA PATRIOT Act, which was to take effect on June 9,
2003. He requested that the Executive Office of the President
direct that the final date of that regulation be postponed for
six months until scrutiny by law enforcement officials can be
more intensively applied to modify it.
In brief, the Chairman stated that the intent of the
Congress in directing the Treasury to write new regulations was
to raise the bar on the difficulty with which terrorists can
move money through the U.S. banking system. This regulation
instead appeared to lower the bar. That letter identified two
specific regulatory conditions of greatest concern. The new
Treasury regulation would eliminate the requirement that a bank
retain copies of the documents used to verify the identity of
the customer. This would eliminate evidence essential to
successful investigation of the ``money trail'' to
organizations supporting terrorism. In Sec. 326 of the USA
PATRIOT Act, Congress directed the Secretary of the Treasury to
issue regulations prescribing minimum standards for financial
institutions regarding customer identity in connection with the
opening of accounts. Pursuant to the final regulation, however,
a bank could open an account for an alien who presented only an
alien identification card number, or ``number and country of
issuance'' of any other government-issued document evidencing
nationality or residence and bearing a photograph or similar
safeguard.
On July 1, 2003, the Treasury Department issued a notice of
inquiry seeking additional comments ``on two discrete issues
relating to final regulations issued recently pursuant to
section 326,'' specifically (1) ``whether and under what
circumstances financial institutions should be required to
retain photocopies of identification documents relied on to
verify customer identity,'' and, (2) ``whether there are
situations when the regulations should preclude reliance on
certain forms of foreign government-issued identification to
verify customer identity.''
In response, Chairman Sensenbrenner sent a comment letter
responding to each of these questions to the Treasury on July
24, 2003. Those letters addressed in detail the shortcomings of
the regulations. The Treasury Department terminated the inquiry
on September 25, 2003, having ``determined that no changes to
the final rules are warranted.''
On November 20, 2003, Chairman Sensenbrenner and
Subcommittee Chairman Hostettler sent a request to the GAO to
evaluate compliance with the changes to federal anti-money
laundering regulatory regimes in Title III of the USA PATRIOT
Act. The letter requested that GAO review how the Treasury and
associated regulators would implement and enforce the
regulations implementing Sec. 326 of that Act. The Committee's
oversight of implementation of Title III of the USA PATRIOT Act
continues.
Oversight of DHS budget shortfalls
On March 26, 2004, Chairman Sensenbrenner requested
information about budget shortfalls that were reportedly facing
the three bureaus within DHS charged with enforcing the
immigrations laws, CBP, ICE, and Citizenship and Immigration
Services (CIS). Those shortfalls had apparently led to a hiring
freeze within CBP and ICE.
On May 5, 2004, the Committee received a formal response
from DHS Undersecretary Asa Hutchinson, which described a
budget reconciliation effort among the three bureaus that was
organized to address the perceived shortfall. As Hutchinson
explained, that reconciliation effort resulted ``in an
immediate internal realignment of $212 million with possible
subsequent internal realignment of approximately $270 million
pending final documentation and billing.''
In August 2004, the Committee received further reports
about shortfalls in funding for critical programs in ICE,
prompting the Chairman to request additional information on
ICE's budget difficulties. Staff has subsequently been briefed
on the agency's preliminary efforts to address its shortfalls.
The Committee's oversight of this matter will continue until
ICE's shortfalls have been eliminated.
Oversight of Social Security benefits fraud
On September 11, 2003, the Immigration, Border Security,
and Claims Subcommittee, Rep. John Hostettler, (R-Ind.),
Chairman, held an oversight hearing entitled, ``Should There Be
a Social Security Totalization Agreement with Mexico?''
A Social Security totalization agreement coordinates the
payment of Social Security taxes and benefits for workers who
divide their careers between two countries. ``Totalization''
refers to combining the SSA taxes paid into Social Security in
the U.S. with the equivalent taxes paid into the system of a
foreign country so that people who have earned retirement
credits under both systems receive benefits due from each.
Totalization agreements entered into the realm of
international treaties in the 1970s, as countries began to
organize geographical and cultural trade alliances. Section 233
of the Social Security Act authorizes the President to enter
into bilateral agreements with other nations that have social
security programs that are actuarially based and of general
application. Unlike bi-lateral trade agreements, the Congress
need not act on totalization agreements for them to come into
effect. Rather, the agreements are submitted to Congress for
``60 session days when at least one house is in session''
during which one House of Congress must either require changes
to the agreement or oppose the agreement by resolution. The
United States has concluded 20 such agreements, the most recent
of which were with Australia, Chile, and South Korea.
Noncitizens who work in Social Security-covered employment
must pay Social Security payroll taxes, including those who are
in the U.S. working temporarily and those who may be illegally
working in the U.S. The Social Security Act does not explicitly
prohibit illegal aliens from receiving Social Security
benefits. However, the 1996 immigration reform legislation
prohibits the payment of Social Security benefits to illegal
aliens in the U.S., unless nonpayment would be contrary to a
totalization agreement or the alien nonpayment provision of the
Social Security Act.
Because Social Security is an earned entitlement, some
argue that workers who pay into the system should receive
benefits regardless of employment authorization or immigration
status. Others contend that paying benefits based on
unauthorized work in the U.S. ``rewards'' individuals who
violate immigration law. Media articles earlier this year
estimated a potential totalization agreement with Mexico to
cost the Social Security Trust Fund at least $345 billion, as
benefits will be paid to illegal workers as well as legal
workers from Mexico.
The hearing examined whether the Social Security
Administration (SSA) has completed the necessary financial
projections and ordinary due diligence regarding the legal and
administrative prerequisites appropriate to a treaty agreement
of such financial magnitude. It also considered whether the
benefits to be provided by the proposed agreement will become a
beacon of inducement so that the rate of illegal immigration
will actually increase over already historically high levels.
The Subcommittee sought to determine the specific merits in
concluding a totalization agreement and whether the U.S.
benefits will be equivalent to those received by the other
country.
Jo Anne B. Barnhart, the Commissioner of the Social
Security Administration, testified on the direct definition of
totalization agreements and provided an overview on
totalization including the process for their approval. She also
outlined the ongoing negotiations regarding the totalization
agreement with Japan and provided a status report on U.S.
discussions with Mexico on a possible agreement. Barbara
Bovjberg, Director of Education, Workforce and Income Security
at the General Accounting Office, testified next with regard to
shortcomings of the SSA in negotiating the totalization
agreement with Mexico. Director Bovjberg testified that the
proposed agreement will likely increase the number of
unauthorized Mexican workers and family members eligible for
social security benefits. Mexican workers who ordinarily could
not receive social security retirement benefits because they
lack the required 40 coverage credits for U.S. earnings could
qualify for partial Social Security benefits with as few as 6
coverage credits. In addition, under the proposed agreement,
more family members of covered Mexican workers would become
newly entitled because the agreements usually waive rules that
prevent payments to noncitizens' dependents and survivors
living outside the United States. Joel Mowbray, a syndicated
columnist and investigative reporter, testified that his
original analysis was that the cost of totalization appeared to
be as high as $345 billion over the next two decades. He also
testified that taxpayers could actually be on the hook for even
more money if fraud becomes rampant and is not reined in.
The final witness, Ken Apfel, SSA Commissioner under
President Clinton, testified on how the Social Security Act
authorizes the President to enter into totalization agreements
with other countries. The process is often a very complex and
lengthy one. As examples, agreements signed by the Bush
administration in 2001 with South Korea and Chile were both
negotiated in part during the Clinton administration, and
agreements signed in 1993 by the Clinton administration with
Ireland and Greece were both negotiated in part during the
first Bush administration. He explained that the agreements
eliminate dual Social Security taxation, which saves workers
and their employers from having to pay duplicative taxes. And
second, the agreements help to fill gaps in benefit protection
for individuals who have worked parts of their careers in the
U.S. and part in another country, but who have not worked
enough in either or in both to qualify for benefits. Workers
may combine earnings credits to qualify for benefits under
either or both systems, with benefits prorated to reflect the
number of years that workers paid into each system. Mr. Apfel
concluded that a totalization agreement between the U.S. and
Mexico would move the countries ``one step closer to
strengthening worker protections, eliminating duplicative taxes
and fostering economic interdependence.''
On March 2, 2004, the Social Security Protection Act of
2004, H.R. 743, was signed into law by President George W. Bush
and became Public Law No. 108-203. The Subcommittee hearing on
this issue, and the public debate that followed, led directly
to provisions in Sec. 211 of the Social Security Protection Act
which prohibit providing Social Security benefits to illegal
alien workers. House Judiciary Chairman F. James Sensenbrenner,
Jr. and Subcommittee Chairman John N. Hostettler also followed
up on this issue with a letter to SSA Commissioner Jo Anne
Barnhart. Subsequently, the SSA sent a short letter advising
foreign governments of the Act, but without providing any
guidance or specific details of Sec. 211 or the effects on
existing totalization agreements. Notwithstanding assurances to
Chairman Sensenbrenner and Chairman Hostettler in a letter from
Commissioner Barnhart on August 16, 2004, the actual procedures
addressing the changes in benefits awards have yet to be
implemented within the SSA.
Oversight letter to Jo Anne Barnhart, Commissioner of the Social
Security Administration
Congressman F. James Sensenbrenner, Jr., Chairman of the
House Judiciary Committee, and Congressman John N. Hostettler,
Chairman of the Subcommittee on Immigration, Border Security,
and Claims wrote a letter to Social Security Administration
Commissioner Jo Anne Barnhart on July 20, 2004 discussing
Sec. 211 of the Social Security Protection Act of 2004.
The letter described Congress's intent to prevent--in most
cases--individuals from receiving Social Security retirement or
disability benefits on the basis of work illegally performed by
aliens in the United States. The letter stated:
The Social Security program should not reward those
who violate our immigration laws. The Social Security
Trust Fund will face enough challenges to its solvency
in future decades without its being dissipated by
payments based on work performed illegally in the
United States. Additionally, there is no greater magnet
for illegal immigration to the U.S. than the
availability of jobs, and allowing illegal work to
qualify for Social Security retirement and disability
benefits only adds to the allure of such work and our
difficulty in controlling the Nation's borders. * * *
Given section 211's importance in the context of
Congressional hearings (at which you have testified)
where Members have expressed strong criticism of
existing SSA practices that do not differentiate
between illegal earnings and legal earnings, we find it
surprising that revised instructions in the policy
operation manual or new regulations have not already
been published. Section 211 should help to reduce the
problem of unmatched earnings, and contribute to a
reduction in the fraudulent use of Social Security
numbers by illegal aliens. In this regard, we want to
reiterate the importance of section 211 and stress the
proper interpretation of this section consistent with
clear congressional intent. It is extremely important
that SSA revise procedures to implement section 211 and
issue public notice that SSA will begin scrutiny and
enforcement actions to implement section 211.
However, most aliens working illegally in the U.S.
meet the documentation requirement of section 274A of
the Immigration and Nationality Act by presenting their
employers with bogus Social Security numbers or steal
the identities (and Social Security numbers) of work-
authorized individuals. Such an alien (or his or her
spouse or children) may approach SSA and seek to
receive benefits based on work in the U.S. performed on
the bogus or stolen numbers. As you know, if the
applicant qualifies for benefits, the SSA will then
issue a valid Social Security number. In any case where
SSA issued or issues a number after January 1, 2004, to
an alien in such a circumstance, the prohibition of
section 211 will apply, even if the illegally-performed
work took place before 2004. We must emphasize that the
Congressional intent was that SSA apply the effective
date contained in the legislation in this manner. We
expect that SSA's revised policy operation manual or
new regulations implementing section 211 will adhere to
this reading.
On June 29, 2004, you and Mexican Social Security
Institute Director Santiago Levy signed a Totalization
Agreement in Guadalajara, Mexico. We have seen an
earlier draft of this agreement that omits any mention
or discussion of segregating earnings from Mexican or
American wage earners working legally versus those
working illegally. It is extremely important that the
Totalization Agreement with Mexico be amended to
incorporate language that addresses section 211's
prohibition, so that there will be no misunderstanding
with this important neighbor, and so that social
security benefits, even on a pro-rata basis, are not
provided in violation of federal law.
Finally, we expect SSA to notify the countries with
whom we have in the past entered into Totalization
Agreements (Australia, Austria, Belgium, Canada, Chile,
Finland, France, Germany, Greece, Ireland, Italy, South
Korea, Luxembourg, the Netherlands, Norway, Portugal,
Spain, Sweden, Switzerland and the United Kingdom)
regarding the impact that section 211 will have on
their nationals who might have worked illegally in the
United States.
The letter requested that GAO respond with specific
information regarding the steps SSA is taking to implement
Sec. 211, address Sec. 211 in the totalization agreement with
Mexico, and notify countries with which Totalization Agreements
are in force of the effect of Sec. 211. As previously
mentioned, SSA Commissioner Barnhart wrote a letter on August
16, 2004 outlining the actions the SSA has taken to implement
the Social Security Protection Act of 2004. She stated: ``In
April, we alerted our field offices to the new provisions and
asked them to hold any affected cases pending release of new
instructions. * * * On May 18, 2004, we wrote to the
governments of each of the 20 countries with which the United
States currently has a Totalization Agreement in force to
advise them of the requirements of the SSPA (copy enclosed).
This notification included a discussion of the Section 211
provision.'' `` The U.S.-Mexican Social Security Totalization
Agreement, which I signed on June 29, 2004, is substantively
identical to all other Totalization Agreements with respect to
U.S. benefit eligibility, computations and payments. Prior to
my signing the agreement, our negotiators made it very clear to
their Mexican counterparts that this agreement would be fully
subject to the requirements of Section 211. We have asked the
State Department to deliver a formal diplomatic communication
to the Mexican Government to document this understanding.''
GAO report on totalization
In response to a request from Congressman F. James
Sensenbrenner, Jr., Chairman of the House Judiciary Committee,
and Congressman E. Clay Shaw, Jr., Chairman of the House Ways
and Means Subcommittee on Social Security, GAO completed a
report in September of 2003 titled, ``SOCIAL SECURITY Proposed
Totalization Agreement with Mexico Presents Unique
Challenges.''
GAO states: ``Totalization agreements foster international
commerce and protect benefits for persons who have worked in
foreign countries in two ways. First, the agreements eliminate
dual social security taxes that multinational employers and
their employees must pay when they operate and reside in
countries with parallel social security programs. Second, the
agreements help to fill gaps in benefit protection for persons
who have worked in different countries for portions of their
careers.''
The Results in Brief report that:
SSA has no written policies or procedures outlining
the specific steps it follows when entering into
Totalization Agreements, and the actions it took to
assess the integrity and compatibility of Mexico's
social security system were limited and neither
transparent nor well-documented. SSA said the process
it used to develop the proposed Totalization Agreement
with Mexico was the same as for prior Totalization
Agreements. SSA officials told us that they briefly
toured Mexican facilities, observed how their automated
systems functioned, and identified the type of data
maintained on Mexican workers. However, SSA provided no
information showing that it assessed the reliability of
Mexican earnings data and the internal controls Mexico
uses to ensure the integrity of information that SSA
will rely on to pay social security benefits. This
report recommends that SSA establish formal processes
for entering into Totalization Agreements that include
mechanisms to assess the risks associated with such
agreements and to document the range of analyses SSA
conducts. The report also recommends that reports of
proposed agreements be enhanced to make them more
consistent and informative and that SSA establish a
regular process to reassess the accuracy of its
actuarial estimates. SSA and the OCACT commented on
this report. SSA said that the report did not
sufficiently discuss the benefits of Totalization
Agreements and that its current process for evaluating
whether to enter into negotiations for Totalization
Agreements was sufficient to identify and assess risks.
Our report specifically notes that such agreements
foster international commerce, protect benefits for
persons who have worked in foreign countries, eliminate
dual social security taxes, and foster enhanced
diplomatic relations. With regard to SSA's current
processes, we could find no specific references to SSA
examining data reliability and program integrity. We
are hopeful that SSA will conduct such examinations of
the Mexican social security system before submitting a
proposed agreement to the Congress for its review.
OCACT [Office of the Chief Actuary] generally agreed
with our recommendations and noted that they are
consistent with current practices. OCACT, however, took
exception to the implication of our statement that its
estimated cost was more likely to be understated than
overstated. Our intent was not to imply that the OCACT
estimate was biased. Accordingly, we have revised our
report to state the very large difference between
estimated and potential beneficiaries underscores the
uncertainty of the estimate, and the potential costs of
an agreement could be higher than OCACT projects. The
full text of SSA's and OCACT's comments appears in
appendix II. The State Department was also provided a
copy of the draft report for review and advised us that
it had no comments.
Oversight of relationships between FBI agents and confidential
informants
Certain activities within the Boston field office of the
Federal Bureau of Investigation (FBI) from the 1970s through
the 1990s have been shown to be highly suspect. As a result of
investigative reporting, judicial action, and research by the
Committee on Government Reform of the United States House of
Representatives, this period has been demonstrated to be full
of malfeasance and corruption. The handling of two ``Top
Echelon'' informants, James ``Whitey'' Bulger and Stephen
Flemmi, by the FBI, most notably Agent John Connolly and
Supervisor John Morris, proved to be arguably one of the most
embarrassing and darkest chapters in the history of law
enforcement in the United States. The Judiciary Committee
conducted oversight of the FBI's handling of confidential
informants with the goal of determining whether internal
changes in policy have sufficiently and effectively addressed
reported problems. The Committee's oversight into this activity
is on-going and anticipated to continue into the 109th
Congress. On August 4, 2003, Chairman F. James Sensenbrenner,
Jr., traveled on an investigatory trip to Boston. During this
trip, the Chairman met with Martin G. Weinberg, a criminal
defense attorney who represented confidential informant John
Martorano; Gerald O'Neill, former editor of the Boston Globe
and author of the book Black Mass: The Irish Mob, the FBI, and
a Devil's Deal; Robert Long, former Detective Lieutenant of the
Massachusetts State Police; and John Kivlan, former First
Assistant District Attorney for Norfolk County. Based upon this
visit, Chairman Sensenbrenner directed further Committee
investigation.
On May 6, 2004, Chairman F. James Sensenbrenner, Jr.,
Ranking Member John Conyers Jr., Congressman Chris Cannon, and
Congressman William D. Delahunt sent a joint letter to Attorney
General John Ashcroft, posing nine questions regarding requests
for additional information regarding various guidelines and
procedures in effect between the Department of Justice (DOJ)
and the FBI in their respective relationships with confidential
informants. The Committee's letter requested a response by May
20, 2004.
On July 6, 2004, Chairman F. James Sensenbrenner, Jr.,
Ranking Member John Conyers, Jr., Congressman Chris Cannon, and
Congressman William D. Delahunt sent a joint letter to Dan
Rosenblatt, Executive Director of the International Association
of Chiefs of Police, requesting feedback about the level of
cooperation between state and local law enforcement and the FBI
in regards to confidential informants or potential criminal
activity by those informants. Despite several efforts by the
Committee, Mr. Rosenblatt did not respond to the Committee's
invitation to provide information.
On July 7, 2004, Chairman F. James Sensenbrenner, Jr.,
Ranking Member John Conyers, Jr., Congressman Chris Cannon, and
Congressman William D. Delahunt sent a joint letter to FBI
Director Robert S. Mueller, III, asking for information
relating to complaints filed with the FBI's Office of
Professional Responsibility regarding relationships between
confidential informants and agents. The Committee's letter
requested a response by July 28, 2004.
On July 8, 2004, DOJ submitted a response to the May 6th
letter from the Committee. Accompanying this letter were: three
versions of the Attorney General's Guidelines Regarding the Use
of Confidential Informants; Resolution 18, regarding the
utilization of cooperating individuals and confidential
informants; and several versions of the FBI's Manual of
Investigative Operations Guidelines regarding the Bureau's
Confidential Informant Program.
On September 15, 2004, Chairman F. James Sensenbrenner,
Jr., Ranking Member John Conyers, Jr., Congressman Chris
Cannon, and Congressman William D. Delahunt sent a joint letter
to all 50 State attorneys general individually, asking for
input regarding the level of cooperation demonstrated between
state and local law enforcement and the FBI concerning
information about confidential informants and their potential
criminal activity. The Committee's letter requested a response
by November 9, 2004.
On December 6, 2004, Chairman F. James Sensenbrenner, Jr.,
Ranking Member John Conyers, Jr., Congressman Chris Cannon, and
Congressman William D. Delahunt sent a joint letter to Ralph
Grunewald, Executive Director of the National Association of
Criminal Defense Lawyers, seeking information relating to any
problems which may have arisen dealing with misconduct or
unethical behavior by FBI agents relating to confidential
informants. The Committee's letter requested a response by
January 17, 2005.
On December 8, 2004, Chairman F. James Sensenbrenner, Jr.,
Ranking Member John Conyers, Jr., Congressman Chris Cannon, and
Congressman William D. Delahunt sent a joint letter to Paul
Walsh, President of the National District Attorneys
Association, seeking input as to communication effectiveness
between member offices and the FBI and overall effectiveness of
FBI guidelines and procedures.
Oversight of allegations of misconduct in the Sixth Circuit
This inquiry began in the summer of 2002, after the
Committee became aware of the allegations of misconduct by
then-Chief Judge Martin set forth in Judge Boggs's procedural
appendix in the affirmative action case, Grutter v. Bollinger,
288 F.3d 732 (6th Cir. 2002). In his procedural appendix, Judge
Boggs suggests that: (1) the membership of the panel was
deliberately and inappropriately assembled and (2) then-Chief
Judge Martin inappropriately ordered a petition for initial
hearing en banc withheld from circulation to the full court for
the purpose of influencing the make up of the panel that heard
the case. The Committee began conducting oversight on the
process by which the panel came to sit on the case in the 107th
Congress. The Committee continued the investigation into the
108th Congress. The work conducted during the 108th Congress
includes:
On June 11, 2003, the Committee, by letter, notified Judge
Martin of the oversight being initiated by the Committee. Staff
traveled to cities in Ohio and Michigan in July, September, and
October of 2003 and interviewed witnesses, including judges and
court staff.
In October 2003, Committee staff invited Judges Moore and
Daughtrey to discuss the matters subject to the investigation.
Both declined to be interviewed. In December 2003, the
oversight became a bipartisan investigation. Minority staff
conducted interviews of witnesses previously interviewed by
majority staff. In June 2004, bipartisan staff conducted
interviews in Cincinnati, Ohio. On July 12, 2004, Chairman
Sensenbrenner sent a letter to the Chief Judge of the Circuit
asking for non-deliberative documents. The court has partially
responded to this request. On July 12, 2004, Chairman
Sensenbrenner sent a letter to each judge who is a subject of
the Committee's inquiry, inviting each to speak with Committee
staff about the subject of the investigation, but each judge
has declined the request. The Committee plans to continue its
oversight of the Sixth Circuit into the 109th Congress.
SUBCOMMITTEE ON COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY \1\
LAMAR S. SMITH, Texas, Chairman
HOWARD L. BERMAN, California HENRY J. HYDE, Illinois
JOHN CONYERS, Jr., Michigan ELTON GALLEGLY, California
RICK BOUCHER, Virginia BOB GOODLATTE, Virginia, Vice
ZOE LOFGREN, California Chair
MAXINE WATERS, California WILLIAM L. JENKINS, Tennessee
MARTIN T. MEEHAN, Massachusetts SPENCER BACHUS, Alabama
WILLIAM D. DELAHUNT, Massachusetts MARK GREEN, Wisconsin
ROBERT WEXLER, Florida RIC KELLER, Florida
TAMMY BALDWIN, Wisconsin MELISSA A. HART, Pennsylvania
ANTHONY D. WEINER, New York MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
JOHN R. CARTER, Texas
----------
\1\ Subcommittee chairmanship and assignments approved February 12,
2003.
Tabulation of subcommittee legislation and activity
Public:
Legislation referred to the Subcommittee...................... 91
Legislation on which hearings were held....................... 11
Legislation reported favorably to the full Committee.......... 15
Legislation reported adversely to the full Committee.......... 0
Legislation reported without recommendation to the full
Committee................................................... 0
Legislation reported as original measure to the full Committee 0
Legislation discharged from the Subcommittee.................. 4
Legislation pending before the full Committee................. 1
Legislation reported to the House............................. 15
Legislation discharged from the Committee..................... 2
Legislation pending in the House.............................. 5
Legislation passed by the House............................... 14
Legislation pending in the Senate............................. 8
Legislation vetoed by the President (not overridden).......... 0
Legislation enacted into Public Law........................... 6
Legislation enacted into Public Law as part of other
legislation................................................. 2
Days of legislative hearings.................................. 11
Days of oversight hearings.................................... 15
Private:
Legislation referred to the Subcommittee...................... 1
Legislation on which hearings were held....................... 0
Legislation reported favorably to the full Committee.......... 0
Legislation discharged from the Subcommittee.................. 0
Legislation pending before the full Committee................. 0
Legislation reported to the House............................. 0
Legislation discharged from the Committee..................... 0
Legislation pending in the House.............................. 0
Legislation passed by the House............................... 0
Legislation pending in the Senate............................. 0
Legislation enacted into Private Law.......................... 0
Jurisdiction of the Subcommittee
The Subcommittee on Courts, the Internet, and Intellectual
Property shall have jurisdiction over the following subject
matters: copyright, patent and trademark law, information
technology, administration of U.S. courts, Federal Rules of
Evidence and Appellate Procedure, judicial ethics, other
appropriate matters as referred by the Chairman, and relevant
oversight.
Legislative Activities
COURTS
H.R. 29, A bill to convert a temporary judgeship for the district of
Nebraska to a permanent judgeship, and for other purposes
Summary.--Introduced by Representative Doug Bereuter, H.R.
29 converts a temporary U.S. district judgeship for the
district of Nebraska to a permanent judgeship.
Legislative History.--Subsequent to the bill's
introduction, the temporary judgeship expired, but an
authorization to create a new district judgeship in its place
was included in S. 878, a bill to authorize an additional
permanent judgeships in the district of Idaho, which was later
amended to include numerous temporary and permanent district
judgeships as well as new circuit judgeships. See S. 878 for
further action.
H.R. 112, To amend title 28, United States Code, to provide for an
additional place of holding court in the district of Colorado
Summary.--Introduced by Representative Joel Hefley, H.R.
112 designates Colorado Springs, Colorado, as a place of
holding federal court in the district of Colorado.
Legislative History.--On June 24, 2004, the Subcommittee
met in open session and ordered favorably reported H.R. 112,
without amendment, by voice vote. On July 21, 2004, the full
Committee met in open session and ordered favorably reported
H.R. 112, without amendment, by voice vote (H. Rept. No. 108-
625). The text of H.R. 112 was later incorporated in H.R. 3632,
the ``Anti-counterfeiting Amendments Act of 2004,'' as part of
a manager's floor amendment. The House passed H.R. 3632, as
amended, on November 21, 2004, by voice vote. The Senate passed
H.R. 3632 by unanimous consent on December 8, 2004. H.R. 3632
was signed by the President on December XX, 2004 and became
Public Law No. 108-XXX. The text of H.R. 112 was also included
in section 5 of S. 2873, which the Senate passed by unanimous
consent on November 19, 2004, and the House passed by unanimous
consent the following day. S. 2873 was signed by the President
on and became Public Law No. 108-455.
H.R. 1302, the ``Federal Courts Improvement Act of 2003''
Summary.--Introduced by Representative Lamar S. Smith, H.R.
1302 contains several provisions to improve the Federal court
system. The bill addresses judicial financial administration,
judicial process improvements, judiciary personnel
administration, and benefits and protections.
Legislative History.--On March 20, 2003, the Subcommittee
met in open session and ordered favorably reported H.R. 1302,
without amendment, by voice vote. Section 111 of the bill,
which designates Plattsburgh, New York, as a place of holding
federal court, was later introduced as a freestanding measure
(H.R. 4646) by Representative McHugh and incorporated in H.R.
3632, the ``Anti-counterfeiting Amendments Act of 2004,'' as
part of a manager's floor amendment. The House passed H.R.
3632, as amended, on November 21, 2004, by voice vote. The
Senate passed H.R. 3632 by unanimous consent on December 8,
2004. H.R. 3632 was signed by the President on December 23,
2004 and became Public law No. 108-482. In addition, the text
of H.R. 4646 was included in section 4 of S. 2873, which the
Senate passed by unanimous consent on November 19, 2004, and
the House passed by unanimous consent. Finally, Sec. 102 of
H.R. 1302, which clarifies that court for the Eastern District
of Texas and the Western District of Arkansas may be held
anywhere in the Federal Courthouse which sits astride the
Texas-Arkansas state line.
H.R. 1303, A bill to amend the E-Government Act of 2002 with respect to
rulemaking authority of the Judicial Conference
Summary.--Introduced by Representative Lamar S. Smith, H.R.
1303 authorizes the Supreme Court to prescribe rules to address
privacy and security concerns regarding the electronic filing
of and public access to documents under the E-Government Act.
Legislative History.--On March 20, 2003, the Subcommittee
met in open session and ordered favorably reported H.R. 1303,
without amendment, by voice vote. On July 16, 2003, the full
Committee met in open session and ordered favorably reported
H.R. 1303, with an amendment, by voice vote (H. Rept. No. 108-
239). On October 7, 2003, the House passed H.R. 1303, as
amended, by voice vote. The bill was received in the Senate,
read twice, and referred to the Committee on Governmental
Affairs on October 14, 2003. On July 7, 2004, Senator Collins
of the Committee on Governmental Affairs reported H.R. 1303,
without amendment. On July 9, 2004, the Senate passed H.R.
1303, without amendment, by unanimous consent. On July 13,
2004, the Senate requested the return of papers with respect to
H.R. 1303 by unanimous consent. The following day the House
returned the papers and the Senate vitiated its previous
passage and reporting of the bill. On July 15, 2004, the Senate
Committee on Governmental Affairs discharged H.R. 1303 by
unanimous consent and the Senate passed the bill, without
amendment, by unanimous consent, the same day. On August 2,
2004, the President signed H.R. 1303. (Public Law No. 108-281).
H.R. 1768, the ``Multidistrict Litigation Restoration Act of 2003''
Summary.--Introduced by Representative F. James
Sensenbrenner, Jr., H.R. 1768 permits a specially-designated
``transferee court'' under the federal multidistrict litigation
statute to retain jurisdiction over referred cases for trial,
for the purposes of determining liability and punitive damages,
or to refer them to other districts, as it sees fit.
Legislative History.--On July 22, 2003, the Subcommittee
met in open session and ordered favorably reported H.R. 1768,
without amendment, by voice vote. On January 28, 2004, the full
Committee met in open session and ordered favorably reported
H.R. 1768, with an amendment, by voice vote (H. Rept. No. 108-
416). On March 24, 2004, the House passed H.R. 1768 as amended
by a roll call vote of 418-0. The Senate took no further action
on the bill.
H.R. 1839, the ``Youth Smoking Prevention and State Revenue Enforcement
Act''
Summary.--Introduced by Representative Mark Green, H.R.
1839 amends the Jenkins Act by prescribing record-keeping and
other reporting requirements on persons engaged in the
interstate sale and distribution of cigarettes. The bill also
authorizes the U.S. Attorney General to bring criminal and
civil actions against transgressors to enforce its terms.
Legislative History.--On May 1, 2003, the Subcommittee held
a legislative hearing on H.R. 1839. The following witnesses
appeared and submitted statements for the record: Paul L.
Jones, Director, Homeland Security and Justice, General
Accounting Office; Henry ``Hank'' O. Armour, Chairman of the
Board, National Association of Convenience Stores; Matthew
Myers, President, National Center for Tobacco-Free Kids; and
Patrick Fleenor, Chief Economist, Fiscal Economics. No further
action was taken on H.R. 1839, but the subject of interstate
tobacco sales was later addressed in H.R. 2824, also introduced
by Representative Mark Green.
H.R. 2714, the ``State Justice Institute Reauthorization Act of 2003''
Summary.--Introduced by Representative Lamar S. Smith, H.R.
2714 authorizes the operations of the State Justice Institute
for four fiscal years at $7 million annually. The Institute
endeavors to improve judicial administration in State courts.
It accomplishes this goal by providing funds to State courts
and other national organizations or non-profits that support
State courts.
Legislative History.--On July 22, 2003, the Subcommittee
met in open session and ordered favorably reported H.R. 2714,
without amendment, by voice vote. On September 10, 2003, the
full Committee met in open session and ordered favorably
reported H.R. 2714, with an amendment, by voice vote (H. Rept.
No. 108-285). On March 10, 2004, the House passed H.R. 2714 as
amended by voice vote. The following day the bill was read
twice and referred to the Senate Committee on the Judiciary. On
September 30, 2004, the Senate Committee on the Judiciary
discharged the bill by unanimous consent. That same day the
Senate passed H.R. 2714, with an amendment regarding the
extension of a bulletproof vest grant program, by unanimous
consent. On October 8, 2004, Representative Chris Cannon moved
that the House agree to the Senate amendment to H.R. 2714. The
motion was agreed to the same day without objection. On October
25, 2004, the President signed H.R. 2714. (Public Law No. 108-
372)
H.R. 2723, the ``Ninth Circuit Court of Appeals Judgeship and
Reorganization Act of 2003''
Summary.--Introduced by Representative Michael K. Simpson,
H.R. 2723 reconfigures the present Ninth Circuit Court of
Appeals by creating a new Ninth comprised of Arizona,
California and Nevada; and a Twelfth Circuit comprised of
Alaska, Guam, Hawaii, Idaho, Montana, Northern Mariana Islands,
Oregon, and Washington.
Legislative History.--On October 21, 2003, the Subcommittee
held a legislative hearing on H.R. 2723. The following
witnesses appeared and submitted written statements for the
record: the Honorable Mary M. Schroeder, Chief Judge, U.S.
Court of Appeals for the Ninth Circuit; the Honorable Diarmuid
E. O'Scannlain, Judge, U.S. Court of Appeals for the Ninth
Circuit; the Honorable Alex Kozinski, Judge, U.S. Court of
Appeals for the Ninth Circuit; and Arthur D. Hellman, Professor
of Law, Pittsburgh University School of Law. No further action
was taken on H.R. 2723; however, the House later approved an
amendment to another bill (S. 878) that reconfigures the Ninth
Circuit based on the text of S. 2278. This amendment to S. 878
was offered by Representative Michael K. Simpson. As
introduced, S. 878 authorizes an additional permanent judgeship
in the district of Idaho. It was also amended to include
numerous temporary and permanent district judgeships as well as
new circuit judgeships. See S. 878 for further action.
H.R. 2824, the ``Internet Tobacco Sales Enforcement Act''
Summary.--Introduced by Representative Mark Green, H.R.
2824 amends the Jenkins Act by prescribing record-keeping and
other reporting requirements on persons engaged in the
interstate sale and distribution of cigarettes. The bill also
authorizes the U.S. Attorney General to bring criminal and
civil actions against transgressors to enforce its terms.
Legislative History.--On October 2, 2003, the Subcommittee
met in open session and ordered favorably reported H.R. 2824,
with an amendment, by voice vote. On January 28, 2004, the full
Committee met in open session and ordered favorably reported
H.R. 2824, as amended, by voice vote. No House Report was
filed, and no further action was taken on the bill.
H.R. 3486, A bill to create 4 new permanent judgeships for the eastern
district of California
Summary.--Introduced by Representative William M. Thomas,
H.R. 3486 creates four new permanent U.S. judgeships for the
eastern district of California.
Legislative History.--No action was taken on the bill,
although its contents were included in S. 878, a bill to
authorize an additional permanent judgeship in the district of
Idaho, which was later amended to include numerous temporary
and permanent district judgeships as well as new circuit
judgeships. See S. 878 for further action.
H.R. 3799, the ``Constitution Restoration Act of 2004''
Summary.--Introduced by Representative Robert B. Aderholt,
H.R. 3799 prohibits the U.S. Supreme Court or any federal court
from reviewing subject matter regarding ``relief * * * sought
against * * * an element * * * or an officer of * * *
government * * *, by reason of that element's or officer's
acknowledgment of God as the sovereign source of law, liberty,
or government.'' Judges who violate this prohibition are
subject to impeachment. The bill also prohibits a court from
invoking ``foreign'' sources of guidance when ``interpreting
and applying the Constitution.''
Legislative History.--On September 13, 2004, the
Subcommittee conducted a legislative hearing on H.R. 3799. The
following witnesses appeared and submitted written statements
for the record: the Honorable Roy S. Moore, Chairman,
Foundation for Moral Law, Inc.; the Honorable William E.
Dannemeyer, Member of Congress, 1979-1992; Arthur D. Hellman,
Professor of Law, Pittsburgh University School of Law; and
Michael J. Gerhardt, Professor of Law, William & Mary School of
Law. No further action was taken on the bill.
H.R. 3851, A bill to authorize an additional permanent judgeship for
the district of Hawaii
Summary.--Introduced by Representative Neil Abercrombie,
H.R. 3851 creates an additional permanent district judgship for
the district of Hawaii.
Legislative History.--No action was taken on the bill, but
its contents were included in S. 878, a bill to authorize an
additional permanent judgeship in the district of Idaho, which
was later amended to include numerous temporary and permanent
district judgeships as well as new circuit judgeships. See S.
878 for further action.
S. 878, A bill to authorize an additional permanent judgeship in the
district of Idaho, and for other purposes
Summary.--Introduced by Senator Larry E. Craig, S. 878
authorizes an additional permanent judgeship in the District of
Idaho. The bill was later amended to include numerous temporary
and permanent district judgeships as well and new circuit
judgeships for the Federal judiciary and to include a plan to
reorganize and split the Ninth Circuit Court of Appeals.
Legislative History.--On May 20, 2003, Senator Orrin Hatch
of the Senate Committee on the Judiciary ordered reported S.
878 with an amendment in the nature of a substitute. On May 22,
2003, the Senate passed S. 878, with an amendment, by unanimous
consent. On June 2, 2003, the bill was referred to the House
Committee on the Judiciary. On June 25, 2003, Representative F.
James Sensenbrenner, Jr., referred S. 878 to the Subcommittee.
On September 3, 2004, the Subcommittee was discharged from
consideration of the bill. On September 9, 2004, the full
Committee ordered favorably reported S. 878, with an amendment,
by voice vote (H. Rept. No. 108-708). On October 5, 2004, the
House passed S. 878, with an amendment, by voice vote. No
further action was taken on the bill.
H.R. 4247, the ``Ninth Circuit Judgeship and Reorganization Act of
2004''
Summary.--Introduced by Representative Rick Renzi, H.R.
4247 reconfigures the present Ninth Circuit Court of Appeals by
creating a new Ninth comprised of California, Guam, Hawaii, and
Northern Mariana Islands; a Twelfth Circuit comprised of
Arizona, Nevada, Idaho, and Montana; and a Thirteenth Circuit
comprised of Alaska, Oregon, and Washington.
Legislative History.--No action was taken on the bill, but
its contents, identical to that of S. 2278, were incorporated
in an amendment offered by Representative Michael K. Simpson to
S. 878, a bill to authorize an additional permanent judgeship
in the district of Idaho. In addition to the Simpson amendment,
the bill was later amended to include numerous temporary and
permanent district judgeships as well as new circuit
judgeships. See S. 878 for further action.
H.R. 4301, A bill to authorize an additional district judgeship for the
district of Nebraska
Summary.--Introduced by Representative Lee Terry, H.R. 4301
authorizes an additional district judgeship for the district of
Nebraska.
Legislative History.--No action was taken on H.R. 4301, but
its contents were included in S. 878, a bill to authorize an
additional permanent judgeship in the district of Idaho. S. 878
was also amended to include numerous temporary and other
permanent district judgeships as well as new circuit
judgeships. See S. 878 for further action.
H.R. 4571, the ``Lawsuit Abuse Reduction Act of 2004''
Summary.--Introduced by Representative Lamar S. Smith, H.R.
4571 amends Rule 11 of the Federal Rules of Civil Procedure by
requiring judges to impose attorney sanctions for violations of
its terms. The bill also applies Rule 11 to State actions
pertaining to interstate commerce.
Legislative History.--On September 3, 2004, the
Subcommittee was discharged from consideration of H.R. 4571. On
September 8, 2004, the full Committee met in open session and
ordered favorably reported H.R. 4571, with an amendment, by a
roll call vote of 18-10 (H. Rept. No. 108-682). On September
14, 2004, the House passed H.R. 4571 as amended by a roll call
vote of 229-174. H.R. 4571 was referred to the Senate Committee
on the Judiciary on September 15, 2004 and no further action
was taken on the bill.
H.R. 4646, A bill to amend title 28, United States Code, to provide for
the holding of Federal district court in Plattsburgh, New York,
and for other purposes
Summary.--Introduced by Representative John M. McHugh, H.R.
4646 designates Plattsburgh, New York, as a place of holding
federal court in the Northern District of New York.
Legislative History.--The text of H.R. 4646 was included as
Sec. 111 of H.R. 1302, the ``Federal Court Improvements Act of
2003,'' which the Subcommittee ordered favorably reported on
March 20, 2003. On July 19, 2004, the Subcommittee was
discharged from consideration of H.R. 4646. On July 21, 2004,
the full Committee met in open session and ordered favorably
reported H.R. 4646, with an amendment, by voice vote (H. Rept.
No. 108-626). The text of H.R. 4646 was later incorporated in
H.R. 3632, the ``Anti-counterfeiting Amendments Act of 2004,''
as part of a manager's floor amendment. The House passed H.R.
3632, as amended, on November 21, 2004, by voice vote. The
Senate passed H.R. 3632 by unanimous consent on December 8,
2004. H.R. 3632 was signed by the President on December 23,
2004 and became Public Law No. 108-482. The text of H.R. 4646
was also included in Sec. 4 of S. 2873, which the Senate passed
by unanimous consent on November 19, 2004, and the House passed
by unanimous consent the following day. S. 2873 was signed by
the President on December 10, 2004 and became Public Law 108-
455.
H.R. 5273, A bill to convert certain temporary judgeships to permanent
judgeships, to create an additional judgeship for the district
of Nebraska and for the eastern district of California, and for
other purposes
Summary.--Introduced by Representative William M. Thomas,
H.R. 5273 creates an additional U.S. district judgeship each
for the Eastern District of California and the District of
Nebraska, and converts temporary judgeships to permanent status
in the Districts of Hawaii, Kansas, and the Eastern District of
Missouri.
Legislative History.--No action was taken on the bill, but
its contents were included in S. 878, a bill to authorize an
additional permanent judgeship in the District of Idaho, which
was later amended to include numerous temporary and permanent
district judgeships as well as new circuit judgeships. See S.
878 for further action.
H.R. 5274, A bill to create an additional judgeship for the Eastern
District of California, and for other purposes
Summary.--Introduced by Representative William M. Thomas,
H.R. 5274 creates an additional U.S. district judgeship for the
Eastern District of California.
Legislative History.--No action was taken on the bill, but
its contents were included in S. 878, a bill to authorize an
additional permanent judgeship in the District of Idaho, which
was later amended to include numerous temporary and permanent
district judgeships as well as new circuit judgeships. See S.
878 for further action.
S. 1720, A bill to provide for Federal Court proceedings in Plano,
Texas
Summary.--Introduced by Senator John Cornyn, S. 1720
implements the March 1991 Judicial Conference proposal to
designate Plano, Texas, as a place of holding court in the
Eastern District of Texas. It also realigns the divisions of
the U.S. District Court for the Eastern District of Texas to
reflect the closing of the courthouse in Denton County. The
Paris division is eliminated and its counties redistributed
among the other divisions of the court. Plano is the largest
city in the Eastern District of Texas. Of the 93 judicial
districts in the United States, the Eastern District of Texas
is the only one in which its largest city cannot hold federal
court.
Legislative History.--On October 30, 2003, Senator Orrin
Hatch of the Senate Committee on the Judiciary ordered reported
S. 1720 with an amendment in the nature of a substitute (there
was no accompanying report). On November 4, 2003, the Senate
passed S. 1720 with an amendment by unanimous consent. The bill
was referred to the House Committee on the Judiciary the
following day. On November 19, 2003, the House passed S. 1720,
as amended, by voice vote. The President signed the bill on
December 3, 2003. (Public Law No. 108-157)
S. 2742, A bill to extend certain authority of the Supreme Court
Police, modify the venue of prosecutions relating to Supreme
Court building and grounds, and authorize the acceptance of
gifts to the United States Supreme Court
Summary.--Introduced by Senator Orrin Hatch, S. 2742 allows
the Supreme Court police to escort the Justices to functions in
the Washington, D.C., area for security purposes; permits the
U.S. District Court for the District of Columbia (in addition
to D.C. Superior Court) to prosecute criminal offenses
occurring on Court grounds or in the Court building; and
permits the Chief Justice to accept gifts pertaining to the
history of the Court.
Legislative History.--On September 21, 2004, Senator Orrin
Hatch reported S. 2742 without amendment (there was no
accompanying Report). On September 28, 2004, the Senate passed
S. 2742 with an amendment by unanimous consent. The following
day the bill was referred to the House Committee on the
Judiciary. On October 6, 2004, the House passed S. 2742, as
amended by voice vote. The President signed the bill on October
21, 2004. (Public Law No. 108-356)
INTELLECTUAL PROPERTY
Copyrights
H.R. 1417, the ``Copyright Royalty and Distribution Reform Act of
2004''
Summary.--Introduced by Representative Lamar S. Smith, H.R.
1417 replaces the existing administrative construct within the
U.S. Copyright Office that determines copyright royalty rates
and the distribution of related royalties under various
compulsory licenses.
Legislative History.--On April 1, 2003, the Subcommittee
conducted a legislative hearing on H.R. 1417. The following
witnesses appeared and submitted a written statement for the
record: the Honorable Marybeth Peters, Register of Copyrights
and Associate Librarian for Copyright Services, Copyright
Office of the United States, the Library of Congress; Robert A.
Garrett, Attorney-at-Law and Partner, Arnold & Porter; R. Bruce
Rich, Attorney-at-Law, Weil, Gotschal & Manges, LLP; and
Michael J. Remington, Attorney-at-Law and partner, Drinker
Biddle & Reath, LLP. On May 20, 2003, the Subcommittee met in
open session and ordered favorably reported H.R. 1417, with an
amendment, by voice vote. On September 24, 2003, the full
Committee met in open session and ordered favorably reported
H.R. 1417, with an amendment, by voice vote (H. Rept. 108-408).
On March 3, 2004, the House passed H.R. 1417, as amended, by a
roll call vote of 406-0. The following day the bill was read
twice and referred to the Senate Committee on the Judiciary. On
September 29, 2004, Senator Hatch ordered favorably reported
H.R. 1417 with an amendment in the nature of a substitute
(without a written report). On October 6, 2004, the Senate
passed H.R. 1417 with an amendment by unanimous consent. On
November 16, 2004, the Senate passed S. Con. Res. 145, without
an amendment and by unanimous consent (this was an enrolling
resolution to correct technical errors in H.R. 1417). On
November 17, 2004, the House passed S. Con. Res. 145, without
amendment, by voice vote. Later that same day the House agreed
to the Senate amendment to H.R. 1417 by a roll call vote of
407-0. The President signed the bill on November 30, 2004.
(Public Law No. 108-419)
H.R. 2344, the ``Intellectual Property Protection Restoration Act of
2003''
Summary.--Introduced by Representative Lamar S. Smith, H.R.
2344 prevents the award of damages for infringement of
intellectual property owned by a State if that State has not
waived its immunity under the Eleventh Amendment. The bill
addresses the inequity of States that defend their intellectual
property rights in federal court while asserting the Eleventh
Amendment as a defense when they are sued for infringement by
third-party copyright, patent, and trademark holders.
Legislative History.--On June 17, 2003, the Subcommittee
conducted a legislative hearing on H.R. 2344. The following
witnesses appeared and submitted a written statement for the
record: the Honorable Marybeth Peters, Register of Copyrights,
Copyright Office of the United States, the Library of Congress;
Leslie Winner, General Counsel and Vice President, University
of North Carolina at Chapel Hill; Mark Bohannon, General
Counsel and Senior Vice President for Public Policy, on behalf
of The Software and Information Industry Association; and Paul
Bender, Professor of Law, Arizona State University School of
Law. No further action was taken on the bill.
H.R. 2517, the ``Piracy Deterrence and Education Act of 2003''
Summary.--Introduced by Representative Lamar S. Smith, H.R.
2517 requires the Federal Bureau of Investigation to create a
deterrence program that prevents online piracy and facilitates
the sharing of information concerning piracy among law
enforcement, Internet service providers, and copyright owners;
requires the Attorney General to ensure that any unit within
the Department of Justice responsible for investigating
computer hacking or piracy has at least one agent dedicated to
investigating such crimes; establishes within the Office of the
Associate Attorney General an ``Internet Use Program'' to
educate the public about copyright law, privacy, and security
with respect to Internet use; and clarifies that the U.S.
Customs Service has the authority to seize infringed
copyrighted works regardless of whether the work has been
registered with the Copyright Office or recorded with the
Customs Service.
Legislative History.--On July 17, 2003, the Subcommittee
conducted a legislative hearing on H.R. 2517. The following
witnesses appeared and submitted a written statement for the
record: Jana D. Monroe, Assistant Director of Cyber Division,
Federal Bureau of Investigation; David P. Trust, Chief
Executive Officer, Professional Photographers of America; Linn
Skinner, Proprietor, Skinner Sisters; and Maren Christensen,
Senior Vice President, Intellectual Property Counsel, Universal
Studios. No further action was taken on the bill, but portions
of it were included in H.R. 4077, the ``Piracy Deterrence and
Education Act of 2004.'' See H.R. 4077 for further action.
H.R. 2752, the ``Author, Consumer, and Computer Owner Protection and
Security (ACCOPS) Act of 2003''
Summary.--Introduced by Representative John Conyers, Jr.,
H.R. 2752 prescribes new criminal copyright reporting
requirements for the Department of Justice, requires the
sharing of evidence regarding copyright infringement between
the Attorney General and foreign nations, and proscribes the
acts of submitting false domain name registration information
and surreptitious ``camcording'' in public theaters.
Legislative History.--No formal action was taken on the
bill, but portions of it were included in H.R. 4077, the
``Piracy Deterrence and Education Act of 2004'' and H.R. 3754,
the ``Fraudulent Online Identity Sanctions Act'' (H.R. 3754 was
included in H.R. 3632, the ``Anti-counterfeiting Amendments Act
of 2004,'' which the House passed on September 21, 2004, and
the Senate passed on December 8, 2004 and the President signed
on December 23, 2004. (Public Law No. 108-482). See H.R. 4077,
H.R. 3754, and H.R. 3632 for further action.
H.R. 3261, the ``Database and Collections of Information
Misappropriation Act''
Summary.--Introduced by Representative Howard Coble, H.R.
3261 prohibits the making available to others of a
quantitatively substantial part of the information in a
database, with knowledge that the making available is without
the database producer's authorization, if: the database was
generated, gathered or maintained through a substantial
expenditure of financial resources or time; the making
available occurs in a time sensitive manner; the making
available inflicts injury on the database by serving as a
functional equivalent in the same market as the database in a
manner that causes displacement of sources of revenue; and the
ability of parties to free ride on others threatens the
existence or quality of the database.
Legislative History.--On September 23, 2003, the
Subcommittee conducted a legislative hearing on H.R. 3261. The
following witnesses appeared and submitted a written statement
for the record: David Carson, General Counsel, Copyright Office
of the United States, the Library of Congress; Thomas J.
Donohue, President and Chief Executive Officer, Chamber of
Commerce; Keith Kupferschmid, Vice President, Intellectual
Property Policy & Enforcement, Software & Information Industry
Association on behalf of the Coalition Against Database Piracy;
and William Wulf, President, National Academy of Engineering
and Vice Chairman, National Research Council. On October 16,
2003, the Subcommittee met in open session and ordered
favorably reported H.R. 3261, with an amendment, by a roll call
vote of 10-3. On January 21, 2004, the full Committee met in
open session and ordered reported H.R. 3261, with an amendment,
by a vote of 16-7 (H. Rept. No. 108-421, Part I). On February
11, 2004, H.R. 3261 was referred sequentially to the House
Committee on Energy and Commerce. On March 3, 2004, the
Committee on Energy and Commerce ordered reported unfavorably
H.R. 3261 by voice vote (H. Rept. No. 108-421, Part II). No
further action was taken on the bill.
H.R. 3569, the ``National Film Preservation Act of 2003''
Summary.--Introduced by Representative John Conyers, Jr.,
H.R. 3569 reauthorizes the National Film Preservation Board and
the National Film Preservation Foundation for seven years at $7
million annually. The Board and Foundation preserve older films
and develop film access activities for the public.
Legislative History.--No action was taken on H.R. 3569, but
its text was included in S. 3021, a bill to provide for the
protection of intellectual property rights, and for other
purposes, which the Senate passed, with an amendment, by
unanimous consent on November 20, 2004. No further action was
taken on S. 3021.
H.R. 3632, the ``Anti-counterfeiting Amendments Act of 2004''
Summary.--Introduced by Representative Lamar S. Smith, H.R.
3632 creates criminal and civil sanctions against persons who
knowingly traffic in genuine ``authentication components,'' and
in the case of computer software, components that have been
knowingly altered to falsify the number or type of authorized
users or the version or edition of the relevant software
program. H.R. 3632 amends 18 U.S.C. Sec. 2318 to expand its
existing scope to include physical authentication components
such as holograms and labels. Existing law does not penalize
those who traffic in such authentication components without
actually making counterfeit copies or selling counterfeit
goods.
Legislative History.--On February 12, 2004, the
Subcommittee conducted a legislative hearing on H.R. 3632. The
following witnesses appeared and submitted a written statement
for the record: Richard LaMagna, Senior Manager-Worldwide
Investigations, Microsoft; Emery Simon, Counselor, Business
Software Alliance (BSA); Brad Buckles, Executive Vice
President, Anti-Piracy, Recording Industry Association of
America, Inc. (RIAA); and David Green, Vice President and
Counsel, Technology and New Media, Motion Picture Association
of America (MPAA). On March 31, 2004, the Subcommittee met in
open session and ordered favorably reported H.R. 3632, with an
amendment, by voice vote. On June 23, 2004, the full Committee
met in open session and ordered favorably reported H.R. 3632,
with an amendment, by voice vote (H. Rept. No. 108-600). On
September 21, 2004, the House passed H.R. 3632, as amended, by
voice vote. The Senate passed H.R. 3632 by unanimous consent on
December 8, 2004. The President signed H.R. 3632 into law on
December 23, 2004. (Public law No. 108- 482) The text of H.R.
3632 was also included in S. 3021, a bill to provide for the
protection of intellectual property rights, and for other
purposes, which the Senate passed, with an amendment, by
unanimous consent on November 20, 2004. No further action was
taken on S. 3021.
H.R. 3754, the ``Fraudulent Online Identity Sanctions Act''
Summary.--Introduced by Representative Lamar S. Smith, H.R.
3754 creates penalties for those who submit materially false
contact information in connection with a domain name used to
commit a crime or engage in online infringement.
Legislative History.--On February 4, 2004, the Subcommittee
conducted a legislative hearing on H.R. 3754. The following
witnesses appeared and submitted a written statement for the
record: Timothy P. Trainer, President, International
AntiCounterfeiting Coalition, Inc. (IACC); J. Scott Evans,
President, Intellectual Property Constituency; Rick Wesson,
Chief Executive Officer, Alice's Registry; and Mark Bohannon,
General Counsel and Senior Vice President for Public Policy on
behalf of Copyright Coalition on Domain Names (CCDN). On March
31, 2004, the Subcommittee met in open session and ordered
favorably reported H.R. 3754, with an amendment, by voice vote.
On May 12, 2004, the full Committee ordered favorably reported
H.R. 3754, with an amendment, by voice vote (H. Rept. No. 108-
536). Pursuant to a manager's floor amendment, the text of H.R.
3754 was included in H.R. 3632, the ``Anti-counterfeiting
Amendments Act of 2004,'' which the House passed on September
21, 2004. The Senate passed H.R. 3632 by unanimous consent on
December 8, 2004. The President signed H.R. 3632 on December
23, 2004 and it became Public Law No. 108-482. The text of H.R.
3754 was also included in S. 3021, a bill to provide for the
protection of intellectual property rights, and for other
purposes, which the Senate passed, with an amendment, by
unanimous consent on November 20, 2004. No further action was
taken on S. 3021.
H.R. 4077, the ``Piracy Deterrence and Education Act of 2004''
Summary.--Introduced by Representative Lamar S. Smith, H.R.
4077 contains funding to educate the public about intellectual
property law, increases cooperation among federal agencies and
intellectual property owners concerning piracy, and assists the
Department of Justice in its efforts to prosecute online
intellectual property theft by creating a new criminal cause of
action in Section 506 of Title 17.
Legislative History.--On March 31, 2004, the Subcommittee
met in open session and ordered favorably reported H.R. 4077,
with an amendment, by voice vote. On September 8, 2004, the
full Committee met in open session and ordered favorably
reported H.R. 4077, with an amendment, by voice vote (H. Rept.
No. 108-700). On September 28, 2004, the House passed H.R.
4077, as amended, by voice vote. Portions of H.R. 4077 (the
text of H.R. 4586, the ``Family Movie Act of 2004'') were
included in S. 3021, a bill to provide for the protection of
intellectual property rights, and for other purposes, which the
Senate passed, with an amendment, by unanimous consent on
November 20, 2004. No further action was taken on S. 3021.
H.R. 4518, the ``Satellite Home Viewer Extension and Reauthorization
Act of 2004''
Summary.--Introduced by Representative Lamar S. Smith, H.R.
4518 extends the ``distant-signal'' compulsory license that
allows satellite systems to operate for an additional five
years, provides a process that will enable copyright holders to
receive fair compensation for the use of their creative works,
ensures that satellite subscribers are able to continue to
receive distant and local network and super-station signals to
which they are entitled, and makes other necessary improvements
to the satellite compulsory license.
Legislative History.--On May 6, 2004, the Subcommittee met
in open session and ordered favorably reported the Committee
Print on the ``Satellite Home Viewer Extension and
Reauthorization Act of 2004.'' The Committee print became the
basis for H.R. 4518 which Representative Lamar S. Smith
introduced on June 4, 2004. On July 1, 2004, the Subcommittee
was discharged from consideration of H.R. 4518. On July 7,
2004, the full Committee met in open session and ordered
favorably reported H.R. 4518, with an amendment, by voice vote
(H. Rept. No. 108-660). On October 6, 2004, the House passed
H.R. 4518 as amended, by voice vote. Most of the contents of
H.R. 4518 were included in H.R. 4818, the ``Consolidated
Appropriations Act of 2005'' (both houses of Congress agreed to
the accompanying conference report to H.R. 4818, H. Rept. No.
108-792, on November 20, 2004). The President signed H.R. 4818
into law on December 8, 2004. (Public Law No. 108-447)
H.R. 4586, the ``Family Movie Act of 2004''
Summary.--Introduced by Representative Lamar S. Smith, H.R.
4586 provides that it is not copyright or trademark
infringement for allows companies to offer technologies and
services to filter out content from movies, usually on DVDs.
Several companies are offering various technologies and
services to enable consumers to watch edited versions of major
motion pictures that have content removed by muting dialogue or
lyrics and skipping over visual content.
Legislative History.--The Subcommittee conducted a
legislative hearing on H.R. 4586 on June 17, 2004. The
following witnesses appeared and submitted a written statement
for the record: the Honorable Marybeth Peters, Register of
Copyrights, Copyright Office of the United States, the Library
of Congress; Dr. Amitai Etzioni, Founder and Director, The
Institute for Communitarian Policy Studies, The George
Washington University; Jack Valenti, President and Chief
Executive Officer, Motion Picture Association of America; and
Penny Nance, President, Kids First Coalition. On July 8, 2004,
the Subcommittee met in open session and ordered favorably
reported H.R. 4586, with an amendment, by a roll call vote of
11-5. On July 21, 2004, the full Committee met in open session
and ordered favorably reported H.R. 4518, as amended, by a roll
call vote of 18-9 (H. Rept. No. 108-670). Pursuant to a
manager's floor amendment, the text of H.R. 4586 was included
in H.R. 4077, the ``Piracy Deterrence and Education Act of
2004,'' which the House passed on September 28, 2004, by voice
vote. Portions of H.R. 4077 (specifically, the text of H.R.
4586) were included in S. 3021, a bill to provide for the
protection of intellectual property rights, and for other
purposes, which the Senate passed, with an amendment, by
unanimous consent on November 20, 2004. No further action was
taken on S. 3021.
H.R. 5136, the Preservation of Orphan Works Act''
Summary.--Introduced by Representative Howard L. Berman,
H.R. 5136 broadens the Copyright Act to permit libraries and
archives to reproduce, distribute, perform, and display all
orphan copyrighted works in the course of their preservation,
scholarly, research activities.
Legislative History.--No action was taken on the bill, but
the text of H.R. 5136 was included in S. 3021 which no action
was taken in the House on S. 3021.
S. 1932, the ``Artists' Rights and Theft Prevention Act of 2004''
Summary.--Introduced by Senator John Cornyn, S. 1932
proscribes the act of ``camcording'' movies in public theaters
and creates new civil and criminal penalties for copyright
infringement of works that are being prepared for commercial
distribution, such as ``new release'' feature films.
Legislative History.--On April 29, 2004, Senator Orrin
Hatch of the Senate Committee on the Judiciary reported S. 1932
with an amendment in the nature of a substitute. On June 25,
2004, the Senate passed S. 1932, with an amendment, by
unanimous consent. Portions of S. 1932 (the ``camcording''
text) were also a component of H.R. 4077, the ``Piracy
Deterrence and Education Act of 2004,'' which the House passed
on September 28, 2004. The ``camcording'' text of H.R. 4077 was
also included in S. 3021, a bill to provide for the protection
of intellectual property rights, and for other purposes, which
the Senate passed, with an amendment, by unanimous consent on
November 20, 2004. No further action was taken on S. 3021.
Patents and Trademarks
H.R. 1561, the ``United States Patent and Trademark Fee Modernization
Act of 2003''
Summary.--Introduced by Representative Lamar S. Smith, H.R.
1561 creates a new patent and trademark fee schedule to
generate greater revenue for the U.S. Patent and Trademark
Office. The bill as amended on the House floor prevents
appropriations ``diversion'' by creating a refund mechanism
that returns money to individuals and companies when user-fee
revenue exceeds estimated collections at PTO in a given fiscal
year.
Legislative History.--On April 3, 2003, the Subcommittee
conducted a legislative hearing on H.R. 1561. The following
witnesses appeared and submitted a written statement for the
record: the Honorable James Rogan, Undersecretary of Commerce
for Intellectual Property and Director of the U.S. Patent and
Trademark Office; Michael K. Kirk, Executive Director, American
Intellectual Property Law Association; John K. Williamson,
President, Intellectual Property Owners; and Ronald J. Stern,
President, Patent Office Professional Association. On May 22,
2003, the Subcommittee met in open session and ordered
favorably reported H.R. 1561, with amendment, by voice vote. On
July 9, 2003, the full Committee ordered reported favorably
H.R. 1561, as amended, by voice vote (H. Rept. No. 108-241). On
March 3, 2003, the House passed H.R. 1561, with an amendment,
by a roll call vote of 379-28. The bill was referred the
following day to the Senate Committee on the Judiciary. On
April 29, 2004, Senator Orrin Hatch reported H.R. 1561, without
an amendment and without a written Report. No further action
was taken on H.R. 1561, but the new fee schedule set forth in
the bill was included in H.R. 4818, the ``Consolidated
Appropriations Act of 2005'' (both houses of Congress agreed to
the accompanying conference report to H.R. 4818, H. Rept. No.
108-792, on November 20, 2004). The President signed H.R. 4818
into law on December 8, 2004. (Public Law No. 108-447) Language
regarding fee diversion (the refund mechanism) and other text
from H.R. 1561 were omitted.
H.R. 2391, the ``Cooperative Research and Technology Enhancement
(CREATE) Act of 2003''
Summary.--Introduced by Representative Lamar S. Smith, the
CREATE Act gives the same statutory protection to inventive
collaborators who are members of multiple organizations that is
currently available to inventive collaborators employed by a
single entity. The CREATE Act extends to collaborative
researchers who work in multiple organizations the ``safe
harbor'' that patent law currently provides to inventive
collaborators who are employed in a single organization by
prohibiting the use of ``secret prior art'' to defeat an
otherwise valid patent or patent application.
Legislative History.--On June 10, 2003, the Subcommittee
conducted a legislative hearing on H.R. 2391. The following
witnesses appeared and submitted a written statement for the
record: Jon Soderstrom, Ph.D., Director of Technology Transfer,
Yale University; Eric Steffe, Sterne Kessler Goldstein & Fox;
Jeffrey P. Kushan, Esq., Sidley Austin Brown & Wood on behalf
of Genentech; and John R. Thomas, Professor, Georgetown
University Law Center. On July 22, 2003, the Subcommittee
ordered favorably reported H.R. 2391, with an amendment, by
voice vote. On January 21, 2004, the full Committee ordered
favorably reported H.R. 2391, with an amendment, by voice vote
(H. Rept. No. 108-425). On March 10, 2004, the House passed
H.R. 2391, with an amendment, by voice vote. The following day
the bill was referred to the Senate Committee on the Judiciary.
On October 7, 2004, Senator Hatch reported H.R. 2391 with an
amendment in the nature of a substitute, without written
report. The text of H.R. 2391 as passed by the House was also
included in S. 2192, which Senator Orrin Hatch introduced and
the Senate passed by unanimous consent on June 25, 2004. On
November 20, 2004, the House passed S. 2192 by unanimous
consent. The President signed S. 2192 into law on December 10,
2004. (Public law No. 108-453)
Oversight Activities
Summary of the Committee's oversight plan and the Subcommittee's
response thereto
Pursuant to its obligation under Rule X of the House Rules,
the Committee submitted the following subject matter as part of
its oversight plan for the 108th Congress:
The Federal judicial system
The Subcommittee has jurisdiction over the Federal judicial
system, including the operations of all district and circuit
courts, the Judicial Conference of the United States, the
Administrative Office of the U.S. Courts, and the Federal
Judicial Center. The oversight plan noted the Committee's
interest in ascertaining federal judgeship needs as well as
monitoring the operations of the Federal judicial misconduct
statute (28 U.S.C. Sec. 351 et seq.).
On June 24, 2003, the Subcommittee conducted an oversight
hearing on Federal judgeship needs. Testimony received at this
time from the Federal bar and entreaties from other Members and
judges compelled the Committee to favorably report S. 878, an
omnibus judgeship bill that incorporated every U.S. district
and circuit judgeship recommendation made by the U.S. Judicial
Conference, but did not include bankruptcy judgeships which
were included in the omnibus bankruptcy legislation. On October
5, 2004, the bill was further revised when Representative
Michael K. Simpson offered a floor amendment (adopted by the
House) to reconfigure the existing Ninth Circuit Court of
Appeals into three new circuits.
In addition, the Subcommittee and full Committee have had a
longstanding interest in ensuring that the Federal judiciary
maintain the highest standard of ethical behavior. The
Subcommittee rewrote portions of the judicial misconduct
statute in the 107th Congress. As a result of continuing
conversations between the Committee and the federal judiciary
on May 25, 2004, the Chief Justice announced the creation of a
judicial commission, headed by Justice Stephen Breyer, to
examine the operations of the statute.
The U.S. copyright system
The Subcommittee has jurisdiction over the Copyright Act
(Title 17 of the U.S. Code) and the operations of the Copyright
Office, which registers copyrighted works, collects and
distributes certain royalties, and offers policy advice to the
Congress on copyright issues.
During the 108th Congress, the Subcommittee conducted a
number of copyright oversight hearings in response to issues
identified in the Committee oversight plan as well as concerns
expressed by the Copyright Office, copyright holders, and
Members of Congress. For example, the oversight plan detailed
the necessity to maintain adequate funding for the Copyright
Office. The Subcommittee conducted an oversight hearing on the
operations of the Office on June 3, 2004. The Register of
Copyrights ably defended the Office's budget request for FY
2005, and the Subcommittee noted its continued interest in
monitoring the development of a Deposit Facility in Fort Meade,
Maryland, that will house certain registered works, as well as
the Office's ongoing feasibility plan to convert its analog
records to digital form.
Copyright law often evolves in response to technological
innovation, such as the piano roll, photocopying machine, and
videocassette recorder. The Subcommittee's oversight and
legislative work on copyright issues is currently dominated by
the theme of piracy, which largely reflects the latest
technological development to affect the interests of copyright
holders and users--the Internet, or the digital environment by
which copyrighted works are transmitted and duplicated. The
oversight plan specifically noted the Subcommittee's interest
in the ``broadcast flag'' as one method to inhibit digital
piracy, as well as hardware piracy, mostly of music and movies,
that flourishes world-wide.
The Subcommittee conducted a number of oversight hearings
in response to this concern over piracy. Its hearing agenda for
the 108th Congress began and ended with an exploration of peer-
to-peer piracy (P2P) on university campuses. Representative
Lamar S. Smith, Chairman of the Subcommittee, worked closely
with university officials over the past two years to develop
strategies designed to curtail P2P infringement among college
students.
In addition, the Subcommittee conducted oversight hearings
on the link between piracy and organized crime and terrorism;
the development of the broadcast flag; and the proliferation of
domain-name fraud on the Internet. Coupled with the general
concern over the prevalence of digital piracy, these hearings
led to the drafting of H.R. 3754 (domain-name fraud) as well as
H.R. 2517 and H.R. 4077 (piracy deterrence and education). The
Subcommittee's oversight hearing and related negotiations over
copyright compensation under the Satellite Home Viewer
Improvement Act led to a major rewrite of the law (H.R. 4518,
the bulk of which was included in H.R. 4818, the ``Consolidated
Appropriations Act of 2005'').
The U.S. patent and trademark systems
The Subcommittee has jurisdiction over the U.S. Patent and
Trademark Office, which is responsible for granting patents and
trademarks and administratively reviewing their validity and
scope when appropriate. The Subcommittee also oversees the
development of American patent and trademark policy.
Given the increasing importance of intellectual property to
the United States as a source of jobs, exports, and wealth, the
oversight plan emphasizes the imperative of modernizing the
PTO. Former PTO Director James Rogan produced a five-year
``21st Century Business Plan'' in furtherance of this goal,
which is predicated, in part, on securing greater revenue for
the agency. For the better part of a decade, the Subcommittee
and full Committee have protested the diversion of user fees
from the PTO to non-agency endeavors by congressional
appropriators. The oversight plan also cites specific patent
policy issues--global harmonization and the issuance of
business method patents--that PTO can more effectively address
with greater resources, including improved computer systems and
more and better trained examiners.
The Subcommittee followed up with hearings and legislation
to address the needs of the PTO. Most conspicuously, this work
resulted in passage of H.R. 1561, which creates a new PTO user
fee schedule that should generate more than $190 million in
additional revenue for the agency. Importantly, the House
adopted an amendment to the bill that creates a refund
mechanism to return excessive collections to inventors and
trademark holders, thereby eliminating the incentive to divert
fees for non-PTO purposes. Other policy issues that were the
subject of oversight hearings, such as patent post-grant
opposition and other ``quality'' reform ideas, are based on the
goal of making the patent and trademark application and
issuance process fairer and less expensive, while enhancing the
overall integrity of the patents and trademarks granted.
Finally, the oversight plan specifically noted a Supreme
Court decision (Victor's Little Secret v. V Secret Catalogue)
that affects future application of the trademark dilution
statute, enacted in 1995. The Subcommittee conducted a hearing
on the matter and developed a Committee Print that responds to
the decision.
List of oversight hearings
Peer-to-Peer Piracy on University Campuses, February 26, 2003
(Serial No. 2)
Copyright Piracy Prevention and the Broadcast Flag, March 6,
2003 (Serial No. 5)
International Copyright Piracy: Links to Organized Crime and
Terrorism, March 13, 2003 (Serial No. 9)
The Federal Judiciary: Is there a Need for Additional Federal
Judges?, June 24, 2003 (Serial No. 30)
Patent Quality Improvement, July 24, 2003 (Serial No. 38)
Reauthorization of the Satellite Home Viewer Improvement Act,
February 24, 2004 (Serial No. 69)
Section 115 of the Copyright Act: In Need of an Update?, March
11, 2004 (Serial No. 75) Committee Print to Amend
the Federal Trademark Dilution Act, April 22, 2004
(Serial No. 72) Derivative Rights, Moral Rights,
and Movie Filtering Technology, May 20, 2004
(Serial No. 93) Oversight of the Operations of the
U.S. Copyright Office, June 3, 2004 (Serial No. 80)
Patent Quality Improvement: Post-Grant Opposition,
June 24, 2004 (Serial No. 91)
Internet Streaming of Radio Broadcasts: Balancing the Interests
of Sound Recording Copyright Owners With Those of
Broadcasters, July 15, 2004 (Serial No. 105)
Peer-to-Peer (P2P) Piracy on University Campuses: an Update,
October 5, 2004 (Serial No. 112)
Peer-to-Peer Piracy on University Campuses, February 26, 2003 (Serial
No. 2)
The hearing focused on the extent to which university-based
piracy contributes to digital copyright infringement generally.
The Subcommittee also explored whether the affected schools
have implemented policies to educate students about online
piracy of digital works and developed programs to thwart the
practice.
The following witnesses appeared and submitted a written
statement for the record: Hilary Rosen, Chairman and Chief
Executive Officer, Recording Industry Association of America;
Graham Spanier, President, The Pennsylvania State University;
Robyn Render, Vice President for Information Resources and
Chief Information Officer, University of North Carolina; and
Dr. John Hale, Center for Computer Security, University of
Tulsa.
Copyright Piracy Prevention and the Broadcast Flag, March 6, 2003
(Serial No. 5).
The hearing explored the arguments for and against
implementation of the broadcast flag solution, broadcast flag
technology itself, and how copyright law affects the debate.
Digital television broadcasts, if not encrypted or otherwise
protected, are extremely susceptible to unauthorized
redistribution over the Internet. ``Broadcast flag'' refers to
a technology embedded in a digital broadcast transmission which
can be read by consumer electronics products to prevent its
unauthorized redistribution.
The following witnesses appeared and submitted a written
statement for the record: the Honorable Marybeth Peters,
Register of Copyrights, Copyright Office of the United States,
the Library of Congress; W. Kenneth Ferree, Bureau Chief, Media
Bureau, Federal Communications Commission; Fritz Attaway,
Executive Vice President Government Relations and Washington
General Counsel, Motion Picture Association of America; and
Edward J. Black, President and CEO, Computer & Communications
Industry Association.
International Copyright Piracy: Links to Organized Crime and Terrorism,
March 13, 2003 (Serial No. 9)
The purpose of the hearing was to highlight the exponential
growth of international copyright piracy; review the extreme
degree of organization by which institutional and individual
pirates operate; and investigate the extent to which copyright
piracy helps to subsidize organized crime and terrorist
activity.
The following witnesses appeared and submitted a written
statement for the record: John G.
Malcolm, Deputy Assistant Attorney General, Criminal
Division, United States Department of Justice; Rich LaMagna,
Senior Manager-Worldwide Investigations, Microsoft; Jack
Valenti, President and Chief Executive Officer, Motion Picture
Association of America; and Joan Borsten Vidov, President, Film
by Jove, Inc.
The Federal Judiciary: Is there a Need for Additional Federal Judges?,
June 24, 2003 (Serial No. 30)
The hearing reviewed the proposal of the Judicial
Conference of the United States for the creation of new federal
judgeships and the methodology upon which the proposal is
based. The Conference's latest proposal recommends that
Congress establish 11 new judgeships in four courts of appeals
and 46 new judgeships in 24 district courts. The Conference
also recommends that five temporary district court judgeships
created in 1990 be established as permanent positions. For many
of these courts, the recommendations represent needs developed
since 1990.
The following witnesses appeared and submitted a written
statement for the record: the Honorable Dennis Jacobs, Judge,
United States Court of Appeals for the Second Circuit; William
O. Jenkins, Jr., Director, Homeland Security and Justice
Issues, General Accounting Office; and Professor Arthur D.
Hellman, Professor of Law, University of Pittsburgh.
Patent Quality Improvement, July 24, 2003 (Serial No. 38)
The purpose of the hearing was to explore the merits of six
legislative policy ideas to improve patent quality. While the
Subcommittee has documented the steady increase in application
pendency and backlogs at the U.S. Patent and Trademark Office,
the consensus view among PTO officials and the inventor
community is that efforts to address these problems should not
take precedence over improving patent quality. Patents of
questionable scope or validity waste valuable resources by
inviting third-party challenges and ultimately discourage
private-sector investment.
The following witnesses appeared and submitted a written
statement for the record: Charles E. Van Horn, Partner,
Finnegan, Henderson, Farabow, Garrett & Dunner, on behalf of
the American Intellectual Property Law Association; Mark
Kesslen, Managing Director and Associate General Counsel, J.P.
Morgan Chase & Company, on behalf of the Financial Services
Roundtable and BITS; David M. Simon, Chief Patent Counsel,
Intel Corporation; and John R. Thomas, Professor of Law,
Georgetown University.
Reauthorization of the Satellite Home Viewer Improvement Act, February
24, 2004 (Serial No. 69)
Enacted in 1999, the Satellite Home Viewer Improvement Act
created a copyright compulsory license (Sec. 122) authorizing
satellite carriers to deliver local television broadcast
signals to subscribers who reside in the local markets of those
stations. This license to permit distant signal retransmission,
codified in Sec. 119 of the Copyright Act, is comparable to the
license that governs cable operations (Sec. 111). The distant
network and copyright compulsory provisions of SHVIA will
expire on December 31, 2004. The hearing explored the merits of
reauthorizing the compulsory license and other related issues.
The following witnesses appeared and submitted a written
statement for the record: the Honorable Marybeth Peters,
Register of Copyrights, Copyright Office of the United States,
the Library of Congress; Fritz Attaway, Executive Vice
President for Government Relations and Washington General
Counsel, Motion Picture Association of America; David K.
Moskowitz, Board Chairman, Senior Vice President and General
Counsel, EchoStar Communications Corporation, on behalf of
Satellite Broadcasting & Communications Association; and Robert
G. Lee, President and General Manager, WDBJ Television, Inc.,
on behalf of the National Association of Broadcasters.
Section 115 of the Copyright Act: In Need of an Update?, March 11, 2004
(Serial No. 75)
The purpose of the hearing was to review the operation of
Sec. 115 and related sections of the Copyright Act that affect
the online music business. In 1995, the Subcommittee expanded
Sec. 115 to cover compulsory licenses for digital phonorecord
deliveries. Royalty fees for Sec. 115 licenses are established
by Copyright Arbitration Royalty Panels (CARP) overseen by the
Copyright Office if private parties are unable to agree among
themselves on the rates.
The following witnesses appeared and submitted a written
statement for the record: the Honorable Marybeth Peters,
Register of Copyrights, Copyright Office of the United States,
the Library of Congress; Jonathan Potter, Executive Director,
Digital Media Association; Carey R. Ramos, Counsel, Paul,
Weiss, Rifkind, Wharton & Garrison, on behalf of the National
Music Publishers Association; and Cary Sherman, President and
General Counsel, Recording Industry Association of America.
Committee Print to Amend the Federal Trademark Dilution Act, April 22,
2004 (Serial No. 72)
The purpose of the hearing was to explore the merits of a
Committee Print to determine whether the Federal Trademark
Dilution Act should be amended in the wake of a recent Supreme
Court decision and conflicting circuit case law on the matter.
The Committee Print is based on a submission by the
International Trademark Association.
The following witnesses appeared and submitted a written
statement for the record: Jacqueline A. Leimer, President,
International Trademark Association; Robert W. Sacoff, Chair,
Intellectual Property Law Section, American Bar Association;
Marvin J. Johnson, Legislative Counsel, American Civil
Liberties Union; and David C. Stimson, Chief Trademark Counsel,
Eastman Kodak Company.
Derivative Rights, Moral Rights, and Movie Filtering Technology, May
20, 2004 (Serial No. 93)
The purpose of the hearing was to review the legal status
of technologies and services designed to filter out content
from movies, usually on DVDs. Several companies are offering
various technologies and services to enable consumers to watch
modified versions of major motion pictures that have content
removed.
The following witnesses appeared and submitted a written
statement for the record: Joanne Cantor, Professor Emerita,
University of Wisconsin Madison; Jeff McIntyre, Senior
Legislative and Federal Affairs Officer, American Psychological
Association; Bill Aho, Chief Executive Officer, ClearPlay,
Inc.; and Marjorie Heins, Fellow, Brennan Center for Justice at
New York University Law School and Founding Director of the
Free Expression Policy Project.
Oversight of the Operations of the U.S. Copyright Office, June 3, 2004
(Serial No. 80)
The hearing allowed the Register of Copyrights to review
and defend the Office's FY 2005 budget request. More
importantly, the forum allowed members to acquire a status
report on planned and ongoing efforts to modernize the Office's
operations, especially those that will lessen its reliance upon
paper files and documents.
The following witness appeared and submitted a written
statement for the record: the Honorable Marybeth Peters,
Register of Copyrights, Copyright Office of the United States,
the Library of Congress.
Patent Quality Improvement: Post-Grant Opposition, June 24, 2004
(Serial No. 91)
The primary administrative procedure for a challenge to the
validity of a U.S. patent is ``reexamination,'' which may be
initiated by any party during the life of the patent. A more
elaborate and adversarial procedure for challenging the
validity of patents in the immediate aftermath of their
issuance is the European ``opposition'' proceeding. The purpose
of the hearing was to explore whether the adoption of such a
system in the United States would improve patent quality. As a
result of this hearing, Representative Berman introduced H.R.
5299, the ``Patent Quality Assistance Act of 2004''.
The following witnesses appeared and submitted a written
statement for the record: James A. Toupin, General Counsel,
U.S. Patent and Trademark Office; Jeffrey P. Kushan, Esq.,
Sidley Austin Brown & Wood, on behalf of Genentech; Michael K.
Kirk, Executive Director, American Intellectual Property Law
Association; and Karl Sun, Senior Patent Counsel, Google Inc.
Internet Streaming of Radio Broadcasts: Balancing the Interests of
Sound Recording Copyright Owners With Those of Broadcasters,
July 15, 2004 (Serial No. 105)
The purpose of the hearing was to explore the concerns of
broadcasters, webcasters, sound recording copyright owners, and
others as they relate to the application of provisions of the
Digital Performance Right in Sound Recordings Act of 1995 as
amended by the Digital Millennium Copyright Act, which govern
the ``streaming'' of digital transmissions of sound recordings
over the Internet. The Subcommittee reviewed the underlying
statutes, the Copyright Office's March 11, 2004, interim
record-keeping regulations, and the Third Circuit Court of
Appeals recent Bonneville decision as part of an inquiry into
whether changes to 17 U.S.C. Sec. 114 are warranted to promote
the ``streaming'' of radio broadcasts over the Internet.
The following witnesses appeared and submitted a written
statement for the record: David Carson, General Counsel,
Copyright Office of the United States, the Library of Congress;
Dan Halyburton, Senior Vice President/General Manager, Group
Operations for Susquehanna Radio Corporation, on behalf of the
National Association of Broadcasters; Steven Marks, General
Counsel, Recording Industry Association of America, Inc.; and
Jonathan Potter, Executive Director, Digital Media Association.
Peer-to-Peer (P2P) Piracy on University Campuses: an Update, October 5,
2004 (Serial No. 112)
The hearing was an update to one held in February 2003 that
focused on the extent to which university-based piracy
contributes to digital copyright infringement generally. The
Subcommittee explored how schools have implemented policies and
programs to educate students about online piracy of digital
works and developed programs to thwart the practice.
The following witnesses appeared and submitted a written
statement for the record: Graham Spanier, President, The
Pennsylvania State University, and Co-Chair, Joint Committee of
the Higher Education and Entertainment Communities; Cary
Sherman, President, Recording Industry Association of America,
and Co-Chair, Joint Committee of the Higher Education and
Entertainment Communities; Dr. Jim Davis, Associate Vice
Chancellor, Information Technology, Professor of Chemical
Engineering, University of California, Los Angeles; and Alan
McGlade, President and Chief Executive Officer, MusicNet, Inc.
SUBCOMMITTEE ON THE CONSTITUTION \1\
STEVE CHABOT, Ohio, Chairman
JERROLD NADLER, New York STEVE KING, Iowa
JOHN CONYERS, Jr., Michigan WILLIAM L. JENKINS, Tennessee
ROBERT C. SCOTT, Virginia SPENCER BACHUS, Alabama
MELVIN L. WATT, North Carolina JOHN N. HOSTETTLER, Indiana
ADAM B. SCHIFF, California MELISSA A. HART, Pennsylvania
TOM FEENEY, Florida
J. RANDY FORBES, Virginia
----------
\1\ Subcommittee chairmanship and assignments approved February 12,
2003.
Tabulation of subcommittee legislation and activity
Legislation referred to the Subcommittee.......................... 151
Legislation on which hearings were held........................... 9
Legislation reported favorably to the full Committee.............. 6
Legislation reported adversely to the full Committee.............. 0
Legislation reported without recommendation to the full Committee. 0
Legislation reported as original measure to the full Committee.... 0
Legislation discharged from the Subcommittee...................... 8
Legislation pending before the full Committee..................... 2
Legislation reported to the House................................. 12
Legislation discharged from the Committee......................... 1
Legislation pending in the House.................................. 1
Legislation failed passage by the House........................... 1
Legislation passed by the House................................... 11
Legislation pending in the Senate................................. 4
Legislation vetoed by the President (not overridden).............. 0
Legislation enacted into Public Law............................... 2
Days of legislative hearings...................................... 9
Days of oversight hearings........................................ 13
Jurisdiction of the Subcommittee
The Subcommittee on the Constitution shall have
jurisdiction over the following subject matters: constitutional
amendments, constitutional rights, federal civil rights laws,
ethics in government, other appropriate matters as referred by
the Chairman, and relevant oversight.
Legislative Activities
H. Res. 132--Expressing the sense of the House of Representatives that
the Ninth Circuit Court of Appeals ruling in Newdow v. United
States Congress is inconsistent with the Supreme Court's
interpretation of the first amendment and should be overturned,
and for other purposes
Summary.--H. Res. 132 expresses the sense of the House of
Representatives that the phrase, ``one Nation, under God,''
should remain in the Pledge of Allegiance; that the Ninth
Circuit Court of Appeals ruling in Newdow v. U.S. Congress,
which struck down the phrase ``under God'' in the Pledge, is
inconsistent with the Supreme Court's interpretation of the
First Amendment; that the Attorney General of the United States
should appeal the Ninth Circuit's ruling; and that the
President should nominate, and the Senate should confirm,
Federal circuit court judges who will interpret the
Constitution consistent with the Constitution's text. It also
praises the Elk Grove School District for its defense of the
Pledge of Allegiance against this constitutional challenge.
Legislative History.--H. Res. 132 was introduced by Rep.
Doug Ose on March 6, 2003. No hearings were held on H. Res.
132. On March 12, 2003, the Committee met in open session and
ordered favorably reported H. Res. 132 without amendment by a
recorded vote of 22 to 2, a quorum being present. (H. Rept. No.
108-41). On March 20, 2003, H. Res. 132 was passed by the House
by a vote of 400 to 7.
H. Res. 568--Appropriate Use of Foreign Judgments in American Court
Decisions
Summary.--H. Res. 568 provides that ``it is the sense of
the House of Representatives that judicial determinations
regarding the meaning of the laws of the United States should
not be based in whole or in part on judgments, laws, or
pronouncements of foreign institutions unless such foreign
judgments, laws, or pronouncements are incorporated into the
legislative history of laws passed by the elected legislative
branches of the United States or otherwise inform an
understanding of the original meaning of the laws of the United
States.'' In several recent cases, the U.S. Supreme Court has
cited decisions by foreign courts and treaties not ratified by
this country to support interpretations of the United States
Constitution.
Legislative History.--H. Res. 568 was introduced by Rep.
Tom Feeney March 17, 2004. On March 25, 2004, the Constitution
Subcommittee held a hearing on H. Res. 568 at which testimony
was received from the following witnesses: Jeremy Rabkin,
Professor of Government, Cornell University, Ithaca, New York;
Vicki Jackson, Professor of Law, Georgetown Law Center,
Washington, D.C.; Michael D. Ramsey, Professor of Law,
University of San Diego Law School, San Diego, California; and
John Oldham McGinnis, Professor, Northwestern University School
of Law, Chicago, Illinois. On May 13, 2004, the Constitution
Subcommittee met in open session and ordered favorably reported
H. Res. 568, with an amendment, by a vote of 7 to 3, a quorum
being present. No further action was taken on H. Res. 568.
H. Res. 676--Recognizing and honoring the 40th anniversary of
congressional passage of the Civil Rights Act of 1964
Summary.--The purpose of this resolution was to recognize
the 40th anniversary of the passage of the Civil Rights Act of
1964. The resolution recognized the contributions of civil
rights groups in the passage of that historic act. The
resolution also recognized the importance the Civil Rights Act
played in helping to fight discrimination in the United States.
Legislative History.--Delegate Eleanor Holmes Norton
introduced H. Res. 676 on June 15, 2004, and it was
subsequently referred to the Committee on the Judiciary and the
Subcommittee on the Constitution as well as the Committee on
Education and the Workforce. The committees took no further
action on the resolution. The House of Representatives
considered H. Res. 676 under suspension of the rules on June
23, 2004, and on June 24, 2004 the resolution was agreed to by
a vote of 414 to 1.
H. Res. 853--Recognizing the Boy Scouts of America for the public
service the organization performs for neighborhoods and
communities across the United States
Summary.--The purpose of H. Res. 853 was to express that
the House of Representatives recognizes the Boy Scouts of
America (``BSA'') for the public service the organization
performs and to commend the BSA for the Good Turn for America
program and the work the BSA has accomplished while partnering
with other community and civic organizations across the United
States to address critical issues facing communities in the
United States.
Legislative History.--H. Res. 853, ``Recognizing the Boy
Scouts of America for the public service the organization
performs for neighborhoods and communities across the United
States,'' was introduced by Rep. Darrell Issa on November 16,
2004. On November 20, 2004, H. Res. 853 was passed by the House
by a vote of 391 to 3.
H.R. 760--the ``Partial Birth Abortion Ban Act of 2003''
Summary.--H.R. 760 bans the procedure known as ``partial
birth abortion'' and subjects those who violate the ban to
fines or a maximum of two years imprisonment, or both. The bill
also establishes a civil cause of action for damages against a
doctor who violates the ban.
Legislative History.--H.R. 760, the ``Partial Birth
Abortion Ban Act of 2003,'' was introduced by Constitution
Subcommittee Chairman Steve Chabot on February 13, 2003. On
March 25, 2003, the Constitution Subcommittee held a hearing on
H.R. 760 at which testimony was received from the following
witnesses: Dr. Mark G. Neerhof, D.O.; Professor Gerard V.
Bradley, Professor of Law, University of Notre Dame; and Mr.
Simon Heller, Of Counsel, Center for Reproductive Rights. On
March 25, 2003, the Subcommittee on the Constitution met in
open session and ordered favorably reported the bill H.R. 760,
without an amendment, by a vote of 8 to 4, a quorum being
present. On March 26, 2003, the Committee met in open session
and ordered favorably reported the bill H.R. 760 without
amendment by a recorded vote of 19 to 11, a quorum being
present. (H. Rept. No. 108-58). On June 4, 2003, H.R. 760 was
passed by the House by a vote of 282 to 139. On March 3, 2003,
a companion bill in the Senate, S. 3, passed the Senate with an
amendment by a vote of 64 to 33. On June 4, 2003, the Speaker
appointed the following conferees from the Committee on the
Judiciary for consideration of the Senate bill and the House
amendment, and modifications committed to conference: Reps.
Sensenbrenner, Hyde, and Nadler. On September 22, 2003, the
Senate appointed as conferees Sens. Hatch, DeWine, Santorum,
Feinstein, and Boxer. On September 25, 2003, the Speaker
appointed additional conferees: Reps. Chabot and Lofgren. On
September 30, 2003, the conference report, H. Rept. No. 108-288
was filed. On October 2, 2003, conference report was brought up
for consideration in the House and the House agreed to the
conference report by a vote of 281 to 142. On October 21, 2003,
the conference report was considered in the Senate and the
Senate agreed to the conference report by a vote of 64 to 34.
On October 28, 2003, the conference report was presented to the
President, and signed into law on November 5, 2003, which
became Pub. L. No. 108-105.
H.R. 1755--the ``Child Custody Protection Act''
Summary.--H.R. 1755, the ``Child Custody Protection Act,''
makes it a federal offense to knowingly transport a minor
across a state line, with the intent that she obtain an
abortion, in circumvention of a state's parental consent or
parental notification law. A violation of the Act is a Class
One misdemeanor, carrying a fine of up to $100,000 and
incarceration of up to one year. H.R. 1755 would prevent the
interstate transportation of minors in order to circumvent
valid, existing state laws.
Legislative History.--H.R. 1755, the ``Child Custody
Protection Act,'' was introduced by Rep. Ileana Ros-Lehtinen on
April 10, 2003. The Subcommittee on the Constitution held a
hearing on H.R. 1755 on July 20, 2004, at which testimony was
received from the following witnesses: Ms. Joyce Farley,
Victim, Dushore, Pennsylvania; Professor Mark Rosen, Associate
Professor of Law (with Tenure), Chicago-Kent College of Law;
Reverend Lois M. Powell, United Church of Christ; and Ms.
Teresa S. Collett, Professor of Law, University of St. Thomas
School of Law. Additional material was submitted by Rep. Ileana
Ros-Lehtinen; the American Academy of Pediatrics; Rep. Steve
Chabot, including a statement by Professor John Harrison,
Professor of Law, University of Virginia School of Law; and
Rep. Jerrold Nadler, including statements from Diana Philip,
Jane's Due Process, Inc., and the Reverend Doctor Katherine
Hancock Ragsdale, Episcopal Priest. No further action was taken
on the measure.
H.R. 1775--To amend title 36, United States Code, to designate the oak
tree as the national tree of the United States
Summary.--The purpose of H.R. 1775 was to designate the oak
tree as the national tree of the United States. The resolution
affirms the choice of the American people, who selected the oak
as the national tree in an online poll in 2001.
Legislative History.--Congressman Bob Goodlatte introduced
H.R. 1775 on April 11, 2003, and it was subsequently referred
to the Committee on the Judiciary and the Subcommittee on the
Constitution. The Subcommittee on the Constitution conducted a
markup of H.R. 1775 on May 13, 2004, and the bill was forwarded
to full Committee by voice vote. The Judiciary Committee held a
markup of the bill on September 8, 2004, and ordered it
reported by voice vote. The bill was reported by the Committee
on September 17, 2004. (H. Rept. No. 108-689). No further
consideration of H.R. 1775 took place.
The provisions of H.R. 1775 were included as Title II of
H.R. 4077, which passed the House of Representatives on
September 28, 2004 by voice vote. The provisions of H.R. 1775
were included in Division J, Title I, Section 109 of the
conference report on H.R. 4818, the Consolidated Appropriations
Act, 2005. The conference report was approved by the House of
Representatives by a vote of 344 to 51, with 1 Present on
November 20, 2004. The Senate approved the Conference Report on
the same day by a vote of 65 to 30. The President signed the
Conference Report on December 8, 2004 and it became Public Law
No. 108-447.
H.R. 1997--the ``Unborn Victims of Violence Act of 2004'' or ``Laci and
Conner's Law''
Summary.--H.R. 1997, the Unborn Victims of Violence Act,
provides that if a fetus is injured or killed during the
commission of crimes of violence already defined under federal
law, prosecutors can bring two charges: one on behalf of the
mother, the other on behalf of the fetus.
Legislative History.--H.R. 1997, the ``Unborn Victims of
Violence Act of 2003,'' was introduced by Rep. Melissa Hart on
May 7, 2003. On July 8, 2003, the Constitution Subcommittee
held a hearing on H.R. 1997 at which testimony was received
from the following witnesses: Tracy Marciniak, Mosinee,
Wisconsin; Juley Fulcher, Public Policy Director, National
Coalition Against Domestic Violence; Serrin M. Foster,
President, Feminists for Life of America; and Professor Gerard
V. Bradley, University of Notre Dame School of Law. On July 15,
2003, the Subcommittee on the Constitution met in open session
and ordered favorably reported the bill H.R. 1997, without
amendment, by a vote of 6 to 3, a quorum being present. On
January 21, 2004, the Committee met in open session and ordered
favorably reported the bill H.R. 1997 with an amendment by a
recorded vote of 20 to 13, a quorum being present. (H. Rept.
No. 108-420, Part I). On February 26, 2004, H.R. 1997 was
passed by the House by a vote of 254 to 163. On March 25, 2003,
H.R. 1997 passed the Senate without an amendment by a vote of
61 to 38. On March 31, 2004, H.R. 1997 was presented to the
President and on April 1, 2004, it was signed into law by the
President, becoming Pub. L. No. 108-212.
H.R. 2028--the ``Pledge Protection Act of 2004''
Summary.--The Pledge of Allegiance reads: ``I pledge
allegiance to the Flag of the United States of America, and to
the Republic for which it stands, one Nation under God,
indivisible, with liberty and justice for all.'' Although the
United States Supreme Court recently reversed and remanded the
Ninth Circuit's latest holding striking down the Pledge as
unconstitutional, the Supreme Court did so on the grounds that
the plaintiff lacked the legal standing to bring the case. The
dissenting Justices concluded that the Court in its decision
``erect[ed] a novel prudential standing principle in order to
avoid reaching the merits of the constitutional claim.'' H.R.
2028 would reserve to the state courts the authority to decide
whether the Pledge is valid within each state's boundaries and
place final authority over Pledge policy in the hands of the
states.
Legislative History.--H.R. 2028, the ``Pledge Protection
Act of 2003,'' was introduced by Rep. Todd Akin on May 8, 2003.
No hearings were held on H.R. 2028. On September 15, 2004, the
Committee met in open session and ordered favorably reported
the bill H.R. 2028 with an amendment by a recorded vote of 17
to 10, a quorum being present. (H. Rept. No. 108-691). On
September 23, 2004, H.R. 2028 was passed by the House by a vote
of 247 to 173.
H.R. 2844--the ``Continuity in Representation Act of 2004''
Summary.--H.R. 2844, the ``Continuity in Representation Act
of 2004,'' would provide for the expedited special election of
new Members to fill seats left vacant in ``extraordinary
circumstances.'' ``Extraordinary circumstances'' occur when the
Speaker of the House announces that vacancies in the
representation from the States in the House exceed 100. When
such ``extraordinary circumstances'' occur, a special election
must be called within 45 days, unless a regularly scheduled
general election for the office involved is to be held within
75 days. Within 10 days of such an announcement by the Speaker,
the political parties of the state that are authorized to
nominate candidates by state law may each nominate one
candidate to run in the election. Additional provisions provide
that each State shall ensure to the greatest extent practicable
(including through the use of electronic means) that absentee
ballots for the election are transmitted to absent uniformed
services voters and overseas voters (as such terms are defined
in the Uniformed and Overseas Citizens Absentee Voting Act) not
later than 15 days after the Speaker of the House of
Representatives announces that the vacancy exists. In the case
of an individual who is an absent uniformed services voter or
an overseas voter (as such terms are defined in the Uniformed
and Overseas Citizens Absentee Voting Act), H.R. 2844 provides
that a State shall accept and process any otherwise valid
ballot or other election material from the voter so long as the
ballot or other material is received by the appropriate State
election official not later than 45 days after the State
transmits the ballot or other material to the voter.
Legislative History.--H.R. 2844, the ``Continuity in
Representation Act of 2004,'' was introduced by Judiciary
Committee Chairman F. James Sensenbrenner, Jr. on July 24,
2003. No Judiciary Committee hearings were held on H.R. 2844.
On July 24, 2003, H.R. 2844 was referred to the House
Administration Committee which had primary jurisdiction over
the bill. On September 24, 2003 the Committee on House
Administration had a hearing. On November 19, 2003 the bill was
reported with an amendment by a 4 to 3 vote. The House
Administration Committee filed H. Rept. No. 108-404, Part 1 on
December 8, 2003. On January 28, 2004, the Committee met in
open session and ordered favorably reported the bill H.R. 2844
with an amendment by a vote of 18 to 10, a quorum being
present. (H. Rept. No. 108-404, Part II). On April 22, 2004,
H.R. 2844 was passed by the House by a vote of 306 to 97.
H.R. 3095--the ``Community Recognition Act of 2004''
Summary.--The purpose of H.R. 3095 was to ensure that the
rules of etiquette for flying the flag of the United States do
not preclude the flying of flags at half mast when ordered by
city and local officials. The legislation would have authorized
the chief elected leader of a city or other locality, in the
event of the death of a present or former official of that
particular locality, to proclaim that the national flag be
flown at half staff.
Currently, 4 U.S.C. Sec. 7(m) grants authority to the
President of the United States or the Governor of any State,
territory, or possession to order that the national flag be
flown at half staff in recognition of the death of a current or
former official of the government under which they preside.
Local officials may order the national flag flown at half mast
only with the direct permission of the President or their
Governor. Permission sought is not always timely, which results
in the missed opportunity to properly honor the individual in
question. H.R. 3095 would have permitted the chief elected
official of local government entities, such as cities, towns,
counties, or other like traditional political subdivisions, to
honor those leaders or public servants who either died in the
line of duty or passed away following a distinguished career in
public service by ordering the national flag flown at half
staff.
Legislative History.--Representative John T. Doolittle
introduced H.R. 3095 on September 16, 2003, and it was
subsequently referred to the Committee on the Judiciary and the
Subcommittee on the Constitution. The Subcommittee on the
Constitution discharged H.R. 3095 on January 15, 2004. The
Committee on the Judiciary conducted a markup of H.R. 3095 on
January 28, 2004 and ordered it reported by a voice vote. On
February 3, 2004, the Committee filed the report, H. Rept. No.
108-411. On March 24, 2004, the House considered the bill under
suspension of the rules and passed it by a vote of 374-2, on
March 25, 2004. The bill subsequently was referred to the
Senate Judiciary Committee, which took no further action.
H.J. Res. 4--Proposing an amendment to the Constitution of the United
States authorizing Congress to prohibit the physical
desecration of the flag of the United States
Summary.--H.J. Res. 4 states: ``The Congress shall have
power to prohibit the physical desecration of the flag of the
United States.'' The purpose of the proposed amendment is to
give Congress the constitutional authority to prohibit the
physical desecration of the flag. In Texas v. Johnson, the U.S.
Supreme Court held that the burning of an American flag as part
of a political demonstration was expressive conduct protected
by the First Amendment to the United States Constitution.
Congress responded by passing a federal statute to outlaw flag
desecration, but the Supreme Court ultimately ruled this
statute unconstitutional on the same grounds in a 5-4 decision
in United States v. Eichman in 1990.
Legislative History.--H.J. Res. 4 was introduced by Rep.
Randy (Duke) Cunningham on January 7, 2003. On May 7, 2003, the
Constitution Subcommittee held a hearing on H.J. Res. 4 at
which testimony was received from the following witnesses:
Major General Patrick H. Brady, USA (Ret.); Citizens Flag
Alliance; Lieutenant Antonio J. Scannella, Port Authority
Police Department; Mr. Gary May, Veterans Defending the Bill of
Rights; and Dr. Richard Parker, Professor of Law, Harvard Law
School. On May 7, 2003, the Constitution Subcommittee met in
open session and ordered favorably reported H.J. Res. 4 to the
Full Committee by voice vote. On May 21, 2003, the Committee
met in open session and ordered favorably reported H.J. Res. 4
without amendment by a vote of 18 to 13, a quorum being
present. (H. Rept. No. 108-131). On June 3, 2003, H.J. Res. 4
passed the House by a vote of 300 to 125, a two-thirds majority
being required to pass an amendment to the Constitution.
H.J. Res. 22--Proposing a balanced budget amendment to the Constitution
of the United States
Summary.--The Balanced Budget Amendment, H.J. Res. 22,
requires that Congress pass a budget in which total outlays do
not exceed total receipts for any fiscal year unless approved
by a three- fifths majority of each House. The proposed
amendment would allow the President to submit, and Congress to
pass, an unbalanced budget for a fiscal year if there was a
declaration of war in effect for that year or if Congress
passes a joint resolution declaring that the United States is
engaged in a military conflict.
Legislative History.--Representative Ernest Istook of
Oklahoma introduced H.J. Res. 22 on February 13, 2003, and it
was subsequently referred to the Committee on the Judiciary and
the Subcommittee on the Constitution. On March 6, 2003, the
Subcommittee on the Constitution held a hearing on H.J. Res. 22
at which testimony was received from Dr. John Berthoud,
President, National Taxpayers Union; Dr. Kent Smetters,
Assistant Professor, the Wharton School; Richard Kogan, Senior
Fellow, Center on Budget and Policy Priorities; and William W.
Beach, Director, Center for Data Analysis. The Constitution
Subcommittee met in open session on May 1, 2003, and reported
H.J. Res. 22 favorably, without an amendment, by a vote of 5 to
3, a quorum being present. On September 22, 2004, the Committee
met in open session to consider H.J. Res. 22. The resolution
was not reported and no further action was taken on the
resolution.
H.J. Res. 48--An amendment to the Constitution of the United States to
define rights for victims of crime
Summary.--The Victims Rights Amendment, H.J. Res. 48,
grants victims the right to reasonable and timely notice of any
public proceeding involving the crime committed against them
and of any release or escape of the accused. The victim has the
right to attend public proceedings against the accused and a
right to make a statement at public release, plea, sentencing,
reprieve and pardon proceedings. A court must give
consideration to the victim's safety interest, interest in
avoiding unreasonable delay, and just and timely claims to
restitution from the offender. The amendment includes
exceptions where there is a substantial interest in public
safety, or the administration of criminal justice or by
compelling necessity. The amendment does not grant victims
grounds for a new trial or authorize any claims for damages.
Legislative History.--H.J. Res. 48 was introduced by
Constitution Subcommittee Chairman Steve Chabot on April 10,
2003. On September 30, 2003, the Constitution Subcommittee held
a hearing on H.J. Res. 48 at which testimony was received from
the following witnesses: Mr. Steven Twist, General Counsel,
National Victims Constitutional Amendment Project; Mr. Douglas
E. Beloof, Director, National Crime Victim Law Institute; Lewis
& Clark Law School; Mrs. Sharon Nolan, Milford, Ohio; and Mr.
James Orenstein, New York, New York. No further action was
taken on H.J. Res. 48.
H.J. Res. 56--the ``Federal Marriage Amendment''
Summary.--H.J. Res. 56, the Federal Marriage Amendment,
ensures that no governmental entity--whether in the
legislative, executive or judicial branch, at any level of
government--shall have the legal authority to alter the
definition of marriage such that it is anything other than a
union of one man and one woman. H.J. Res. 56 also prevents any
court from construing the federal Constitution, or a state
constitution, to require any legislative body or executive
agency to enact--or to recognize under the Full Faith and
Credit Clause--so-called ``civil union'' or domestic
partnership laws.
Legislative History.--H.J. Res. 56 was introduced by Rep.
Marilyn Musgrave on May 21, 2003. On May 13, 2004, the
Constitution Subcommittee held a hearing on H.J. Res. 56 at
which testimony was received from the following witnesses:
Honorable Marilyn Musgrave, Congresswoman, 4th District,
Colorado; Judge Robert Bork, McLean, Virginia; Honorable Barney
Frank, Congressman, 4th District, Massachusetts; and Jay
Sekulow, The American Center for Law and Justice, Inc. No
further action on H.J. Res. 56 was taken by the Judiciary
Committee.
H.J. Res. 83--Proposing an amendment to the Constitution of the United
States regarding the appointment of individuals to fill
vacancies in the House of Representatives
Summary.--This amendment requires House Members, prior to
taking the oath of office, to submit a list of names to the
Governor that the Governor can draw from in appointing that
Member's replacement.
Legislative History.--H.J. Res. 83 was introduced by Rep.
Brian Baird on December 8, 2003. No hearings were held on H.J.
Res. 83. On May 5, 2004, the Committee met in open session and
ordered adversely reported H.J. Res. 83 by a recorded vote of
17 to 12, a quorum being present. (H. Rept. No. 108-503). On
June 2, 2004, H.J. Res. 83 failed to pass the House by a vote
of 63 to 353, a two-thirds majority being required to pass an
amendment to the Constitution.
Oversight Activities
SUMMARY OF OVERSIGHT PLAN
The Oversight Plan for the Constitution Subcommittee for
the 108th Congress includes the following issues: the death
penalty; the United States Commission on Civil Rights; the
Civil Rights Division, U.S. Department of Justice; the
Community Relations Service; Congressional authority under the
Commerce Clause; the Office of Government Ethics; athletic
opportunities under Title IX; school admissions policies under
affirmative action plans; property rights; religious liberty;
abortion; civil liberties in the war on terrorism; DNA
technologies; environmental justice under Title VI of the Civil
Rights Act of 1964 by the U.S. Environmental Protection Agency,
Office of Civil Rights; the Freedom of Access to Clinic
Entrances (FACE) Act; and the enforcement of the Violence
Against Women Act in light of the U.S. Supreme Court
precedents.
Oversight list of hearings
Reauthorization of the Civil Rights Division of the United
States Department of Justice. May 15, 2003. (Serial
No. 26).
Anti-Terrorism Investigations and the Fourth Amendment After
September 11: Where and When Can the Government Go
to Prevent Terrorist Attacks? May 20, 2003. (Serial
No. 35).
Potential Congressional Response to the Supreme Court's
Decision in State Farm Mutual Automobile Insurance
Co. v. Campbell: Checking and Balancing Punitive
Damages. September 23, 2003. (Serial No. 48).
GAO's Report on the Implementation of Executive Order 12630 and
the State of Federal Agency Protections of Private
Property Rights. October 16, 2003. (Serial No. 53).
Civil Rights Division of the U.S. Department of Justice. March
2, 2004. (Serial No. 66).
Defense of Marriage Act. March 30, 2004. (Serial No. 70).
Legal Threats to Traditional Marriage: Implications for Public
Policy. April 22, 2004. (Serial No. 76).
Limiting Federal Court Jurisdiction to Protect Marriage for the
States. June 24, 2004. (Serial No. 92).
Privacy and Civil Liberties in the Hands of the Government
Post-September 11, 2001: Recommendations of the 9/
11 Commission and the U.S. Department of Defense
Technology and Privacy Advisory Committee. August
20, 2004. (Serial No. 113).
Due Process and the NCAA. September 14, 2004. (Serial No. 106).
Status of the Implementation of the Pigford v. Glickman
Settlement. September 28, 2004. (Serial No. 108).
Presidential Succession Act. October 6, 2004. (Serial No. 110).
``Notice'' Provision in the Pigford v. Glickman Consent Decree.
October 18, 2004. (Serial No. 117).
Oversight of the United States Commission on Civil Rights
The House Committee on the Judiciary through its
Subcommittee on the Constitution has continued its oversight of
the United States Commission on Civil Rights. On March 31,
2003, the Government Accountability Office confirmed its
commitment to conduct a review of the Commission that would
address the adequacy of the Commission's procedures for
identifying and carrying out projects, and the sufficiency of
the Commission's controls over contracting services and
managing contracts.
On September 17, 2003, Chairman Chabot wrote Commissioner
Christopher Edley, Jr. to express disappointment in Edley's
decision to oppose a request by another Commissioner that an
investigation of a mishandling of a confidential communication
within the Commission be undertaken. On November 6, 2003, GAO
released a report that was requested by Chairman Sensenbrenner
during the 107th Congress. This report is entitled ``More
Operational and Financial Oversight Needed.''
On March 16, 2004, Chairman Sensenbrenner and Chairman
Hatch sent a letter to GAO requesting a study of the
effectiveness of the Commission structure under the current
statutory framework and of whether the Government Performance
and Results Act has been successful in assisting the USCCR to
improve program performance. On October 27, 2004, part I of
this report, entitled ``Management Could Benefit from Improved
Strategic Planning and Increased Oversight,'' was released by
GAO. On April 22, 2004, Chairman Sensenbrenner and Chairman
Hatch sent a letter to GAO requesting a financial audit for the
year ending September 30, 2003.
Reauthorization of the Civil Rights Division of the United States
Department of Justice
On Thursday, May 15, 2003, the Subcommittee on the
Constitution held an oversight hearing on the reauthorization
of the Civil Rights Division of the Department of Justice. The
purpose of the hearing was to conduct the Subcommittee's annual
oversight over the activities of the Division for the purpose
of reauthorizing the United States Department of Justice.
The witness testifying at the Subcommittee hearing was
Ralph F. Boyd, Jr., the Assistant Attorney General for the
Civil Rights Division. He testified that since the beginning of
his tenure, the attorneys have opened investigations of 37
nursing homes, mental health facilities, and jails for
violating the constitutional rights of their patients or
inmates and that that number is an almost 200 percent increase
over the prior 2 years. In fiscal 2002 alone, he explained, the
Division pursued 173 cases from 33 different States and they
have charged, convicted, and secured sentences for 92 human
traffickers in 21 cases for trafficking victims into the United
States, which is a 300 percent increase over the prior 2-year
period. He explained that they have twice as many current
pending investigations than were pending in January 2001.
He testified that they have targeted employment
discrimination by opening 65 new investigations in 2002, 14
more than in 2001 and 48 more than in 2000 and that they are
targeting disability discrimination by more than doubling the
number of formal settlement agreements reached under the
Americans with Disabilities Act compared with 1999 and 2000. He
explained that since January of 2001, they have received more
submissions under section 5 of the Voting Rights Act than ever
before and that they never missed a deadline.
``Anti-Terrorism Investigations and the Fourth Amendment After
September 11: Where and When Can the Government Go To Prevent
Terrorist Attacks?''
On May 20, 2003, the Constitution Subcommittee held an
oversight hearing on ``Anti-Terrorism Investigations and the
Fourth Amendment After September 11: Where andWhen Can the
Government Go to Prevent Terrorist Attacks?'' Witnesses included: Viet
D. Dinh, Assistant Attorney General for the Office of Legal Policy,
Department of Justice; James Dempsey, Executive Director, The Center
For Democracy and Technology; Orin Kerr, associate law professor,
George Washington University Law School; and Paul Rosenzweig, Senior
Research Fellow, the Heritage Foundation.
Assistant Attorney General Dinh testified, among other
things, that the successful effort in preventing another
catastrophic attack on the American homeland in the past 20
months would have been much more difficult, if not impossible,
without the tools that Congress has authorized in the USA
PATRIOT Act. These authorities have substantially enhanced
DOJ's ability to investigate, prosecute, and most important, to
prevent terrorist attacks.
Mr. Dempsey testified, among other things, that the PATRIOT
Act eliminated the standards that required some reason to
believe that there was some connection with terrorism and some
minimal factual showing, before library information about an
individual could be gathered. Mr. Dempsey further testified
that we were now going to be seeing more information acquired
under the Foreign Intelligence Surveillance Act (``FISA'') used
in criminal cases.
Mr. Kerr testified, among other things, that a positive
change brought about by the PATRIOT Act is section 216 of the
PATRIOT Act, which clarifies that the pen register law applies
as well to the Internet.
Mr. Rosenzweig testified, among other things, that the
Constitution has very little to say about the recent changes to
the FBI's investigative guidelines relating to the FBI's
ability to enter into public places and access public
information on the Internet.
Potential congressional responses to the Supreme Court's decision in
State Farm Mutual Automobile Ins. Co. v. Campbell: Checking and
balancing punitive damages
On September 23, 2003, the Constitution Subcommittee held
an oversight hearing on ``Potential Congressional Responses to
the Supreme Court's Decision in State Farm Mutual Automobile
Ins. Co. v. Campbell: Checking and Balancing Punitive
Damages.'' Witnesses included: David Owen, Carolina
Distinguished Professor of Law and Director of the Office of
Tort Law Studies at the University of South Carolina; Robert
Peck, President, the Center for Constitutional Litigation; and
Victor Schwartz, Shook, Hardy & Bacon.
Mr. Owen testified, among other things, that punitive
damages are a very powerful instrument of the law, and can be
substantially abused. In a Nation such as ours, where
manufacturers market to the 50 States, it would be helpful to
have guiding principles that were more predictable in the way
that the Supreme Court suggests is desirable.
Mr. Schwartz testified, among other things, that punitive
damages for years presented no problem. But that changed in the
1970s, when punitive damages started to be awarded for things
that were not intentional. And then, because it was not
intentional, they were awarded against product manufacturers
and awarded again and again for the same conduct.
The GAO's report on the implementation of Executive Order 12630 and the
state of Federal agency protections of private property rights
On October 16, 2003, the Constitution Subcommittee held an
oversight hearing on ``The GAO's Recent Report on the
Implementation of Executive Order 12630 and the State of
Federal Agency Protections of Private Property Rights.''
Witnesses included: Anu Mittal, Director, Natural Resources and
Environment Division, U.S. General Accounting Office; Roger
Marzulla, founder and general counsel of Defenders of Property
Rights; John Echeverria, Professor, Georgetown Law Center
Environmental Law and Policy Institute; and Steven Eagle,
Professor, George Mason University School of Law.
Ms. Mittal summarized the General Accounting Office's
report, which was requested by Constitution Subcommittee
Chairman Steve Chabot, entitled ``Regulatory Taking: Agency
Compliance with Executive Order on Government Actions Affecting
Private Property Use.''
Mr. Marzulla testified, among other things, that the
Defenders of Property Rights issued a report which in some ways
parallels the findings of the Government Accounting Office.
That report confirms there is noncompliance with the executive
order throughout the Executive branch.
Mr. Echeverria testified, among other things, that
Executive Order 12,630 should be rescinded because it ``appears
to impose a significant bureaucratic burden on Federal agencies
to address a relatively modest fiscal issue.''
Civil Rights Division of the U.S. Department of Justice
On Tuesday, March 2, 2004, the Subcommittee on the
Constitution held an oversight hearing on the activities of the
U.S. Department of Justice's Civil Rights Division
(``Division''), for the purposes of conducting the
Subcommittee's annual oversight over the activities of the
Division and the reauthorization of the United States
Department of Justice. Alexander Acosta, the Assistant Attorney
General for the Civil Rights Division of the U.S. Department of
Justice, appeared as the witness and submitted a written
statement for the record.
Alexander Acosta testified that cross burning has too long
been a tool of intimidation against racial and religious
minorities and, to put an end to it, since 2001, the Civil
Rights Division has prosecuted nearly 40 of these cases, almost
1 a month. In addition, he explained some of the work the
Division has been undertaking to address religious
discrimination and human trafficking. He testified that the
Division has been vigorously enforcing the Americans with
Disabilities Act by litigation, but at the same time doing
everything in its power to promote voluntary and cooperative
compliance. The Committee submitted follow up questions to Mr.
Acosta on March 11, 2004, and received responses on October 8,
2004.
The Defense of Marriage Act
On March 30, 2004, the Constitution Subcommittee held an
oversight hearing on ``The Defense of Marriage Act.'' Witnesses
included: the Honorable Bob Barr, Former Member of Congress,
Atlanta, Georgia; Vincent P. McCarthy, The American Center for
Law and Justice, Inc., New Milford, Connecticut; John Hanes,
Chairman of the Wyoming Senate Judiciary Committee, Cheyenne,
Wyoming; and Bruce Fein, Fein & Fein, Washington, D.C.
Mr. Barr testified, among other things, that the federal
Defense of Marriage Act, passed in 1996, allowed legislatures
the latitude to decide how to deal with marriage rights
themselves, but ensured that no one state could force another
to recognize marriages of same-sex couples. He also stated that
he believes a constitutional amendment is ill advised.
Mr. McCarthy testified, among other things, that in 1996,
the Congress passed, and President Clinton signed into law, the
Defense of Marriage Act (``DOMA''). DOMA does two important
things. First, DOMA permits States to choose what effect, if
any, to give to any ``public act, record, or judicial
proceeding * * * respecting a relationship between persons of
the same sex that is treated as a marriage under the law of
such other State. * * *'' Second, DOMA amends the Dictionary
Act to provide express federal definitions of the terms
``marriage'' and ``spouse.''
Mr. Hanes testified, among other things, that ``there is a
lot of activity in this area'' in the states, ``both in terms
of constitutional amendments at the various States, in terms of
dealing with the civil unions and the domestic partnerships,
and the discussions run all the way from being in favor of
these things to not being in favor of these things.'' He stated
that marriage policy should be left to state law.
Mr. Fein testified, among other things, that the Defense of
Marriage Act clearly satisfies the Full Faith and Credit Clause
and Equal Protection Clause and the Due Process Clause of the
Constitution and that any attacks on its legitimacy would fail.
Legal threats to traditional marriage
On April 22, 2004, the Constitution Subcommittee held an
oversight hearing on ``Legal Threats to Traditional Marriage:
Implications for Public Policy.'' Witnesses included: Dwight
Duncan, Southern New England School of Law; Stanley Kurtz,
Hoover Institution; Dr. Jill Joseph, George Washington
University School of Medicine; and Lincoln Oliphant, Marriage
Law Project.
Mr. Duncan testified, among other things, that there are
several cases, decided over the past year, that threaten to
undermine the age-old consensus of civilization that marriage
is uniquely between a man and a woman. Mr. Duncan also
testified that it is ``increasingly clear'' that the Maginot
Line the federal Defense of Marriage Act created will not hold,
arguing that the Defense of Marriage Act is inadequate to
protect the definition of marriage.
Mr. Kurtz testified, among other things, that the
experience of Scandinavia and the Netherlands make it clear
that same-sex marriage could widen the separation between
marriage and parenthood here in the United States. America is
already the world leader in divorce. Our high divorce rates
have significantly weakened the institution of marriage in this
country.
Dr. Joseph testified, among other things, that prohibiting
the marriage of gay parents would hurt the ``hundreds of
thousands'' of children whose parents are gay or lesbian. She
referred to 23 studies conducted between 1978 and 2003 that
concluded that children raised by lesbian mothers or gay
fathers did not systematically differ from other children on
any of the outcomes.
Mr. Oliphant testified, among other things, that Congress
and all of the Nation's legislatures must understand that the
foremost implication of the current strategy of some against
marriage is to divest elected officials of their long-standing
powers to define and protect marriage.
Limiting Federal court jurisdiction to protect marriage for the States
On June 24, 2004, the Constitution Subcommittee held an
oversight hearing on ``Limiting Federal Court Jurisdiction to
Protect Marriage for the States.'' Witnesses included: Phyllis
Schlafly, Founder and President, Eagle Forum; Honorable William
E. Dannemeyer, Former United States Representative; Mr. Martin
H. Redish, Louis and Harriet Ancel Professor of Law and Public
Policy, Northwestern Law School; and Mr. Michael Gerhardt,
Arthur B. Hanson, Professor of Law, William & Mary Law School.
Ms. Schlafly testified, among other things, that the legal
assault on the Defense of Marriage Act (``DOMA'') has already
begun, with several lawsuits being filed against it. She argued
that the very idea that unelected, unaccountable judges could
nullify both other branches of government and the will of the
American people is an offense against our right of self-
government that must not be tolerated.
Mr. Dannemeyer testified, among other things, that Congress
should use its powers under Article III, section 2, of the
Constitution to prevent federal courts from striking down
various federal laws, including the Pledge of Allegiance.
Professor Redish testified, among other things, that as a
matter of constitutional text, structure and history, the power
of Congress to limit the jurisdiction of the Federal courts is
clear. He believes that Article III of the Constitution
explicitly vests in Congress the power not to have created
lower Federal courts in the first place, but he believes that
Congress should be very reluctant to exercise that power. He
also testified that Congress's power to strip the jurisdiction
of the Federal courts may be limited by other doctrines like
due process, equal protection, or separation of powers.
Professor Gerhardt testified, among other things, that
Congress may not use its power under Article III to limit the
``essential functions'' of the Federal judiciary.
The 9/11 Commission Report and implications for privacy and civil
liberties
On Friday, August 20, 2004, the Subcommittee on Commercial
and Administrative Law and the Subcommittee on the Constitution
held an oversight hearing on the 9/11 Commission Report and the
implications for privacy and civil liberties. The following
witnesses appeared and submitted a written statement for the
record: The Honorable Lee H. Hamilton, Vice Chair, National
Commission on Terrorist Attacks Upon the United States; The
Honorable Slade Gorton, Commission Member, National Commission
on Terrorist Attacks Upon the United States; The Honorable John
O. Marsh, Jr., on behalf of the U.S. Department of Defense
Technology and Privacy Advisory Committee; Ms. Nuala O'Connor
Kelly, Chief Privacy Officer, U.S. Department of Homeland
Security.
Lee Hamilton and Slade Gorton testified, among other
things, that concern about the civil liberties of American
citizens was one of a number of reasons why the Commission
rejected the idea of moving the domestic intelligence and
counterterrorism responsibilities of the FBI out of that agency
and placing them in a new agency.
Nuala O'Connor Kelly testified, among other things, that,
in light of her professional experience during the past year,
that protecting both privacy and security is well within the
grasp of the collective imagination of Congress and executive
agencies. She testified that her office has crafted privacy
training and privacy policies for many of its programs, ensured
that statutorily-required Privacy Impact Assessments and System
of Records Notices are written and reviewed, and counseled DHS
officials regarding the effective and responsible use of
technology.
John O. Marsh testified, among other things, that the
Committee unanimously agreed that the United States should use
data mining to enhance national security and made
recommendations on its use with appropriate safeguards.
Due process and the NCAA
On September 14, 2004, the Subcommittee on the Constitution
held an oversight hearing on ``Due Process and the NCAA.''
Witnesses included, Jeremy Bloom, U.S. Olympic Skier and former
University of Colorado Football Player; Jo Potuto, Vice Chair,
NCAA Committee on Infractions; and Dr. B. David Ridpath,
Assistant Professor, Sport Administration, Mississippi State
University. In addition, the Subcommittee received the prepared
testimony of Gary R. Roberts, Deputy Dean and Director of the
Sports Law Program at Tulane Law School, who was scheduled to
testify before the Subcommittee but was unable to attend. The
Subcommittee also received a prepared statement from
Congressman Tom Osborne of Nebraska, who is the former head
football coach at the University of Nebraska.
Jeremy Bloom testified, among other things, that the NCAA's
policies and procedures made it very difficult for student
athletes to obtain a fair hearing regarding alleged NCAA
infractions.
Jo Potuto testified, among other things, that the NCAA
system for investigating schools, coaches, and student-athletes
``ain't broke.'' According to Potuto, the NCAA provides
procedures that are fair to the participants but at the same
time ensure a level playing field for college athletics.
Dr. David Ridpath testified, among other things, that the
NCAA's enforcement system encourages member institutions to
scapegoat coaches, players, and athletics department personnel
so as to receive a lighter sentence from the NCAA.
Status of the implementation of the Pigford v. Glickman settlement
On Tuesday, September 28, 2004, the Subcommittee on the
Constitution held an oversight hearing on the ``Status of the
Implementation of the Pigford v. Glickman Settlement.''
The following witnesses appeared and submitted a written
statement for the record:Phillip J. Haynie, II, Haynie Farms,
LLC; Michael K. Lewis, Adjudicator, Pigford v. Glickman; and Randi
Ilyse Roth, Monitor, Pigford v. Glickman. The following witness
appeared, but did not submit a written statement: Alexander Pires,
Class Counsel, Pigford v. Glickman.
Phillip J. Haynie, II testified, among other things, that
the Pigford v. Glickman settlement was supposed to put an end
to discrimination to black farmers and compensate black farmers
for years of discrimination and that this settlement has failed
black farmers, but that there were problems with the
settlement.
Randi Ilyse Roth provided an explanation of her role as
Monitor. Next she testified, among other things, to the results
thus far under the Consent Decree. Finally, she addressed the
question of whether the terms of the Consent Decree have been
honored.
Michael K. Lewis testified, among other things, that a
court order provides that no late claim petition would be
accepted for consideration if filed after September 15, 2000
and that 65,950 late claim petitions were filed by the
September 15, 2000 deadline. He added that an additional 7,742
were filed after the September 15 deadline and that each of the
petitioners in the latter category were sent a letter by him
informing them that he or she had missed the court imposed
deadline. He also explained that he created a process
permitting late claim petitioners to request reconsideration of
his decision to deny their participation in the settlement and
that the reconsideration process provided petitioners with a
60-day window in which to request reconsideration of the
initial decision to deny their late claim petitions.
Alexander Pires testified, among other things, that it is
very hard to win discrimination cases against the USDA; that
the Pigford case is a very limited case and that when he
started he hoped to represent a thousand farmers and ended up
with 22,000; that when they talked about settling this case,
there were four black firms, four white law firms, and Charles
Ogletree from Harvard University; that the number one demand of
the black lawyers was that black people get money and not
injunctive relief or getting requirements from USDA.
Presidential Succession Act
On October 6, 2004, the Constitution Subcommittee held an
oversight hearing on the Presidential Succession Act. Witnesses
included: The Honorable Brad Sherman, U.S. Representative, 27th
District of California; Mr. Thomas H. Neale, Congressional
Research Service, Library of Congress; Mr. Akhil Reed Amar,
Southmayd Professor of Law, Yale Law School; and M. Miller
Baker, Partner, McDermott Will & Emery.
Rep. Brad Sherman testified in favor of legislation that
included the following provisions: the line of succession
should run through the Cabinet Officers, not through the
Congressional leadership; and five ambassadors should be added
to the end of the succession list.
Thomas Neal provided a summary of his Congressional
Research Service Report entitled ``Presidential and Vice
Presidential Succession: Overview and Current Legislation.''
Akhil Reed Amar testified that the current presidential
succession act, 3 U.S.C. Sec. 19, was many problems.
M. Miller Baker testified that the current Presidential
Succession Act ``is almost certainly the most dangerous statute
to be found in the United States Code.''
``Notice'' provision in the Pigford v. Glickman consent decree
On Thursday, November 18, 2004, the Subcommittee on the
Constitution held an oversight hearing on the `` `Notice'
Provision in the Pigford v. Glickman Consent Decree.''
The following witnesses appeared and submitted a written
statement for the record: Jeanne C. Finegan, APR, Consultant to
Poorman-Douglas Corporation (Court-Appointed Facilitator,
Pigford v. Glickman) for Communications and Public Relations;
Formerly Vice-President and Director of Huntington Legal
Advertising, a division of Poorman-Douglas Corporation; Thomas
Burrell, Farmer; Bernice Atchison, Farmer. The following
witness appeared, but did not submit a written statement: J.L.
Chestnut, Jr., Chestnut, Sanders, Sanders, Pettaway, &
Campbell, L.L.C., Class Counsel, Pigford v. Glickman.
J.L. Chestnut testified that the settlement only became
possible after a judge agreed to set a court date. He also
stated that he tried to educate the white class counsel to the
fact that black farmers would not believe that the same
government that had served for 150 years to ruin them would now
be legitimately providing help to them. He explained that black
farmers would believe the settlement when they started to see
others receiving checks and, by then, the filing period would
have expired. He testified that no matter what farmers received
in the settlement, they will not be satisfied that justice has
been served.
Jeanne Finegan testified that she does not believe that the
number of late applicants means that the notice campaign was
flawed or inadequate. She explained that the problem is not
that the class members' awareness was late, but class member
activation was late and she is not certain that any class
notification program, by itself, could have remedied the
problem.
Thomas Burrell testified that the media chosen to advertise
the settlement were not culturally and occupationally attuned
to black farmers.
Bernice Atchison testified that she sent certified letters
asking for affidavits and claim packages because none were
available in Chilton County, Alabama. She explained that she
was not notified by mail of the settlement and that none of the
local government offices or newspapers had received copies of
the Notice.
SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY \1\
HOWARD COBLE, North Carolina,
Chairman
ROBERT C. SCOTT, Virginia TOM FEENEY, Florida
ADAM B. SCHIFF, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California MARK GREEN, Wisconsin
MARTIN T. MEEHAN, Massachusetts RIC KELLER, Florida
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
----------
\1\ Subcommittee chairmanship and assignments approved February 12,
2003.
Tabulation of subcommittee legislation and activity
Legislation referred to the Subcommittee.......................... 328
Legislation on which hearings were held........................... 20
Legislation reported favorably to the full Committee.............. 9
Legislation reported adversely to the full Committee.............. 0
Legislation reported without recommendation to the full Committee. 0
Legislation reported as original measure to the full Committee.... 0
Legislation discharged from the Subcommittee...................... 11
Legislation pending before the full Committee..................... 1
Legislation reported to the House................................. 19
Legislation discharged from the Committee......................... 9
Legislation pending in the House.................................. 7
Legislation passed by the House................................... 19
Legislation pending in the Senate................................. 5
Legislation vetoed by the President (not overridden).............. 0
Legislation enacted into Public Law............................... 12
Legislation enacted into Public Law as part of other legislation.. 4
Days of legislative hearings...................................... 15
Days of oversight hearings........................................ 6
Jurisdiction of the Subcommittee
The Subcommittee on Crime, Terrorism, and Homeland Security
has jurisdiction over the Federal Criminal Code, drug
enforcement, sentencing, parole and pardons, terrorism,
internal and homeland security, Federal Rules of Criminal
Procedure, other appropriate matters as referred by the
Chairman, and relevant oversight.
Legislative Activities
H.R. 1161, the ``Child Obscenity and Pornography Prevention Act''
Summary.--Representative Lamar S. Smith introduced H.R.
4623, the ``Child Obscenity and Pornography Prevention Act of
2002,'' on April 30, 2002, to address the April 16, 2002
Supreme Court decision in Ashcroft v. the Free Speech
Coalition.\1\ No action was taken in the Senate on the bill in
the 107th Congress, and Congressman Smith reintroduced the bill
as H.R. 1161 on March 6, 2003. The Supreme Court decision held
that two parts of the Federal definition of child pornography
in Title 18 of the United States Code were too broad and were
therefore unconstitutional. Those two provisions were 18 U.S.C.
Sec. 2256(8)(B), which defined child pornography to include
wholly computer generated pictures that appear to be of a minor
engaging in sexually explicit conduct, and 18 U.S.C.
Sec. 2256(8)(D), which defined child pornography to include a
visual depiction where it is advertised, promoted, or
presented, to convey the impression that the material contains
a visual depiction of a minor engaging in sexually explicit
conduct. This decision did not hold that all virtual child
pornography was protected by the First Amendment. At risk are
the prosecutions against child pornographers who are frequently
child molesters.\2\ In any criminal case, the prosecution must
prove beyond a reasonable doubt that a crime was committed.
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\1\ 122 S. Ct. 1389 (2002).
\2\ Andres E. Hernandex, Psy.D. Federal Bureau of Prisons, Self-
Reported Contact Sexual Offenses by Participants in the Federal Bureau
of Prisons' Sex Offender Treatment Program: Implications for Internet
Sex Offenders. (In November 2000, the Federal Bureau of Prisons
released a study on Internet sex offenders who used the Internet to
download, trade, and distribute child pornography as well as offenders
who lure children for sexual abuse and exploitation. The study examined
two groups: those convicted of sexual contact crimes against children
and those convicted of nonsexual contact crimes against children. The
nonsexual contact crimes consisted of those convicted under the child
pornography laws and those convicted of traveling to meet a child with
the intent to sexually exploit that child. Of the 90 subjects of the
study 66 were convicted of crimes that did not include sexual contact.
Out of the 66 who were convicted of non-contact crimes, 62 were still
related to the sexual exploitation of children through child
pornography or traveling to meet a child with the intent to sexually
abuse a child. Of the 62, 49 were convicted of child pornography
(trading or possessing child pornography) and 13 were convicted for
traveling to meet a child. None of those convicted were producers of
pornography. Of the 62 convictions for non-contact crimes against
children, 76 percent of offenders admitted to sexually abusing or
exploiting a child. These offenders admitted to an average of 30.5
victims per offender.)
---------------------------------------------------------------------------
To ensure the continued protection of children from sexual
exploitation, this legislation attempted to respond to concerns
of the Supreme Court by narrowing the definition of child
pornography, strengthening the existing affirmative defense,
amending the obscenity laws to address virtual and real child
pornography that involves visual depictions of pre-pubescent
children, establishing new offenses against pandering visual
depictions as child pornography, and creating new offenses
against providing children obscene or pornographic material.
Legislative History.--The Subcommittee on Crime, Terrorism,
and Homeland Security held two days of hearings on H.R. 4623.
On May 9, 2002, the Subcommittee met in open session and
ordered favorably reported the bill, H.R. 4623, as amended, by
voice vote, a quorum being present. On May 15, 2002, the
Committee met in open session and ordered favorably reported
the bill, H.R. 4623, with an amendment by a recorded vote of 22
to 3, a quorum being present. The bill was reported to the
House on June 24, 2002 (H. Rept. No. 107-526). The House passed
the bill on June 25, 2002, by a recorded vote of 413 yeas to 8
nays and 1 present. No further action was taken on the bill,
H.R. 4623, during the 107th Congress. Congressman Lamar S.
Smith reintroduced the bill as H.R. 1161 on March 6, 2003. On
March 11, 2003, the Subcommittee held a hearing on H.R. 1161,
the ``Child Obscenity and Pornography Prevention Act.'' This
bill was incorporated into S. 151, the ``Prosecuting Remedies
and Tools Against the Exploitation of Children Today (PROTECT)
Act of 2003,'' which became Public Law No. 108-21 on April 30,
2003.
H.R. 1104, the ``Child Abduction Prevention Act''
Summary.--Chairman F. James Sensenbrenner, Jr. introduced
H.R. 1104 on March 5, 2003. This bill strengthened penalties
against kidnaping, including mandatory minimum sentences;
subjected those who abduct and sexually exploit children to the
possibility of lifetime supervision; aided law enforcement in
effectively preventing, investigating, and prosecuting crimes
against children; and provided families and communities with
immediate and effective assistance to recover a missing child.
According to the United States Department of Justice (DOJ),
Office of Juvenile Justice Delinquency Prevention (OJJDP), the
number of missing persons reported to law enforcement had
increased from 154,341 in 1982 to 876,213 in 2000, an increase
of 468 percent. Out of those cases, there are approximately
3,000 to 5,000 non-family abductions reported to police each
year, most of which are short term sexually-motivated cases.
About 200 to 300 of those cases, or about 6 percent, made up
the most serious cases where the child was murdered, ransomed
or taken with the intent to keep. According to Federal
Government statistics, three out of four children who are
kidnapped and murdered are killed within three hours of their
initial abduction. Research has shown that the average victim
of abduction and murder is an approximately 11-year-old girl
from a stable family who has initial contact with the abductor
within a quarter mile of her home.
H.R. 1104 authorized funding for a voluntary national AMBER
Alert program to help expand the child abduction communications
warning network throughout the United States. This legislation
further provided a 20-year mandatory minimum sentence of
imprisonment for stranger abductions of a child under the age
of 18, lifetime supervision for sex offenders, and mandatory
life imprisonment for second time offenders. Furthermore, H.R.
1104 removed any statute of limitations and any opportunity for
pretrial release for crimes of child abduction and sex
offenses.
Legislative History.--On March 11, 2003, the Subcommittee
held a legislative hearing on H.R. 1104, the ``Child Abduction
Prevention Act.'' The two witnesses who testified were: Daniel
P. Collins, Associate Deputy Attorney General, U.S. Department
of Justice; and Ernest E. Allen, President and Chief Executive
Officer, National Center for Missing and Exploited Children. On
March 11, 2003, the Subcommittee held a markup of H.R. 1104,
reporting it favorably to the Judiciary Committee. On March 27,
2003, the House of Representatives passed H.R. 1104 by a vote
of 410-14. The House amendment to the text of this bill was
inserted as a substitute text to the Senate bill and was passed
as S. 151, the ``Prosecuting Remedies and Tools Against the
Exploitation of Children Today (PROTECT) Act of 2003,'' which
became Public Law No. 108-21 on April 30, 2003.
S. 151, the ``Prosecuting Remedies and Tools Against the Exploitation
of Children Today (PROTECT) Act of 2003''
Summary.--Senate Orrin Hatch introduced S. 151 on January
13, 2003. The House amendment to the text of the bill struck
all of the Senate bill after the enacting clause and inserted a
substitute text using Chairman Sensenbrenner's legislation,
H.R. 1104, as the base bill.
As noted above, the PROTECT Act included several bills and
provisions, which were considered by the Judiciary Committee.
Among these are H.R. 1104, the ``Child Abduction Prevention
Act,'' which the House passed on March 27, 2003; H.R. 4623, the
``Child Obscenity and Pornography Prevention Act of 2002,''
which the House passed on June 25, 2002 and was included in
H.R. 1104; and H.R. 1161, the Child Obscenity and Pornography
Prevention Act of 2003.''
This legislation also included provisions from H.R. 4477,
the ``Sex Tourism Prohibition Improvement Act of 2002,'' which
the House passed (418-8) on June 26, 2002. This bill addressed
a number of problems related to persons who travel to foreign
countries and engage in illicit sexual relations with minors.
Before its passage, the Government had to prove that the
defendant traveled ``for the purpose'' of engaging in the
illegal activity. Under this bill, the government only has to
prove that the defendant engaged in illicit sexual conduct with
a minor while in a foreign country. This legislation also
criminalized the actions of sex tour operators by prohibiting
persons from arranging, inducing, procuring, or facilitating
the travel of a person knowing that such a person is traveling
in interstate or foreign commerce for the purpose of engaging
in illicit sexual conduct.
This bill also included H.R. 4658, the ``Truth in Domain
Names Act,'' which Representative Pence introduced on May 1,
2002. The Internet, at its best, is used to disseminate
information and provide educational materials to children.
However, websites have used legitimate-sounding domain names to
lure children into viewing pornographic materials. This
legislation addressed this problem by making it a crime to use
domain names that deliberately mislead minors into viewing
pornographic material.
S. 151 included provisions similar to H.R. 1877, the
``Child Sex Crimes Wiretapping Act of 2002, which the House
passed (396-11) on May 21, 2002. H.R. 1877 assists law
enforcement by authorizing the interception of wire, oral, or
electronic communications in the investigation of: the selling
and buying of a child for sexual exploitation; child
pornography; the coercion and enticement to engage in
prostitution or other illegal sexual activity; and the
transportation of minors to engage in prostitution or other
illegal sexual activity and travel with intent to engage in a
sexual act with a juvenile.
Additionally, the PROTECT Act provided strong support to
recover abducted children quickly and safely through a prompt
and effective public alert system. Such a system can be the
difference between life and death for that child. To accomplish
this, the bill codified the AMBER Alert program in place in the
Departments of Justice and Transportation and authorized
increased funding to help States deploy child abduction
communications warning networks. While our goal must always be
to prevent the abduction of a child before it occurs, our
communities must have effective and responsive AMBER Alert
systems to assist in the quick and safe return of a kidnapped
child.
This legislation doubled the authorized funding for the
National Center for Missing and Exploited Children, the
Nation's resource center for child protection, to $20 million
through 2005. The Center assists in the recovery of missing
children and raises public awareness about ways to protect
children from abduction, molestation, and sexual exploitation.
This legislation included provisions from H.R. 4679, the
``Lifetime Consequences for Sex Offenders Act of 2002,'' which
the House passed (409-3) on June 25, 2002. These provisions
allow federal judges to include, as part of any sentence of a
convicted sex offender, a term of supervised release for any
term of years or life. This legislation also provided a 20-year
mandatory minimum sentence of imprisonment for non-familial
abductions of a child under the age of 18 and mandatory life
imprisonment for second time offenders.\3\ The compromise
legislation restricted the opportunity for pretrial release for
crimes of child abduction and sex offenses and extends the
statute of limitations.
---------------------------------------------------------------------------
\3\ These provisions are similar to H.R. 2146, the ``Two Strikes
and You're Out Child Protection Act,'' which the House passed (382-34)
on March 14, 2002. This legislation amends the Federal criminal code to
provide for mandatory life imprisonment of a person convicted of a
Federal sex offense in which a minor is the victim, when that person
has previously been convicted of a state or Federal child sex offense.
---------------------------------------------------------------------------
Finally, this legislation included the ``Feeney
Amendment,'' which was adopted during floor consideration of
H.R. 1104 on March 27, 2003. Among other things, this amendment
placed strict limitson departures from federal sentencing
guidelines by allowing sentences outside the guideline range only upon
grounds specifically enumerated as proper for departure and required
courts to give specific and written reasons for any departure from
federal sentencing guidelines. It also amended sentencing guidelines
with regard to the penalties for possession of child pornography by
increasing penalties if the offense involved material that portrays
sadistic or masochistic conduct or other depictions of violence and by
increasing penalties based on the amount of child pornography involved
in the offense.
Legislative History.--On February 24, 2003, the Senate
passed S. 151, the ``PROTECT Act,'' by a vote of 84 to 0. The
bill was referred to the House Judiciary Committee on February
26 and to the Subcommittee on Crime, Terrorism, and Homeland
Security on March 6, 2003. On March 27, 2003, Chairman
Sensenbrenner insisted on House amendments and requested a
conference, agreed to without objection. The conference report
was filed on April 9, 2003.\4\ On April 10, 2003, both the
House and the Senate agreed to the conference report by votes
of 400-25 and 98-0, respectively. S. 151 became Public Law No.
108-21 on April 30, 2003.
---------------------------------------------------------------------------
\4\ H. Rep. No. 108-66 (2003).
---------------------------------------------------------------------------
H.R. 21, the ``Unlawful Internet Gambling Funding Prohibition Act''
Summary.--Congressman James Leach introduced H.R. 21, the
``Unlawful Internet Gambling Funding Prohibition Act'' on
January 7, 2003. It would provide State and Federal authorities
with the means to enforce current statutes and would clarify
that those statutes make gambling over the Internet illegal.
This bill would create a new crime--accepting financial
instruments, such as credit cards or electronic fund transfers,
for debts incurred in illegal Internet gambling. Because the
perpetrators of this activity are off-shore and beyond the
reach of U.S. law enforcement tactics, the bill would enable
State attorneys general and Federal enforcement authorities to
request that injunctions be issued against any party, including
financial institutions, Internet service providers, and
computer software providers, to assist in the prevention or
restraint of this crime. Finally, this bill would allow Federal
bank regulators to create rules requiring financial
institutions to use designated methods to block or filter
illegal Internet gambling transactions.
Legislative History.--On April 29, 2003, the Subcommittee
held a legislative hearing on H.R. 21. On May 6, 2003, the
Subcommittee held a markup of H.R. 21 and reported it favorably
to the Judiciary Committee. On May 22, 2003, the Committee
ordered H.R. 21 reported favorably as amended by a recorded
vote of 16 yeas to 15 nays. The bill was reported to the House
on May 22, 2003 (H. Rept. No. 108-051, Part II).
H.R. 1223, the ``Internet Gambling Licensing and Regulation Commission
Act''
Summary.--On March 12, 2003, Congressman John Conyers, Jr.
introduced H.R. 1223, the ``Internet Gambling Licensing and
Regulation Commission Act.'' As noted above, it is unclear that
using the Internet to operate a gambling business is illegal
under current Federal law. Accordingly, this bill would
establish the Internet Gambling Licensing and Regulation Study
Commission to conduct a comprehensive study of the existing
legal framework governing Internet gambling and the issues
involved with the licensing and regulation of Internet
gambling.
Legislative History.--H.R. 1223 was referred to the
Subcommittee and a legislative hearing was held on April 29,
2003. No further action was taken during the 108th Congress.
H.R. 1707, the ``Prison Rape Reduction Act of 2003''
Summary.--Representative Frank Wolf introduced H.R. 1707 on
April 9, 2003. This legislation made prevention of prison rape
a priority for Federal, State, and local institutions and
provided for the development of national standards for
detection, prevention, reduction, and punishment of prison
rape. It required State and local governments to work with the
Federal Bureau of Justice Statistics (BJS) to study the number
and effects of sexual assaults in correctional facilities and
to adopt and maintain compliance with the national standards
developed by the Attorney General. All sections of the bill
were intended to address the problem of inmates who are raped
while incarcerated in a correctional facility.
The original legislation mandated a study to determine the
number of incidents and effects of sexual assault in
correctional facilities and provide accurate data for the first
time on the number of incidents. The legislation as introduced
was controversial due to its grant funding scheme. For
institutions that complied with the Federal Government
standards and requests for information, it would have increased
the amount of all grant funding a State or local government
receives by 10 percent, at the expense of those States who do
not comply with such requests or adopt such standards.
Additionally, because this legislation required that the grant
funds designated must aggregate a minimum of $1 billion
(affecting approximately one-third of all grants at the Office
of Justice Programs), many different grants for many entities
that have no relationship to prisons might have been affected.
After introduction of the bill, a compromise was reached after
negotiation among various parties. A bipartisan substitute
amendment representing that compromise was then reported
favorably by the Subcommittee on Crime, Terrorism, and Homeland
Security.
The substitute amendment still requires a study on the
incidence and effects of sexual assault in correctional
facilities. But, the substitute no longer rewards States and
institutions who are invited to testify at the expense of other
States and institutions. Additionally, the grant program
provisions were revised in the substitute to specifically
target only those grant programs that award funds to State and
local prisons. The substitute requires States to adopt national
standards for the prevention and prosecution of prison rape.
States that do not adopt these standards can lose 5 percent of
prison funds unless they choose to redirect those funds to
become compliant with the national standards. The provisions of
this legislation, including both the reporting requirements and
the standards and protections developed by the Attorney
General, are intended to apply to all individuals detained in
the U.S. in both civil and criminal detentions.
Legislative History.--On April 9, 2003, the Subcommittee
held a legislative hearing on H.R. 1707. On June 12, 2003, the
Subcommittee held a markup of H.R. 1707 and ordered the bill
reported favorably with an amendment by voice vote. The
Judiciary Committee held a markup of H.R. 1707 on July 9, 2003,
ordering the bill reported as amended by voice vote. The bill
was reported as amended by the Judiciary Committee on July 18,
2003 (H. Rept. No. 108-219). This legislation was later
incorporated into S. 1435, the ``Prison Rape Elimination Act of
2003.'' S. 1435 passed the Senate on July 21, 2003 and the
House on July 25, 2003 and became Public Law No. 108-79 on
September 4, 2003.
H.R. 919, the ``Hometown Heroes Survivors Benefits Act of 2003''
Summary.--Congressman Bob Etheridge introduced H.R. 919,
the ``Hometown Heroes Survivors Benefits of 2003'' on February
26, 2003. Similar legislation, S. 459, was introduced and
passed in the Senate. Before its passage (as S. 459), current
law provided $250,000, indexed for inflation, to the survivors
of public safety officers such as police officers,
firefighters, and rescue squad officers who died ``as the
direct and proximate result of a personal injury sustained in
the line of duty.'' S. 459, the ``Hometown Heroes Survivor
Benefits Act of 2003,'' as introduced, provided that if a
public safety officer died as the direct and proximate result
of a heart attack or stroke suffered while on duty or within 24
hours after participating in a training exercise or responding
to an emergency situation, that officer was presumed to have
died as the direct and proximate result of a personal injury
sustained in the line of duty for purposesof that officer's
survivors receiving a death benefit.
The intent of H.R. 919 was to cover officers who suffered a
heart attack or stroke as a result of non-routine stressful or
strenuous physical activity; however, testimony at the
Subcommittee hearing indicated that the legislation as drafted
was overbroad. Witnesses testified that the legislation as
drafted would undermine the purpose of the Public Safety
Officer Benefits program, which was intended to provide a
benefit to heroes who gave their lives in the line of duty for
their communities. As drafted, it would cover officers who did
not engage in any physical activity but merely happened to
suffer a heart attack at work.
A compromise substitute amendment to S. 459 was offered by
Representative DeLay and passed with unanimous consent on the
House floor to address these concerns. The substitute amendment
creates a presumption that an officer who died as a direct and
proximate result of a heart attack or stroke died as a direct
and proximate result of a personal injury sustained in the line
of duty if:
(1) that officer participated in a training exercise
that involved non-routine stressful or strenuous
physical activity or responded to a situation and such
participation or response involved non-routine
stressful or strenuous physical law enforcement,
hazardous material response, emergency medical
services, prison security, fire suppression, rescue,
disaster relief, or other emergency response activity;
(2) that officer suffered a heart attack or stroke
while engaging or within 24 hours of engaging in that
physical activity; and
(3) such presumption cannot be overcome by competent
medical evidence.
For the purposes of this Act, the phrase ``non-routine
stressful or strenuous physical'' activity excludes actions of
a clerical, administrative, or non-manual nature. Such deaths,
while tragic, are not to be considered in the line of duty
deaths. Therefore, the families of officers who died of such
causes would not be eligible to receive public safety officers
benefits.
Legislative History.--Representative Bob Etheridge
previously introduced similar legislation, H.R. 5334, the
``Hometown Heroes Survivors Benefits Act of 2002,'' on
September 5, 2002. The House passed H.R. 5334 by unanimous
consent on November 15, 2002, but no action was taken by the
Senate during the 107th Congress. Representative Etheridge
reintroduced the bill as H.R. 919, and on June 26, 2003, the
Subcommittee held a legislative hearing on H.R. 919. Witnesses
who testified at the hearing were: Captain Brian Willison,
Chair, Wisconsin Law Enforcement Memorial, Inc.; Craig Floyd,
Chairman and Executive Director, National Law Enforcement
Memorial Fund, Inc.; and Mike Williams, Fire Rescue Training
Specialist, North Carolina Department of Insurance, Office of
the State Fire Marshal. H.R. 919 was incorporated into S. 459,
as an amendment in the nature of a substitute, and the bill as
amended passed the Senate without objection as the ``Hometown
Heroes Survivors Benefits Act of 2003,'' which became Public
Law No. 108-182 on December 15, 2003.
H.R. 2214, the ``Reduction in Distribution of Spam Act of 2003''
Summary.--Chairman Sensenbrenner, Mr. Burr, Mr. Tauzin, Mr.
Goodlatte, Mr. Upton, Ms. Hart, Mr. Stearns, and Mr. Cannon
introduced H.R. 2214 on May 22, 2003. The bill would amend
Title 18 of the U.S. Code to provide significant criminal
penalties and civil fines for the most egregious senders of
spam--those who intentionally falsify their identity and the
source of their messages; attack protected computers; harvest
the addresses of unsuspecting internet users; and send unwanted
sexually explicit materials.
Legislative History.--On July 8, 2003, the Subcommittee
held a legislative hearing on H.R. 2214, the ``Reduction in
Distribution of Spam Act of 2003.'' No further action was taken
on the bill.
H.R. 3214, the ``Advancing Justice Through DNA Technology Act of 2003''
Summary.--Chairman Sensenbrenner introduced H.R. 3214 on
October 1, 2003. H.R. 3214 addresses three interrelated
problems: the elimination of backlogs of DNA evidence that has
not been analyzed; the lack of training, equipment, technology,
and standards for handling DNA and other forensic evidence; and
the conviction of innocent persons.
Title I of the bill addressed DNA backlogs by reauthorizing
and expanding the ``DNA Analysis Backlog Elimination Act of
2000.'' It increased the authorized funding levels for the DNA
Analysis Backlog Elimination program to $151 million annually
for the next five years. Title II authorized funding for
training for law enforcement, correctional, court, and medical
personnel on the use of DNA evidence. Title II also authorized
grant programs to reduce other forensic science backlogs,
research new DNA technology, and promote the use of DNA
technology to identify missing persons. Title II provided funds
to the FBI for the administration of its DNA programs. Title
III established rules for post-conviction DNA testing of
Federal prison inmates and required the preservation of
biological evidence in Federal criminal cases while the
defendant remains incarcerated. Additionally, the legislation
provided incentive grants to States that adopt adequate
procedures for providing post-conviction DNA testing and
preserving biological evidence. Finally, it authorized funding
to help States provide competent legal services for both the
prosecution and the defense in death penalty cases and provided
funds for post-conviction DNA testing.
Legislative History.--The Subcommittee held an oversight
hearing on ``Advancing Justice through the Use of Forensic DNA
Technology'' on July 17, 2003. On October 8, 2003, the
Judiciary Committee held a markup of H.R. 3214, ordering the
bill reported as amended. On November 5, 2003, the House passed
H.R. 3214 by a vote of 357-67. The bill was later incorporated
into H.R. 5107, the ``Justice for All Act of 2004,'' which was
introduced by Chairman Sensenbrenner on September 21, 2004. The
Judiciary Committee held a markup of H.R. 5107 on September 22,
2004, reporting the bill favorably as amended by a voice vote
(H. Rept. No. 108-711). On October 6, 2004, H.R. 5107 passed
the House by a vote of 393-14 and the Senate on October 9,
2004, and was signed by the President on October 30, 2004
becoming Public Law No. 108-405.
H.R. 3266, the ``Faster and Smarter Funding for First Responders Act''
Summary.--Congressman Chris Cox introduced H.R. 3266, the
``Faster and Smarter Funding for First Responders Act of
2004,'' on October 8, 2003. H.R. 3266, the ``Faster and Smarter
Funding for First Responders Act of 2004,'' would improve the
effectiveness and efficiency with which the Department of
Homeland Security (``DHS'') issues grants to States, local
governments, and first responders to prevent, prepare for,
mitigate, and respond to terrorism.
H.R. 3266, the ``Faster and Smarter Funding for First
Responders Act of 2004,'' would change the criteria for
distributing funding for two existing grant programs managed by
the Office for Domestic Preparedness (``ODP''). Since 1998,
ODP, as part of the Department of Homeland Security and
previously as part of the Department of Justice, has had the
mission of enhancing State and local capabilities for
responding to terrorists using weapons of mass destruction
(``WMD''). One of the two grant programs is the State Homeland
Security grant program, which the Committee on the Judiciary
authorized in the USA PATRIOT Act after the September 11, 2001
terrorist attacks. The other grant program is the Urban Area
Security Initiative grant program, which was established in
fiscal year 2003.The bill was introduced to improve the
management of these grants because of numerous complaints from State
and local governments and first responder organizations that the money
was not being distributed effectively or efficiently.
H.R. 3266, as introduced, would authorize the DHS to
consolidate the State Homeland Security and the Urban Area
Security Initiative grant programs and replace the minimum
formula and population based distribution with a funding
distribution based on: (1) the degree to which applications
would lessen the threats, vulnerabilities, and consequences of
a terrorist attack; and (2) the degree to which applications
demonstrate a valid need for such funding. The bill also
directs the Secretary of DHS to establish ``essential
capabilities'' that different types of communities should
obtain to prepare for potential terrorist acts, and directs
grant assistance to be utilized to build these essential
capabilities in a measurable fashion. Under the bill, the
States must disburse the grant money to local governments
within 45 days of receiving the funds. The bill would increase
total funding in fiscal year 2006 to $3.4 billion and would
expand the suggested list of activities covered by the grants
to include covering the costs of additional personnel during
heightened threat alerts and training activities. Another
change would allow the Department to transfer funds directly to
local recipients.
Finally, the security of Indian reservations and tribal
lands against acts of terrorism must be considered by DHS and
the States as part of their overall goal of protecting the
American homeland against terrorism. The DHS must also consider
security of the territories against acts of terrorism. H.R.
3266 as amended by the Committee on the Judiciary would ensure
such coverage. Similar to current law, the amended bill
provides a base level of funding for the territories. Puerto
Rico and the District of Columbia are treated as States. Indian
Tribes are treated as described below. Section 1804, as
amended, would establish a program to permit twenty ``directly
eligible Tribes'' or consortia of tribes to receive covered
grants from DHS. This program parallels that established for
regions; it requires directly eligible Tribes to designate a
liaison, to submit simultaneously its application to both DHS
and to each State within the boundaries of which any part of
that tribe is located and to submit an application consistent
with any applicable State homeland security plan or plans. The
Committee, however, recognized that the vast majority of Indian
Tribes will not be eligible to receive direct grant funding. As
a consequence, the Committee expected the States to treat
Indian Tribes fairly in the grant process.
Legislative History.--On November 20, 2003, the
Subcommittee held a legislative hearing on H.R. 3266, the
``Faster and Smarter Funding for First Responders Act of
2004.'' On June 16, 2004, the Judiciary Committee held a
legislative markup of H.R. 3266, ordering the bill reported
favorably as amended. On June 21, 2004, the bill was reported
to the House (H. Rept. No. 108-460, Part IV). There was no
further action taken on this bill. However, a version of the
bill was included in the intelligence reform bill, S. 2845,
which became Public Law No. 108-458.
H.R. 3158, the ``Preparing America to Respond Effectively Act of 2003''
or the ``Prepare Act''
Summary.--Congressman Jim Turner introduced H.R. 3158 on
September 24, 2003. This bill would create a task force on
standards for terrorism preparedness. The task force would
conduct a study to identify the essential capabilities needed
by every State and local government and determine the extent to
which a State or local government has achieved or failed to
achieve these essential capabilities, among other things. The
bill would also create a grant program to address the State's
need to meet these essential capabilities. This bill would
authorize ODP to administer all terrorism preparedness and
response grant programs. This bill was referred to the Select
Committee on Homeland Security and the Committees on Judiciary,
Transportation and Infrastructure, and Energy and Commerce.
Legislative History.--The Subcommittee held a legislative
hearing on H.R. 3158 on November 20, 2003. No further action
was taken during the 108th Congress.
H.R. 2512, the ``First Responders Funding Reform Act of 2003''
Summary.--Congressman John E. Sweeney introduced H.R. 2512
on June 18, 2003. This bill would amend the USA PATRIOT Act to
change the formula the Office for Domestic Preparedness uses to
provide domestic preparedness grants. Section 1014 of the
PATRIOT Act (Public Law No. 107-56) authorized the formula used
to distribute funds in the FY 04 Homeland Security Grant
Program application kit. The allocations were determined using
a base amount of .75 percent of the total allocation for the
States (including the District of Columbia and the Commonwealth
of Puerto Rico), and .25 percent of the total allocation for
the U.S. Territories (American Samoa, the Commonwealth of the
Northern Mariana Islands, Guam, and the U.S. Virgin Islands),
with the balance of funds being distributed on a population-
share basis. ODP used 2002 U.S. Bureau of the Census data to
determine population figures. H.R. 2512 would lower the fixed
amount each State receives from the current 0.75 percent to 0.5
percent of the total amount appropriated for domestic
preparedness grants and would require that each grant be based
upon a risk assessment for threat, vulnerability, and
consequence. The bill would also require the Office for
Domestic Preparedness to submit an assessment to Congress by
March 1 of each year.
Legislative History.--On November 20, 2003, the
Subcommittee held a legislative oversight hearing, entitled
``Homeland Security--the Balance Between Crisis and Consequence
Management Through Training and Assistance,'' which included
discussion of H.R. 2512.
H.R. 3866, the ``Anabolic Steroid Control Act of 2004''
Summary.--Chairman F. James Sensenbrenner, Jr. along with
Representatives Conyers, Sweeney, Osborne, and Berman,
introduced H.R. 3866 on March 1, 2004. H.R. 3866, the
``Anabolic Steroid Control Act of 2004,'' helps to prevent the
abuse of steroids by professional athletes. It also addresses
the widespread use of steroids and steroid precursors by
college, high school, and even middle school students.
Steroid use has been banned in the United States since the
passage of the ``Anabolic Steroids Control Act of 1990.'' This
legislation adds several new substances to the list of banned
substances and provides increased penalties (up to twice the
current maximum term of imprisonment, maximum fine, or maximum
term of supervised release) for any individual who traffics in
steroids within 1,000 feet of an athletic facility.
The Subcommittee amended this legislation to include a
requirement that the Department of Health and Human Services
and the Department of Justice report to the House and Senate
Committees on the Judiciary within two years regarding the need
to add additional dangerous substances to the list.
H.R. 3866 served as the House counterpart to S. 2195,
introduced by Senators Biden and Hatch. Both bills were
endorsed by a broad cross-section of groups representing the
medical and sports communities, including the National Football
League, Major League Baseball, the U.S. Anti-Doping Agency, the
American Medical Association, and the Major League Baseball
Players Association. The Major League Baseball Players
Association has stated, ``* * * if Congress chooses to expand
the definition of Schedule III anabolic steroids in order to
cover certain steroid precursors, we would not only support
such a decision but also would automatically expand our testing
program, jointly administered with the clubs, to cover such
substances.''
Legislative History.--On March 16, 2004, the Subcommittee
held a legislative hearing on H.R. 3866, the``Anabolic Steroid
Control Act of 2004.'' On March 30, 2004, the Subcommittee held a
markup of the legislation and ordered it reported favorably, as amended
by voice vote, to the Judiciary Committee. On March 31, 2004, the
Judiciary Committee held a markup of H.R. 3866, ordering it reported
favorably, as amended by voice vote, to the House (H. Rept. No. 108-
461, Part I). The House passed the bill under suspension of the rules
on June 3, 2004, by a vote of 408-3. On October 6, 2004, the Senate
passed S. 2195 with an amendment by unanimous consent. The bill was
then referred to the House and passed by unanimous consent on October
8, 2004 and became Public Law No. 108-358.
H.R. 1731, the ``Identity Theft Penalty Enhancement Act''
Summary.--Congressman John Carter introduced H.R. 1731 on
April 10, 2003. H.R. 1731, the ``Identity Theft Penalty
Enhancement Act,'' addresses the growing problem of identity
theft. Previously, under 18 U.S.C. Sec. 1028, many identity
thieves received short terms of imprisonment or probation;
after their release, many of these thieves would go on to use
false identities to commit much more serious crimes. H.R. 1731
provides enhanced penalties for persons who steal identities to
commit immigration violations, firearms offenses, and other
serious crimes. The bill also amends current law to impose a
higher maximum penalty for identity theft used to facilitate
acts of terrorism.
Amendments to this legislation were adopted both at
Subcommittee and full Committee and incorporated into the
version of the bill the Committee ordered reported. The
Subcommittee adopted an amendment to allow the aggravated
identity theft penalties to be applied to individuals who used
fraudulent identities, in addition to those who used the
identities of other persons, to commit a terrorist offense. The
full Committee adopted two amendments. The first amendment
added several Social Security fraud crimes and theft or
embezzlement by a bank officer or employee to the list of
crimes for which the enhanced penalties may be applied.
Additionally, this amendment clarified that a crime involving
more than one incident could be aggregated for purposes of
determining the penalties. It also included a directive to the
United States Sentencing Commission to require that the Federal
Sentencing Guideline, ``Abuse of Position of Trust or Use of
Special Skill,'' be amended to apply to employees or directors
who use access to information at their place of business to
commit identity theft or fraud. This amendment helps to address
the problem of insiders who use their employment position to
commit fraud or help others commit fraud. It allows judges to
apply additional penalties to these individuals under the
sentencing guidelines.
The second amendment adopted by the Committee authorized $2
million per year for 5 years for the Department of Justice to
investigate and prosecute identity theft and identity fraud
cases. Significantly, the Committee rejected amendments which
would have removed the mandatory consecutive sentences from the
bill.
Legislative History.--The Subcommittee held a legislative
hearing on H.R. 1731 on March 23, 2004. On March 30, 2004, the
Subcommittee conducted a markup of the legislation and ordered
it reported favorably to the Judiciary Committee, as amended by
voice vote. On May 12, 2004, the Judiciary Committee held a
markup of H.R. 1731, reporting it to the House as amended by
voice vote. On June 23, 2004, H.R. 1731 passed the House by a
voice vote under suspension of the rules, and on June 25, 2004,
it passed the Senate by unanimous consent. The President signed
the bill on July 15, 2004, and it became Public Law No. 108-
275.
H.R. 3693, the ``Identity Theft Investigation and Prosecution Act of
2003''
Summary.--Congressman Robert Scott introduced H.R. 3693 on
December 8, 2003. This bill proposes additional steps Congress
can take to minimize the threat of identity theft to the
individual, American companies, and the security of our
country. H.R. 3693 would provide $100 million to the Department
of Justice to investigate and prosecute identity theft crimes.
Legislative History.--The Subcommittee held a legislative
hearing on H.R. 3693 on March 23, 2004. This funding was
reduced to $10 million over five years and incorporated into
H.R. 1731 as passed. No further action was taken on the bill,
but a version of it was incorporated into H.R. 1731.
S. 1743, the ``Private Security Employment Authorization Act of 2003''
Summary.--Senator Carl Levin introduced S. 1743 on October
16, 2003. This bill addressed the security officer industry's
unique need for criminal history background checks on employees
and prospective employees. This bill would authorize private
security companies access to criminal history records. This
would prevent companies from hiring individuals who have
criminal histories that make them unsuitable for employment
guarding critical infrastructures or other sensitive
assignments.
Legislative History.--On March 30, 2004, the Subcommittee
held a legislative hearing on S. 1743. Provisions of this
legislation was incorporated into S. 2845, the ``National
Intelligence Reform Act of 2004,'' which became Public Law No.
108-458. The President signed it on December 17, 2004.
S. 1301, the ``Video Voyeurism Prevention Act of 2004''
Summary.--Senator Michael DeWine introduced S. 1301 on June
19, 2003. S. 1301, the ``Video Voyeurism Prevention Act of
2003,'' would amend the Federal Criminal Code to prohibit a
person, in the special maritime and territorial jurisdiction of
the United States, from intentionally capturing an image of a
private area of an individual without that individual's consent
and the person capturing the image knowingly does so under
circumstances in which the individual has a reasonable
expectation of privacy.
S. 1301 would criminalize the act of ``video voyeurism'' on
Federal land, such as national parks or Federal buildings,
using the well-accepted legal concept that individuals are
entitled to a reasonable expectation of privacy. This crime is
now punishable by a fine of not more than $100,000 or
imprisonment for up to 1 year, or both. S. 1301, the ``Video
Voyeurs Prevention Act of 2003,'' is similar in substance to
H.R. 2405, the ``Video Voyeurism Prevention Act,'' introduced
by Representatives Oxley, Gonzalez, Goode, and Baird.
Legislative History.--The Subcommittee held a legislative
hearing and markup of S. 1301 on March 30, 2004, ordering the
bill reported favorably to the Judiciary Committee. On May 12,
2004, the Judiciary Committee held a markup and ordered the
bill reported favorably as amended by voice vote, and on May
20, the bill was reported to the House (H. Rept. 108-504). On
September 21, 2004, the bill was considered under suspension of
the rules and was agreed to, as amended, by a voice vote.
Likewise, the Senate amended the bill and passed it under
unanimous consent on September 25. On November 18, 2004, the
House sent to the Senate an amendment to the Senate bill. The
Senate agreed to the House amendment by unanimous consent on
December 7, 2004.
H.R. 1678, the ``Anti-Hoax Terrorism Act of 2004''
Summary.--Congressman Lamar S. Smith introduced H.R. 1678
on April 8, 2003. H.R. 1678, the ``Anti-Hoax Terrorism Act of
2003,'' creates criminal and civil penalties for whoever
knowingly engages in any conduct, with intent to convey false
or misleading information, under circumstances where such
information may reasonably be believed and where such
information concerns an activity which would constitute a
violation of such crimes as those relating to explosives;
firearms; destruction of vessels; terrorism; sabotage of
nuclear facilities; aircraft piracy; a dangerous weapon to
assault flight crew members and attendants; explosives on an
aircraft; homicide or attempted homicide or damaging
ordestroying facilities. The bill also prohibits making a false
statement with intent to convey false or misleading information about
the death, injury, capture, or disappearance of a member of the U.S.
Armed Forces during a war or armed conflict in which the United States
is engaged. Additionally, the bill increases penalties from not more
than 5 years to not more than 10 years for making false statements, and
obstructing justice, if the subject matter relates to international or
domestic terrorism.
H.R. 1678 grows out of H.R. 3209, the ``Anti-Hoax Terrorism
Act of 2001,'' which passed the House in the 107th Congress on
December 12, 2001, by a recorded vote of 423 yeas to 0 nays. No
further action was taken on the bill during the 107th Congress.
Legislative History.--The Subcommittee held a legislative
hearing on H.R. 1678 on July 10, 2003. On March 30, 2004, the
Subcommittee held a markup and ordered the bill reported
favorably to the Judiciary Committee as amended by voice vote.
On May 12, 2004, the Judiciary Committee held a legislative
markup, ordering the bill reported favorably as amended by
voice vote, and on May 20, 2004, the bill was reported to the
House (H. Rept. No. 108-505). This bill was included in the
conference report of S. 2845, the ``National Intelligence
Reform Act,'' which was agreed to by the House on December 7,
2004 and by the Senate on December 8, 2004. The President
signed it on December 17, 2004, and it became Public Law No.
108-458.
H.R. 2934, the ``Terrorist Penalties Enhancement Act of 2004''
Summary.--Congressman John R. Carter introduced H.R. 2934
on July 25, 2003. H.R. 2934 would provide for increased
penalties, including up to life in prison or death, for
terrorist offenses that result in the death of another person.
H.R. 2934 would also provide that any person convicted of a
``Federal crime of terrorism'' is ineligible to receive any
benefits from the Federal Government for any term of years or
for life.
Despite some changes to the law to increase penalties after
the deadly terrorist attacks, a jury still cannot consider a
sentence of death or life imprisonment for terrorists in many
cases even when the attack resulted in death. For example, in a
case in which a terrorist caused massive loss of life by
sabotaging a national defense installation, sabotaging a
nuclear facility, or destroying an energy facility, there would
be no possibility of imposing the death penalty under the
statutes defining these offenses because they contain no death
penalty authorizations. In contrast, dozens of other Federal
violent crime provisions authorize up to life imprisonment or
the death penalty in cases where victims are killed. There are
also cross-cutting provisions which authorize these sanctions
for specified classes of offenses whenever death results, such
as 18 U.S.C. Sec. 2245, which provides that a person who, in
the course of a sexual abuse offense, ``engages in conduct that
results in the death of a person, shall be punished by death or
imprisoned for any term of years or for life.''
Current law allows Federal courts to deny Federal benefits
to persons who have been convicted of drug-trafficking or drug-
possession crimes. 21 U.S.C. Sec. 862. As a result, these
convicts can be prohibited, for periods of up to life, from
receiving grants, contracts, loans, professional licenses, or
commercial licenses that are provided by a Federal agency or
out of appropriated funds. This legislation provides the same
authority for terrorism offenses.
Legislative History.--The Subcommittee held a legislative
hearing and markup of H.R. 2934 on April 21, 2004, ordering the
bill reported favorably to the Judiciary Committee. On June 23,
2004, the Judiciary Committee held a legislative markup,
reporting the bill favorably as amended by voice vote to the
House (H. Rept. No. 108-588). H.R. 2934 was originally include
in H.R. 10, the ``9/11 Recommendations Implementation Act,''
but was removed in conference. No further action was taken
during the 108th Congress.
H.R. 3179, the ``Anti-Terrorism Intelligence Tools Improvement Act of
2003''
Summary.--Chairman Sensenbrenner introduced H.R. 3179 on
September 25, 2003. The bill would strengthen the existing
prohibition against disclosing an FBI request for information
related to a counterterrorism or a foreign counterintelligence
investigation using a National Security Letter (NSL). The bill
would also enhance compliance with an NSL request through
judicial enforcement. An NSL is an administrative subpoena used
in investigations of international terrorism or clandestine
intelligence activities. An administrative subpoena is an
investigative tool that allows a Federal agency to request
document production or testimony without prior approval from a
grand jury, court, or other judicial entity. An NSL cannot be
used for a criminal investigation unrelated to international
terrorism or clandestine intelligence activities.
Additionally, this legislation included a provision that
changed the Foreign Intelligence Surveillance Act's (FISA)
definition of ``agent of foreign power'' to cover non-U.S.
persons who are engaged in international terrorism but who are
not specifically affiliated with an international terrorist
group. A modified version of this provision was adopted in S.
2845, the ``National Intelligence Reform Act of 2004.'' H.R.
3179 would also amend section 4 of the Classified Information
Procedures Act (CIPA) to provide the Department of Justice the
discretion to make a request to a court to delete classified
information in documents made available to a defendant, to
substitute a summary of the classified information, or to
substitute a statement admitting relevant facts. H.R. 3179
would not change the court's discretion to grant or deny this
request. Finally, the bill would amend FISA to provide that
while the prosecution has to disclose information in
immigration proceedings, the government would no longer have to
point out that the information was collected under FISA.
Legislative History.--The Subcommittee held a legislative
hearing on H.R. 3179 on May 18, 2004. No further action was
taken on the bill, but portions of the bill were included in S.
2845, the Intelligence Reform bill, which became Public Law No.
108-458.
H.R. 218, the ``Law Enforcement Officers Safety Act of 2004''
Summary.--Congressman Randy (Duke) Cunningham introduced
H.R. 218 on January 7, 2003. A State has traditionally, in the
exercise of its sovereignty, controlled who within its borders
may carry concealed weapons and when law enforcement officers
may carry firearms.
Before its passage, the law allowed individual States to
decide whether or not they wished to allow out-of-State
officers to carry a concealed weapon within that State's
borders. The law also allowed active, but not retired, Federal
law enforcement officers to carry a concealed weapon anywhere
within the jurisdiction of the United States; however, it did
not allow active and retired State and local law enforcement
officers to carry a concealed weapon without the permission of
each specific State. H.R. 218, the ``Law Enforcement Officers
Safety Act of 2003,'' overrides State laws to allow current and
retired police officers to carry a concealed weapon in any of
the 50 States.
Legislative History.--The Subcommittee held a legislative
hearing on H.R. 218 on June 15, 2004. On June 15, 2004, the
Subcommittee held a markup of H.R. 218, ordering the bill
reported favorably. On June 23, 2004, the Judiciary Committee
ordered the bill reported favorably to the House by a recorded
vote of 23 yeas to 9 nays (H. Rept. No. 108-560). On June 23,
2004, H.R. 218 passed the House by a voice vote under
suspension of the rules, and on July 7, 2004, the bill passed
the Senate by unanimous consent without amendment. The
President signed the bill on July 22, 2004, and it became
Public Law No. 108-277.
S. 1194, the ``Mentally Ill Offender Treatment and Crime Reduction Act
of 2004''
Summary.--Senator Mike Dewine introduced S. 1194 on June 5,
2003. S. 1194, the ``Mentally Ill Offender Treatment and Crime
Reduction Act of 2004,'' creates a grant program to encourage
State and local governments to improve their treatment of
mentally ill offenders. The grants can be used: to fund mental
health courts or diversion programs; to promote cooperation
between the criminal justice and mental health personnel; or to
train criminal justice and mental health personnel on issues
relating to mentally ill offenders.
During a markup, the Committee adopted an amendment in the
nature of a substitute that ensures an appropriate role for
victims and law enforcement personnel in dealing with mentally
ill offenders, encourages graduated sanctions, limits the
amount of authorizations, and encourages continued monitoring
of mentally ill offenders after release.
Legislative History.--On June 22, 2004, the Subcommittee
held a legislative hearing on S. 1194, and on September 23,
2004, the Subcommittee held a markup, ordering the bill
reported favorably to the Judiciary Committee as amended by a
voice vote. On September 30, 2004, the Judiciary Committee held
a markup of S. 1194, and the bill was reported to the House as
amended on October 5, 2004 (H. Rept. No. 108-732). On October
6, 2004, the bill, as amended, passed the House by a voice vote
under suspension of the rules. The Senate agreed to the House
amendment and passed the bill by unanimous consent on October
11, 2004. On October 30, 2004, the President signed the bill,
making it Public Law No. 108-414.
H.R. 4547, the ``Defending America's Most Vulnerable: Safe Access to
Drug Treatment and Child Protection Act of 2004''
Summary.--Chairman Sensenbrenner introduced H.R. 4547 on
June 14, 2004. This bill would amend the Controlled Substance
Act to protect vulnerable persons, including recovering addicts
and children, from drug traffickers.
This legislation is intended to penalize those who
victimize the most vulnerable of our citizens. It would:
increase mandatory minimum sentences under existing laws and
expand protected drug-free zones to include drug treatment
centers, day-care centers, and libraries; direct sentencing
enhancements for exposing children and incompetent persons to
drug trafficking activities and firearms; and assure
progressive sentencing enhancements for possessing and using
firearms.
Legislative History.--On July 6, 2004, the Subcommittee
held a hearing on H.R. 4547. On September 23, 2004, the
Subcommittee held a markup of H.R. 4547, ordering the bill
reported favorably, as amended by voice vote, to the Judiciary
Committee.
Oversight Activities
List of oversight hearings
Reauthorization of the United States Department of Justice--
Part I: Criminal Law Enforcement: Bureau of
Alcohol, Tobacco, Firearms, and Explosives; Federal
Bureau of Investigation; and Drug Enforcement
Administration, May 6, 2003 (Serial No. 43).
Reauthorization of the United States Department of Justice--
Part II: Criminal Law Enforcement: Bureau of
Prisons, Office of Justice Programs, U.S. Marshals
Service, and Criminal Division, May 14, 2003
(Serial No. 43).
Advancing Justice through Forensic DNA Technology, July 17,
2003 (Serial No. 46).
Terrorist Threat Integration Center (TTIC) and its relationship
with the Departments of Justice and Homeland
Security, July 22, 2003 (Serial No. 64). (This was
a full Committee hearing but was facilitated by the
Subcommittee and held jointly with the Select
Committee on Homeland Security).
Law Enforcement Efforts Within the Department of Homeland
Security, February 3, 2004 (Serial No. 83).
Process of Consolidating Terrorist Watchlists--The Terrorist
Screening Center (TSC), March 25, 2004 (Serial No.
86). (Held jointly with the Subcommittee on
Intelligence and Counterterrorism of the Select
Committee on Homeland Security).
Recommendations of the 9/11 Commission, August 23, 2004 (Serial
No. 115)
Federal Offender Reentry and Protecting Children from Criminal
Recidivists, October 7, 2004 (Serial No. 116)
Oversight issues
Law enforcement issues generally
As part of its oversight responsibilities, the Subcommittee
monitors the Justice Department's state and local law
enforcement grants programs; examines the efficiency and
effectiveness of the various law enforcement training programs
by the Departments of Justice and Homeland Security; and
examines the policies, procedures, and incentives for local
police organizations to ensure (1) that incidents of misconduct
will be minimized, and (2) that allegations of misconduct are
investigated and prosecuted appropriately.
Since 9/11, the Subcommittee on Crime, Terrorism, and
Homeland Security has held thirty-four hearings on law
enforcement matters. Among the most important of these are
hearings entitled: ``Law Enforcement Efforts Within the
Department of Homeland Security;'' ``Homeland Security--the
Balance Between Crisis and Consequence Management through
Training and Assistance (Review of Legislative Proposals;''
``Terrorism and War-Time Hoaxes;'' ``The Proposal to Create a
Department of Homeland Security;'' ``The Risk to Homeland
Security From Identity Fraud and Identity Theft;'' the
``Antiterrorism Explosives Act of 2002;'' the ``Homeland
Security Information Sharing Act;'' the ``Cyber Security
Enhancement Act;'' ``Implementation Legislation for the
International Convention for the Suppression of Terrorist
Bombings and the International Convention for the Suppression
of the Financing of Terrorism;'' and the ``Anti-Hoax Terrorism
Act of 2001.''
In addition to these hearings, the Crime Subcommittee, in
the spirit of cooperation, has held a joint hearing with the
Select Committee on Homeland Security on the Terrorism Threat
Integration Center (``TTIC''); jointly sent letters with post-
hearing questions to the relevant agencies on the
implementation of TTIC; and conducted a joint hearing on the
integration of terrorism watchlists at the Terrorism Screening
Center.
In the law enforcement and law enforcement training area,
the Crime Subcommittee held a joint hearing with a subcommittee
of the Select Committee on Homeland Security on consolidating
terrorist watch lists. The Subcommittee held a hearing and
markup on H.R. 2934, a bill to expand the death penalty to
additional acts of terrorism. The full committee reported that
bill on June 23, 2004. The Subcommittee held a hearing on H.R.
3179, a bill to enhance law enforcement powers in stopping
terrorism. The Subcommittee worked closely with the Select
Committee on Homeland Security on H.R. 3266, a bill to improve
grants to first responders, which the full committee reported
on June 16, 2004. A version of H.R. 3266 was included in the
National Intelligence Reform Act which became Public Law No.
108-458. Additionally, the Subcommittee held an oversight
hearing on October 7, 2004, regarding federal offender reentry
and how to protect children from criminal recidivists. The
Committee is working closely with the Select Committee on yet
to be introduced legislation to reauthorize theDepartment of
Homeland Security.
Finally, Subcommittee staff conducted continuous oversight
of the Justice Department's Office of Justice Programs (OJP).
As part of a continuing effort to reform the Office of Justice
Programs, staff met with OJP in April of 2003 to review its
reorganization. In addition, staff requested that GAO conduct
several studies, including studies to evaluate drug court
programs; the National Criminal History Improvement Program
(NCHIP); the National Institute of Justice's operations and
research; and the Justice Department's Weed and Seed program.
The combination of the Subcommittee's oversight and review of
these GAO studies were instrumental in determining what
legislative fixes were to be included in the DoJ
Reauthorization bill.
Missing firearms
In the 107th Congress, the Inspector General for the
Department of Justice reported that a number of Justice
Department agencies could not account for hundreds of firearms
supposed to be in their possession. Based on this information,
the Committee on Judiciary began an oversight review of the
practices to inventory and secure firearms at all Federal
Departments and agencies with law enforcement authorities and
personnel.
As part of this oversight the House Committee on the
Judiciary requested the General Accounting Office (GAO), the
independent research arm of the Congress, on July 30, 2001,
review ``the internal controls for weapons in the possession of
the law enforcement agencies with the Executive Branch of the
[F]ederal [G]overnment.''
The GAO study was released in June of 2003 and indicates
that agencies have implemented, or are in the process of
implementing actions, to strengthen their firearms controls.
GAO found that all 18 of the federal agencies they reviewed had
policies and procedures designed to control and safeguard
firearms. The agencies, according to GAO, should strengthen
these controls in areas that are important for effective
inventory management such as recording and tracking firearms
inventory data.
Implementation of the USA PATRIOT Act
Section 1001 of the PATRIOT Act requires the Department of
Justice to report to the House and Senate Committees on the
Judiciary on a semi-annual basis on any complaints of civil
liberties abuses by the Department of Justice. In accordance
with Section 1001, the Department of Justice sent the House and
Senate Judiciary Committees, four reports entitled, ``Report to
Congress on the Implementation of Section 1001 of the USA
PATRIOT Act.'' The first report was sent on July 15, 2002; the
second on January 22, 2003; the third on July 17, 2003; and the
fourth on January 27, 2004.
On April 1, 2003, Chairman Sensenbrenner and Ranking
Minority Member Conyers sent a letter to the Department of
Justice with additional questions regarding the use of pre-
existing authorities and the new authorities conferred by the
PATRIOT Act.\5\ The questions were the product of bipartisan
coordination by Committee staff. Acting Assistant Attorney
General Jamie E. Brown responded with a letter on May 13, 2003,
answering the questions she deemed relevant to the Department
of Justice and forwarding the remaining questions to the
appropriate officials at the Department of Homeland Security.
On June 13, 2003, the Assistant Secretary for Legislative
Affairs at the Department of Homeland Security, Pamela J.
Turner, sent responses to the forwarded questions Chairman
Sensenbrenner and Ranking Minority Member Conyers. These items
were the subject of extensive press coverage. On May 20, 2003,
Chairman Sensenbrenner and Ranking Minority Member Conyers
released statements regarding the Department of Justice's
response to questions concerning oversight and civil liberties
issues. Additionally, Chairman Sensenbrenner threatened to
subpoena Attorney General Ashcroft if the Committee did not
receive responses to its questions.
---------------------------------------------------------------------------
\5\ These questions were in addition to those sent to the
Department of Justice during the 107th Congress.
---------------------------------------------------------------------------
The House Judiciary Committee also held hearings as part of
its ongoing oversight efforts. On May 20, 2003, the Committee's
Subcommittee on the Constitution held an oversight hearing
entitled, ``Anti-Terrorism Investigations and the Fourth
Amendment After September 11th: Where and When Can Government
Go to Prevent Terrorist Attacks?'' Then, on June 5, 2003, the
Attorney General testified before the Committee at an oversight
hearing on the United States Department of Justice. Both the
hearing on May 20th and the hearing on June 5th discussed
oversight aspects of the PATRIOT Act.
Further, the Subcommittee on Crime, Terrorism, and Homeland
Security requested that officials from the Department of
Justice appear and answer questions regarding the
implementation of the PATRIOT Act. In response to our request,
the Department of Justice gave two separate briefings to
Members and Staff. During the briefing held on August 7, 2003,
Department officials covered the long-standing authority for
law enforcement to conduct delayed searches and collect
business records, as well as the effect of the PATRIOT Act on
those authorities. During the second briefing, held on February
3, 2004, the Department of Justice discussed its views of S.
1709, the ``Security and Freedom Ensured (SAFE) Act of 2003''
and H.R. 3352, the House companion bill, as both bills propose
changes to the PATRIOT Act. All Members' offices were invited
to these briefings.
On November 20, 2003, Chairman Sensenbrenner and
Congressman Hostettler, Chairman of the Subcommittee on
Immigration, Border Security, and Claims, sent a letter to the
Comptroller General requesting a GAO study of the
implementation of the PATRIOT Act anti-money laundering
provisions. The Committee has not yet received this report.
Staff for the Subcommittee on Crime, Terrorism, and
Homeland Security continually monitored concerns expressed by
Members' offices regarding the implementation of the PATRIOT
Act, as well as matters reported in the press. Counsel
maintained regular contact with officials in the Departments of
Justice and Homeland Security and received periodic briefings.
As an example, on June 10, 2003 and October 29, 2003, staff
received briefings by the Department of Justice on the Foreign
Intelligence Surveillance Act (FISA). The staff also met with
various civil liberty groups, such as the American Civil
Liberty Union, the Center for Democracy and Technology, the
Library Association, and the American Conservative Union. The
staff also regularly communicated with representatives of these
groups over the phone or through email.
Metropolitan Detention Center (MDC)
In the first 11 months after the 9/11 attacks, 672 illegal
aliens were detained in connection with the FBI terrorism
investigations for various immigration offenses. Eighty-four of
those aliens were confined at Federal Bureau of Prisons (BOP)
Metropolitan Detention Center (MDC) in Brooklyn, NY. Chairman
Sensenbrenner visited MDC in July 2003.
Section 1001 of the USA PATRIOT Act requires the DoJ's
Inspector General to provide for the review of information and
receipt of complaints alleging abuses of civil rights and civil
liberties by employees of the DoJ and also requires that the IG
submit a report to the Committee on the implementation of this
provision. Accordingly, in October of 2001, the Bureau of
Prisons (BOP) Office of Internal Affairs referred to the
Department of Justice (DoJ) Office of the Inspector General
(OIG) several allegations of physical abuse at the (BOP)
Metropolitan Detention Center (MDC) in Brooklyn, NY. The OIG
New York Field Office initiated a criminal investigation and
consulted with prosecutorsfrom the Civil Rights Division of the
DoJ and with the United States Attorney's Office for the Eastern
District of New York. The Civil Rights Division assigned some
additional allegations to the FBI for investigation and the OIG
referred several allegations to the BOP Office of Internal Affairs (BOP
OIA) for investigation.
On September 25, 2002, the Civil Rights Division and the
United States Attorney's Office declined criminal prosecution
of the MDC staff who were the focus of the OIG's New York Field
Office. The OIG continued its investigation to determine if
disciplinary or other administrative actions were warranted.
The allegations of detainee abuse assigned to the FBI and the
BOP OIA were considered but declined for criminal prosecution
and as a result the OIG took over all of these cases and issued
a report on June 2, 2003, entitled ``The September 11
Detainees: A Review of the Treatment of Aliens Held on
Immigration Charges in Connection with the Investigation of the
September 11 Attacks.'' In the June 2, 2003 report, the OIG
stated that while it had not completed its investigation, the
OIG found that some detainees had been physically and mentally
abused. The 47-page follow-up report discusses the evidence of
abuse, describes several issues related to systemic treatment
of the detainees, and offers recommendations.
In December 2003, the Office of the Inspector General (OIG)
released its Supplemental Report regarding allegations of abuse
at the Metropolitan Detention Center (MDC) in New York. This
report generated further concerns about the FBI's timeliness in
handling the investigations of abuse. Accordingly, on February
9, 2004, the Committee sent a letter to Attorney General
Ashcroft to learn why the FBI did not attempt to locate or
interview detainee complainants that had been removed either
prior to the FBI receiving the case or subsequent to the FBI
receiving the case. In addition, the Chairman requested
information regarding the delay of the FBI in interviewing
detainees and an explanation of reported incidents that
attorney-client communications were recorded without regard to
established procedures for such conduct; that employees may
have intentionally lied during the OIG inquiry; and that the
MDC refused or otherwise failed to turn over video tapes after
several attempts by the OIG to obtain them. The Committee
requested information regarding the implementation of the OIG's
recommendations be reported to the Committee by March 31, 2004.
The DoJ responded with a letter on July 20, 2004, stating
that the OIG began investigating allegations of mistreatment
and abuse of the detainees as early as November 2001. Although
these investigations resulted in recommendations to BOP to
correct aspects of its practices, they did not determine that
criminal prosecution of any BOP officials was warranted.
Further, the DoJ explained the lack of FBI interviews due to
the unavailability of complainants and the concurrent OIG
investigations, which involved numerous interviews.
Detainees at Guantanamo Bay
During the U.S.-led war in Afghanistan, ``Operation
Enduring Freedom,'' approximately 10,000 individuals were taken
prisoner, screened, and released in Afghanistan. Less than 10%
of those screened were moved to the U.S. naval base in
Guantanamo Bay, Cuba along with a small number captured in
Pakistan. Detainee operations began in Guantanamo in January of
2002.
Debate has ensued about whether the detentions are legal,
and opponents of the policy have argued that the policy creates
a ``no law zone'' and places the prisoners outside the reach of
any type of judicial review. Opponents have also questioned the
living conditions of the prisoners. Proponents have argued that
the detention of these ``enemy combatants'' is lawful,
justified, and necessary for the effective collection and
exploitation of intelligence in support of the global war on
terrorism. In Rasul v. Bush, the Supreme Court held that the
foreign combatants held in Cuba are entitled to judicial
protection, and the approximate 550 enemy combatants currently
being held in Cuba are receiving reviews by Combatant Status
Review Tribunals to determine whether they are being properly
held or whether they should be released.
The Committee on the Judiciary requested that the DoD brief
the Committee regarding the Guantanamo detainees, military
tribunals, and the Geneva Conventions. Accordingly, on November
15, 2003 and February 24, 2004, military officers briefed
Members and staff on the detainees being held in Guantanamo
Bay, Cuba. Both of these briefings were classified.
Additionally, the Committee requested an unclassified
briefing, where Brigadier General Wright and Lieutenant General
Alexander briefed Members and staff on May 21, 2004. In light
of the recent revelations of abuse at Abu Ghraib prison, the
military officers discussed the interrogation rules of
engagement and outlined the events that occurred at Abu Ghraib
prison, including how many prisoners were interrogated, how
many pictures were taken, etc. Further, they discussed the
Geneva Conventions, focusing on the Third and Fourth
Conventions, which covered POWs and detainees, respectively.
They described who would be covered by the Conventions and what
rights would be afforded to POWs and military detainees under
the rules of the Conventions.
Subcommittee Chairman Coble led a bipartisan delegation to
Guantanamo, including Representatives Schiff and Hart and
subcommittee staff. On April 29, 2004, officials from the
Departments of Defense and Justice briefed those going on the
trip, and on May 3, 2004, the group toured the facilities in
Guantanamo Bay, Cuba, where they saw firsthand the living
conditions of the prisoners.
Chairman Sensenbrenner wrote a letter to the Attorney
General on July 13, 2004, regarding documents related to the
interrogation of detainees. The DoJ responded on July 20, 2004,
assuring the Committee that the Administration had released all
unclassified, final written opinions from the Department
addressing the legality of interrogation techniques used in the
interrogations of al-Qaeda and Taliban enemy combatants. The
letter also cited the release from the White House of numerous
documents on June 22, 2004.
Review of National Criminal History Improvement (``NCHIP'')
Program
On October 15, 2002, Chairman Sensenbrenner requested that
the GAO audit the use of Federal funds by the State of Maryland
to implement the National Criminal History Improvement Program
(``NCHIP''). The Committee expressed its concern that the State
of Maryland misused its NCHIP funds, possibly endangering lives
and threatening public safety. After learning that GAO had not
yet started this audit, Chairman Sensenbrenner sent a letter to
Comptroller General David M. Walker, dated May 21, 2003,
requesting that the audit begin immediately. Additionally, the
Chairman requested that the GAO provide the Committee with a
report, including an audit of how other states use NCHIP funds
and a determination of whether states are cleaning up their
files and records adequately. On June 30, 2003, the Committee
received a letter from GAO, saying that the GAO accepted its
request proposal and would begin work with subcommittee staff
to discuss the project. In a letter dated August 22, 2003, the
GAO laid out its objectives and key questions that would be
answered by the study. The study was completed and sent to the
Committee on February 27, 2004.
DoJ and Falun Gong
Subcommittee staff requested several meetings with
representatives of Falun Gong, a spiritual movement originating
in China. On February 6, 2003, the Subcommittee wrote a letter
to Attorney General John Ashcroft regarding claims bymembers of
Falun Gong that the Chinese Government was harassing, intimidating, and
conducting surveillance of them in the United States. Members of Falun
Gong had reportedly met with officials from the Department of Justice
and the FBI but had expressed frustration that incidents had not been
investigated by agents in various fields. The subcommittee requested
that the appropriate Department personnel brief subcommittee staff on
these matters. On July 21, 2003, subcommittee staff met with one of the
victims of the Falun Gong harassment and viewed video footage of an
attack in New York on Falun Gong practitioners by persons suspected of
having connections to the PRC government.
COPS program
On May 10, 2003, the Committee on the Judiciary requested
that the General Accounting Office (GAO) do an analysis of data
provided to the Committee by the DoJ regarding the Community
Oriented Policing Services (COPS) program. The data was
provided to GAO on May 13, 2003. Due to time constraints, the
GAO indicated that it could not provide an official analysis.
Accordingly, in a letter to David M. Walker, Comptroller
General of the United States, dated June 2, 2003, the Chairman
extended the deadline for the request to June 3, 2003 to ensure
that an official document could be provided. Additionally, the
Committee requested that GAO do an independent study of the
COPS Program's effect on crime, including consideration of
other Federal, state, and local programs or policies that are
focused on reducing crime.
On November 11, 2003, staff from the GAO met with staff
from the Judiciary Committee regarding this issue. In a letter
dated January 8, 2004, the GAO notified the Committee that a
separate design phase would be necessary to assess the
relationship between COPS funding and crime while considering
the effects of other such programs. The GAO estimated that the
design phase would be completed by March 31, 2004. The GAO is
currently still working on the study.
First responders and interoperability of their equipment
In light of the 9/11 attacks and the importance of first
responders in responding to terrorist attacks and other
emergencies, the Committee has a strong interest in grants to
first responders and the interoperability of their
communications systems. On April 1, 2003, Chairman
Sensenbrenner met with officials from the International
Association of Chiefs of Police (IACP) and the police chief
from Oregon, Wisconsin. During their meeting, they discussed
the issue of interoperability of communications, allowing first
responders to communicate with other first responders. At the
time, communications were not interoperable, in part because
television stations had not switched from analog to digital
signals for high definition television, vacating the channels
needed for public safety officers. As a result of this meeting,
Chairman Sensenbrenner wrote a letter, dated June 2, 2003, to
the Federal Communications Commission (FCC) requesting that the
FCC set a specific deadline to make the spectrum available for
public use. Chairman Sensenbrenner requested a response by June
16, 2003.
The FCC responded with a letter on June 30, 2003, stating
that it had taken a number of steps to provide the public
safety community with additional spectrum. The FCC admitted,
however, that some spectrum is currently unavailable for public
safety use in many areas of the country:
The 700 MHz band spectrum currently is encumbered by
broadcasters in many parts of the country, particularly
in the urban areas where the Commission anticipates the
greatest demand for public safety use. Under the
existing statutory framework for this spectrum, the
Commission is constrained from making this spectrum
fully available for public safety because incumbent
television broadcasters do not have to vacate their
analog channels until the end of 2006, and may seek to
remain until at least 85 percent of the households in
their markets have access to DTV signals, whichever is
later. * * *
In response to these statutory constraints, the
Commission had crafted a policy to facilitate voluntary
band clearing arrangements between broadcasters and new
commercial wireless users to clear the entire upper 700
MHz band. * * *
The contents of the letter conveyed that the FCC had done
all that it could to comply with the needs of first responders.
On November 23, 2003, the Washington Post printed an
article entitled, ``Anti-Terrorism Funds Buy Wide Array of Pet
Projects,'' which alleged possible mismanagement of first
responder grants. In response, Chairman Sensenbrenner and
Ranking Minority Member Conyers wrote a letter, dated January
21, 2004, to the Inspectors General (IG) at the Departments of
Justice and Homeland Security requesting that they conduct a
review of the accountability procedures for first responder
grants. Letters were sent to the Attorney General and the
Secretary of the Department of Homeland Security as well,
requesting answers to the Post allegations.
On February 20, 2004, Chairman Sensenbrenner and Ranking
Minority Member Conyers wrote a letter to the Attorney General
and the Secretary of the Department of Homeland Security
regarding ``interoperability'' among state and local first
responders. The letter stated the Committee's belief that first
responders should receive federal support to resolve the
``interoperability'' in its efforts to prevent, prepare, and
respond to terrorist attacks. The letter asked the AG and the
Secretary to provide in detail their efforts to assist state
and local first responders with ``interoperability.''
The DHS responded on May 11, 2004, saying that the Office
for Domestic Preparedness (ODP) had begun awarding grants under
the Homeland Security Grant Program and the Urban Areas
Security Initiative to States and territories and high-threat
areas, respectively. In addition, ODP encouraged all new radio
systems purchased with these funds to be compatible with
standards that will ensure interoperability. Further, ODP, in
conjunction with other organizations, provided funds to the
Chula Vista C41 Evaluation Exercise, which would test and
implement a secure and seamless communication and data system
for interoperability.
Allegations of misleading testimony before the subcommittee
and Judge Rosenbaum
On October 31, 2002, the Committee issued its report on
H.R. 4689, the ``Fairness in Sentencing Act of 2002,'' \6\
which also dealt with the May 14, 2002 testimony of the
Honorable James M. Rosenbaum, Chief Judge, United States
District Court for the District of Minnesota before the
Subcommittee on Crime, Terrorism, and Homeland Security.
---------------------------------------------------------------------------
\6\ H. Rep. No. 107-769 (2002).
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Although most of the activity relating to this matter
occurred in the 107th Congress, there was additional activity
during the 108th Congress. On March 10, 2003, the Committee
noticed consideration of, ``Resolution authorizing the Chairman
to issue subpoenas in the matter relating to the Honorable
James M. Rosenbaum.'' After meeting with Judge Rosenbaum's
attorneys and with the assistance of the Administrative Office
for the United States Courts, the Committee obtained pertinent
records, including transcripts of sentencing proceedings on a
rolling basis over the ensuing months. The Committee is
continuing to review the records as part of its ongoing
investigation into Judge Rosenbaum's sentencing decisions.
FBI employee turnover
On February 9, 2004, the Committee sent a letter to FBI
Director, Robert S. Mueller, III regarding the turnover of FBI
personnel, in particular, the fact that the FBI has had four
different Executive Assistant Directors (EAD) of
Counterterrorism-Counterintelligence since it established the
position in December of 2001. As the United States continues to
fight the war on terrorism at home and abroad, it is imperative
that the leadership of the FBI is consistent, experienced, and
knowledgeable. Therefore, the Judiciary Committee requested
from the FBI: the entry-exit dates of service of each
individual who served at the rank of Executive Assistant
Director to Special Agent in Charge since September 11, 2001,
along with their reasons of departure and where they went; any
difference in turnover trends from pre-9/11 to post-9/11; the
average length of time that level GS-14 agents serve in various
capacities; the average length of time that an agent serves as
an investigator before entering the management career track;
and the status and objectives of the current overhaul of the
FBI's career development program. A response was due back from
the FBI by March 31, 2004. On April 26, 2004, the Committee
received a letter from the FBI's Congressional Affairs Office,
saying that additional time would be needed to prepare material
that was responsive to our request.
Terrorist Explosive Device Analytical Center (TEDAC)
Since 9/11, the Government has been examining the potential
threats against the security of our nation, including an attack
utilizing an improvised explosive device (IED). IEDs are
explosives made with the right combination of common household
materials and have the potential to kill or maim. These types
of explosives have been used in over 90 percent of explosive
attacks on Americans in the past five years, and investigators
believe a global bomb-making network exists that disseminates
instructions for creating such explosives.
In response, the FBI established the Terrorist Explosive
Device Analytical Center (TEDAC) in December of 2003. The
Center works with multiple agencies to examine explosive
devices used in attacks against Americans to identify bomb-
making networks and bomb makers. The Subcommittee requested an
FBI briefing, and on February 27, 2004, the FBI briefed Members
and staff on TEDAC and its operations.
FBI's misidentification of suspected terrorist
Numerous press reports drew attention to Brandon Mayfield,
who was detained for two weeks as a result of an inaccurate
fingerprint identification tied to the Madrid bombing, which
occurred in March of 2004. Accordingly, Subcommittee staff
requested briefings by the FBI regarding the material witness
detainment of Mayfield. Two briefings were held jointly with
the Committee on Government Reform and Oversight on May 5 and
June 8, 2004. Apparently, the FBI failed to investigate the
accuracy of the fingerprint after Spanish authorities
questioned it weeks before Mayfield's May 6th arrest. The FBI
further failed to examine the original fingerprint when they
met with Spanish investigators in Madrid on April 21. On May
21, the FBI finally compared the fingerprint to an Algerian
national whom the Spanish investigators had identified. The
FBI's misidentification was alarming because such
``conclusive'' evidence is used in courts around the country to
arrest and detain people.
Child protection
The FBI's Cyber Crime Division reports that online child
pornography and sexual exploitation is the most significant
cyber crime against children facing investigators today. Sexual
predators are using the Internet to distribute child
pornography and to lure youth into illicit sexual
relationships. The FBI's Innocent Images National Initiative
(IINI) tracks down these predators and identifies and helps
their victims. On March 9, 2004, the Subcommittee hosted a
briefing where IINI staff briefed Members and Staff on its
goals and operations, the technology used to investigate these
crimes, and recent developments in the fight to protect
American children.
Additionally, the Judiciary Committee received concerns,
expressing frustration with the Department of Justice's
distribution of the Amber Alert grants created by the PROTECT
Act. In response, on April 21, 2004, the Committee sent the
Attorney General a letter requesting general information about
the Amber Alert grants. The purpose of the letter was to
determine whether the grant program was being implemented for
the purposes stated in the Act and whether the money was being
fairly distributed. Chairman Sensenbrenner requested a response
by May 21, 2004. On May 17, 2004, the Department of Justice
sent a letter to the Chairman, stating that the April 21, 2004
letter had been received and referred to the proper Department
component. The Department is currently working on a response.
Identification and employment authorization
In a letter to the Department of Defense dated March 19,
2004, Chairman Sensenbrenner requested that it ``undertake an
investigation of the processes that the Department of Defense
(DoD) uses to verify the identification and employment
authorization of individuals seeking to enlist in the United
States Armed Forces.'' On February 24, 2004, the Denver Post
claimed that, at the time, the citizenship status of 16,031
active duty members of the Army, Navy, Air Force, and Marines
was listed as ``unknown.'' On June 23, 2004, the Assistant
Inspector General at the DoD responded, saying that the matter
was under the purview of the Deputy Under Secretary of Defense
for Military Personnel Policy, an element of the Under
Secretary of Defense for Personnel and Readiness. The DoD
referred the inquiry accordingly and requested that the Under
Secretary respond to the matter. On July 14, 2004, the Office
of the Undersecretary of Defense responded with a letter and
memorandum, noting that enlistment in the U.S. Armed Forces is
limited by law and service policy to U.S. citizens or aliens
lawfully permitted for permanent residency. The Department
acknowledged inaccuracies in personnel databases and ensured
that it had taken steps to improve its data entry and transfer
processes. Along with two critical safeguards that had been
implemented to improve document verification, these steps were
outlined in the accompanying memorandum.
Supreme Court decision in Department of Interior v. Klamath
Water Users Protective Association
On March 23, 2004, Chairman Sensenbrenner wrote a letter to
Attorney General Ashcroft regarding the Supreme Court's
decision in Department of Interior v. Klamath Water Users
Protective Association, which required the government to
disclose, under the ``Freedom of Information Act'' (FOIA),
documents regarding settlement negotiations and communications
with co-parties while non-governmental litigants are not
obliged to reveal such information.
The Chairman was concerned that the Department of Justice
may have been compelled to publicly disclose documents
regarding settlement negotiations or communications with co-
parties. He believed that this would place the government at a
disadvantage vis-a-vis non-governmental parties and prejudice
taxpayer interests because they reveal information about the
government's negotiating position and vulnerabilities in
litigation. To assist in his evaluation of whether to pursue
legislation to address this matter, the Chairman requested that
the Attorney General address several questions regarding the
Klamath decision.
Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF)
facilities oversight
On July 16, 2003, subcommittee staff toured ATF's new
laboratory in College Park, Maryland, and in March of 2004,
staff returned for an arson demonstration, where they were
briefed on ATF's role in arson investigations. On April 13,
2004, staff from the subcommittee toured the Bureau of
Alcohol,Tobacco, Firearms, and Explosives and the U.S. Customs Service
canine training center in Front Royal, Virginia to learn about the
training program for bomb sniffing and drug sniffing dogs that these
two agencies employ, respectively. In addition, on April 15, 2004,
subcommittee staff and staff visited the ATF firing range. There, staff
were briefed on ATF's mission and responsibilities and received
instruction on appropriate protocol while on the firing range. Staff
saw the training and firearms instruction that ATF agents receive.
Federal sentencing guidelines and the Blakely v. Washington
case
Subcommittee staff met periodically with members and staff
of the U.S. Sentencing Commission and the Justice Department
during the one-year amendment cycle. In a letter dated May 11,
2004, Subcommittee Chairman Coble forwarded to Members of the
Judiciary Committee an April 30, 2004 correspondence from the
United States Sentencing Commission, which conveyed amendments
to the Federal Sentencing Guidelines. The amendments reflected
ongoing oversight and legislative initiatives of the Judiciary
Committee and the Subcommittee. These include implementing
provisions included in the ``PROTECT Act,'' assuring increased
penalties for child pornography and sexual abuse offenses.
In 1984, Congress authorized the creation of the Federal
Sentencing Guidelines in response to the realization that large
sentencing disparities existed throughout the nation, as judges
in different localities sentenced differently for very similar
crimes. To lessen these sentencing disparities, the U.S.
Sentencing Commission was established and charged with
promulgating the Sentencing Guidelines to ensure and
standardize sentences for similar crimes nationwide. After
seventeen years, the Supreme Court called this system into
question with its decision in Blakely v. Washington (June 24,
2004). In Blakely, the Court applied the rule announced in
Apprendi v. New Jersey, to invalidate, under the Sixth
Amendment, enhanced penalties under the Washington State
sentencing guideline system that was imposed on the basis of
facts found by the court at sentencing.
Judge Paul Cassell of the U.S. District Court in Utah,
announced on June 29, 2004, that the Federal Sentencing
Guidelines could not be applied constitutionally in a child
pornography case. Cassell stated that he intended to continue
to issue sentences without regard for the guidelines ``until
the constitutionality * * * has been definitely resolved by the
Supreme Court.'' He planned to issue a ``fallback sentence,''
however, to avoid re-sentencing in the event that the
Guidelines were upheld.
As a result, Subcommittee staff were active in preparing
for various possible scenarios, considering what, if any
action, Congress should take in response to possible Supreme
Court rulings. On July 7, 2004, subcommittee staff met with
Senate counterparts regarding judicial oversight and a possible
legislative fix to Blakely. Similarly, on July 9, staff met
with Senate counterparts and DoJ officials regarding the
decision. On September 10, 2004, staff met with staff from the
U.S. Sentencing Commission regarding the guidelines and post-
Blakely plans. On September 13, 2004, staff attended a CRS
briefing regarding the Blakely decision and possible remedies
and reactions that would stem from the decision and future
Supreme Court decisions regarding the Guidelines. Lastly, on
November 4, 2004, staff met with officials from the
Administrative Office of the Courts regarding the decision.
In addition, staff was in regular contact with staff from
the U.S. Sentencing Commission to discuss periodic amendments
to the Guidelines that were suggested by the Commission.
Subcommittee staff met with U.S. Sentencing Commission staff on
January 12, 21, and on May 27, 2004.
On October 5, 2004, subcommittee staff met with ABA
officials to discuss their concerns with a Commission amendment
regarding corporate defendants and the waiver of attorney-
client and work product protections to show ``thorough''
cooperation with the government, and subsequently qualify for a
reduction in the culpability score under the Guidelines.
U.S. Marshals Service
From May 26-28, 2004, subcommittee staff visited the U.S.
Marshals Service's Special Operations Group (SOG) at Camp
Beauregard, Louisiana and reviewed the missions, capabilities,
and equipment of the SOG. The SOG is a specially trained
tactical unit based in Pineville, Louisiana. The SOG is
deployed in high risk or sensitive law enforcement situations,
national emergencies, civil disorders, and natural disasters in
support of USMS districts and headquarters operational
divisions or as ordered by the U.S. Attorney General. The SOG
is staffed full-time by eight criminal investigators and three
administrative personnel, and the SOG workforce core is
comprised of 72 highly-trained criminal investigators who are
activated and respond to SOG missions when necessary. The SOG
was founded and continues to function based on operational
necessity. Many of the SOG's supplies, weapons, vehicles, and
equipment were obtained second-hand from other government
agencies. The SOG staff has made great efforts to refurbish
this equipment and suit it to their own needs, saving
government and taxpayer dollars. The trip continued ongoing
oversight by the Subcommittee on Crime, Terrorism, and Homeland
Security of the U.S. Marshals Service.
Further, news reports in April of 2004 alleged
inappropriate behavior by the U.S. Marshals while protecting
Supreme Court Justice Scalia. In response, staff set up
oversight meetings with Marshals officials on April 29, 2004.
In addition, in August of 2004, staff visited the U.S. Marshals
Electronic Surveillance Unit to review technology and
operations utilized in electronic surveillance for fugitive
apprehensive. Finally, in October of 2004, the subcommittee
requested that the Marshals provide an identity theft
demonstration. At the briefing, Judiciary staff reviewed
technology to detect fraudulent identification documents,
including drivers' licenses and passports for security of
federal buildings, borders, and national transportation.
DEA auditor and laptop
In a letter dated June 18, 2004, Subcommittee Chairman
Coble asked the IG at the DoJ for information regarding an
incident involving an Office of the Inspector General auditor
and a laptop computer containing sensitive but unclassified
information related to an audit of the Drug Enforcement
Administration (DEA). The IG responded in a letter dated July
28, 2004, providing a response to the Subcommittee's questions
and assuring the Subcommittee that the incident had been
thoroughly investigated and that no sensitive information was
lost or placed into the wrong hands.
Information sharing with State and local law enforcement
On July 1, 2004, staff from the Subcommittee coordinated
and participated in a briefing regarding information sharing
with State and local law enforcement officials. The briefing
was led by FBI Assistant Director, Louis Quijas, who discussed
the Office of Law Enforcement Coordination (OLEC) and its role
in ensuring optimum coordination and communication between
federal, state, and local law enforcement agencies.
The topic of law enforcement cooperation and information
sharing has been frequently examined by the Committee since 9/
11 and has been the focus of hearings, legislation, and
constituent letters. The FBI's OLEC was created to enhance
coordination and communications between the FBI and its
federal, state, and local law enforcement partners on a
national level. The OLEC facilitates two-way communication,
collaboration, and a high level of customer service. It
supports the FBI in coordination with its law enforcement
partners to uphold the law and protect the United States from
criminal and terrorist activities. The OLEC serves as the FBI's
primary liaison for the national law enforcement associations
and represents the perspective of police and sheriffs'
departments within the FBI. The OLEC coordinates the Director's
Law Enforcement Advisory Group and supports the FBI's
intelligence-sharingand technological efforts with state and
local law enforcement.
National Security Entry-Exit Registration System (NSEERS)
and the detainment of Iranians
On July 16, 2004, staff from the subcommittee attended a
briefing by the Iranian American Bar Association regarding the
detainment of Iranians in response to events of 9/11. Beginning
in November of 2002, Iranians living in the United States were
detained after voluntarily appearing for registration in the
National Security Entry-Exit Registration System (NSEERS).
One of the presenters noted that under the PATRIOT Act,
detainees could ``be disappeared'' for seven days without
counsel or the notification of family members. The Attorney
General has inherent authority to detain individuals for
immigration proceedings. Under Sec. 236 of the Immigration and
Nationality Act, one can be detained in anticipation of
removal, which is a civil--not a criminal-proceeding. The
PATRIOT Act provides for a 7-day limitation, within which the
AG must go through a certification process to ensure that
detainees are put into proceedings within this allotted time.
9/11 Commission Report, recommendations, and legislation
The National Commission on Terrorist Attacks Upon the
United States (9/11 Commission) was created in late 2002 to
investigate and subsequently prepare a report about the
circumstances surrounding the 9/11 attacks, including an
assessment of the U.S. preparedness and response to the
attacks. In addition, the Commission was to provide
recommendations to guard against future attacks. The 9/11
Commission released its lengthy report on July 22, 2004,
including 41 recommendations. These recommendations prompted a
flurry of hearings and proposed legislation.
The Subcommittee held a hearing to discuss the report and
recommendations on August 23, 2004. Witnesses included: Mr.
Christopher Kojm, the Deputy Executive Director of the National
Commission on Terrorist Attacks Upon the United States; Mr.
John S. Pistole, the Executive Assistant Director of the
Counterterrorim Division of the FBI; Mr. John O. Brennan,
Director of the Terrorist Threat Integration Center; and Mr.
Gregory T. Nojeim, the Associate Director of the American Civil
Liberties Union. In addition to considering the Commission's
recommendations, the hearing was consistent with the Judiciary
Committee's ongoing oversight of the Departments of Justice and
Homeland Security.
The hearing specifically focused on the 9/11 Commission's
recommendations in the following areas: the creation of a
National Intelligence Director (NID); the tightening of U.S.
borders; the establishment of a National Counterterrorism
Center; the prevention of identity theft and fraud; the
creation of a specialized and integrated national security
workforce at the FBI; and the targeting of networks that
provide material support to terrorists. Additionally, the
hearing provided the DoJ and the Director of the Terrorist
Threat Integration Center (TTIC) an opportunity to discuss the
9/11 Commission recommendations that had already been, or were
in the process of being, implemented.
Violence against women
The Committee sent a letter to the DoJ in support of the
federal Judicial Oversight Demonstration Initiative (JODI) to
the Office on Violence Against Women for continuation funding.
In response, DoJ sent a letter to the Committee on August 19,
2004, indicating that the Office of Violence Against Women
would provide each of the three Federal Judicial Oversight
Demonstration Initiatives (JODI) sites with limited support for
an additional year, as the JODI was scheduled to end in Fiscal
Year 2004. After 2005, however, each JODI site will be eligible
to compete for a grant through the Fiscal Year 2005 Grants to
Encourage Arrest Policies and Enforcement of Protection Orders
Grant Program.
Federal Air Marshals Service (FAMS)
On September 28, 2004, the Committee sent a letter to
Thomas D. Quinn, Director of the Federal Air Marshals Service
(FAMS) regarding alleged security gaps in air travel. In their
letter, they asked the FAMS to respond to a number of detailed
questions by October 15, 2004. On October 20, 2004, Director
Quinn responded with 29 pages of information and several
classified secret documents, which were placed in a separate
folder. Committee staff has reviewed this material, and these
issues are an ongoing oversight issue.
SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY, AND CLAIMS \1\
JOHN N. HOSTETTLER, Indiana,
Chairman
SHEILA JACKSON LEE, Texas JEFF FLAKE, Arizona
LINDA T. SANCHEZ, California MARSHA BLACKBURN, Tennessee
ZOE LOFGREN, California LAMAR S. SMITH, Texas
HOWARD L. BERMAN, California ELTON GALLEGLY, California
JOHN CONYERS, Jr., Michigan CHRIS CANNON, Utah
STEVE KING, Iowa
MELISSA A. HART, Pennsylvania
----------
\1\ Subcommittee chairmanship and assignments approved February 12,
2003.
Tabulation of subcommittee legislation and activity
Public:
Legislation referred to the Subcommittee...................... 226
Legislation on which hearings were held....................... 8
Legislation reported favorably to the full Committee.......... 4
Legislation reported adversely to the full Committee.......... 0
Legislation reported without recommendation to the full
Committee................................................... 0
Legislation reported as original measure to the full Committee 0
Legislation discharged from the Subcommittee.................. 6
Legislation pending before the full Committee................. 0
Legislation reported to the House............................. 9
Legislation discharged from the Committee..................... 2
Legislation pending in the House.............................. 2
Legislation passed by the House............................... 12
Legislation pending in the Senate............................. 4
Legislation vetoed by the President (not overridden).......... 0
Legislation enacted into Public Law........................... 8
Days of legislative hearings.................................. 3
Days of oversight hearings.................................... 22
Private:
Claims:
Legislation referred to the Subcommittee.................. 16
Legislation on which hearings were held................... 0
Legislation reported favorably to the full Committee...... 2
Legislation pending before the full Committee............. 1
Legislation reported to the House......................... 1
Legislation discharged from the Committee................. 0
Legislation pending in the House.......................... 1
Legislation passed by the House........................... 1
Legislation pending in the Senate......................... 0
Legislation enacted into Private Law...................... 1
Immigration:
Legislation referred to the Subcommittee.................. 77
Legislation on which hearings were held................... 0
Legislation reported favorably to the full Committee...... 4
Legislation pending before the full Committee............. 0
Legislation reported to the House......................... 4
Legislation discharged from the Committee................. 0
Legislation pending in the House.......................... 0
Legislation passed by the House........................... 4
Legislation pending in the Senate......................... 0
Legislation enacted into Private Law...................... 4
Jurisdiction of the Subcommittee
The Subcommittee on Immigration, Border Security, and
Claims shall have jurisdiction over the following subject
matters: immigration and naturalization, border security,
admission of refugees, treaties, conventions and international
agreements, claims against the United States, federal charters
of incorporation, private immigration and claims bills, other
appropriate matters as referred by the Chairman, and relevant
oversight.
Legislative Activities
IMMIGRATION
H.R. 2152, Extending the Special Immigrant Religious Worker Program
Summary.--``Special immigrant'' visas (9,940 each year) are
available for a number of different categories of aliens. One
such category is religious workers. An alien (along with spouse
and children) can qualify for a special religious worker visa
if the alien has been a member for the immediately preceding
two years of a religious denomination having a bona fide
nonprofit, religious organization in the United States and
seeks to enter the United States to (1) serve as a minister,
(2) serve in a professional capacity in a religious vocation or
occupation at the request of the organization, or (3) serve in
a religious vocation or occupation at the request of the
organization, and in each case has been carrying out such work
continuously for at least the prior two years. The two non-
minister categories are limited to 5,000 visas a year and were
set to sunset on October 1, 2003. H.R. 2152 extends the sunset
date to October 1, 2008.
Legislative History.--On May 19, 2003, Representative
Barney Frank introduced H.R. 2152. On July 15, 2003, the
Subcommittee on Immigration, Border Security and Claims ordered
H.R. 2152 reported to the Judiciary Committee by a voice vote.
On September 10, 2003, the Judiciary Committee ordered H.R.
2152 reported by a voice vote. On September 16, 2003, the
Judiciary Committee reported H.R. 2152 (H. Rept. No. 108-271).
On September 17, 2003, the House passed H.R. 2152 under
suspension of the rules by a voice vote. On October 3, 2003,
the Senate passed H.R. 2152 by unanimous consent. On October
15, 2003, the President signed H.R. 2152 into law (Public Law
No. 108-99).
Naturalization through service in the Armed Forces
Summary.--After learning that 10 members of our Armed
Forces who died in combat during ``Operation Iraqi Freedom''
were not United States citizens, Congress acted to ease
thenaturalization requirements of legal permanent residents in the
armed services and provided immigration benefits to surviving family
members of those killed in service to America. Public Law No. 108-136:
Reduces the peace time military service
requirement from three years to one year before a lawful
permanent resident military member may apply for naturalization
without having to have met the requirement of five years
continuous residence in the U.S.
Prohibits fees from being charged to military
members applying for naturalization or a certificate of
naturalization, including full or partial State charges for
State documents that support an application for naturalization,
such as criminal disposition documents.
For alien military members who naturalize using
expedited procedures, the legislation permits the revocation of
citizenship for separation from military service under other
than honorable conditions. Because active-duty and certain
other military members may apply for naturalization during a
named period of hostilities without having met any requirement
of continuous residence in the U.S., prior law provided that
such military members may have their naturalization revoked if,
at any time subsequent to naturalization, the persons are
separated from the military under other than honorable
conditions. The legislation provides that such military members
may have their naturalization revoked only if the person had
not served honorably in the military for a period or periods
aggregating five years. Since the legislation lowers the peace
time military service requirement from three years to one year
before a lawful permanent resident military member may apply
for naturalization without having met any requirement of
continuous residence in the U.S., the legislation also provides
that such military members may have their naturalization
revoked if they are separated from the military under other
than honorable conditions and had not served honorably in the
military for a period or periods aggregating five years.
The Departments of Homeland Security, State, and
Defense must make available naturalization applications,
interviews, filings, oaths, and ceremonies through United
States embassies, consulates, and as practicable, U.S. military
installations overseas.
Under prior law, active-duty military members
could apply for naturalization during a named period of
hostilities without having met any requirement of continuous
residence in the U.S. The legislation extends this privilege to
members of the Selected Reserve of the Ready Reserve.
Spouses, children, and parents of U.S. citizens
who served honorably in active duty status and died as a result
of injury or disease incurred in or aggravated by combat, may
retain their status as immediate relatives for purposes of
receiving immigration benefits.
An alien who was the spouse, child, or parent of
an alien who served honorably in active duty, died as a result
of injury or disease incurred in or aggravated by combat and
was granted posthumous citizenship, shall be considered
immediate relatives of a U.S. citizen for the purpose of
receiving immigration benefits (regardless of whether the
service member had previously petitioned for family-sponsored
immigrant status for them).
The public charge ground of inadmissibility is
waived for aliens seeking such posthumous immigration benefits.
Under prior law, the surviving spouse of a U.S.
citizen who died during a period of honorable service in active
duty could naturalize without having met any requirement of
continuous residence in the U.S. The legislation extends this
privilege to surviving spouses of military members granted
posthumous citizenship.
Legislative History.--On May 6, 2003, Chairman F. James
Sensenbrenner, Jr., introduced H.R. 1954. On May 7, 2003, the
Judiciary Committee ordered H.R. 1954 reported as amended by a
voice vote. On May 19, 2003, the Judiciary Committee reported
H.R. 1954 (H. Rept. No. 108-111). On June 4, 2003, the House
passed H.R. 1954 under suspension of the rules by a vote of
414-5. On June 12, 2003, the Senate Judiciary Committee ordered
H.R. 1954 reported to the Senate with an amendment in the
nature of a substitute. On November 24, 2003, the President
signed into law H.R. 1588, the National Defense Authorization
Act for Fiscal Year 2004 (Public Law No. 108-136),
Sec. Sec. 1701-05 of which contained language representing a
compromise between the House and Senate versions of H.R. 1954.
H.R. 2620, the ``Trafficking Victims Protection Reauthorization Act of
2003''
Summary of Immigration Provisions.--The Trafficking Victims
Protection Act of 2000 created a new nonimmigrant ``T'' visa
for persons who: (1) are victims of severe forms of trafficking
in persons (sex trafficking in which a commercial sex act is
induced by force, fraud, or coercion, or in which the person
induced to perform such acts has not attained 18 years of age,
or the recruitment, harboring, transportation, provision, or
obtaining of a person for labor or services, through the use of
force, fraud, or coercion for the purpose of subjection to
involuntary servitude, peonage, debt bondage, or slavery), (2)
are in the U.S. or at a U.S. port of entry on account of such
trafficking, (3) have complied with any reasonable request for
assistance in the investigation or prosecution of acts of
trafficking or have not attained 15 years of age, and (4) would
suffer extreme hardship involving unusual and severe harm upon
removal from the U.S. The TVPA also permitted the Department of
Homeland Security to grant a T visa, if necessary to avoid
extreme hardship, to the victim's spouse, children, and parents
if the victim is under 21 years of age, and the victim's spouse
and children if the victim is 21 years of age or older. The Act
precluded anyone from receiving a T visa if there was
substantial reason to believe that the person had committed an
act of a severe form of trafficking in persons. It also placed
an annual cap of 5,000 on T visas for trafficking victims and
permitted DHS to waive certain grounds of inadmissibility. The
TVPA permitted DHS to adjust the status of a T visa holder to
that of a permanent resident if the alien: (1) has been
physically present in the U.S. for a continuous period of at
least three years since the date of admission, (2) has
throughout such period been a person of good moral character,
and (3) has, during such period, complied with any reasonable
request for assistance in the investigation or prosecution of
acts of trafficking, or would suffer extreme hardship involving
unusual and severe harm upon removal from the U.S. It also
permitted DHS to adjust the status of the victim's spouse,
parent, or child, if admitted with a T visa, to that of an
alien lawfully admitted for permanent residence. An annual cap
of 5,000 was placed on adjustments of status for trafficking
victims.
H.R. 2620 made the following modifications to the
immigration provisions of the TVPA:
Aliens can qualify for T visas by cooperating with
state and local law enforcement agencies as well as federal
agencies.
The age of aliens who can receive T visas without
cooperating with law enforcement authorities was raised from
under 15 years of age to under 18 years of age.
If an alien receiving a T visa is under 21,
unmarried siblings under 18 would have been added to the list
of family members who can also receive T visas (and
subsequently permanent residence).
The public charge ground of inadmissibility will
not apply to aliens seeking T visas.
Legislative History.--On June 26, 2003, Representative
Christopher H. Smith introduced H.R. 2620. The Committees on
International Relations and the Judiciary received referrals on
H.R. 2620 on June 26, 2003. On September 22, 2003 the
Subcommittee on Immigration and Claims was discharged from
further consideration of the bill. H.R. 2620 was marked up and
reported by the Judiciary Committee on September 24, 2003 with
an amendment, by a voice vote. (H. Rept. 108-264, Part II) The
Committee on International Relations also filed a report on
September 5, 2003. (H. Rept. No. 108-264, Part I) The Senate
passed H.R. 2620 on December 9, 2003, without amendment, by
unanimous consent. The President signed H.R. 2620 on December
19, 2003 and the bill became Public Law No. 108-193.
S. 1685, Extending and Expanding the Basic Pilot Program for Employment
Eligibility Verification
Summary.--The Immigration Reform and Control Act of 1986
made it unlawful for employers to knowingly hire or employ
aliens not eligible to work and required employers to check the
identity and work eligibility documents of all new employees.
Title IV of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 instituted three employment
eligibility confirmation pilot programs for volunteer employers
that were to last for four years. Under the ``basic pilot
program,'' the proffered Social Security numbers and alien
identification numbers of new hires would be checked against
Social Security Administration and Immigration and
Naturalization Service records in order to weed out fraudulent
numbers and thus to ensure that new hires are genuinely
eligible to work.
The basic pilot program was commenced in November 1997 and
was set to expire in November 2001. Public Law 107-128 extended
its operation through November 2003. The program was required
to operate in, at a minimum, 5 of the 7 states with the highest
estimated population of illegal aliens.
IIRIRA required the INS to submit a report on the basic
pilot program after the end of the third and fourth years the
program was in effect. The report found that ``an overwhelming
majority of employers participating found the basic pilot
program to be an effective and reliable tool for employment
verification''--96% of employers found it to be an effective
tool for employment verification; and 94% of employers believed
it to be more reliable than the IRCA-required document check.
The report found that 64% of employers agreed that the number
of unauthorized workers who applied for jobs decreased when the
basic pilot system was used. ``[E]mployees were largely
satisfied with the services provided by INS and the Social
Security Administration.'' Of the employees who contacted local
SSA or INS offices as part of the verification process, 95% who
visited SSA offices said that their work authorization problem
was resolved in a timely, courteous, and efficient manner, as
did 90% who visited INS offices.
The report found that the ``Social Security Administration
and INS are currently capable of handling either of the
voluntary programs described here [a voluntary program open to
employers nationwide or an enhanced voluntary program in
selected states], or some other program of limited scope.''
However, it recommended against ``a mandatory or large-scale
program.''
S. 1685 extends operation of the pilot programs for an
additional 5 years and requires that it be made available to
employers nationwide no later than December 1, 2004. The bill
also extends the regional center pilot program of the fifth
employer preference ``investor visa'' program. To encourage
economic development through the immigrant investor visa
program, Congress created a five year temporary pilot program
in 1993 that set aside 3,000 immigrant visas each year for
aliens who invested at least $500,000 in ``designated regional
centers.'' A regional center is ``any economic unit, public or
private, which is involved with the promotion of economic
growth, including increased export sales, improved regional
productivity, job creation, or increased domestic capital
investment.'' The bill extends the pilot program through
September 2008 and allows DHS to process investor visa
petitions involving regional centers expeditiously as compared
to non pilot program investor visa petitions. Finally, the bill
required GAO to conduct a study of the investor visa program.
Legislative History.--On June 5, 2003, Representative Ken
Calvert introduced H.R. 2359. On September 24, 2003, the
Judiciary Committee ordered H.R. 2359 reported with an
amendment by a vote of 18-8. On October 7, 2003, the Judiciary
Committee reported H.R. 2359 to the House (H. Rept. No. 108-
304, Part I). On October 28, 2003, the Judiciary Committee
filed a supplemental report on H.R. 2359 (H. Rept. No. 108-304,
Part II). On the same date, the House failed to pass H.R. 2359
under suspension of the rules by a vote of 231-170 (a two-
thirds vote being required). On September 30, 2003, Senator
Charles Grassley introduced S. 1685. On November 6, 2003 the
Senate Judiciary Committee ordered S. 1685 reported to the
Senate with an amendment in the nature of a substitute, and
reported the bill without a written report. On November 12,
2003, the Senate passed S. 1685 as amended by unanimous
consent. On November 19, 2003, the House passed S. 1685 under
suspension of the rules by a voice vote. On December 3, 2003,
the President signed S. 1685 into law (Public Law No. 108-156).
H.R. 4417, Modifying Certain Deadlines Pertaining to Machine-Readable,
Tamper-Resistant Entry and Exit Documents
Summary.--The visa waiver program allows tourists from low-
risk nations to visit the United States without having to first
procure visas. The program facilitates more than ten million
foreign visits to the U.S. each year. However, allowing aliens
to come to the U.S. without first being interviewed for visas
poses certain risks. Thus, the Enhanced Border Security and
Visa Entry Reform Act in 2002 required that countries wishing
to participate in the visa waiver program begin to issue
passports with biometric features. These high-security
passports will ensure that their bearers are the individuals to
whom they were issued and will be harder to alter or
counterfeit than conventional passports.
The Enhanced Border Security and Visa Entry Reform Act
established an October 26, 2004, deadline by which countries
participating in the visa waiver program had to begin issuing
biometric passports. Nationals of visa waiver countries wanting
to enter the U.S. pursuant to the program who had passports
issued after this date would also have to present biometric
passports. While some countries would have been able to meet
the October deadline, many others would not. Our embassies
would not be able to handle the sudden rush of applicants, and
tourism to the U.S. could be seriously disrupted. H.R. 4417
extends the deadline to October 26, 2005. This prevented a
severe disruption to international tourism to the U.S. However,
by keeping a strict October 2005 deadline, the bill will keep
the necessary pressure on those countries who have
unfortunately been slow to add biometrics.
Legislative History.--On May 20, 2004, Chairman F. James
Sensenbrenner, Jr., introduced H.R. 4417. On June 14, 2004, the
House passed H.R. 4417 under suspension of the rules by a voice
vote. On July 22, 2004, the Senate passed H.R. 4417 by
unanimous consent. On August 9, 2004, the President signed H.R.
4417 into law (Public Law No. 108-299).
H.R. 4011, the ``North Korean Human Rights Act of 2004''
Summary of Immigration Provisions.--The legislation
reiterates that North Koreans who have not availed themselves
of the right to South Korean citizenship are eligible to be
considered as refugees and asylees, and directs the Secretary
of State to facilitate the submission of refugee applications
by North Koreans and to report to Congress on how the Secretary
has done so.
Legislative History.--On March 23, 2004, Representative
James Leach introduced H.R. 4011. On March 31, 2004, the
Committee on International Relations ordered H.R. 4011 reported
as amended by unanimous consent. On May 4, 2004, the Committee
on International Relations reported H.R. 4011 (H. Rept. No.108-
478, Part I). On July 16, 2004, the Judiciary Committee was
discharged from further consideration of H.R. 4011. On July 21,
2004, the House passed H.R. 4011 under suspension of the rules
by a voice vote. On September 28, 2004, the Senate passed H.R.
4011 by unanimous consent. On October 4, 2004, the House passed
H.R. 4011 (as amended by the Senate) under suspension of the
rules by a voice vote. On October 18, 2004, the President
signed H.R. 4011 into law (Public Law No. 108-333).
H.R. 4306, Amending the Immigration and Nationality Act to Improve the
Process for Verifying an Individual's Eligibility for
Employment
Summary.--All employers in the United States are required
to complete and retain an Employment Eligibility Verification
Form (Form I-9) for each individual they hire for employment.
On the form, the employer must identify the documents presented
by the employee to establish identity and employment
authorization and verify that the employer has reviewed those
documents. The form is not filed with the government, but
instead the employer must keep the I-9 in paper form or on
microfiche or microfilm, either for three years after the date
of hire or for one year after employment is terminated,
whichever is later. The form must be made available for
inspection by federal officials from U.S. Immigration and
Customs Enforcement, the Justice Department's Civil Rights
Division, and the Department of Labor. Government officials who
want to inspect those documents must provide the employer with
three business days' notice of such inspection. The documents
must be made available for inspection either at the place where
the request was made or elsewhere if the employer and
government officials agree.
H.R. 4306 allows employers to electronically complete and
store I-9 forms. This will facilitate employer preparation and
storage and government inspection of those documents.
Legislative History.--On May 6, 2004, Representative Chris
Cannon introduced H.R. 4306. On September 14, 2004, the
Subcommittee on Immigration, Border Security and Claims
reported the bill to the Judiciary Committee as amended by a
voice vote. On September 30, 2004, the Judiciary Committee
ordered H.R. 4306 reported by a voice vote. On October 5, 2004,
the Judiciary Committee reported H.R. 4306 (H. Rept. No. 108-
731). On October 6, 2004, the House passed H.R. 4306 under
suspension of the rules by a voice vote. On October 11, 2004,
the Senate passed H.R. 4306 by unanimous consent. On October
30, 2004, the President signed H.R. 4306 into law (Public Law
No. 108-390).
S. 2302, Improving Access to Physicians in Medically Underserved Areas
Summary.--Aliens who participate in medical residencies in
the United States on ``J'' exchange program visas must
generally leave the U.S. at the conclusion of their residencies
to reside abroad for two years before they can be eligible for
permanent residence or status as ``H-1B'' or ``L'' visa
nonimmigrants. The intent behind this policy is to encourage
American-trained foreign doctors to return home to improve
health conditions and advance the medical profession in their
native countries. In 1994, Congress created a waiver (until
June 1, 1996) of the two-year foreign residence requirement
when requested by state departments of public health for
foreign doctors who commit to practicing medicine for no less
than three years in a geographic area or areas designated by
the Secretary of Health and Human Services as having a shortage
of health care professionals. The number of foreign doctors who
could receive the waiver was limited to 20 per state. In 1996,
Congress extended the waiver to June 1, 2002. In 2002, Congress
extended the waiver until June 1, 2004. At the same time, the
numerical limitation on waivers was increased to 30 per state.
S. 2302 extends the waiver until June 1, 2006. The bill
also continues the practice of allowing foreign doctors
receiving a waiver to receive H-1B nonimmigrant status
regardless of the annual H-1B visa quota (whether they are
sponsored by a state or federal agency). It allows foreign
doctors receiving a waiver to work in medically-underserved
areas in either primary care or specialty medicine. The bill
allows five of each state's 30 waivers to go to doctors who
would practice medicine in areas not designated by the
Secretary of Health and Human Services as having a shortage of
health care professionals, if the doctors receiving the waivers
would practice in facilities that serve patients who reside in
areas designated by the Secretary as having a shortage of
health care professionals. Finally, where a physician seeking a
waiver will practice specialty medicine, there must be a
shortage of health care professionals able to provide services
in the specialty to the patients who will be served by the
physican.
Legislative History.--On April 7, 2004, Senator Kent Conrad
introduced S. 2302. On May 20, 2004, Representative Jerry Moran
introduced H.R. 4453, the Access to Rural Physicians
Improvement Act of 2004. On June 3, 2004, the House
Subcommittee on Immigration, Border Security and Claims
reported H.R. 4453 to the Judiciary Committee by a voice vote.
On September 30, 2004, the House Judiciary Committee ordered
H.R. 4453 reported as amended by a voice vote. On October 5,
2004, the House Judiciary Committee reported H.R. 4453 (H.
Rept. No. 108-730). On October 6, 2004, the House passed H.R.
4453 under suspension of the rules by a voice vote. On October
7, 2004, the Senate Judiciary Committee ordered S. 2302
reported as amended to the Senate and reported the bill without
a written report. On October 11, 2004, the Senate passed S.
2302 by unanimous consent. On November 17, 2004, the House
passed S. 2302 under suspension of the rules by a vote of 407-
4. On December 3, 2004, the President signed S. 2302 into law
(Public Law No. 108-441).
L-1 Visa and H-1B Visa Reform Act
Summary.--The H-1B Visa Program. ``H-1B'' visas are
available for workers coming temporarily to the United States
to perform services in a specialty occupation. Such
anoccupation is one that requires ``theoretical and practical
application of a body of highly specialized knowledge, and attainment
of a bachelor's or higher degree in the specific specialty (or its
equivalent) as a minimum for entry into the occupation in the United
States.''
The Immigration Act of 1990 set a 65,000 annual cap on H-1B
visas. The American Competitiveness and Workforce Improvement
Act of 1998 increased the cap to 115,000 in 1999 and 2000 and
107,500 in 2001, after which the cap would revert to 65,000.
The American Competitiveness in the Twenty-First Century Act of
2000 increased the cap to 195,000 in 2001 through 2003, after
which it reverted back to 65,000. AC21 also provided that
aliens who are employed at institutions of higher education or
at nonprofit or governmental research organizations do not
count against the cap and are not limited by the cap.
Because of the need of employers to bring H-1B aliens on
board in the shortest possible time, the H-1B program's
mechanism for protecting American workers is not a lengthy pre-
arrival review of the availability of suitable American workers
(such as the labor certification process necessary to obtain
most employer-sponsored immigrant visas). Instead, an employer
files a ``labor condition application'' with the Department of
Labor making certain basic attestations (promises) and the
Department then investigates complaints alleging noncompliance.
There are six attestations a petitioning employer must
make:
The employer will pay H-1B aliens wages that are
the higher of the actual wage level paid by the employer to all
other individuals with similar experience and qualifications
for the specific employment in question or the prevailing wage
level for the occupational classification in the area of
employment, and the employer will provide working conditions
for H-1B aliens that will not adversely affect those of workers
similarly employed. Pursuant to ACWIA, an employer must offer
an H-1B alien benefits and eligibility for benefits on the same
basis, and in accordance with the same criteria, as the
employer offers to American workers, and universities and
certain other employers only have to pay the prevailing wage
level of employees at similar institutions.
There is no strike or lockout in the course of a
labor dispute in the occupational classification at the place
of employment.
At the time of the filing of the application, the
employer has provided notice of the filing to the bargaining
representative of the employer's employees in the occupational
classification and area for which the H-1B aliens are sought,
or if there is no such bargaining representative, the employer
has posted notice in conspicuous locations at the place of
employment.
The application will contain a specification of
the number of aliens sought, the occupational classification in
which the aliens will be employed, and the wage rate and
conditions under which they will be employed.
Pursuant to ACWIA, two attestations--the no-lay
off attestation and the recruitment attestation--apply to ``H-
1B dependent employers'' (generally 15% or more of whose
workforces are composed of H-1B aliens) and to employers who
have been found to have wilfully violated the rules of the H-1B
program. The H-1B dependent employers (+15%) are subject to
these attestations in those instances where they petition for
aliens without masters degrees in their specialties or who will
not be paid at least $60,000 a year. These two attestations
expired at the end of fiscal year 2003. The no-lay off
attestation prohibits an employer from laying off an American
worker from a job that is essentially the equivalent of the job
for which an H-1B alien is sought (involves essentially the
same responsibilities, was held by a United States worker with
substantially equivalent qualifications and experience, and is
located in the same areas of employment) during the period
beginning 90 days before and ending 90 days after the employer
files a visa petition for the alien. The recruitment
attestation requires an employer to have taken good faith steps
to recruit American workers (using industry-wide standards) for
the job an H-1B alien will perform and to offer the job to any
American worker who applies and is equally or better qualified
than the alien.
Departmental investigations as to whether an employer has
failed to fulfill its attestations or has misrepresented
material facts in its application are triggered by complaints
filed by aggrieved persons or organizations (including
bargaining representatives). Investigations can be conducted
where there is reasonable cause to believe that a violation has
occurred. Pursuant to ACWIA, the Labor Department can
investigate an employer using the H-1B program without having
received a complaint from an aggrieved party in certain
circumstances where it receives specific credible information
that provides reasonable cause to believe that the employer has
committed a willful failure to meet conditions of the H-1B
program, has shown a pattern or practice of failing to meet the
conditions, or has substantially failed to meet the conditions
in a way that affects multiple employees. In addition, ACWIA
allows the Labor Department to subject an employer to random
investigations for up to five years after the employer is found
to have committed a willful failure to meet the conditions of
the H-1B program.
The Labor Department enforces all aspects of the program
except in instances where an American worker claims that he
should have been offered a job instead of an H-1B alien. In
such cases, an arbitrator appointed by the Federal Mediation
and Conciliation Service will decide the issue.
An employer is subject to penalties for failing to fulfill
the attestations and for making a misrepresentation of material
fact in an application. Potential penalties include back pay,
civil monetary penalties of up to $1,000 per violation (up to
$5,000 per willful violation, and up to $35,000 per violation
where a willful violation was committed along with the improper
layoff of an American worker), and debarment from the H-1B
program for from one to three years. Whistleblower protection
is provided to employees.
ACWIA established a $500 fee per alien for all employers
except universities and certain other institutions. The funds
go principally for scholarship assistance for low-income
students studying mathematics, computer science, or
engineering, for federal job training services, and for
administrative and enforcement expenses. The fee was raised to
$1,000 in 2000, and primary and secondary school employers were
exempted. The fee expired at the end of fiscal year 2003.
The L Visa Program. L visas are available for
``intracompany transferees''--they allow employees working at a
company's overseas branch to be shifted to the company's
worksite in the United States. A visa is available to an alien
who within 3 years preceding the time of his application for
admission into the United States, has been employed
continuously for one year (or for six months in certain
circumstances) by a firm or an affiliate or subsidiary and who
seeks to enter the United States temporarily in order to
continue to render his services to the same employer or a
subsidiary or affiliate in a capacity that is managerial,
executive, or involves specialized knowledge.
``Specialized knowledge'' with respect to a company is
special knowledge of the company product and its application in
international markets or an advanced level of knowledge of
processes and procedures of the company.
The visas are good for up to five years for aliens admitted
to render services in a capacity that involves specialized
knowledge and for up to seven years for aliens admitted to
render services in a managerial or executive capacity.
To make the L visa program more convenient for established
and frequent users of the program and to reduce adjudicatory
costs, ``blanket'' L visas are available. If an employer meets
certain qualifications--it (1) is engaged in commercial trade
or services, (2) has an office in the U.S. that has been doing
business for at least one year, (3) has three or more domestic
and foreign branches, subsidiaries, or affiliates, and (4) has
received approval for at least 10 L visa professionals during
the past year or has U.S. subsidiaries or affiliates with
annual combined sales of at least $25 million or has a U.S.
workforce of at least 1,000 employees--it can receive pre-
approval for an unlimited number of L visas from the INS.
Individual aliens seeking visas to work for the company simply
have to go to a U.S. consular office abroad and show that the
job they will be employed in qualifies for the L visa program
and that they are qualified for the job.
The L-1 Visa and H-1B Visa Reform Act
As to L visas:
An alien who will serve in a capacity involving
specialized knowledge of his employer and who will be stationed
primarily at the worksite of another employer shall not be
eligible for L visa status if he will be controlled and
supervised principally by the other employer or the placement
of the alien at the worksite of the other employer is
essentially an arrangement to provide labor for hire, rather
than a placement in connection with the provision of a product
or service for which specialized knowledge of the petitioning
employer is necessary.
The continuous service requirement for an employee
shall be one year uniformly.
The Department of Homeland Security will maintain
certain statistics regarding usage of the L visa program.
The Inspector General of DHS shall investigate the
vulnerabilities and potential abuses of the L visa program.
Then, an L Visa Interagency Task Force shall review and seek to
implement the recommendations of the Inspector General.
A new fraud prevention and detection fee of $500
will be assessed against employers for each alien receiving L
visa status. One-third of the fee receipts will be provided to
the Secretary of State for programs and activities at U.S.
embassies and consulates abroad to prevent and detect H-1B and
L visa fraud. One-third of the fee receipts will be provided to
the Secretary of Homeland Security for the same purposes. One
third of the fee receipts will be provided to the Secretary of
Labor to assist enforcing the H-1B program.
As to H-1B visas:
The $1,000 fee is permanently reauthorized and
increased to $1,500 (except that it shall be $750 for each
petition by an employer with no more than 25 full-time
equivalent employees in the U.S.). Certain changes will be made
to the percentage of fee receipts provided to various
recipients and to the purposes for which the receipts shall be
utilized.
The no-lay off attestation and the recruitment
attestation are permanently reauthorized.
The prevailing wage required to be paid to an H-1B
worker shall be 100% of the wage determined as the prevailing
wage (prior regulations called for the payment of 95%). In
addition, where the Secretary of Labor uses a governmental
survey to determine the prevailing wage, such survey shall
provide at least four levels of wages commensurate with
experience, education, and the level of supervision.
The Secretary of Labor's investigative authority
is expanded in that the Secretary may initiate an investigation
of any employer of H-1B aliens if the Secretary has reasonable
cause to believe that the employer is not in compliance with
the H-1B program requirements.
An employer is considered to have complied with
the H-1B program requirements, notwithstanding a technical or
procedural failure to meet such requirements, if there was a
good faith attempt to comply. However, this will not apply if
the Department of Labor has explained the basis for the
failure, and the employer has not corrected the failure
voluntarily within 10 business days, or if the employer has
engaged in a pattern or practice of willful violations of the
H-1B program requirements.
An employer that is found to have violated the H-
1B program's prevailing wage requirements shall not be assessed
fines or other penalties if the manner in which the employer
calculated the prevailing wage was consistent with recognized
industry standards and practices, unless the employer has
engaged in a pattern or practice of willful violations of the
H-1B program requirements.
Aliens who have earned master's or higher degrees
from U.S. institutions of higher education will not count
against the annual H-1B cap and are not limited by the cap,
until the number of such aliens during a fiscal year exceeds
20,000.
A new fraud prevention and detection fee of $500
will be assessed against employers for each alien receiving H-
1B visa status, as with the L visa program.
Legislative History.--On December 8, 2004, the President
signed H.R. 4818, the Consolidated Appropriations Act, 2005,
into law (Public Law No. 108-447). Title IV of Division J of
the Act contains the L-1 Visa and H-1B Visa Reform Act.
H.R. 2655, Amending the Irish Peace Process Cultural and Training
Program Act of 1998
Summary.--In 1998, the Irish Peace Process Cultural and
Training Program Act was enacted. The purpose of the program
was to allow adults between the ages of 18 and 35 years old who
lived in disadvantaged areas of Northern Ireland and designated
border counties of Ireland that were suffering from sectarian
violence and high unemployment to enter the United States to
develop job skills and conflict resolution abilities in a
diverse, cooperative, peaceful, and prosperous environment, so
that they could return to their homes better able to contribute
toward economic regeneration and the Irish peace process. Up to
4,000 qualifying aliens (and their spouses and minor children)
could be admitted each year and they could stay in the U.S. for
up to three years. The program was set to sunset on October 1,
2005. In the 107th Congress, the program was extended until
October 1, 2006.
H.R. 2655 extends the program for another two years until
October 1, 2008. It also makes a number of changes to the
program. These changes are mainly designed to ensure that the
aliens granted admission are those truly economically
disadvantaged young adults the program was designed to help.
These changes include requirements that the program
participants be citizens of the United Kingdom or the Republic
of Ireland, not have degrees from highereducation institutions,
be at least 21 years of age, and have been unemployed for at least one
year and resident in Northern Ireland or the designated border counties
for at least 18 months.
The bill also makes changes to the program to help ensure
that the aliens return to Ireland to foster economic
development and peace. The bill reduces the duration of the
visa term from three years to two years. The bill also requires
that aliens admitted under the program return home for two
years before they can apply for an immigrant visa, permanent
residence, or another nonimmigrant visa. The Secretary of
Homeland Security may waive this requirement if departure from
the U.S. would impose exceptional hardship upon the alien's
U.S. citizen or permanent resident spouse or child, or the
admission of the alien is in the public or national interest of
the U.S.
Legislative History.--On June 26, 2003, Representative
James Walsh introduced H.R. 2655. On July 25, 2003, the
Judiciary Committee ordered H.R. 2655 reported by a voice vote.
On September 4, 2003, the Judiciary Committee reported H.R.
2655 (H. Rept. No. 108-260, Part I). On October 7, 2003, the
House passed H.R. 2655 under suspension of the rules by a voice
vote. On November 19, 2004, the Senate passed H.R. 2655 with an
amendment by unanimous consent. On November 20, 2004, the House
passed H.R. 2655 (as amended by the Senate) by unanimous
consent. On December 10, 2004, the President signed H.R. 2655
into law (Public Law No. 108-449).
LEGISLATION PASSED BY THE JUDICIARY COMMITTEE
H.R. 775, the ``Security and Fairness Enhancement for America Act of
2003''
Summary.--The diversity visa program was designed to
provide nationals of countries with low levels of immigration
to the United States the opportunity to apply for immigrant
visas. The program is also called the ``visa lottery'' because
the winners are determined through a computer-generated random
drawing. In 2004, 10 million applications were submitted.
Between 90,000 and 110,000 lottery ``winners'' are selected,
who apply for 50,000 available visas. H.R. 775 would have
terminated the diversity program because of a variety of
complaints about it.
Legislative History.--On February 13, 2003, Representative
Bob Goodlatte introduced H.R. 775. On September 14, 2004, the
Subcommittee on Immigration, Border Security and Claims
reported H.R. 775 to the Judiciary Committee by a vote of 5-3.
On September 30, 2004, the Judiciary Committee ordered H.R. 775
reported by a vote of 18-8. On October 6, 2004, the Judiciary
Committee reported H.R. 775 (H. Rept. No. 108-747). No further
action was taken on H.R. 775.
FEDERAL CHARTERS
Subcommittee policy on new Federal charters
On March 6, 2003, the Subcommittee on Immigration, Border
Security, and Claims adopted the following policy concerning
the granting of new federal charters:
The Subcommittee will not consider any legislation to grant
new federal charters because such charters are unnecessary for
the operations of any charitable, non-profit organization and
falsely imply to the public that a chartered organization and
its activities carry a congressional ``seal of approval,'' or
that the Federal Government is in some way responsible for its
operations. The Subcommittee believes that the significant
resources required to properly investigate prospective
chartered organizations and monitor them after their charters
are granted could and should be spent instead on the
Subcommittee's large range of legislative and other substantive
policy matters. This policy is not based on any decision that
the organizations seeking federal charters are not worthwhile,
but rather on the fact that federal charters serve no valid
purpose and therefore ought to be discontinued.
This policy represented a continuation of the
Subcommittee's informal policy, which was put in place at the
start of the 101st Congress and has been continued every
Congress since, against granting new federal charters to
private, non-profit organizations.
A federal charter is an Act of Congress passed for private,
non-profit organizations. The primary reasons that
organizations seek federal charters are to have the honor of
federal recognition and to use this status in fundraising.
These charters grant no new privileges or legal rights to
organizations. At the conclusion of the 104th Congress,
approximately 90 private, non-profit organizations had federal
charters over which the Judiciary Committee has jurisdiction.
About half of these had only a federal charter, and were not
incorporated in any state and thus not subject to any state
regulatory requirements.
Those organizations chartered more recently are required by
their charters to submit annual audit reports to Congress,
which the Subcommittee sent to the General Accounting Office to
determine if the reports comply with the audit requirements
detailed in the charter. The GAO does not conduct an
independent or more detailed audit of chartered organizations.
Private Bills
During the 108th Congress, the Subcommittee on Immigration,
Border Security and Claims received referral of 28 private
claims bills, 1 private claims resolution, and 72 private
immigration bills. The Subcommittee held no hearings on these
bills. The Subcommittee recommended one private claims bill,
one private claims resolution, and 4 private immigration bills
to the full Committee. The Committee ordered 1 private claims
bills and 4 private immigration bills reported favorably to the
House. The House passed no private claims bills and 4 private
immigration bills reported by the Committee. The private
immigration bills were passed by the Senate and signed into law
by the President. One Senate private claims bill was passed by
unanimous consent by the House (a House bill for the same
individual had passed the House in a prior Congress) and signed
into law by the President. No bills were still pending in the
Senate at the close of the 108th Congress. A private House
Resolution ordered reported by the Subcommittee to the full
Committee was not taken up by the Committee prior to the close
of the 108th Congress.
Oversight Activities
Oversight list of hearings
Alien Removals under Operation Predator, March 4, 2004 (Serial
no. 73)
US-VISIT--A Down Payment on Homeland Security, March 18, 2004
(Serial no. 77)
Pushing the Border Out on Alien Smuggling: New Tools and
Intelligence Initiatives, May 18, 2004 (Serial no.
88)
Families and Businesses in Limbo: The Detrimental Impact of the
Immigration Backlog, June 17 and 23, 2004 (Serial
no. 96)
The Diversity Visa program, and its Susceptibility to Fraud and
Abuse, April 29, 2004 (Serial no. 82)
Funding for Immigration in the President's 2005 Budget,
February 25 and March 11, 2004 (Serial no.68)
Oversight of public safety and immigration consequences of local
immigration ``sanctuary'' policies
In the first session, the Subcommittee on Immigration,
Border Security, and Claims examined local sanctuary policies,
which bar local employees from contacting the immigration
authorities about suspected illegal aliens. In particular, the
Subcommittee reviewed such policies in the context of a brutal
sexual assault that occurred in New York City on December 19,
2002, carried out by a group of aliens, some of whom had prior
criminal records at the time of the assault.
At a February 27, 2003 hearing, the Subcommittee reviewed
the immigration and criminal histories of the aliens charged in
connection with the December 1992 assault, assessed whether any
of those individuals should have been removed from the United
States prior to that assault, and examined whether a New York
City policy, which purportedly bars city police officers from
contacting immigration authorities about arrested aliens, may
have prevented New York City Police Department (NYPD) officers
from contacting the Immigration and Naturalization Service
(INS) about four of those aliens, each of whom had been
previously arrested by the NYPD. In addition, the effect of
other, similar policies on law enforcement efforts was reviewed
at the hearing.
The Subcommittee continues to investigate the effect of
sanctuary policies on alien criminality in the United States.
Oversight of nonimmigrant student tracking: implementation and proposed
modifications
The Subcommittee has closely overseen the implementation of
the system for tracking alien students in both the 107th and
108th Congresses. On Wednesday, April 2, 2003, the Subcommittee
held a hearing on the INS's implementation of its student
tracking program, and proposed modifications to that program.
This was a follow-up to the Subcommittee's September 18, 2002
oversight hearing on ``The Immigration and Naturalization
Service's (INS's) Implementation of the Foreign Student
Tracking Program.'' At the April 2, 2003, hearing, the
Subcommittee examined INS's and ICE's implementation of the
program, Student Exchange Visitor Information System (SEVIS),
as well as some possible modifications to the system that might
improve its performance and functionality in the war against
terrorism.
As the SEVIS system neared implementation, concerns were
raised about its effectiveness, and about the INS's ability to
have the system fully functional by the January 30, 2003
deadline. In particular, prior to implementation, schools
complained that they would not be able to comply with the
January 30, 2003 deadline, for a variety of reasons.
Schools also assailed the INS's unilateral decision to
discontinue SEVIS seminars. The INS had previously hired EDS,
which developed the student database, to set up daylong
information seminars on college campuses and elsewhere to show
officials how to use the system and to field questions and
concerns about it. The schools deemed these to be ``training
sessions.'' In July 2002, the INS discontinued those seminars
to focus on technical support.
INS had previously argued that it had decided to eliminate
the contracted services to focus resources on getting SEVIS up
and running as quickly and effectively as possible, and that it
wanted to put more effort toward ensuring that institutions
filed the proper paperwork with the immigration agency on time.
As Janis Sposato, former Assistant Deputy Associate
Commissioner at the INS and the then-head of the SEVIS
implementation team stated at the September hearing:
For the last year INS had regularly scheduled SEVIS
seminars across the country to provide the information
necessary to schools and programs to begin
implementation of SEVIS. With the publication of the
proposed rule and the deployment of the system in July,
INS transitioned from providing informational seminars
to providing a SEVIS-dedicated, national call center
with multiple tiers to answer technical and policy-
related questions.
Furthermore, Sposato asserted, the INS SEVIS team
frequently participated in national and regional level
educational conferences to inform the schools about SEVIS.
The Department of Justice's Inspector General also voiced
concerns about the system. The Inspector General had overseen
SEVIS since it was in its development stage, as part of his
larger review of how the INS tracked foreign students. His
findings with respect to SEVIS were included in a May 2002
report on the issuance of visas to two of the September 11
hijackers and in testimony before the Subcommittee at the
September 2002 student-tracking hearing.
At the hearing, the Inspector General stated that SEVIS
would help solve many of the problems that the INS has had in
the past in tracking foreign students, and would help the INS
detect I-20 fraud by schools and students. He concluded,
however, that despite these improvements, there were problems
in the INS's student program that the implementation of SEVIS
would not solve. He also asserted that the INS was failing to
address problems that his office had identified in its May 2002
report.
In addition to pre-implementation concerns about the
system, critics also had concerns and complaints about the
system after it was implemented. While January 30, 2003 was the
original deadline for schools to enroll in SEVIS to produce
Forms I-20 for foreign students, that deadline was extended to
February 15, 2003, because of a performance problem in the
system that had slowed the response times for system users.
Even after that date, however, some system users and the
Inspector General were critical of the system. Many of those
criticisms mirrored concerns that the schools and the Inspector
General voiced prior to the January 2003 implementation of the
system.
The schools and other users of SEVIS complained that the
system suffered fromnumerous problems, which fell into three
general categories.
The first category of problems were technical in nature.
Schools asserted that they encountered numerous technical
difficulties and glitches in using the system. The second
purported problem with SEVIS was that the system did not
provide real-time access to data. The system is intended to
link ICE, the State Department, and the schools in real time.
In testimony before the House Science Committee, however, Dr.
David Ward of ACE testified that some embassies and consulates
had found that it took a week or longer for them to access data
entered into SEVIS, meaning that students who had traveled to
consular posts for their visas were turned away because the
consular officers had no SEVIS record for the students.
The third category of complaints that academic officials
raised about SEVIS concerned user support. Reflecting pre-
implementation complaints, Ward testified before the Science
Committee that the INS failed to provide adequate training to
either INS employees or the academic community on use of the
system. Schools officials also complained about the SEVIS
users' guides and help desk. In addition to the complaints
raised by academic officials about glitches in SEVIS, the
Inspector General released a report on March 17, 2003, that
identified additional deficiencies in the INS's implementation
of the system.
The INS had guaranteed that it would process, by January
30, 2003, all I-17 applications submitted by November 15, 2002.
The Inspector General concluded, however, that the INS failed
to complete its reviews for those schools in time to comply
with the enrollment deadline for SEVIS, processing by that date
only 1,963 (69%) of the 2,856 applications that were submitted
between September 25, 2002, and November 15, 2002. There were
delays in processing those applications, he determined, because
of insufficient field adjudication staffing; technical problems
related to the adjudicators' password access to SEVIS; and the
failure of the INS contract investigators to conduct on-site
reviews in a timely manner and to transmit the schools'
supporting documentation to the INS adjudicators.
The Inspector General also concluded in that report that
SEVIS was not ``fully implemented'' by January 1, 2003, as
required by the USA PATRIOT Act, and that the system was ``only
technically available'' by that date. Arguing that ``system
implementation can[not] be viewed as separate from program
implementation,'' he asserted that ``SEVIS has not been fully
implemented because the program elements essential to ensuring
the integrity of the system are not fully in place.'' He
identified these elements, inter alia, as: (1) ensuring that
sufficient resources are devoted to the foreign student
program; (2) ensuring that only bona fide schools are provided
access to SEVIS; (3) ensuring that schools are completely and
accurately entering information on their foreign students into
SEVIS in a timely manner; (4) adequately training Department of
Homeland Security (DHS) employees and school representatives;
(5) establishing procedures for using SEVIS data to identify
noncompliant and fraudulent operations; and (6) following up
when SEVIS data indicated fraud in a school's program.
The Inspector General drew upon his review of SEVIS to
support his conclusion that these elements were not fully in
place. He found that the INS's oversight of its contractors was
inadequate to ensure that schools with access to SEVIS are bona
fide.
The Inspector General also found that the INS's review of
the schools' recordkeeping and internal controls was
insufficient to ensure that the schools were complying with
SEVIS recordkeeping requirements. The INS relied on contract
investigators to conduct compliance audits to ensure that
schools had appropriate internal controls in place and were
entering data into SEVIS accurately, completely, and in a
timely manner. The report concluded that this process was not
sufficient to identify a school's internal control weaknesses,
however, which, the Inspector General concluded, could lead to
fraud, or to determine that a school's SEVIS records are
complete, accurate, and current.
In addition, the Inspector General argued that the SEVIS
database would not be fully functional as a monitoring system
until August 1, 2003 by which date schools were required to
enter information on their continuing (as opposed to newly
admitted) foreign students into the system. Until then, the
Inspector General found, the INS would continue to operate what
he termed an ``inadequate, paper-based system to monitor
continuing foreign students.''
The Inspector General further found that the INS needed to
ensure that it uses SEVIS to identify foreign students who are
not complying with their visa requirements, as well as schools
and other individuals engaging in visa fraud. While the INS had
taken steps to achieve these goals, he found, due to limited
resources the INS was unable to investigate all foreign
students who fail to enroll or who fail to leave the United
States after completing their studies, sham schools, and
designated school officials (DSOs) who commit foreign student
visa fraud at legitimate schools.
Finally, the Inspector General found that the transfer of
INS to DHS created a significant management challenge for the
foreign student program and SEVIS implementation. Pursuant to
the Homeland Security Act of 2002, responsibility for SEVIS
implementation was shifted from the Immigration Services
Division at the INS to ICE. The Inspector General concluded
that ``[c]lose oversight is required to ensure a smooth
transition,'' and that it was essential that the individuals
responsible for certifying schools in ICE be quickly
identified,\1\ so that they could receive sufficient training
and guidance.
---------------------------------------------------------------------------
\1\ Prior to the break-up of the INS, I-17 applications were
adjudicated by district office benefits personnel, who were moved in
the transition to CIS. As noted, responsibility for SEVIS has been
shifted to ICE, which has jurisdiction over interior immigration
enforcement.
---------------------------------------------------------------------------
ICE defended the system at the April 2003 hearing. It
argued that since implementation, SEVIS has performed very
effectively, and that while it has not been without issues,
most problems are quickly addressed and resolved. ``For
example,'' it asserted, ``the intermittent inability of some
schools to access the system and users timing out before they
could complete their desired task had occurred. In early March,
the system was taken off line for 15 minutes and the necessary
fixes were made to remedy these performance problems.'' The
only ``outstanding issue'' identified by ICE had to do with
``an issue known as `bleeding,' the unintended merging of data
from one school to another which results in the printing of
legitimate student information at the wrong institution.'' The
agency witness stated that ICE had hired an additional
contractor specifically to address this issue, which it termed
an issue of ``privacy, not accuracy.''
The agency promised to continue to enhance its internal
training of DHS officers on the system, as well as to improve
the SEVIS training provided to schools. Looking ahead to a
constant two-year cycle of school certification reviews, it
asserted that it would be ``examining the best ways to verify
the bona fides of currently certified schools and new schools
seeking touse the system.'' With the system fully implemented
and all schools enrolling foreign students required to utilize the
system, ICE averred that it would ``continue to examine and re-examine
methods used to verify compliance with record-keeping, reporting, and
other SEVIS requirements.''
Finally, responding to concerns in the school community
that SEVIS errors were responsible for unwarranted enforcement
actions being taken against students, the ICE witness
``assure[d] the public that [ICE] does not rely solely on
information in SEVIS.'' Rather, he stated, ``[p]rior to taking
an enforcement action, ICE agents review each individual case,
including interviewing potential violators, to confirm that
action is warranted.''
An additional concern about SEVIS that was only briefly
addressed at the April 2003, hearing was funding for the
system. Section 641 of IIRIRA mandated the imposition of a fee
on students and exchange visitors to fund the design,
development, and operation of SEVIS. This payment feature has
been one of the most controversial parts of the system.
On December 21, 1999, the INS published a proposed rule to
implement this provision. Following the language in Sec. 641(e)
of IIRIRA, which required that ``an approved institution of
higher education and a designated exchange visitor program''
collect and remit the fee to the Attorney General, the proposed
regulation identified these two groups as the designated fee
collectors. The INS received over 4,600 comments to the
proposed regulation, most of which opposed the role of
educational institutions and exchange visitor programs as fee
collectors, which, commentators asserted, was an inappropriate
role for such institutions.
In response, the INS worked with Congress, the State
Department, and stakeholder groups to amend Sec. 641(e). The
resulting legislation was included in Sec. 404 of the Visa
Waiver Permanent Act, Pub. L. No. 106-396 (2000). The three
most significant changes in that section were: (1) the removal
of the requirement that educational institutions and exchange
visitor programs collect SEVIS fees, and the requirement that
aliens pay fees directly to the Attorney General; (2) a
requirement that the alien pay the fee before being classified
as an F, J, or M nonimmigrant; and (3) a reduction in the fee
amount for certain J-1 nonimmigrants, specifically au pairs,
camp counselors, and summer work or travel participants.
INS subsequently submitted a fee collection rule to OMB,
but withdrew that rule following the passage of the USA PATRIOT
Act, which authorized funding to accommodate the fast track
implementation of SEVIS. The SEVIS fee was eventually
instituted on September 1, 2004, after several inquiries from
the Subcommittee. There are currently multiple methods of
paying the SEVIS fee: Internet payments via debit or credit
card; checks or money orders drawn on a U.S. account; third-
party payments; via Western Union Quick Pay service; and
through bulk-filing payments for certain exchange visitor
program sponsors.
The Subcommittee continues to oversee the implementation of
SEVIS.
Oversight of John Allen Muhammad, passport fraud, and the Western
Hemisphere passport exception
In the 108th Congress, the Subcommittee examined the so-
called Western Hemisphere exception, which relieves United
States citizens of the statutory requirement that they carry
passports when entering the country from, and leaving to, a
country in the Western Hemisphere other than Cuba, in the
context of the John Muhammad case.
Muhammad, convicted in connection with one of a series of
shootings in the National Capital area that occurred in October
2002, lived in Antigua from March 2000 to May 2001. In a
December 31, 2002, report, an Antiguan government-sponsored
``Task Force'' headed by island attorney John Fuller determined
that Muhammad primarily supported himself in Antigua by selling
forged U.S.-travel documents, including birth certificates and
driver's licenses, to travelers seeking admission to the United
States. On May 13, 2003, the Subcommittee held a hearing to
examine Muhammad's document-fraud activities in Antigua, his
apparent exploitation of the Western Hemisphere exception in
the course of those activities, and ways to address that
loophole.
According to a government website reviewed by the
Subcommittee in May 2003, a U.S. citizen returning to the
United States from elsewhere in the Western Hemisphere may
present either a passport or a secondary document, i.e., a
certified copy of the citizen's birth certificate or baptismal
record, along with a current photo identification issued by a
government agency (such as a state identification card,
driver's license, or military identification card). A citizen
without a certified copy of his or her birth certificate may
present a U.S. state- or federal-government-issued birth record
or baptismal record, accompanied by a government-issued
identification.
Logically, aliens withdrawal visas may try to persuade
themselves as citizens to gain entry. Another reason for a
traveler to present false documents at a port of entry is to
evade scrutiny on entry. The computer system used by inspectors
at the ports of entry accesses a number of databases, including
``lookout'' databases, which target specific individuals who
are sought, for questioning or otherwise, by various law-
enforcement agencies. The class of individuals who might
present false documents for this reason crosses the spectrum of
immigration statuses, from citizens to lawful permanent
residents to inadmissible aliens. It is reasonable to presume
that smugglers and others who cross the border frequently for
illicit purposes would employ a number of aliases for this
reason.
The effectiveness of the INS's screening of secondary
citizenship documents was examined by the GAO Office of Special
Investigations (OSI) twice, once in late 2002 at the Senate's
request, and again at the Committee's request in May 2003. In
those operations, GAO created counterfeit identification
documents to establish fictitious identities for the agents
``by using off-the-shelf computer graphic software that is
available to any purchaser.'' The agents then entered the
United States from Jamaica, Barbados, Mexico, and Canada using
the fictitious names, counterfeit driver's licenses, and birth
certificates. As Robert Cramer, Managing Director of OSI
described the results at the May 2003, Subcommittee hearing:
``CBP staff never questioned the authenticity of the
counterfeit documents, and our agents encountered no difficulty
entering the country using them.''
In apparent contradiction to the information contained on
the aforementioned government website, Cramer asserted that
``people who enter the United States are not always asked to
present identification.'' He concluded that ``[a]lthough [CBP]
inspects millions of people who enter the United States and
detects thousands of individuals who attempt to enter illegally
each year, the results of our work indicate that [CBP]
inspectors are not readily capable of detecting counterfeit
identification documents.''
The large number of documents that could be processed for
inspector undoubtedly complicates CBP's Task. The number of
documents that may be presented to enter the United States
increases exponentially when birth certificates are factored
in. Specifically, more than 8,000 different authorities in the
United States issue birth certificates, and more than 50,000
different versions of birth certificates are issued by states,
counties and municipalities. Even if baptismal certificates are
removed from the equation, therefore, the number of acceptable
documents that could be presented by a traveler seeking entry
as a U.S. citizen is far greater than any one inspector, or any
one port, could possibly have familiarity with, let alone a
working knowledge of.
The second factor that makes it difficult to screen
purported U.S. citizens at ports of entry with secondary
documents, or no documents at all, has to do with the checks
that inspectors perform at those ports. At a January 30, 2003,
Senate hearing, Ron Malfi of OSI described those checks as
``negative checks,'' explaining: ``[I]f the name is fictitious
and there is no record of those names or those identifiers and
it is not someone that has a record using that name, nothing is
going to bounce out of these computers.'' Therefore, an
inspector cannot rely on the inspections databases to identify
mala fide travelers using false names, or to verify claims of
U.S. citizenship.
Thus, when a traveler at a port of entry carrying only
secondary documents, or no documents at all, seeks entry into
the United States as a U.S. citizen, the inspector at the port
of entry must largely rely on his or her judgment and instincts
in evaluating the traveler's demeanor in determining whether
the traveler is bona fide, or rather is using an alias or
making a false claim to U.S. citizenship. As the INS witness
explained at the January 30, 2003 hearing: ``[I]nspectors rely
heavily on their experience. Some people call it a sixth sense,
or a gut feeling.'' While relying on an inspector's sixth sense
may be reasonable with seasoned inspectors, such reliance may
be misplaced when the inspector is newly hired, as
approximately 26% of all immigration inspectors were in FY
2002.
The advanced level of readily available technology that is
used by document counterfeiters is a third factor that makes it
difficult for inspectors at the ports of entry to screen
citizenship claims. Such technology, coupled with the lack of
uniform standards for birth certificates and driver's licenses
in the United States, would make it difficult if not impossible
for even the most well-informed, observant and conscientious
inspector to identify every counterfeit document that is
presented for inspections purposes.
Such factors do not impede an inspector who is reviewing a
U.S. passport, on the other hand. While a passport, like any
document, is susceptible to counterfeiting or alteration, it is
a fairly standardized document with a number of security
features that make it more difficult to counterfeit, and that
make alterations more apparent. The passport is printed on
high-quality safety paper with a watermark. The passport pages
use multicolor split-fountain printing and solvent-sensitive
inks. Each visa page is unique, having a different U.S. state
seal in the center. The document is machine readable,
conforming to standards set by the International Civil Aviation
Organization. These features make it easier for an immigration
inspector to identify a mala fide traveler with a counterfeit,
altered, or photo-substituted passport. Accordingly, the
Western Hemisphere exception to the passport rule makes it
easier for U.S. citizens and aliens to avoid scrutiny at the
ports of entry, by making it easier for them to use non-
verifiable aliases. These factors also make it easier for
inadmissible aliens to falsely claim U.S. citizenship.
From the Committee's investigation, it is apparent that
Muhammad took advantage of the Western Hemisphere exception in
assisting aliens who were inadmissible to the United States.
The vulnerability of the exception to terrorist fraud and abuse
was raised by the 9/11 Commission in its final report. This
loophole was addressed in Sec. 7209 of the Intelligence Reform
and Terrorism Prevention Act of 2004, which will limit the
documents that may be presented for admission purposes.
Oversight of lateral repatriation and the release of non-Mexican
nationals along the southwest border
In the fall of 2003, at the request of Members of the Texas
delegation, Subcommittee staff reviewed two policies affecting
south Texas: lateral repatriation and the release of nationals
from countries other than Mexico (OTMs) on their own
recognizance (OR) in Laredo.
In FY 2003, 7,787 OTMs were arrested in the Laredo sector,
as were 62,734 Mexicans. The five largest sending countries for
OTMs were Honduras, El Salvador, Brazil, Guatemala, and
Nicaragua. Most of these OTMs, those who were not criminals,
were released on their own recognizance.
Due to an October 2003 change in local court policy on the
detention of OTMs prosecuted for illegal entry, however, some
64 such aliens were subject to release shortly after they were
convicted. ICE was able to detain 24 of those aliens, but the
remaining 40 were released on their own recognizance as a
group.
When this fact became public, it raised concerns in the
local community, and prompted the Subcommittee's review of the
release of OTMs into Laredo. Staff was sent to assess the
situation in Laredo, and to consult with local officials and
DHS in Texas. In San Antonio, DHS informed staff that
additional bedspace would be secured for the OTMs apprehended
along the Texas border, and that procedures would be put in
place to ensure that their cases could be adjudicated quickly.
On August 10, 2004, DHS announced plans to expand the
expedited removal program beyond the ports of entry, in part to
address OTM release issues like those experienced in Laredo.
DHS expanded expedited removal to cover OTMs who have entered
illegally, and who are encountered within 100 miles of the
border and within two weeks of entry. This will allow such
aliens to be removed more quickly than in traditional
immigration proceedings, freeing up detention bedspace.
At the same time, the staff explained ``lateral
repatritation,'' whereby Mexican nationals apprehended in
Arizona were sent to south Texas for deportation. Critics in
the affected Texas communities complained that Border Patrol
was ``dumping'' aliens from Arizona into the area, and argued
that the aliens that the Border Patrol removed were likely to
try to reenter at the ``safer'' crossing points along the
Texas-Mexican border than they would in Arizona. In addition,
there were concerns that the aliens would attempt illegal entry
into Laredo, as well as concerns about the impact that the
surge of aliens into Laredo would have on Nuevo Laredo, across
the river. All of these concerns were apparently heightened by
reports that aliens to be repatriatedwere seen deplaning in
shackles, raising fears that the aliens were criminals.
The staff investigation has revealed that the aliens
repatriated across the Mexican border did not, in fact, attempt
to reenter the United States at any substantive level. Of the
1700 Mexican nationals repatriated at Laredo, only 14 were
caught while reentering. Given the fact that the Border Patrol
estimates that it apprehends 90% of the aliens attempting
illegal entry through Laredo, this would mean that less than 1%
of the aliens repatriated tried to reenter. Nor were any of the
aliens transported known to be criminal aliens. Rather, while
the aliens were shackled during their flights, this was only
done to protect the detention officers and crew.
Despite its successes, CBP has not attempted to reinstate
the lateral repatriation program. In its place, on June 29,
2004, the agency announced a bilateral agreement between the
United States and Mexico for a voluntary interior repatriation
pilot program. Under this interior repatriation program,
Mexican nationals are given the option of returning to their
place of origin when apprehended for illegal entry. As the CBP
press release puts it: ``Beginning in July [2004], illegal
Mexican migrants may volunteer for the program, returning home
via charter aircraft from Tucson, Arizona to either Mexico City
or Guadalajara. Bus transportation will then be provided to
their final destination.''
Oversight of alien gang activity
Published reports have indicated that there are upwards of
750,000 gang members in the United States. Gang membership has
reportedly been on the increase among aliens, particularly
aliens from Mexico and Central America, and published reports
in 2004 linked alien gang members to a series of shocking
crimes across the country.
In June 2004, Chairman Hostettler wrote to ICE, asking for
that agency's response to the growing alien gang problem. ICE
has subsequently announced that in 2005, it will be launching a
nationwide gang-enforcement program.
Immigration backlog
On June 17 and 23, 2004, the Subcommittee on Immigration,
Border Security, & Claims held an oversight hearing on how the
Department of Homeland Security (DHS), U.S. Citizenship &
Immigration Services (USCIS), plans to fulfill the President's
commitment to reduce the immigration and naturalization
petition and application backlog (hereinafter, ``application
backlog'') to a six-month response time by FY 2006.
The President has targeted a universal six-month processing
time standard by FY 2006 for all immigration petitions filed.
Towards this goal he proposed a $500 million initiative to
attain this standard and Congress has so far accommodated this
initiative.
The Subcommittee examined the experience of family members
and business owners suffering because the immigration backlog
has prevented legitimate aliens from entering the U.S. or
gaining proper status to be with their relatives or work for an
American company. The hearing also reviewed the history of the
now 6 million petition backlog (as of the end of FY 2003),
USCIS problems in keeping current with the application flow,
and several possible solutions to assist in reducing in the
backlog.
The petition backlog has had a wide ranging impact on
families, business, and security issues in the U.S. Families
have had to wait longer to see their loved ones come to the
United States while waiting overseas for a petition approval.
Even if their family member is in the U.S., and they have been
able to extend their immigration status while waiting for a
decision on the petition from USCIS, they are essentially in
limbo status and unable to make long term decisions. Many
family-based applicants feel they are unable to leave the U.S.
on business or to visit family overseas until their immigration
petition is adjudicated (although humanitarian parole is
available, this requires more paperwork added to backlog work).
Businesses have difficulty taking on new employees without
knowing whether they will be employed long-term, and yet they
feel compelled to do so in the case of some aliens who possess
skills otherwise unavailable in the U.S. Large American
multinationals have found it increasingly difficult to act
efficiently in shutting down offices in international
locations, opening others, and moving their international
personnel to and from the U.S. to conduct business.
International business partners or potential partners or
clients are increasingly frustrated from their inability to fly
freely to speak to American counterparts in the U.S. Further,
businesses have been unable to timely fill positions with
foreign personnel when market demands have required an
immediate, if not temporary, increase in certain types of
personnel (e.g., the ``dot com'' boom). In some cases, these
businesses lose competitiveness because of the immigration
backlog factor.
From FY 1992 through FY 1994, the Immigration &
Naturalization Service (INS) was ``current'' in processing
immigration applications within a reasonable time. The number
of applications pending at INS increased from 656,000 in FY
1992 to 1.8 million in FY 1995. By the end of FY 2003, the
applications backlog increased to over six million (including
662,000 naturalization applications as of June 2004). Current
processing times can take years (e.g., a naturalization N-400
application in Columbus, Ohio, currently takes two years).
At the hearing, USCIS revealed its formal plan to reduce
response times on immigration petitions to six months or less
by FY 2006 (and thus, ``eliminate'' the backlog). The
Department of Homeland Security Ombudsman unveiled his formal
report on USCIS operations required by the Homeland Security
Act of 2000.
On May 13, 2004, Chairman F. James Sensenbrenner, Jr., and
Ranking Member John Conyers, Jr., sent a joint letter to
Comptroller General, requesting an audit of the funds
appropriated to reduce the immigration application backlog, and
examine the management issues, employee incentives,
accountability, incompatible dual missions, legal restraints,
technology issues, and funding issues that related to the
application backlog. GAO accepted the request and the
examination is ongoing.
The Committee staff also discussed reforms with the
Department of Homeland Security (DHS) Ombudsman including pilot
programs he advanced. The DHS Ombudsman has a specific mandate
in the Homeland Security Act of 2002, Sec. 452, to assist
individuals and employers inresolving problems with USCIS and
to propose changes in the administrative practices of USCIS. Thus, the
Ombudsman has proposed and is about to institute pilot programs with
the cooperation of DHS (but USCIS's position on the pilot program is
uncertain). One pilot program will provide an interview to immediate
relatives of U.S. citizens as soon as a petition is filed. Currently,
these aliens may obtain work authorization immediately, but their
application may not be acted upon for years while waiting its turn in
the backlog (at which time, it may be determined that a genuine family
relationship does not exist). The pilot would try to immediately
adjudicate new petitions instead of taking the oldest cases in the
backlog (the traditional method). Such a method of handling long
adjudication delays was employed with asylum cases in the mid 1990s.
The Ombudsman submitted his report before the end of June.
Various parties have suggested better computer systems and
data management as a critical part of improving immigration
petition processing. As mentioned above, USCIS is developing e-
filing, but remains tied to its outdated Computer Linked
Application Information Management System (CLAIMS4) system for
handling data management. The CLAIMS4 system is not capable of
producing statistics on the backlog for particular types of
immigration petitions (e.g., those which must wait for an
available visa number versus those which do not).
The Department of Labor (DOL) also has a backlog of
immigration applications, which the Subcommittee has monitored.
DOL handles the ``labor certifications'' for H-2 nonimmigrant
visas and some employment-based immigrant visas (green cards),
and the less stringent ``labor attestations'' for H-1
nonimmigrant visas (approvals go to USCIS for final
adjudication on immigration status approval). This process is
designed to protect American workers from adverse wage impacts
or conditions stemming from foreign worker influx. Part of the
process is handled at the state level where processing has been
slow; however, Department of Labor has also had difficulty
keeping their applications for labor certifications and labor
attestations current. DOL has published interim final rules
(regulations) to consolidate the processing at two centers and
remove state agencies from the process (except in setting
``prevailing wages'' for comparison). The Committee staff
obtained planning information and received a number of
briefings on this subject.
The Committee also sent staff, at State Department expense,
to examine the National Visa Center and the National Passport
Center, located in New Hampshire, and the USCIS Service Center
at St. Albans, Vermont. The trip exposed different types of
processing for immigration applications and other backlog
issues.
Alien sexual predators
The Subcommittee held a hearing on removing alien sexual
predators under ``Operation Predator'' in March 2004. According
to a recent study on ``The Commercial Sexual Exploitation of
Children in the U.S., Canada and Mexico,'' funded in part by
the Department of Justice, between 300,000 and 400,000 U.S.
children are victims of some type of sexual exploitation every
year.\2\ Police officials have reported that, at the border, it
is easier for sexual predators of children to avoid
prosecution.\3\ The State Department has reported that 20,000
people are trafficked into the U.S. each year for the purpose
of sexual exploitation.\4\ ICE launched an initiative in July
2003 to identify, investigate, and arrest alien child
predators. That initiative, ``Operation Predator,'' draws on
the expertise of the several legacy organizations merged into
ICE, including legacy Customs Service and the enforcement wing
of the Immigration & Naturalization Service (INS). Operation
Predator personnel utilize ICE intelligence, investigative,
detention and removal and cyber resources (including ICE
CyberSmuggling Center in Fairfax, VA) to accomplish its goals.
---------------------------------------------------------------------------
\2\ Edwards, U.S. child-sex exploitation an `epidemic,' study
finds, The Washington Times, p. A7, Sept. 11, 2001.
\3\ Valedez, Border helps cloak sexual predators, El Paso Times,
June 15, 2001, p. 4B.
\4\ Trafficking in Persons Report, June 2003, ``A recent U.S.
Government estimate indicates * * * between 18,000 and 20,000 of those
victims are trafficked into the United States.'' http:
//www.state.gov/r/pa/ei/rls/21475.htm
---------------------------------------------------------------------------
Since inception, the ``Operation Predator'' initiative has
resulted in over 2000 arrests nationwide. ``Operation
Predator'' concentrates on Internet child predators, human
traffickers, and other sexual predators. As part of the effort,
ICE has established a single web portal to access all publicly
available state addresses provided under Megan's Law. Megan's
Law, enacted in 1996, requires state and local agencies to
release information to communities about violent sex offenders
when then move into a neighborhood. The law was named after
seven-year-old Megan Kanka who was raped and murdered by Jesse
K. Timmendequas, a convicted sex offender in Hamilton Township,
N.J.
ICE agents are stationed abroad to work with foreign
governments and their foreign law enforcement counterparts to
enhance coordination and cooperation on related crimes across
borders. Similarly, ICE is working with INTERPOL to enhance
foreign government intelligence on criminal child predators. It
has created a National Child Victim Identification System with
other agencies. ICE also works with non-governmental
organizations such as World Vision to fight child sex
trafficking, and recently signed a Memorandum of Understanding
with National Center for Missing & Exploited Children (NCMEC)
for NCMEC to perform child identification functions for ICE.
ICE's Detention and Removal Division has prioritized the
removal of criminal aliens with a history of sexual offenses.
These are aliens who have been convicted but who subsequently
evaded efforts to remove them from the U.S. If apprehended,
these aliens are held without bond. To assist in this effort,
ICE publishes a ``Most Wanted'' Criminal Aliens List on its
website, and staffs a 24 hour tip-line at 1-866-DHS-BICE.
ICE's Institutional Removal Program identifies removable
alien inmates at federal prisons and ensures that they are
identified prior to release and removed after serving their
sentence. Similarly, ICE has sought to partner with state
prison officials to ensure the same treatment at state prisons.
Further, ICE has begun notifying foreign governments to notify
them of any deportations of aliens with child sex histories,
and hopes to obtain information from foreign governments on
sexual predators seeking to enter the U.S.
In December, the Subcommittee submitted a bipartisan
request to the General Accountability Office (GAO) to examine
the fact that USCIS has found prior felons with histories of
sexual abuse against minors and spouses petitioning for foreign
spouses with children.
US VISIT entry exit system
The Subcommittee held a hearing on March 18, 2004 on the US
VISIT program. US VISIT is a Congressionally mandated entry-
exit system that collects biometric data and utilizes
previously collected data at U.S. ports of entry and at U.S.
Consulates abroad. DHS met its statutory deadline for
implementing US VISIT entry screening by initiating the program
at all airports and seaports just after the new year began, but
the exit screening portion has not been completed. The data
collected at entry is compared with databases containing names,
biometric data, and information regarding known or suspected
terrorists, criminals, visa-ineligible aliens and immigration
violators. The biometric data taken at the time of visa
issuance abroad will be compared to fingerprints and pictures
taken at the U.S. port of entry. This assures that the person
to whom the State Department issued a visa is also the person
who is applying for entry at the port of entry. It also
provides a second check of watchlists to ensure aliens entering
the U.S. are not ineligible for entry.
Aliens issued visas are processed through the US VISIT
program at the port of entry by presenting a passport with the
U.S. visa. They are asked to place their index fingers on a
scanner which captures the fingerprint for entry into a
watchlist database. The immigration inspector also takes a
quick digital photo of the alien's face which also goes into
the US VISIT database. This data, as well as the data contained
in the visa and passport, are checked against watchlists that
have been connected through US VISIT. If an alien's identity or
visa eligibility is in question, that person is sent to
secondary inspection for further investigation. In the middle
of the year, Visa Waiver Program (VWP) aliens were no longer
excepted from US VISIT, but Border Crossing Card (BCC) holders
and Canadians continue to be.
VWP countries are required to begin production of biometric
passports by October 2005. The State Department has developed a
``chip'' passport that is scheduled to go into production late
this year. The new passport will contain a chip that is capable
of containing biometric data, including fingerprint and facial
recognition data. To remain in the VWP program, countries must
follow suit in producing these passports in the near future.
VWP entrants can only visit the United States for up to 90 days
as a visitor or for temporary business (essentially, as a B1/B2
visa holder with shorter timeframes). In 2003, 13.5 million
aliens entered the U.S. on the VWP program.
Processing times only increased by 15 additional seconds
per person admitted. There are no reported incidents of
backlogs in processing travelers through the airports, although
there are occasional complaints about providing a fingerprint.
Delays may be experienced when US VISIT is implemented at the
land borders later this year and as an exit system.
Nevertheless, there are signs that the fingerprinting process
of US VISIT actually increases the efficiency of processing
travelers through inspection. The gradual progression of the
program continues to be an important oversight issue.
The Data Management Improvement Act (DMIA) created the
current basis of US VISIT. The Illegal Immigration Reform &
Immigrant Responsibility Act of 1996 (IIRIRA), Sec. 110,
initially required the development of an entry-exit system that
would track non-immigrants who overstayed their visas. After
the 9-11 terrorist attacks, the Enhanced Border Security and
Visa Reform Act of 2002 set a deadline of October 26, 2004, for
installing equipment and a system to make biometric comparisons
of entry and exit data from non-immigrant aliens. However, it
is the DMIA that amended Sec. 110 of IIRIRA to require the
basic system to collect electronic data on the arrival of
aliens with the capability of matching that data with an
alien's departure data. It also requires equipment to access
the data at ports of entry and exit. IIRIRA originally set the
development of an entry-exit system by September 20, 1998. DMIA
set December 31, 2003, as the deadline for implementation of
the entry-exit system at airports and seaports. Implementation
of the system is to take place at the 50 busiest land borders
one year later. By December 31, 2005, the entry-exit system
should be implemented at all ports of entry.
The Subcommittee corresponded with the Under Secretary for
Homeland Security Asa Hutchison to clarify what would be
considered to be a complete entry-exit system, as little has
been done to complete the exit portion of the system.
Alien smuggling
On May 18, 2004, the Subcommittee held a hearing on
``Pushing out the Border on Alien Smuggling: New Tools and
Intelligence Initiatives.''
From FY 1997 to FY 1999, the number of apprehended aliens
smuggled into the U.S. increased nearly 80%. Government
estimates indicate 500,000 illegal aliens are smuggled into the
United States by organized crime networks. Of those illegal
immigrants who entered the U.S. in 1999, 500,000 are estimated
to be Mexican nationals, 225,000 were estimated to be Central
American nationals, and 30,000 to 40,000 were smuggled in from
Asia. Worldwide, the United Nations estimates 4 million people
are smuggled annually, amounting to a $7 billion enterprise
(USG estimates reach $9.5 billion). In the past fifteen years,
alien smuggling has developed into big business run by well
organized and sophisticated criminal organizations reaching
from distant Ukraine, Vietnam, and China. The U.S. Department
of State estimated that the primary target for smugglers is the
United States and that thousands of people are constantly in
the smuggling pipeline waiting in holding facilities and
waiting for either new routes to open up or fraudulent
documents to be produced.
Since its creation, DHS/ ICE has conducted a number of
successful operations to interdict alien smugglers. Operation
ICE Storm was unleashed in November of 2003 and included the
formation of a federal, state, and local agencies task force to
uncover criminal organizations that have turned to smuggling
human beings for profit in the Phoenix, Arizona sector. Phoenix
has large highway systems and an international airport, making
it an attractive hub for alien smugglers; it has also seen a
large increase in the violence and deaths associated with
smuggling organizations. One feature of the program was the
creation of a Most Wanted list for alien smugglers with a toll
free line for reporting.
ICE will discuss this program and similar programs (such as
internal transportation checks) during its testimony. It will
also discuss the increasingly violent and organized nature of
alien smuggling rings. ICE may also discuss the need for better
tools to investigate alien smuggling, such as increased
penalties for alien smuggling.
ICE addresses alien smuggling at the national and
international levels and will focus its efforts in
intelligence-based investigations against major violators.
Specifically, ICE will target smuggling organizations with ties
to countries that support terrorists. A 1997 legacy INS
strategy paper called for INS intelligence to optimize its
ability to collect, analyze, anddisseminate intelligence
information to identify targets for enforcement, and for its
international components to conduct operations in cooperation with
foreign governments.
The State Department, Diplomatic Security Bureau (DS), has
funded some anti-alien smuggling operations, including the
staffing of 25 new positions to combat fraud and gather
information on alien smuggling operations. In the past, DS has
worked with ICE on a number of anti-smuggling anti-fraud
efforts, and this relationship needs to develop further to
combat alien smuggling before it reaches the U.S. It would like
to testify on the need to proactively coordinate an
international response by working with foreign law enforcement
agencies and committing more resources to gathering
intelligence on large smuggling rings and stopping alien
smuggling abroad. Transnational resources at U.S. embassies and
consulates abroad need to be developed and devoted to
disrupting the well-organized criminal rings (small or large
scale) profiting off the smuggling of aliens into the U.S.
DS is the most far-flung federal law enforcement agency,
with 32,500 employees assigned to more than 170 countries. The
DS Criminal Investigative Division conducts criminal
investigations into large scale visa and passport fraud. It
coordinates all requests from other federal, state, and local
law enforcement agencies for criminal investigative assistance
overseas, including requests for assistance in investigations
involving fugitive alien smuggling and parental abductions. DS
likes to point out that by definition alien smuggling involves
more than one country. DS has experience with U.S. law
enforcement authorities operating abroad and is cognizant of
issues involving sovereignty and the application of foreign
laws and, further, in dealing with the capabilities and
limitations of local law enforcement authorities in the foreign
country. DS has experience with individuals associated with
terrorist organizations who have been known to use existing
smuggling organizations and document vendors to facilitate
their travel in various parts of the world. Consequently, DS at
the State Department works with DOJ and DHS to minimize threats
to our national security.
The President, under NSPD-22 (classified) has directed
agencies to develop strategic plans to combat alien smuggling
(and trafficking). He has also provided $50 million to ``rescue
victims'' of trafficking and alien smuggling, some of which
goes to foreign local law enforcement for anti-alien smuggling
efforts.
Major projects on the border include traffic checkpoints
along highways, city patrols and transportation checks, and
anti-smuggling investigations. Since 1994, CBP has made more
than 11.3 million apprehensions nationwide. In FY 2001, CBP
apprehended almost 1.26 million persons for illegally entering
the country (a 24% decline from the previous year). Data has
indicated an overall decline in apprehensions (from a high of
1.6 million in fiscal year 2000, down to a 28-year low of less
than 1 million in fiscal year 2002). Border Patrol also
maintains relationships with local communities, including
ranchers, farmers and other law enforcement entities to assist
in interdicting alien smugglers. At the hearing, CBP will
discuss its major initiatives and the tools it requires to
combat alien smuggling.
The Department of Justice, Criminal Division, Domestic
Security Section, is a major player involved in the prosecution
of alien smugglers. In 2000, the Domestic Security Section
created the Alien Smuggling Task Force. The Civil Rights
Division, with the United States Attorneys' Offices, prosecutes
alien smuggling cases involving sweat shops, domestic
servitude, and agricultural workers. As part of the effort, DOJ
works with other U.S. agencies, such as the FBI, DHS, the Labor
Department, and the State Department, as well as with foreign
authorities. DOJ has assisted foreign countries in removing
officials collaborating with alien smuggling organizations, and
assisted foreign counterparts to initiate their own
prosecutions (of those the U.S. would like to see prosecuted).
DOJ would like to expand international immigration enforcement
efforts.
On January 20, 2004, Chairman John N. Hostettler of the
Subcommittee on Immigration, Border Security & Claims, sent a
letter to the Comptroller General, David Walker, requesting a
study on the federal government response to alien smuggling.
This study is ongoing.
Diversity visas
On April 29, 2004, the Subcommittee held a hearing on ``The
Diversity Visa Program, and Its Susceptibility to Fraud and
Abuse.'' On January 28, 2004, Chairman John N. Hostettler of
the Subcommittee on Immigration, Border Security, & Claims,
sent a letter to the Secretary of State, Colin Powell,
requesting clarification on several points in the U.S.
Department of State's Inspector General Report (#ISP-CA-03-52)
on the Diversity Visa Program. The request included data
required under regulation, the results of a workload study when
completed, and a legal clarification on the applicability of
Immigration & Nationality Act (INA) Sec. 212(a)(6)(C) when
multiple applications for one applicant is discovered.
On June 1, 2004, Subcommittee Chairman John N. Hostettler
of the Subcommittee on Immigration, Border Security & Claims,
sent a letter to the Secretary of State, Colin Powell,
requesting further clarification of various issues after the
oversight hearing was conducted. The State Department explained
its program to transform the entire diversity visa program into
an electronic based system that could combat fraud more easily
(the system was put in place).
Citizenship
In July, the Committee requested an explanation from the
State Department on how it records the dates of entry, exit,
and accreditation for foreign diplomats with full privileges
and immunities, and how it consequently makes determinations on
the citizenship status of children born to such foreign
diplomats. There is a concern that the Protocol Office relies
heavily on present and past records held by foreign embassies
rather than maintaining accurate records of its own. The State
Department has only provided an interim response.
In September, the Committee inquired into whether
Certificates of Loss of Nationality had been issued by the
State Department for ``American Taliban'' as required under law
and regulation, whether such certificates had been approved,
and whether any legal analysis had been conducted on this
subject. The legal strategy for several high-profile cases
might have changed depending on whether the certificates had
been issued, including the cases of Yaser Esam Hamdi, John
Phillip Walker Lindh, Jose Padilla, Adham Amin Assoun, Mohamed
Hesham Youssef, and possibly future similar cases. The State
Department has sent an interim response. The issue was again
raised when ``Azzam the American,'' suspected to be Adam Yahiye
Gadahn, issued threats of mass carnage against Americans in
October.
Redesign of the naturalization exam
In April, the Committee asked for clarification of a
statement from a U.S. Citizenship and Immigration Services
(USCIS) official essentially setting the pass rate for the new
exam at the same level as current pass/fail rate. The Committee
expressed concerns that the redesign of the exam would be a
tailored to ensure the same pass/fail rate rather than ensure
that applicants meet the statutory requirements to obtain
citizenship. The Committee staff also attended workshops,
researched legislative history, and provided advice on the
direction of the design of the exam. Many stakeholders have
expressed differing opinions about the direction of the
examination. CRS was requested to conduct research on the
English language and civics requirements of the naturalization
process.
Passports
On January 16, 2004, Chairman John N. Hostettler of the
Subcommittee on Immigration, Border Security, and Claims sent a
letter to Secretary of State Colin Powell, requesting
information on the integrity of recently issued Venezuelan
passports. Various news agencies reported that Venezuelan
President Chavez made two controversial appointments to head
passport issuance and national identity document issuance.
These appointees had ties to certain Ba'ath Party members and
had reportedly provided identity documents to radical Islamic
groups. The State Department responded with a letter that
included a recent cable to all consular posts entitled, ``New
Policy for Venezuelan Passports.''
In April, the Committee requested the State Department's
position on eliminating the ``Western Hemisphere'' passport
exception (the exception to the rule based in statute that
requires all American to enter the country with a valid U.S.
passport). Based on past hearings, the Government Accounting
Office (GAO) recommended elimination of the exception. State
Department responded that would wait for recommendations from
the 9/11 commission.
Adoption
In February, the subcommittee sent a letter to inquire
about particular adoption cases held up in Guatemala because of
investigations requiring DNA checks. The State Department
responded to these concerns. The Committee staff met with
interest groups about adoption issues.
Application fraud
In July, the Subcommittee requested a study into
immigration application fraud across several agencies. The
Department of Homeland Security (DHS) Ombudsman Report,
required by Sec. 452 of the Homeland Security Act of 2002,
verifies testimony by USCIS Director Aguirre, that fraudulent
petitions significantly add to the backlog. One recent
discussion with the DHS Ombudsman revealed that G-22 workload
reports from USCIS district offices indicated an over 40%
rejection rate at the New York offices for immigrant ``green
card'' applications (a strong indicator of fraudulent
applications), and similar high rejection rates in other
offices. The DHS Ombudsman has reported that findings on
application rejection rates suggest that fraud is more
prevalent as the backlog grows and prevents investigation of
bogus applications. In meetings with USCIS, anti-fraud officers
have indicated that petitioners and unscrupulous immigration
attorneys have become ever more bold in submitting fraudulent
applications (in one case, an attorney submitted thousands of
fraudulent applications).
Within DHS, application and lower level fraud is handled by
USCIS as it comes before an adjudicator. However, if the
processing reveals a larger fraud conspiracy, the matter is
sent to Immigration & Customs Enforcement (ICE) as with all
large scale immigration investigations.
On February 11, 2004, Chairman John N. Hostettler of the
Subcommittee on Immigration, Border Security, and Claims sent a
letter to Assistant Secretary of State for Legislative Affairs,
Paul Kelly, to request a copy of a cable sent to all consular
posts instructing consular officers on how to look out for
``L'' petition fraud. ``L'' fraud was expected to increase as
the ``H-1B'' visa cap was reached for FY 2004 and FY 2005. The
State Department provided the instruction cable shortly after.
Staff requested CRS information on anti-fraud budgets of USCIS,
DOL, State Department, and ICE.
Consular malfeasance
In April, the Committee clarified a request to the
Government Accountability Office (formerly and at the time, the
Government Accounting Office) to expand its inquest (from 2003)
into specified consulates with possible consular malfeasance
problems, to examine all posts. Visa fraud rings have been
uncovered in the past two years at consular posts in Sri Lanka,
Mexico, Qatar, Guyana, and the Czech Republic.
Visa security issues
Staff conducted a courtesy call on Ambassador Arcos to
research and discuss issues related to the staffing of DHS
personnel to oversee visa processing at various consular posts
abroad. DHS is currently having difficulty increasing staffing
abroad and an Inspector General report indicates DHS has added
little additional security to the process so far. It also
indicated that DHS has done little to assert its authority,
given in the Homeland Security Act, Sec. 428, and a consequent
Memorandum of Understanding with the State Department, over
visa policy. As a result, the Committee began asserting its
concern about visa policy by requesting various studies,
investigations and policy changes directly (some of which are
discussed elsewhere in this report).
In July, the Subcommittee requested the Government
Accounting Office examine problems with combating application
fraud across different agencies. Various government reports
indicate immigration application fraud is rampant and that
anti-fraud coordination problems still exist across agencies.
Fraudulent visa applications present a security risk.
In August the Committee requested information on worldwide
visa refusals based on ``immigrant intent,'' especially with
regard to visa refusals at consular posts located in Saudi
Arabia. The State Department complied and the data is under
examination. Part of the examination led to a request for a
State Department Inspector General inquiry into the way
``immigrant intent'' refusals are made and a bipartisan request
to examine what safeguards are in place to protect visa
application adjudicators.
The Subcommittee requested and received copies of all visa
policy cables sent to all consular and diplomatic posts setting
standard operating procedures. It also requested andreceived
information on the Technology Alert List and investigated numerous
issues related to visa security checks for security, terrorism, law
enforcement, technology transfer, and economic espionage issues. This
oversight prodded certain agencies to expedite the process without
degrading related security. Much of this oversight was conducted in a
classified setting. Field visits were made to the FBI records warehouse
and computer processing centers.
The Committee reminded the Central Intelligence Agency that
Sec. 359 of the Intelligence Authorization Act for Fiscal Year
2004 (Pub. L. No. 108-177) required their agency to submit a
report on the operations of the Terrorist Threat Integration
Center (TTIC). CIA responded to the request.
In December, the Subcommittee sent an inquiry into the fact
that the U.S. Embassy in Mexico City houses two machines to
produce Border Crossing Cards (BCCs). All other BCCs are
produced at a central location in the United States.
The Subcommittee staff requested CRS conduct research on
what other countries (particularly the U.K., Australia, and
Canada) have done to attract more foreign students, what
measures they have put in place to guard against economic
espionage and technology transfer, and what foreign students in
these countries can do to remain in these countries
permanently.
Legal interpretations
The Subcommittee requested a Government Accounting Office
(GAO) study of the sharp increase in ``J-1'' cultural exchange
summer work travel program.'' The program has tripled the
number of aliens entering under the ``J-1'' summer hire program
from 1998-2003; the current number (approximately 87,000)
exceeds the annual limit for H-2B issuances for temporary
workers. There is concern that the program has not been
monitored sufficiently to prevent abuses, that J-1 category
aliens are not entering primarily for cultural exchange
purposes, and that rules regarding this category do not provide
sufficient safeguards or monitoring.
In June, the Committee wrote to USCIS and requested a legal
clarification of the ``P-1'' visa category requirements.
Specifically, the request was to examine whether minor league
players should be eligible for admission under the P-1 category
(even though they would be eligible to become a legal permanent
resident).
A staff member to spoke at the National Academy of Sciences
regarding ``immigrant intent'' visa denials (Sec. 214(b) of the
Immigration and Nationality Act (INA)). Applying the denials to
student visas has come under scrutiny as many student visa
holders eventually apply for work visa status or otherwise gain
permanent residency in the United States. Most graduate
engineering students seeking a doctorate in the country are
aliens and the academic community believes continued high-
technology research is dependent on a continued flow of foreign
students. Concerns regarding security and the low level of
American student participation in the sciences were raised, as
well as possibilities for reform.
The Committee contacted the Office of Legal Counsel to
resolve an interagency dispute regarding legal thresholds for
the denial and revocation of visas based on information
contained in terrorist watch lists. The legal dispute between
the U.S. Department of State, U.S. Department of Homeland
Security, and the U.S. Department of Justice regards the
ability of consular officers to deny a visa based solely on a
name check search of terrorist watch lists that results in a
match or ``hit.'' The DOJ letter stated: ``The State Department
is also of the view that it cannot deny a visa based solely on
a Foreign Terrorist Task Force (FTTTF) or Federal Bureau of
Investigation (FBI) name search that results in a hit or match.
We do not share the State Department's view of the law * * *
[as it] presumes that a visa applicant is inadmissible and
places the burden of proof on the applicant to establish his
admissibility. As such, a consular officer need not have
specific evidence that the applicant has participated in
terrorist activities or associations to justify a visa denial *
* * a name search hit does provide the consular officer a
`reasonable ground to believe' * * * that the applicant
presents a threat to national security and is therefore
ineligible for admission.''
Southern border security
On January 14, 2004, Chairman F. James Sensenbrenner, Jr.,
and Ranking Member John Conyers, Jr., sent a joint letter to
the Department of Justice Inspector General requesting all
information, studies, and reports in his possession regarding
government employee corruption in connection with the
enforcement of the immigration laws. The letter also requested
any materials produced with or shared by the Department of
Homeland Security.
On January 27, 2004, Chairman John N. Hostettler of the
Subcommittee on Immigration, Border Security & Claims sent a
letter to Secretary of Homeland Security, Thomas Ridge,
requesting an explanation of Department of Homeland Security
policy regarding parole and admission of asylum seekers along
the Mexican border.
On January 21, 2004, Chairman John N. Hostettler of the
Subcommittee on Immigration, Border Security & Claims sent a
letter to Attorney General John Ashcroft and Secretary of
Homeland Security, Thomas Ridge, requesting the results of an
investigation into Hesham Hedayet who killed two and wounded
several others at the Los Angeles International Airport on July
4, 2002. Mr. Hedayet was a lawful permanent resident who won
the diversity lottery in 1996 and adjusted his status (received
a green card without having to leave the United States).
Gang violence
In June, the Subcommittee requested an explanation of
Immigration and Customs Enforcement (ICE) policies with regards
to combating gang violence tied to illegal immigration, citing
cases in the Northern Virginia area.
Illegal hiring of undocumented workers
The Committee requested in March the Department of Defense
Inspector General investigate the hiring practices of the
Defense Department with regards to checking the documentation
of those it recruits. The issue was raised at a hearing and has
been reported on in major news media. The Defense Department
responded through its Deputy Under Secretary for Military
Personnel Policy by explaining its new safeguards.
In May, the Committee requested the GAO examine the
policies and programs aimed atenforcing the immigration laws in
the workplace, including the verification systems to ensure legal
authority to work and hire and related enforcement mechanisms. The
Committee wrote to the Social Security Commissioner, Jo Anne Barnhart,
in June to clarify implementation of various statutes and to clarify
how the Social Security Administration would implement a totalization
agreement with Mexico.
In June, the Committee urged the Department of Homeland
Security, General Counsel, to revise the last administration's
interpretation of the legal weight of social security ``no
match'' letters. These letters inform employers that the social
security number provided to the Social Security Administration
by new employees do not match a validly issued social security
number on record. Current interpretation is that the no match
letters are not a basis to preclude employment unless or until
the mismatch is clarified. DHS declined to change the
interpretation.
Refugees
In April, the Subcommittee wrote letters to the Department
of Homeland Security and the State Department asking for facts
and their opinions on the North Korean refugee situation. Both
agencies provided information. The Committee staff examined
refugee resettlement first hand both in the Republic of Korea
and in the United States, and trip reports were filed. Staff
also met with various interest groups on this issue, including
Mr. Syghman Rhee of the Presbyterian Church and Friends
Committee.
Staff monitored the situation in Haiti and Dominican
Republic as various political, economic, and natural disaster
conditions made it increasingly likely that refugees may
attempt to enter the United States.
Staff researched and produced materials concerning the
refugee situation in Darfur, Sudan and neighboring Chad. The
issue was raised during the annual refugee consultations with
the Secretary of State.
Asylum
Staff requested various asylum files from the Department of
Justice, Executive Office of Review (EOIR) as part of its
continuing oversight function. In August, the Committee
requested all information in its possession from the Department
of Justice and the Department of Homeland Security on a Russian
national. He recently received asylum despite the fact that the
Russian Federation issued an international arrest warrant for
him. DHS initially appealed the asylum judgment, but then
declined to appeal. The Committee has asked for more
information on the reasons for the reversal and asked the
Department of Justice to review the decision of the Immigration
Court. The Department of Justice interpreted relevant
regulations to preclude their review and DHS has not responded
yet.
In mid-November, the State Department was asked to clarify
a statement by its spokesman indicating that it would not rule
out allowing Uighur detainees at Guantanamo Bay to enter the
United States and claim asylum. A formal response is pending.
Much of this oversight involved classified information.
The Subcommittee examined the issue of parole and asylum
seekers at the Mexican and Canadian borders.
Funding immigration
The Subcommittee held two hearings on immigration related
budgets for the U.S. Department of Homeland Security, U.S.
Customs and Border Patrol, U.S. Immigration and Customs
Service, U.S. Citizenship & Immigration Services, and the
Bureau of Consular Affairs at the U.S. Department of State. The
hearings were held on February 25 and March 11, 2004. The
President's FY 2005 budget for the Department of Homeland
Security (DHS) contains increases for several key immigration
initiatives, mainly in the areas of interior enforcement and
alien detention and removal. Other enforcement initiatives,
however, received more limited increases. In particular, under
the President's budget, the number of Border Patrol Agents
would remain approximately the same in FY 2005 as this year.
The budget also calls for additional funding to reduce the
backlog in applications for immigration benefits.
On February 3, 2004, Chairman F. James Sensenbrenner, Jr.,
sent a letter to the Department of Justice Inspector General,
Glenn A. Fine, requesting action on recommendations provided in
the Department of Justice Inspector General report entitled
``Immigration & Naturalization Service Expenditures Charged to
the Organized Crime Drug Enforcement Task Forces Program for
Fiscal Years 1997-2002'' (Audit Report 04-03, November 2003).
The Subcommittee staff requested CRS research statistics on
immigration categories and the relationship to welfare and
other assistance. In addition, CRS researched federal grants
available to foreign students (directly or indirectly); CRS was
unable to find much information compiled on this subject.
Pre-clearance for aviation security
On October 20, 2004, the Committee requested that the
Department of Homeland Security provide information on fourteen
Syrians who were detained on Flight Northwest 327 from Detroit
to Los Angles. Various questions concerned their valid
immigration status. This led to an inquiry at the State
Department and their visa applications, which are the subject
of an on going examination. Flight 327 and on several other
aviation security incidents involving pre-clearance and ``no-
fly'' watch list issues (including United Flight 919 on
September 21, and Olympic Flight 411 on September 27) are under
continued examination.
SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW \1\
CHRIS CANNON, Utah, Chairman
MELVIN L. WATT, North Carolina HOWARD COBLE, North Carolina
JERROLD NADLER, New York JEFF FLAKE, Arizona
TAMMY BALDWIN, Wisconsin JOHN R. CARTER, Texas
WILLIAM D. DELAHUNT, Massachusetts MARSHA BLACKBURN, Tennessee
ANTHONY D. WEINER, New York STEVE CHABOT, Ohio
TOM FEENEY, Florida
----------
\1\ Subcommittee chairmanship and assignments approved February 12,
2003.
Tabulation of subcommittee legislation and activity
Legislation referred to the Subcommittee.......................... 57
Legislation reported favorably to the full Committee.............. 3
Legislation reported adversely to the full Committee.............. 0
Legislation reported without recommendation to the full Committee. 0
Legislation reported as original measure to the full Committee.... 0
Legislation discharged from the Subcommittee...................... 7
Legislation ordered tabled in the Subcommittee.................... 0
Legislation pending before the full Committee..................... 0
Legislation reported to the House................................. 8
Legislation discharged from the Committee......................... 2
Legislation pending in the House.................................. 4
Legislation passed by the House................................... 13
Legislation pending in the Senate................................. 7
Legislation vetoed by the President............................... 1
Legislation enacted into public law............................... 5
Legislation enacted into public law as part of another bill....... 0
Legislation on which hearings were held........................... 8
Days of legislative hearings...................................... 8
Days of oversight hearings........................................ 10
Jurisdiction of the Subcommittee
The Subcommittee on Commercial and Administrative Law shall
have jurisdiction over the following subject matters:
bankruptcy and commercial law, bankruptcy judgeships,
administrative law, independent counsel, state taxation
affecting interstate commerce, interstate compacts, other
appropriate matters as referred by the Chairman and relevant
oversight.
Legislative Activities
PRIVACY
H.R. 338, the ``Defense of Privacy Act''
Summary.--H.R. 338 was intended to help safeguard privacy
rights of Americans by requiring a rule noticed for public
comment by Federal agencies to be accompanied by an initial
assessment of the rule's impact on personal privacy interests,
including the extent to which the proposed rule provided notice
of the collection of personally identifiable information, the
type of personally identifiable information to be obtained, and
the manner in which this information would be utilized by the
Federal government. The bill also required a final rule to be
accompanied by a final privacy impact analysis detailing how
the issuing agency considered and responded to privacy concerns
raised during the public comment period and explaining whether
the agency could have taken an approach less burdensome to
personal privacy. H.R. 338, in addition, contained a provision
for judicial review to ensure agency compliance with its
requirements.
Legislative History.--Subcommittee on the Constitution
Chair Steve Chabot introduced H.R. 338, the ``Defense of
Privacy Act,'' on January 27, 2003. The bill's short title was
subsequently amended and reported as the ``Federal Agency
Protection of Privacy Act.'' The Subcommittee held a joint
legislative hearing together with the Subcommittee on the
Constitution on H.R. 338 on July 22, 2003. Witnesses who
testified included Senator Charles Grassley, former Congressman
Bob Barr, on behalf of the American Conservative Union, James
X. Dempsey, on behalf of the Center for Democracy & Technology,
and Laura Murphy, on behalf of the American Civil Liberties
Union.
On February 10, 2004, the Subcommittee ordered H.R. 338
favorably reported with an amendment by voice vote. Thereafter,
the Committee ordered the bill favorably reported with an
amendment by voice vote on June 23, 2004. The Committee
reported H.R. 338 on July 7, 2004 as House Report No. 108-587.
Although placed on the Union Calendar, the bill was not acted
upon prior to the conclusion of the 108th Congress.
COMMERCIAL LAW
H.R. 361, To designate certain conduct by sports agents relating to the
signing of contracts with student athletes as unfair and
deceptive acts or practices to be regulated by the Federal
Trade Commission
Summary.--H.R. 361 prohibits an athlete agent from: (1)
recruiting or soliciting a student athlete to enter into an
agency contract by giving false or misleading information,
making a false promise or representation, or providing anything
of value to the athlete or anyone associated with the athlete
before entering into such contract; (2) entering into an agency
contract with a student athlete without providing the required
disclosure document; or (3) predating or postdating an agency
contract.
Legislative History.--Representative Bart Gordon introduced
H.R. 361, a bill to designate certain conduct by sports agents
relating to the signing of contracts with student athletes as
unfair and deceptive acts or practices to be regulated by the
Federal Trade Commission, on January 27, 2003. H.R. 361 was
referred to the House Committee on Energy and Commerce, which
marked up the bill on January 27, 2003 and ordered the bill
reported by voice vote. On March 5, 2003, the House Committee
on Energy and Commerce reported the bill as H. Rept. No. 108-
24, Part I.
On March 5, 2003, the House Committee on Judiciary received
H.R. 361 as a sequential referral, for a period ending not
later than June 1, 2003, for consideration of such provisions
of the bill as fall within the Committee's jurisdiction. On May
1, 2003, the bill was referred to the Subcommittee on
Commercial and Administrative Law. On May 15, 2003, the
Subcommittee held a hearing on H.R. 361, with Representative
Gordon, Representative Tom Osborne, and Sports Agent Scott
Boras as witnesses, and moved the bill for consideration and
mark-up, and forwarded with an amendment relating to sports
agent conduct with student athletes to the full Committee by
voice vote.
On May 21, 2003, the Committee reported H.R. 361, as
amended, by voice vote and filed its report on June 2, 2003 as
H. Rep. No. 108-24, Part II. On June 4, 2003, H.R. 361 was
considered by the House under the suspension of the rules and
the bill passed, as amended.
On June 6, 2003, H.R. 361 was received in the Senate and
referred to the Committee on Commerce, Science, and
Transportation. On September 9, 2004, the bill passed the
Senate by unanimous consent. On September 24, 2004, the bill
was signed by the President and became Public Law 108-304.
BANKRUPTCY
H.R. 975, the ``Bankruptcy Abuse Prevention and Consumer Protection Act
of 2003''
Summary.--H.R. 975 represented the culmination of nearly
seven years of Congressional consideration of bankruptcy reform
legislation. With respect to creditors, H.R. 975's principal
provisions consisted of needs-based bankruptcy relief, general
protections for creditors, and protections for specific types
of creditors. The bill's debtor protections included heightened
requirements for those professionals and others who assist
consumer debtors in connection with their bankruptcy cases,
expanded notice requirements for consumers with regard to
alternatives to bankruptcy relief, required participation in
debt repayment programs for consumers before they may be
debtors in bankruptcy, and the institution of a pilot program
to study the effectiveness of consumer financial education for
debtors.
The heart of H.R. 975's consumer bankruptcy reforms was the
implementation of a mechanism to ensure that consumer debtors
repay their creditors the maximum that they can afford. This
income/expense mechanism variously referred to as the ``needs-
based test'' or ``means test'' articulated objective criteria
so that debtors and their counsel could self-evaluate their
eligibility for relief under chapter 7 (a form of bankruptcy
relief where the debtor generally receives a discharge of his
or her personal liability for most unsecured debts). Certain
expense allowances were localized and a debtor's special
circumstances were recognized, including episodic losses of
income. Parties in interest, such as creditors, were empowered
under H.R. 975 to move for dismissal of chapter 7 cases for
abuse. These reforms were intended to not affect consumer
debtors lacking the ability to repay their debts and deserving
of an expeditious fresh start.
With regard to business bankruptcy reform, H.R. 975
addressed the special problems that small business cases
present by instituting a variety of time frames and enforcement
mechanisms to identify and weed out debtors that were not
likely to reorganize. It also required more active monitoring
of these cases by United States Trustees and the bankruptcy
courts. In addition, H.R. 975 included provisions dealing with
business bankruptcy cases in general and chapter 12 (family
farmer bankruptcies). The small business and single asset real
estate provisions of H.R. 975 were largely derived from
consensus recommendations of the National Bankruptcy Review
Commission. Many of these recommendations received broad
support from those in the bankruptcy community, including
various bankruptcy judges, creditor groups, and the Executive
Office for United States Trustees. It also included provisions
concerning the treatment of certain financial contracts under
the banking laws as well as under the Bankruptcy Code. H.R. 975
responded to the special needs of family farmers by making
chapter 12 of the Bankruptcy Code, a form of bankruptcy relief
available only to eligible family farmers, permanent. With
regard to single asset real estate debtors, H.R. 975 eliminated
the monetary cap from the Bankruptcy Code's definition
applicable to these debtors and made them subject to the small
business provisions of the bill.
H.R. 975, in addition, contained several provisions having
general impact with respect to bankruptcy law and practice.
Under H.R. 975, certain appeals from final bankruptcy court
decisions would be heard directly by the court of appeals for
the appropriate circuit. Another general provision of H.R. 975
required the Executive Office for United States Trustees to
compile various statistics regarding chapter 7, 11, and 13
cases, to make these data available to the public, and to
report annually to Congress on the data collected. Other
general provisions included an allowance of shared compensation
with bona fide public service attorney referral programs.
Legislative History.--Committee Chairman F. James
Sensenbrenner, Jr. (for himself and 50 original cosponsors)
introduced H.R. 975, the ``Bankruptcy Abuse Prevention and
Consumer Protection Act of 2003,'' on February 27, 2003. On
March 4, 2003, the Subcommittee held a hearing on H.R. 975
during which testimony was received from a representative from
the Executive Office for United States Trustees (a component of
the United States Department of Justice charged with
administrative oversight of bankruptcy cases), a credit union
representative, a representative on behalf of the Coalition for
Responsible Bankruptcy Laws (a coalition of various consumer
creditors), and a representative on behalf of the Commercial
Law League of America (a creditors' rights organization
comprised of attorneys and other professionals engaged in the
fields of bankruptcy, insolvency, reorganization, and
commercial law).
On March 7, 2003, the Subcommittee was discharged from
further consideration of the bill. Thereafter, the Committee
met in open session on March 12, 2003 and ordered H.R. 975
favorably reported by a vote of 18 to 11 with an amendment
making technical revisions to the bill. On March 18, 2003, the
Committee filed its report on H.R. 975 as House Report No.108-
40.
The House, under a rule making certain amendments in order,
thereafter passed H.R.975, as amended, on March 19, 2003 by a
vote of 315 to 113, with one Member voting present. H.R. 975 was
received in the Senate on March 20, 2003. The Senate did not consider
the bill prior to the conclusion of the 108th Congress.
S. 1920, Bankruptcy Abuse Prevention and Consumer Protection Act of
2004
Summary.--As introduced, S. 1920 simply provided for a
temporary extension of chapter 12, a specialized form of
bankruptcy relief for family farmers. As passed by the House,
the bill was amended to include the text of H.R. 975, the
``Bankruptcy Abuse Prevention and Consumer Protection Act.''
Legislative History.--On November 21, 2003, Senator Charles
Grassley introduced S. 1920, a bill to extend chapter 12 (a
specialized form of bankruptcy relief for family farmers) for
six months. On November 25, 2003, the Senate passed S. 1920
without amendment by unanimous consent. The bill was received
in the House on December 8, 2003.
On January 28, 2004, the House considered and passed the
bill by a vote of 265 to 99, with one Member voting present,
under a rule making certain amendments in order. The sole
amendment that the House passed consisted of an amendment in
the nature of a substitute that replaced the text of S. 1920
with that of H.R. 975, the ``Bankruptcy Abuse Prevention and
Consumer Protection Act'' (previously discussed in this
Report). Committee Chairman F. James Sensenbrenner, Jr. moved
that the House insist upon its amendment, and request a
conference. His motion was granted without objection by voice
vote. A motion to instruct conferees offered by Representative
Jerrold Nadler (relating to the applicability of the
disinterestedness standard to investment bankers retained to
represent a bankrupt company) failed by a vote of 146 to 203,
with one Member voting present.
The following Members from the Committee on the Judiciary
were appointed as conferees for the consideration of the Senate
bill and the House amendment: Committee Chairman F. James
Sensenbrenner, Jr., Henry Hyde, Lamar S. Smith, Steve Chabot,
Subcommittee Chairman Chris Cannon, Melissa Hart, Committee
Ranking Member John Conyers, Jr., Subcommittee Ranking Member
Mel Watt, Rick Boucher, and Jerrold Nadler. The following
Members from the Committee on Financial Services were appointed
as conferees for consideration of Sec. Sec. 901-906, 908-909,
911, and 1301-1309 of the House amendment: Representatives
Michael Oxley, Spencer Bachus, and Bernard Sanders.
S. 1920, as amended, was received in the Senate on February
3, 2004. The Senate did not consider the bill prior to the
conclusion of the 108th Congress.
H.R. 1375, the ``Financial Services Regulatory Relief Act of 2003''
Summary.--H.R. 1375, the Financial Services Regulatory
Relief Act of 2003, allows the expeditious termination or
netting of certain types of financial transactions.\1\
Provisions substantially identical to those in H.R. 1375 were
included as title IX in H.R. 975, the ``Bankruptcy Abuse
Prevention and Consumer Protection Act.''
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\1\ In addition to the Bankruptcy Code, the bill amends the Federal
Deposit Insurance Act, the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, the Federal Deposit Insurance Corporation
Improvement Act of 1991, the Federal Reserve Act, and the Securities
Investor Protection Act of 1971.
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Legislative History.--H.R. 1375 was introduced by
Representative Shelley Moore Capito on March 20, 2003. The bill
was referred to the Committee on Financial Services and the
Committee on the Judiciary. The Committee on Financial Services
reported H.R. 1375 on June 12, 2003 as H. Rept. No. 108-152,
Part I. On July 14, 2003, the Committee on the Judiciary
reported H.R. 1375, as amended, by voice vote, as H. Rept. No.
108-152, Part II. H.R. 1375 passed the House by a vote of 392-
25 on March 18, 2004, but was not considered in the Senate
prior to the conclusion of the 108th Congress.
H.R. 1428, the ``Bankruptcy Judgeship Act of 2003''
Summary.--H.R. 1428, the ``Bankruptcy Judgeship Act of
2003,'' would have authorized 29 permanent and seven temporary
bankruptcy judgeships. H.R. 975, the ``Bankruptcy Abuse
Prevention and Consumer Protection Act,'' included a similar
provision, which would have authorized 28 additional bankruptcy
judgeships and extended four existing temporary judgeships.
Legislative History.--On March 25, 2003, Representative
Jack Kingston (R-GA) (for himself and 22 original cosponsors)
introduced H.R. 1428, the ``Bankruptcy Judgeship Act of 2003.''
The Subcommittee, on May 22, 2003, conducted a hearing on H.R.
1428. Witnesses who testified at the hearing included
representatives from the Judicial Conference of the United
States, the United States Government Accountability Office, and
the National Conference of Bankruptcy Judges, and a consultant.
Further consideration of H.R. 1428 by either the House or the
Senate did not occur prior to the conclusion of the 108th
Congress.
H.R. 1529, the ``Involuntary Bankruptcy Improvement Act of 2003''
Summary.--Current law provides that a person can
voluntarily commence a bankruptcy case \2\ or be involuntarily
forced into bankruptcy, under certain circumstances.\3\ With
respect to involuntary bankruptcy, one or more creditors
(meeting specified criteria) \4\ can file an involuntary
petition for bankruptcy relief under chapter 7 (liquidation) or
chapter 11 (business reorganization) of the Bankruptcy Code
against an individual as well as certain types of business
entities,\5\ if grounds for granting such relief are
established.\6\ If the person who is the subject of an
involuntary bankruptcy petition does not timely oppose the
petition, the court enters an ``order for relief,'' which
formally commences the bankruptcy case.\7\ If the involuntary
petition is opposed by the putative debtor, then the court must
conduct a trial to determine if the debtor should be
adjudicated a bankrupt.\8\
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\2\ 11 U.S.C. Sec. 301 (2002).
\3\ 11 U.S.C. Sec. 303 (2002).
\4\ 11 U.S.C. Sec. 303(b)(2002). If, for example, the alleged
debtor has less than 12 creditors, a single creditor holding a claim of
at least $11,625 can commence an involuntary petition. 11 U.S.C.
Sec. 303(b)(2) (2002).
\5\ 11 U.S.C. Sec. 303(b) (2002). Certain individuals and entities,
such as farmers and eleemosynary institutions, cannot be involuntarily
forced into bankruptcy. Id.
\6\ A court may grant an involuntary bankruptcy petition only if:
(1) the debtor is generally not paying such debtor's
debts as such debts become due unless such debts are the
subject of a bona fide dispute; or
(2) within 120 days before the date of the filing of the
petition, a custodian, other than a trustee, receiver, or
agent appointed to take charge of less than substantially
all of the property of the debtor for the purpose of
enforcing a lien against such property, was appointed or
took possession.
11 U.S.C. Sec. 303(b) (2002).
---------------------------------------------------------------------------
\7\ Id.
\8\ Id.
---------------------------------------------------------------------------
In 2002, for example, one tax protester filed fraudulent
involuntary petitions against 36 local public officials in
Wisconsin,\9\ some of whom did not find out about the petitions
until ``they attempted to use a credit card or execute some
other financial transaction.'' \10\ These filings were
subsequently dismissed by the bankruptcy court, which found
that they were filed in bad faith without legal basis and were
commenced ``for the sole purpose of harrassment of the named
public officials.'' \11\
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\9\ See In re Kenealy, No. 02-6100-MDM (Bankr. E.D. Wis. May 21,
2002). Involuntary petitions ``were filed against all but one of the
County Board supervisors,'' the county corporation counsel, county
sheriff, clerk of courts, and county circuit judge. Jeff Cole,
Paperwork Uned for Revenge; Protester's Bogus Bankruptcy Petitions
Temporarily Disrupt Officials' Credit, Milwaukee J. Sentinel, June 6,
2002, at 1B. The protester also filed numerous liens totaling $15
million against these individuals. Jeff Cole, Man Charged with Filing
False Documents; Town of Fredonia Protester's Case in 5th Brough by
State, Milwaukee J. Sentinel, May 21, 2002, at 1B.
\10\ Jeff Cole, Paperwork Used for Revenge; Protester's Bogus
Bankruptcy Petitions Temporarily Disrupt Officials' Credit, Milwaukee
J. Sentinel, June 6, 2002, at 1B.
\11\ In re Kenealy, No. 02-26100-MDM (Bankr. E.D. Wis. May 21,
2002).
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Legislative History.--Committee Chairman Sensenbrenner
introduced H.R. 1529, the ``Involuntary Bankruptcy Improvement
Act of 2003,'' on April 1, 2003: First, it amended the
Bankruptcy Code to require the bankruptcy court on motion of an
individual who was the subject of a fraudulent involuntary
bankruptcy case to expunge all records relating to that case
from the court's files. Second, it authorized the bankruptcy
court to prohibit any credit reporting agency from issuing a
consumer report containing any reference to a fraudulent
involuntary bankruptcy case if the case is dismissed.
On May 7, 2003, the Committee ordered the bill favorably
reported without amendment by voice vote. Thereafter, the
report on H.R. 1529 was filed on May 19, 2003 as House Report
No. 108-110. The House, on June 10, 2003, passed the bill,
without amendment, under suspension of the rules by voice vote.
H.R. 1529 was received the following day in the Senate. The
Senate, however, did not consider the bill prior to the
conclusion of the 108th Congress.
H.R. 2465, the ``Family Farmer Bankruptcy Relief Act of 2003'' and S.
2864, the ``Family Farmer Bankruptcy Relief Act of 2004''
Summary.--During the 108th Congress, 11 bills were
introduced to either extend chapter 12 or make it a permanent
component of the Bankruptcy Code. In addition, a provision that
would make chapter 12 permanent was included in omnibus
bankruptcy reform legislation, H.R. 975, the ``Bankruptcy Abuse
Prevention and Consumer Protection Act.'' Two of these bills,
providing for the temporary extension of chapter 12, were
enacted into law.
Chapter 12 permits eligible family farmers, under the
supervision of a bankruptcy trustee, to reorganize their debts
pursuant to a repayment plan. The special attributes of chapter
12 make it better suited to meet the particularized needs of
family farmers in financial distress than other forms of
bankruptcy relief, such as chapter 11 (business reorganization)
and chapter 13 (individual reorganization). It was enacted on a
temporary seven-year basis as part of the Bankruptcy Judges,
United States Trustees, and Family Farmer Bankruptcy Act of
1986 in response to the farm financial crisis of the early
1980s.\12\ It has subsequently been extended several times.
---------------------------------------------------------------------------
\12\ Pub. L. No. 99-554, 100 Stat. 3088, 3105 (1986).
---------------------------------------------------------------------------
Legislative History.--On June 12, 2003, Chairman
Sensenbrenner introduced H.R. 2465, the ``Family Farmer
Bankruptcy Relief Act of 2003,'' to extend chapter 12 for six
months to January 1, 2004. The House under the suspension of
the rules passed the bill, without amendment, by a vote of 379
to 3 on June 23, 2003. It thereafter passed the Senate on
unanimous consent, without amendment, on July 31, 2003. The
bill was signed into law on August 15, 2003 as Public Law No.
108-73.
On September 29, 2004, Senator Charles Grassley introduced
S. 2864, the ``Family Farmer Bankruptcy Relief Act of 2004,''
to extend chapter 12 for eighteen months to July 1, 2005. After
the Senate passed the bill, without amendment, by unanimous
consent on October 6, 2004, Subcommittee Chairman Chris Cannon
requested unanimous consent to have the bill discharged from
the Committee and considered by the House. His request was
granted and S. 2864 was considered and passed by the House on
October 8, 2004 by voice vote without amendment. The bill was
signed into law on October 25, 2004 as Public Law 108-369.
STATE TAXATION AFFECTING INTERSTATE COMMERCE
Electronic commerce
The Internet and information technology (IT) industries
comprise an increasingly vital component of U.S. economic
health. Internet retail sales continue to accelerate at an
impressive rate. While some forecasts estimate Internet retail
sales could reach $300 billion annually,\13\ these claims have
yet to materialize.
---------------------------------------------------------------------------
\13\ See, e.g., Clayton W. Shan, Taxation of Global E-Commerce on
the Internet. The Underlying Issues and Proposed Plans, 9 Minn. J.
Global Trade 233, 235 (2000).
---------------------------------------------------------------------------
Contrary to the widespread impression that the Internet is
a tax-free haven, electronic commercial transactions do not
escape all State and local taxes. Telecommunications channels
such as telephone lines, wireless transmissions, cable, and
satellites are subject to State and local taxes. Electronic
merchants are required to pay State and local income,
licensing, franchise, business activity and other direct taxes.
In addition, physically-present electronic merchants are
required to collect and remit applicable sales and use taxes
for all intrastate transactions. In short, online transactions
are subject to nearly all taxes imposed on traditional, brick
and mortar enterprises. The only substantive difference between
the tax treatment of online and traditional retailers is a
State's authority to require nonresident electronic merchants
to collect and remit sales and use taxes.
In 1998, Congress passed the Internet Tax Freedom Act \14\
(ITFA) to help address the emerging challenges associated with
Internet commerce. The ITFA imposed a three-year moratorium on
both Internet access taxes and multiple and discriminatory
taxes on electronic commerce. The bill also created a 19-member
Advisory Commission on Electronic Commerce to examine, among
other things, the effect of State and local taxes on Internet
commerce. While a majority of Commissioners recognized the need
to move toward national uniform treatment of electronic
commerce, no consensus on the taxing status of the Internet was
achieved.
---------------------------------------------------------------------------
\14\ The Internet Tax Freedom Act comprises titles XI and XII of
Division C of the Omnibus Consolidated and Emergency Supplemental
Appropriations Act of 1999, Pub. L. No. 105-277, 112 Stat. 2681 (1998)
(codified as amended at 47 U.S.C. Sec. 151 (1998)).
---------------------------------------------------------------------------
During the 107th Congress, the Subcommittee reported H.R.
1552 extending the moratorium on taxation of Internet access
and multiple and discriminatory taxes until November 1, 2003.
It also maintained the authority of States to collect Internet
access taxes were generally imposed and collected prior to
October 1, 1998. That bill was signed into law by President
Bush on November 28, 2001 as Public Law 107-75.
H.R. 49, the ``Internet Tax Nondiscrimination Act''
Summary.--H.R. 49, the ``Internet Tax Nondiscrimination
Act,'' permanently extended the moratorium enacted by the
Internet Tax Freedom Act. In doing so, H.R. 49 sought to
promote equal access to the Internet and protect electronic
commerce from discriminatory State and local taxes. H.R. 49
applied equally to all States, and therefore contained an
immediate abolishment of the grandfather clause contained in
the 1998 ITFA that allowed certain states special status to
continue taxing Internet access. H.R. 49 also made the
moratorium permanent rather than subject to renewal.
Legislative History.--H.R. 49 was introduced by
Representative Christopher Cox on January 7, 2003 and referred
to the Judiciary Committee. Subsequently referred to the
Subcommittee on Commercial and Administrative Law on March 6,
2003, the bill was the subject of a subcommittee hearing on
April 1, 2003 at which testimony was received from: Harley T.
Duncan, Executive Director, Federation of Tax Administrators;
the Honorable James S. Gilmore, former Governor, Commonwealth
of Virginia; the Honorable Jack Kemp Co-Director, Empower
America; and Harris N. Miller, President, Information
Technology Association of America.
On May 22, 2003, the Subcommittee on Commercial and
Administrative Law held amarkup of H.R. 49. During markup, the
Ranking Minority Member Mel Watt introduced one amendment addressing a
development in the tax treatment of certain types of Internet access
since 1998. Mr. Watt noted that some States had issued letter rulings
that DSL Internet access service constituted a ``bundle'' of taxable
telecommunications services and Internet access. Thus some Internet
access had become subject to State taxation in contravention of the
ITFA, while others were not. Mr. Watt withdrew the amendment, and
Subcommittee Chairman Chris Cannon stated his intention to study the
issue and develop amendment language with Mr. Watt to offer for
consideration at the full Committee markup. Additionally, Mr. Cannon
offered an amendment in the nature of a substitute which was adopted by
voice vote.
At the full Committee markup of H.R. 49 on July 16, 2003,
Mr. Watt and Mr. Cannon offered an amendment to the definition
of ``Internet access'' to ensure parity of tax treatment for
all technologies used to provide Internet access to consumers
and emphasize the original intent of the ITFA. The amendment
was adopted and the bill was reported by voice vote.
H.R. 49 was passed by the House under suspension of the
rules by voice vote on September 17, 2003.
On July 31, 2003, the Senate Commerce Committee reported S.
150 extending the moratorium under the ITFA for five years but
continuing the grandfather clause for states currently taxing
Internet access for three years. Further Senate action on S.
150 was delayed by opposition within that body until April 26,
2004 when cloture was invoked by a vote of 74-11 and the bill
was passed as amended by a vote of 93-3 on April 29, 2004, six
months after the moratorium expired. The final amended version
of S. 150 that passed the Senate differed from H.R. 49 in
several important ways. First, rather than a permanent
moratorium it created a temporary, four-year moratorium on
Internet access taxes, running retroactively from November 1,
2003 until November 1, 2007. Second, it extended the 1998
``grandfather'' clause for the life of the moratorium so those
states currently taxing Internet access will continue to do so.
Third, it created a new, two-year grandfather clause for States
that taxed Internet access after the expiration of the
moratorium.
Although the Senate passed its version second, it did not
seek a conference with the House and indicated an unwillingness
to go to conference on the legislation. Informal negotiations
between the House and Senate continued throughout the summer
and fall of 2004 on crafting a compromise measure until an
agreement about modest changes was achieved. Pursuant to the
agreement between House and Senate negotiators, both bodies
considered and adopted an enrolling resolution, S. Con. Res.
146, that directed the Secretary of the Senate upon passage of
the resolution and underlying bill by both chambers to
incorporate the changes contained therein into the enrolled
version of S. 150 before it was presented to the President for
signature. The Senate passed S. Con. Res. 146 on November 17,
2004. On November 19, 2004 the House passed both S. Con. Res.
146 and S. 150 under suspension of the rules by voice vote. The
changes made to S. 150 by this process included a provision
that ended some state taxation of Internet access previously
allowed by the original 1998 moratorium grandfather exceptions.
The final version of S. 150 was signed by President Bush on
December 3, 2004 as Public Law No. 108-435.
Business activity taxation
During the 107th Congress, the Subcommittee considered H.R.
2526, legislation introduced by Representative Bob Goodlatte
that would, among other things, have established a bright-line
physical presence nexus requirement for States to collect
business activity taxes on multistate enterprises.\15\
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\15\ H.R. 2526 defined business activities taxes as those imposed
or measured by net income, a business license tax, a franchise tax, a
single business tax or a capital stock tax, or any similar tax or fee
imposed by a State or locality on a business for the right to conduct
business within the taxing jurisdiction which is measured by the amount
of such business or related activity.
---------------------------------------------------------------------------
The genesis of the physical-presence-nexus portion of the
bill was the Supreme Court's ruling in Quill Corp. v. North
Dakota, \16\ which invalidated State efforts to compel out-of-
State sellers to collect and remit sales and use taxes without
the existence of a physical presence or other ``substantial
nexus.'' While the Court established in Quill a physical
presence threshold for the collection of sales taxes, it did
not fully articulate a coherent basis for determining when a
nonresident business enterprise has a sufficient economic
presence to justify the imposition of business activity taxes.
As a result, the degree of connection or nexus necessary to
justify the imposition of business activity taxes led to costly
and protracted litigation between State taxing authorities and
multistate businesses.
---------------------------------------------------------------------------
\16\ 504 U.S. 298, 311 (1992).
---------------------------------------------------------------------------
Most States and some local governments levy a range of
business activities taxes on companies that either operate or
conduct business activities within their jurisdictions. With
the exception of Michigan, Nevada, South Dakota, Washington,
and Wyoming, all States and the District of Columbia levy
general corporate income taxes. H.R. 2526 would have reduced
the uncertainties--and litigation costs--surrounding business
activity taxes by establishing a bright-line physical presence
requirement for States and localities as a prerequisite to
collect such taxes on multistate businesses. The bill also
listed those conditions which would not meet the 'substantial
physical presence' threshold sufficient to warrant the
imposition of business activity taxes upon a nonresident
enterprise. The Subcommittee reported H.R. 2526 to the full
committee on July 17, 2002, but no further action was taken by
the House during the 107th Congress.
H.R. 3220, the ``Business Activity Tax Simplification Act of 2003''
Summary.--H.R. 3220 amended Federal law concerning the
taxation of interstate commerce to expand the scope of the
protections prohibiting taxation by jurisdictions of the income
of out-of-state corporations whose in-state presence is nominal
from just tangible personal property to include intangible
property and services. The bill required that an out-of-state
company have a physical presence in a State before the State
can impose franchise taxes, business license taxes, and other
business activity taxes.
Legislative History.--H.R. 3220 was introduced on October
1, 2003 by Representative Goodlatte. Referred to the
Subcommittee on Commercial and Administrative Law on October
22, 2003, the bill was the subject of a public hearing on May
13, 2004. There was no further consideration of H.R. 3220
during the 108th Congress.
Tort Reform
H.R. 339--the ``Personal Responsibility in Food Consumption Act of
2004''
Summary.--H.R. 339, the ``Personal Responsibility in Food
Consumption Act,'' would generally prohibit obesity or weight
gain-related claims against the food industry. It would,
however, allow obesity-related claims to go forward in several
circumstances, including cases in which a state or federal law
was broken and as a result a person gained weight. Under H.R.
339, cases could also go forward in which a company violates an
express contract or warranty. Also, because H.R. 339 only
applies to claims based on ``weight gain'' or ``obesity,''
lawsuits could go forward under the bill if, for example,
someone gets sick from a tainted hamburger. H.R. 339 also
contains provisions governing the conduct of legal proceedings.
First, H.R. 339 includes the discovery provisions designed to
prevent fishing expeditions that are already part of our
federal securities laws. These provisions provide that
discovery of documents be stayed while the court decides
whether the case should be dismissed, unless the court decides
that particular discovery is necessary to preserve evidence or
to prevent undue prejudice to a party. Such provisions also
provide for court sanctions if a defendant destroys any
documents relevant to the litigation. Second, H.R. 339 contains
provisions that require that a complaint must set out the state
and federal laws that were allegedly violated, and the facts
that are alleged to have proximately caused the injuries
claimed, whenever a lawsuit is filed under the exception in the
bill that allows obesity claims to proceed when a violation of
state or federal law was the proximate cause of harm.
Legislative History.--H.R. 339, the ``Personal
Responsibility in Food Consumption Act of 2003,'' was
introduced by Rep. Ric Keller on January 27, 2003. On May 19,
2003, H.R. 339 was referred to the Subcommittee on Commercial
and Administrative Law for purposes of hearing only
(jurisdiction retained at Full Committee). On June 19, 2003,
the Subcommittee held a hearing on H.R. 339 at which testimony
was received from the following witnesses: John Banzhaf,
Professor, George Washington University Law School; Victor
Schwartz, Shook, Hardy & Bacon; Christianne Ricchi, the
National Restaurant Association; and Richard Berman, the Center
for Consumer Freedom. On January 28, 2004, the Committee met in
open session and ordered favorably reported the bill H.R. 339
with an amendment by voice vote, a quorum being present. (H.
Rept. No. 108-432). On March 10, 2004, H.R. 339 was passed by
the House by a vote of 276 to 139. No further action was taken
on the bill.
ADMINISTRATIVE LAW
H.R. 4917, the ``Federal Regulatory Improvement Act of 2004''
Summary.--Established as a permanent independent agency in
1964, the Administrative Conference of the United States
(Conference or ACUS) was created to develop recommendations for
improving procedures by which federal agencies administer
regulatory, benefit, and other government programs.\17\ The
Conference's jurisdiction over administrative procedure was
intentionally broad.\18\ It was authorized to study ``the
efficiency, adequacy, and fairness of the administrative
procedure used by administrative agencies in carrying out
administrative programs, and make recommendations to
administrative agencies, collectively or individually, and to
the President, Congress, or the Judicial Conference of the
United States[.]'' \19\ In addition, ACUS facilitated the
exchange among administrative agencies of information
potentially useful in improving administrative procedure. The
Conference also collected information and statistics from
administrative agencies and published reports evaluating and
improving administrative procedure. It served as a ``private-
public think tank'' that conducted ``basic research on how to
improve the regulatory and legal process.'' \20\ Although
ACUS's authorization expired as of February 1, 1996, the
statutory provisions establishing the Conference were not
repealed.\21\
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\17\ Administrative Conference Act of 1964, Pub. L. No. 88-499, 5
U.S.C. Sec. Sec. 591-96 (2002). Temporary conferences were established
in 1953 by President Eisenhower, Memorandum Convening the President's
Commission on Administrative Procedure, Pub. Papers, 219-22 (Apr. 28,
1953), and in 1961 by President Kennedy, Exec. Order No. 10,934, 26
Fed. Reg. 3233 (Apr. 13, 1961).
\18\ Section 592 of title 5, for example, provides that the term
``administrative procedure,'' is to be ``broadly construed to include
any aspect of agency organization, procedure, or management which may
affect the equitable consideration of public and private interests, the
fairness of agency decisions, the speed of agency action, and the
relationship of operating methods to later judicial review. . . .'' 5
U.S.C. Sec. 592(3) (2002).
\19\ 5 U.S.C. Sec. 594(1) (2002).
\20\ Reauthorization of the Administrative Conference of the United
States Before the Subcomm. on Commercial and Administrative Law of the
House Comm. on the Judiciary, 104th Cong. 31 (1994) (statement of C.
Boyden Gray).
\21\ H.R. Rep. 104-291, at 6 (1995).
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H.R. 4917 was introduced to reauthorize ACUS. The bill grew
out of two oversight hearings that the Subcommittee on
Commercial and Administrative Law held on the Conference, which
are described in the Subcommittee's Oversight Activities
section of this Report. The bill amends Sec. 591 of Title 5 of
the United States Code, which sets forth the Conference's
purposes, to add four additional purposes as follows: (1)
promote more effective public participation and efficiency in
the rulemaking process; (2) reduce unnecessary litigation in
the regulatory process; (3) improve the use of science in the
regulatory process; and (4) improve the effectiveness of laws
applicable to the regulatory process. In addition, the bill
revises Sec. 596 of Title 5 of the United States Code to
authorize $3 million for fiscal year 2005, $3.1 million for
fiscal year 2006, and $3.2 for fiscal year 2007.
Legislative History.--On July 22, 2004, Subcommittee on
Commercial and Administrative Law Chairman Chris Cannon (for
himself and 33 original cosponsors) introduced H.R. 4917, the
``Federal Regulatory Improvement Act of 2004.'' On request of
Subcommittee Chairman Cannon, the bill was discharged from the
Committee and considered by the House on unanimous consent. The
House passed the bill, without amendment, by voice vote on
October 8, 2004. H.R. 4917 was received by the Senate on the
following day. On October 11, 2004, the Senate passed the bill
without amendment on unanimous consent. Thereafter, the bill
was signed into law as Public Law 108-401 on October 30, 2004.
Oversight Activities
Oversight hearing list
------------------------------------------------------------------------
Date/Serial No. Hearing title
------------------------------------------------------------------------
April 8, 2003/# 28............... Reauthorization of the United States
Department of Justice: Executive
Office for United States Attorneys,
Civil Division, Environment and
Natural Resources Division,
Executive Office for United States
Trustees, and Office of the
Solicitor General.
October 1, 2003/# 57............. Streamlined Sales Tax Agreement:
States' Efforts to Facilitate Sales
Tax Collection from Remote Vendors
February 10, 2004/#85............ Privacy in the Hands of the
Government: The Privacy Officer for
the Department of Homeland Security
March 9, 2004/# 79............... Reauthorization of the United States
Department of Justice: Executive
Office for United States Attorneys,
Civil Division, Environment and
Natural Resources Division,
Executive Office for United States
Trustees, and Office of the
Solicitor General
March 31, 2004/# 100............. Legal Services Corporation (LSC):
Inquiry into the Activities of the
California Rural Legal Assistance
Program and Testimony Relating to
the Merits of Client Co-Pay
May 20, 2004/# 109............... Reauthorization of the Administrative
Conference of the United States--
Part I
June 24, 2004/# 109.............. Administrative Conference of the
United States--Part II: Why Is There
a Need to Reauthorize the Conference
July 21, 2004/# 114.............. Administration of Large Business
Bankruptcy Reorganizations: Has
Competition for Big Cases Corrupted
the Bankruptcy System?
July 23, 2004/# 102.............. Regulatory Aspects of Voice Over the
Internet Protocol (VoIP)
August 20, 2004/# 113............ Regarding Privacy and Civil Liberties
in the Hands of the Government Post-
September 11, 2001: Recommendations
of the 9/11 Commission and the U.S.
Department of Defense Technology and
Privacy Advisory Committee
------------------------------------------------------------------------
Privacy in the hands of the government: The privacy officer for the
Department of Homeland Security
The Privacy Act of 1974 regulates how federal agencies may
use personally identifiableinformation they collect from
individuals.\22\ It generally prohibits these agencies from disclosing
this information to other federal or state agencies or to any other
person,\23\ subject to certain specified exceptions.\24\ An agency that
releases such information in violation of the Privacy Act may be sued
for damages sustained by an individual as a result of such violation,
under certain circumstances.\25\ In addition, the Privacy Act grants
individuals the right to have agency records maintained on themselves
corrected upon a showing that such records are inaccurate, irrelevant,
out-of-date, or incomplete.\26\
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\22\ 5 U.S.C. Sec. 552a (2002). According to one treatise, the
Privacy Act ``gives individuals greater control over gathering,
dissemination, and ensuring accuracy of information collected about
themselves by agencies'' and that its ``main purpose'' is to ``forbid
disclosure unless it is required by the Freedom of Information Act.''
Administrative Conference of the United States, Federal Administrative
Procedure Sourcebook--Statutes and Related Materials 863 (2d ed. 1992).
\23\ 5 U.S.C. Sec. 552a(b) (2002). For example, medical,
educational, criminal, financial, and employment records generally may
not be disclosed. 5 U.S.C. Sec. 552a(a)(4) (2002).
\24\ The Privacy Act, for instance, except disclosures that
constitute a ``routine use'' of such information by an agency
``compatible with the purpose for which it was collected.'' 5 U.S.C.
Sec. 552a(a)(7), (d)(3) (2002). It also permits disclosure for law
enforcement purposes, in response to a Congressional request, pursuant
to court order, for the purpose of carrying out a census, or to a
consumer reporting agency. 5 U.S.C. Sec. 552a(b) (2002).
\25\ 5 U.S.C. Sec. 552a(g)(4) (2002).
\26\ 5 U.S.C. Sec. 552a(d) (2002).
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Technological developments have increasingly facilitated
the collection and dissemination of personally identifiable
information and have correspondingly increased the potential
for misuse of such information.\27\ Compliance with the Privacy
Act by federal agencies, however, remains ``uneven,'' according
to the U.S. Government Accountability Office.\28\
---------------------------------------------------------------------------
\27\ The Federal GTrade Commission, for example, reported that
``identity theft topped the list'' of consumer complaints it received
in 2002 and that they accounted for 43 percent of the complaints lodged
in its database. Federal Trade Commission Release, TC Releases Top 10
Consumer Complaint Categories in 2002--As in 2000 and 2001, Identity
Theft Tops the List, at 1 (Jan. 22, 2003), at http://www.ftc.gov/opa/
2003/01/top10.htm.
\28\ U.S. Government Accountability Office, Privacy Act: OMB
Leadership Needed to Improve Agency Compliance, GAO-03-304, at 1 (June
2003).
---------------------------------------------------------------------------
Particularly since the September 11, 2001 terrorist
attacks, Congress has sought to balance two competing goals:
keeping the nation secure and protecting the privacy rights of
our nation's citizens. The desire to achieve and maintain this
balance was reflected in the debate concerning the creation of
the Department of Homeland Security (Department or DHS) during
the 107th Congress. In 2002, the Subcommittee held a hearing on
various privacy and administrative law issues presented by the
anticipated creation of the Department.\29\ Among the matters
considered were issues concerning how the new Department would
ensure the privacy of personally identifiable information as it
``establishes necessary databases that coordinate with other
agencies of the Government.'' \30\ Concerns were expressed on a
bipartisan basis about the agency's ability to collect, manage,
share, and secure personally identifiable information.\31\ Over
the course of the hearing, it became apparent that the
Department would benefit from the appointment of an individual
responsible for privacy issues.\32\
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\29\ Administrative Law, Adjudicatory Issues, and Privacy
Ramifications of Creating a Department of Homeland Security: Hearing
Before the Subcomm. on Commercial and Administrative Law of the House
Comm. on the Judiciary, 107th Congress (2002).
\30\ Id. at 2 (statement of Subcommittee Chairman Chris Cannon).
\31\ See, e.g., id. at 3-4 (statements of Rep. Mark Green and Rep.
Maxine Waters).
\32\ Id. at 14 (statement of Professor Jeffrey S. Lubbers,
Washington College of Law--American University); 20 (statement of
Professor Peter P. Swire, Chief Counselor for Privacy, U.S. Office of
Management and Budget under the Clinton Administration);
---------------------------------------------------------------------------
In response to such persuasive testimony, the Subcommittee
with the support of Committee Chairman Sensenbrenner,
successfully sought to have legislation establishing the
Department amended to include the appointment of a privacy
officer.\33\ This legislation, signed into law on November 25,
2002,\34\ directed the DHS Secretary to appoint a senior
official in the Department to ``assume primary responsibility
for privacy policy.'' \35\ In April of 2003, DHS Secretary Tom
Ridge appointed Nuala O'Connor Kelly to serve as the
Department's privacy officer.\36\
---------------------------------------------------------------------------
\33\ H. Rep. No. 107-609, at 9-10 (2002).
\34\ Pub. L. No. 107-296, Sec. 222, 116 Stat. 2135, 2155 (2002).
\35\ 6 U.S.C. Sec. 142 note (2002). The statutory duties of the
privacy officer are specified as the following:
(1) assuring that the use of technologies sustain, and do
not erode, privacy protections relating to the use,
collection, and disclosure of personal information;
(2) assuring that personal information contained in
Privacy Act systems of records is handled in full
compliance with fair information practices as set out int
he Privacy Act of 1974;
(3) evaluating legislative and regulatory proposals
involving collection, use, and disclosure of personal
information by the Federal Government;
(4) conducting a privacy impact assessment of proposed
rules of the Department or that of the Department on the
privacy of personal information, including the type of
personal information collected and the number of people
affected; and
(5) preparing a report to Congress on an annual basis on
activities of the Department that affect privacy, including
complaints of privacy violations, implementation of the
Privacy Act of 1974, internal controls, and other matters.
Id.
---------------------------------------------------------------------------
\36\ DHS Press Release, Department of Homeland Security Announces
Privacy Officer (Apr. 16, 2003).
---------------------------------------------------------------------------
Since her appointment, Ms. Kelly has played an active role
in evaluating privacy ramifications of various terrorist-
detection initiatives undertaken by the DHS, including the
Computer-Assisted Passenger Prescreening System (also known as
CAPPS II), a prescreening system designed to conduct risk
assessments and authentications for airline passengers
traveling to the United States.\37\ After the revelation that
certain airlines apparently shared passenger data without their
knowledge with federal agencies,\38\ Ms. Kelly met with airline
executives to discuss privacy protections for passengers and
the need to improve their privacy policies.\39\ She also
investigated whether any agencies or airlines acted
improperly.\40\
---------------------------------------------------------------------------
\37\ See U.S. Department of Homeland Security Transportation
Security Administration--Privacy Act of 1974: System of Records Notice
of Status of System of Records; Interim Final Notice; Request for
Further Comments, 68 Fed. Reg. 45265, 45265 (Aug. 1, 2003).
\38\ Leslie Miller, Airline Industry To Work on Privacy Issues,
Associated Press, Jan. 22, 2004; Terence Neilan, Suits Against Airline
Put Focus on Privacy Concerns, N.Y. Times, Jan. 22, 2004; Sara
Kehaulani Goo, Northwest Gave U.S. Data on Passengers; Airline Had
Denied Sharing Information for Security Effort, Wash. Post, Jan. 18,
2004, at A1; Matthew L. Wald, Airline Gave Government Information on
Passengers, N.Y. Times, Jan 18, 2004, at 16.
\39\ Leslie Miller, Airline Industry To Work on Privacy Issues,
Associated Press, Jan. 22, 2004.
\40\ Drew Clark, Privacy: Homeland Security Official Discusses
Department's Privacy Work, Nat'l Journal's Technology Daily PM, Nov.
17, 2003; Philip Shenon & John Schwartz, JetBlue Target of Inquiries by
2 Agencies, N.Y. Times, Sept. 23, 2003, at 1.
---------------------------------------------------------------------------
In addition, Ms. Kelly prepared a privacy impact assessment
for the United States Visitor and Immigration Status Indicator
Technology Program, an integrated entry and exit data system
designed to: (1) record the entry into and exit out of the
United States by certain individuals; (2) verify the identity
of such individuals; and (3) confirm their compliance with the
terms of their admission into the United States.\41\ The
privacy impact assessment ``was hailed by many in the privacy
community as an excellent model of transparency, including
detailed information about the program, the technology and the
privacy protections.'' \42\
---------------------------------------------------------------------------
\41\ U.S. Department of Homeland Security, Privacy Impact
Assessment and Privacy Policy; US-VISIT Program, 69 Fed. Reg, 2608-15
(Jan. 16, 2004). The US-VISIT Program was implemented pursuant to the
Enhanced Border Security and Visa Entry Reform Act of 2002, Pub. L. No.
107-173, Title III, Sec. 302 (codified at 8 U.S.C. 1731 (2002)).
\42\ Review of US-VISIT Border Security Program: Hearing Before the
Subcomm. on Infrastructure and Border Security of the House Select
Comm. on Homeland Security, 108th Cong. 36 (2004) (testimony of
Undersecretary Asa Hutchinson, Department of Homeland Security).
---------------------------------------------------------------------------
To assess Ms. Kelly's performance and execution of her
official responsibilities, the Subcommittee held an oversight
hearing on February 10, 2004. In addition to Ms. Kelly,
witnesses at the hearing included the Honorable James S.
Gilmore, President, USA Secure Corporation; Professor Sally
Katzen, Visiting Professor at the University of Michigan Law
School; and James Dempsey, Executive Director, the Center for
Democracy & Technology. The three private sector witnesses
generally endorsed Ms. Kelly's work and performance.
Based on the results of this hearing, the Subcommittee
actively pursued and ultimately obtained the inclusion of a
provision in H.R. 3036, the ``Department of Justice
Appropriations Authorization Act, Fiscal Years 2004 through
2006,'' requiring the Attorney General to designate a senior
official to assume primary responsibility for privacy
policy.\43\ This bill is discussed in greater detail in the
Committee section of this Report.
---------------------------------------------------------------------------
\43\ H.R. 3036, 108th Cong. Sec. 305 (2003).
---------------------------------------------------------------------------
In addition, the Subcommittee sought and successfully
obtained inclusion in legislation reorganizing our nation's
intelligence agencies, S. 2845, the ``Intelligence Reform and
Terrorism Prevention Act of 2004,'' a provision expressing a
sense of the Congress that the head of a Federal agency with
law enforcement or anti-terrorism functions appoint a chief
privacy officer to have primary responsibility for that
agency's privacy policy.\44\ S. 2845 is discussed in greater
detail in the Committee section of this Report.
---------------------------------------------------------------------------
\44\ H. Rep. No. 108-796, at 53 (2004).
---------------------------------------------------------------------------
Reauthorization of the Administrative Conference of the United States
As earlier noted in the Subcommittee's Legislative
Activities section discussion of H.R. 4917, the ``Federal
Regulatory Improvement Act of 2004,'' the bill, which was
enacted into law as Public Law 108-401, reauthorizes the
Administrative Conference of the United States. H.R. 4917 grew
out of two oversight hearings conducted by the Subcommittee.
Witnesses at the first oversight hearing, held May 20,
2004, consisted of the Honorable Antonin Scalia and the
Honorable Stephen Breyer, Associate Justices of the United
States Supreme Court. Both Justices, without qualification,
strongly endorsed the Administrative Conference and supported
its reauthorization. Justice Scalia, a former chairman of the
Conference, described this agency as ``a worthwhile
organization'' that offered ``a unique combination of talents
from the academic world, from within the executive branch * * *
and, thirdly, from the private bar, especially lawyers
particularly familiar with administrative law.'' \45\ He
observed, ``I did not know another organization that so
effectively combined the best talent from each of those
areas.'' In addition, he said that the Conference was ``an
enormous bargain.'' \46\ Likewise, Justice Breyer cited the
``huge'' savings to the public as a result of the Conference's
recommendations.\47\ Noting that the Conference was ``a matter
of good Government,'' he stated, ``I very much hope you
reauthorize the Administrative Conference.'' \48\ Both Justices
agreed that there were various matters that a reauthorized
Conference could examine. These included assessing the value of
having agencies use teleconferencing facilities and the need to
create a regulatory process that promotes sound science.\49\
---------------------------------------------------------------------------
\45\ Reauthorization of the Administrative Conference of the United
States Before the Subcomm. on Commercial and Administrative Law of the
House Comm. on the Judiciary, 108th Cong. 10 (2004).
\46\ Id. at 21.
\47\ Id. at 22.
\48\ Id. at 15.
\49\ Id. at 25-26.
---------------------------------------------------------------------------
A second oversight hearing on this matter was held June 24,
2004. Witnesses at the hearing included C. Boyden Gray, on
behalf of the American Bar Association; Professor Gary J.
Edles, Fellow in Administrative Law at American University
Washington College of Law and General Counsel of the
Administrative Conference from 1987 to 1995; Professor Philip
J. Harter,Earl F. Nelson Professor of Law Center for the Study
of Dispute Resolution, University of Missouri Law School; and Professor
Sallyanne Payton, William W. Cook Professor of Law at the University of
Michigan Law School, on behalf of the National Academy of Public
Administration.
As with the prior hearing, each witness at this latter
hearing enthusiastically endorsed the Conference's work and
supported its reauthorization. Issues explored at this hearing
included the following: (1) whether the Conference should be
reauthorized without any modification; (2) whether the
Conference should be established as part of another agency,
such as the Justice Department or be the General Services
Administration, or privatized; (3) the priorities of a
reconstituted Conference; and (4) the amount of funding
necessary to authorize the Conference.
Administration of large business bankruptcy reorganizations: Has
competition for big cases corrupted the bankruptcy system?
From a societal perspective, chapter 11 of the Bankruptcy
Code reflects the premise that ``the debtor is worth more
economically alive than economically dead.'' \50\ Unlike a
liquidation case (where the debtor's assets are sold to pay the
claims of creditors), a chapter 11 reorganization case permits
a debtor to restructure its finances while continuing to
operate its business.\51\ The perceived benefits of this
process are that it theoretically preserves the debtor's going
concern value, enables the debtor to repay its creditors, and
provides continued employment for its workers. Absent
bankruptcy, claimants engage in a veritable ``race to the
courthouse'' leaving little recourse for future claimants.
---------------------------------------------------------------------------
\50\ Linda J. Rusch, Unintended Consequences of Unthinking
Tinkering: The 1994 Amendments to the Chapter 11 Process, 69 Am. Bankr.
L.J. 349, 349 (1995).
\51\ Note, however, that a debtor may also liquidate all of its
assets in Chapter 11. See 11 U.S.C. Sec. 1123(a)(5)(B), (D) (2002).
---------------------------------------------------------------------------
Some academics describe the ``Delawarization'' of
bankruptcy venue as an ``embarrassing'' development \52\ and
cite the higher failure rates of cases filed in Delaware.\53\
Critics ``also complain that Delaware's bankruptcy judges are
so interested in attracting prominent reorganizations to
Delaware that they will take only debtors' interests into
account.'' \54\ On the other hand, some observers view this
development ``as part of beneficial jurisdictional competition
that serves to force bankruptcy judges to make bankruptcy
outcomes more efficient.'' \55\
---------------------------------------------------------------------------
\52\ Theodore Eisenberg & Lynn M. LoPucki, Shopping for Judges: An
Empirical Analysis of Venue Choice in Large Chapter 11 Reorganizations,
84 Cornell L. Rev. at 968.
\53\ See, e.g., Lynn M. LoPucki & Joseph W. Doherty, Why Are
Delaware and New York Bankruptcy Reorganizations Failing? 55 Vand. L.
Rev. 1933 (2002). These academics concluded:
The data show that during their first five years, firms
emerging from Delaware bankruptcy court reorganizations
refile more often than firms emerging from [o]ther [c]ourt
reoganizations. Specifically, firms emerging from Delaware
reorganization were more than ten times as likely to refile
(42%) during this period than were firms emerging from
reorganization in Other Courts (4%) and more than twice as
likely to refile as firms emerging from New York
---------------------------------------------------------------------------
reorganization (19%)[.]
Id. at 1939.
---------------------------------------------------------------------------
\54\ David A. Skeel, Jr., Bankruptcy Judges and Bankruptcy Venue:
Some Thoughts on Delaware, 1 Del. L. Rev. 1, 1 (1998).
\55\ Barry E. Adler & Henry N. Butler, On the ``Delawarization of
Bankruptcy'' Debate, 52 Emory L.J. at 1310; see, e.g.,Douglas G. Baird
& Robert K. Rasmussen, Control Rights, Priority Rights, and the
Conceptual Foundations of Corporate Reorganizations, 87 VA. L. Rev. 921
(2001); Robert K. Rasmussen & Randall S. Thomas, Whither the Race? A
Comment on the Effects of the Delawarization of Corporate
Reorganizations, 54 Vand. L. Rev. 283 (2001).
---------------------------------------------------------------------------
Over the years, various legislative responses have been
considered. In 1997, for example, the National Bankruptcy
Review Commission recommended, as part of its report to
Congress,\56\ that the venue options of corporate debtors be
restricted to districts in which their principal places of
business or principal assets are located. As part of its
consideration of comprehensive bankruptcy reform.\57\
---------------------------------------------------------------------------
\56\ National Bankruptcy Review Commission, Bankruptcy: The Next
Twenty Years 770-87, 791 (1997).
\57\ In the 108th Congress, for example, considered an amendment
that would have restricted venue of corporate bankruptcy cases to where
the debtor's principal place of business is located. The amendment
failed by a vote of 155 to 269. 149 Cong. Rec. H2095-96 (daily ed. Mar.
19, 2003). In the 107th Congress, a similar provision was included in
bankruptcy legislation, as reported by the Committee. H.R Rep. No. 106-
123, at 36, 144 (1999).
---------------------------------------------------------------------------
To provide an opportunity to examine into the validity of
these and other concerns, the Subcommittee held an oversight
hearing on July 21, 2004 that focused on how large chapter 11
cases are administered in the current bankruptcy system.
Witnesses at the hearing consisted of Roberta DeAngelis, Acting
United States Trustee for Region 3, on behalf of the Executive
Office for United States Trustees; Professor Lynn LoPucki, UCLA
School of Law; and Professor Lester Brickman, Yeshiva
University--Benjamin N. Cardozo School of Law. The witnesses
addressed the following matters: (1) whether the bankruptcy
courts seek to attract large chapter 11 cases; (2) whether the
current law adequately addresses the treatment of future mass
claims; (3) whether the venue provisions in Title 28 of the
United States Code provide adequate protection against
inappropriate forum shopping by chapter 11 debtors; (4) whether
prepackaged reorganization plans create an unlevel playing
field for participants in chapter 11 cases; (5) whether such
plans result in higher failure rates; (6) why the failure rates
of chapter 11 cases in certain districts higher than in other
districts; and (7) whether the United States Trustee Program
adequately polices the integrity of the bankruptcy system,
especially with respect to large chapter 11 cases.
Further analysis of these issues will continue during the
109th Congress, particularly with respect to the treatment of
asbestos claims in bankruptcy cases.
Regarding privacy and civil liberties in the hands of the government
Post-September 11, 2001: Recommendations of the 9/11 Commission
and the U.S. Department of Defense Technology and Privacy
Advisory Committee
On November 27, 2002, President George W. Bush signed into
law legislation creating the National Commission on Terrorist
Attacks Upon the United States (9/11 Commission or
Commission).\58\ The Commission's principal responsibility was
to ``examine and report upon the facts and causes relating to
the terrorist attacks of September 11, 2001,'' with respect to
intelligence and law enforcement agencies, diplomacy,
immigration and border control, the flow of assets to terrorist
organizations, commercial aviation, and the role of
congressional oversight and resource allocation, among other
matters, and to suggest ``corrective measures that can be taken
to prevent acts of terrorism.'' \59\ Established on an
independent, bipartisan basis,\60\ the 9/11 Commission held 19
days of hearings and received public testimony from 160
witnesses over the course of its 20-month existence.\61\
---------------------------------------------------------------------------
\58\ Intelligence Authorization Act for Fiscal Year 2003, Pub. L.
No. 107-306, Title VI, 116 Stat. 2383, 2408-13 (2002).
\59\ Id. at Sec. Sec. 602(1), (5), 604.
\60\ Id. at Sec. 603. The Republican members were Commission Chair
Thomas H. Kean, Fred F. Fielding, Slade Gorton, John F. Lehman, and
James R. Thompson. The Democratic members were Commission Vice Chair
Lee H. Hamilton, Richard Ben-Veniste, Jamie S. Gorelick, Bob Kerrey,
and Timothy J. Roemer. The 9/11 Commission Report--Final Report of the
National Commission on Terrorist Attacks Upon the United States, at xii
(2004) [hereinafter 9/11 Commission Report].
\61\ The 9/11 Commission Report--Final Report of the National
Commissionon Terrorist Attacks Upon the United States, at xv (2004).
---------------------------------------------------------------------------
Pursuant to its statutory mandate, the Commission submitted
its final report and unanimous recommendations to Congress and
the President on July 22, 2004.\62\ The 567-page report
provides a detailed chronicle of the events leading up to the
September 11th attacks. The paperback version of the report has
since become a ``national bestseller, a first for such a
commission report.'' \63\ As part of its analysis of these
events, the Commission identified ``fault lines within our
government--between foreign and domestic intelligence, and
between and within agencies.'' \64\ The Commission also cited
``pervasive problems of managing and sharing information across
a large and unwieldy government that had been built in a
different era to confront different dangers.'' \65\
---------------------------------------------------------------------------
\62\ Press Release, 9/11 Commission, 9-11 Commission Releases
Unanimous Final Report--Calls for Quick Action on Recommendations to
Prevent Future Attacks (July 22, 2004), at http://www.9-
11commission.gov/press/pr-2004-07-22.pdf.
\63\ Jim VandeHei, 9/11 Panel Roiling Campaign Platforms, Wash.
Post, Aug. 9, 2004, at A1.
\64\ The 9/11 Commission Report--Final Report of the National
Commission on Terrorist Attacks Upon the United States, at xvi (2004).
\65\ Id.
---------------------------------------------------------------------------
The Commission's Report contained 41 recommendations,
``[m]any'' of which called for the government to increase its
presence in our lives--for example, by creating standards for
the issuance of forms of identification, by better securing our
borders, [and] by sharing information gathered by many
different agencies.'' \66\ Three of these recommendations,
however, specifically addressed the need to protect our
citizens' privacy and civil liberties.\67\
---------------------------------------------------------------------------
\66\ Id. at 393-94. As part of its findings concerning operational
management issues, the Commission observed:
Earlier in this report we detailed various missed
opportunities to thwart the 9/11 plot. Information was not
shared, sometimes inadvertently or because of legal
misunderstandings. Analysis was not pooled. Effective
operations were not launched. Often the handoffs of
information were lost across the divide separating the
---------------------------------------------------------------------------
foreign and domestic agencies of the government.
Id. at 353.
---------------------------------------------------------------------------
\67\ The three recommendations were as follows:
As the President determines the guidelines for
information sharing among government agencies and by those
agencies with the private sector, he should safeguard the
privacy of individuals about whom information is shared.
The burden of proof for retaining a particular
governmental power should be on the executive, to explain
(a) that the power actually materially enhances security
and (b) that there is adequate supervision of the
executive's use of the powers to ensure protection of civil
liberties. If the power is granted, there must be adequate
guidelines and oversight to properly confine its use.
At this time of increased and consolidated government
authority, there should be a board within the executive
branch to oversee adherence to the guidelines we recommend
and the commitment the government makes to defend our civil
liberties.
Id. at 394-95.
---------------------------------------------------------------------------
With respect to a related concern regarding the need for secure
identification information, the Commission made the following
recommendation:
Secure identification should begin in the United States.
The federal government should set standards for the
issuance of birth certificates and sources of
identification, such as drivers licenses. Fraud in
identification documents is no longer just a problem of
theft. At many entry points to vulnerable facilities,
including gates for boarding aircraft, sources of
identification are the last opportunity to ensure that
people are who they say they are and to check whether they
---------------------------------------------------------------------------
are terrorists.
Id. at 390.
As the Commission engaged in its deliberations, the U.S.
Department of Defense (DOD) undertook a self-examination of how
it treats private information. In February 2003, Secretary
Donald Rumsfeld appointed the Technology and Privacy Advisory
Committee (TAPAC) to examine the Terrorism Information
Awareness Program (TIA or Program), a controversial data mining
project.\68\ TAPAC was tasked with proposing recommendations
that would ``ensure that the application of this or any like
technology developed within DOD is carried out in accordance
with U.S. law and American values related to privacy.'' \69\
The eight-member, bipartisan committee was comprised of private
citizens, ``independent from the government and `selected on
the basis of their preeminence in the fields of constitutional
law and public policy relating to communication and information
management.' '' \70\ Over the course of its deliberations,
TAPAC received testimony from 60 witnesses, including Members
of Congress, representatives from the DOD and other government
agencies, private industry, academia, and various advocacy
groups.\71\ TAPAC's final report included five recommendations
regarding government-wide data mining operations.\72\
---------------------------------------------------------------------------
\68\ Created by the Defense Advanced Research Projects Agency
(DARPA) in 2002, the TIA Program was intended to proactively detect
terrorist plots through the use of data mining. Its ambitious data
mining security system/network would have gathered, among other things,
personally identifiable information from governmental and private
sources to prevent future international terrorist attacks against the
United States by preemptively determining behavior patterns indicative
of terrorist activities. U.S. Department of Defense, Executive Summary,
Report to Congress Regarding the Terrorism Information Awareness
Program, at 1, note 1 (May 20, 2003); see Gina Marie Stevens, Privacy:
Total Information Awareness Programs and Related Information Access,
Collection, and Protection Laws, Congressional Research Service Report
for Congress, at 3 (Mar. 21, 2003). The Program was previously known as
``Total Information Awareness,'' but was changed to its present title
because the former name ``created in some minds the impression that TIA
was a system to be used for developing dossiers on U.S. citizens.''
U.S. Department of Defense, Executive Summary, Report to Congress
Regarding the Terrorism Information Awareness Program, at 1 (May 20,
2003).
\69\ U.S. Department of Defense, safeguarding Privacy in Re Fight
Against Terrorism--Report of the Technology and Privacy Advisory
Committee, at vii (Mar. 2004) (quoting U.S. Department of Defense,
Technology and Privacy Advisory Committee Charter (Mar. 25, 2003)).
\70\ Id. at 1 (quoting U.S. Department of Defense Notice of
Establishment of the Technology and Privacy Advisory Committee, 68 Fed.
Reg. 11384 (Mar. 10, 2003)).
\71\ Id. at 2, 97-98.
\72\ The five recommendations were as follows:
The [DOD] Secretary should recommend that Congress and
the President establish one framework of legal,
technological, training, and oversight mechanisms necessary
to guarantee the privacy of U.S. persons in the context of
national security and law enforcement.
The [DOD] Secretary should recommend that the President
appoint an inter-agency committee to help ensure the
quality and consistency of federal government efforts to
safeguard informational privacy in the context of national
security and law enforcement activities.
The [DOD] Secretary should recommend that the President
appoint a panel of external advisors to advise the
President concerning federal government efforts to
safeguard informational privacy in the context of national
security and law enforcement activities.
The [DOD] Secretary should recommend that the President
and Congress take those steps necessary to ensure the
protection of U.S. persons' privacy and the efficient and
effective oversight of government data mining activities
through the judiciary and by this nation's elected leaders
through a politically credible process. Specifically,
Congress and the President should authorize the Foreign
Intelligence Surveillance Court to receive requests for
orders under Recommendations 2.4 and 8 and to grant or deny
such orders, and each house of Congress should identify a
single committee to receive all agencies' reports
concerning data mining.
The [DOD] Secretary should recommend that the President
and Congress support research into means for improving the
accuracy and effectiveness of data mining systems and
technologies; technological and other tools for enhancing
privacy protection; and the broader legal, ethical, social,
and practical issues involved with data mining concerning
U.S.
Id. at xiv.
To provide an opportunity for the Subcommittee to examine
the recommendations relating to privacy and civil liberties
proposed by the Commission and TAPAC, an oversight hearing was
held jointly with the Subcommittee on the Constitution on
August 20, 2004. Witnesses at the hearing consisted of the
Honorable Lee H. Hamilton and the Honorable Slade Gorton on
behalf of the 9/11 Commission; former Secretary of the Army
John O. Marsh, Jr. on behalf of the U.S. Department of Defense
Technology and Privacy Advisory Committee; and Nuala O'Connor
Kelly, Chief Privacy Officer for the U.S. Department of
Homeland Security. Various issues were considered at the
oversight hearing, including how Congress, in crafting
legislation, can best protect our citizens' privacy without
compromising legitimate law enforcement and terrorism detection
efforts. Another issue explored at the hearing was the role of
privacy officers in effectuating the privacy-related
recommendations of the Commission.
Based on testimony received from this hearing, the
Subcommittee actively pursued the inclusion of privacy
protections in S. 2845, the ``Intelligence Reform and Terrorism
Prevention Act of 2004,'' which is discussed in greater detail
in the Committee section of this Report.
Regulatory aspects of Voice over the Internet Protocol (VoIP)
The right of states to tax economic activities within their
borders is a key aspect of federalism rooted in the
Constitution and long recognized by Congress. At the same time,
the authority of States to lay and collect taxes is subject to
various constitutional limitations. First, the Commerce Clause
prohibits States from assessing taxes which unduly burden
interstate commerce. Second, the Due Process Clause prohibits
States from taxing those who lack ``substantial nexus'' with
the taxing State. Finally, the Privilege and Immunities Clause
prevents States from assessing taxes which discriminate against
nonresidents. During the 107th Congress, the Subcommittee
considered a number of bills that bear directly on State taxes
affecting interstate commerce.
Background.--Voice over the Internet Protocol (VoIP) is a
dynamic technology that sends telephone calls over a broadband
Internet connection rather than a regular (or analog) telephone
line. VoIP, also called Internet Protocol (``IP'') telephony,
converts the voice signal from a telephone into a digital
signal that travels over the Internet and then converts it back
at the other end so the user may speak to anyone with a regular
telephone number.
VoIP functionality differs from that of traditional
telephone companies which use circuit-switched technology. A
person using a traditional telephone, or ``plain old telephone
service'' (POTS), is connected to the public switched telephone
network (PSTN), which is operated by local telephone companies.
In contrast, voice communication using the Internet utilizes
``packet switching,'' a process of breaking down data into
packets of digital bits and transmitting them over the
Internet. A marked difference between VoIP and POTS
functionalities is that POTS establishes a dedicated circuit
between the parties to a voice transmission, whereas VoIP
technology sends packets of information over the fastest
available route along the Internet, without requiring the
establishment of an end-to-end path.
IP telephony falls generally into one of three categories:
computer-to-computer; telephone-to-computer; and telephone-to-
telephone. In other words, some VoIP services only work over a
computer or a special VoIP phone, while others allow the use of
a traditional phone through an adaptor. Some services using
VoIP may only allow a user to call other people using the same
service, but others may allow a user to call anyone who has a
telephone number--including local, long distance, mobile, and
international numbers.
VoIP presents new opportunities for users and investors
alike. VoIP is based on software rather than hardware, which
makes it less expensive to set up and operate and more flexible
than circuit-switched technology.\73\ Further, because VoIP is
digital, it may offer features and services that are not
available with POTS, such as calls that follow the customer
from telephone to telephone, voice mail sent to the user's e-
mail, and inexpensive conference calling. Further, VoIP allows
new competitors into the telephone business, which could change
the face of the U.S. telecommunications business. Indeed, FCC
Chairman Michael K. Powell has heralded VoIP as promising ``the
most important shift in the entire history of modern
communications since the invention of the telephone.'' \74\
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\73\ Scott Cleland of the Precursor Group claims that one could
replace the $125 billion in hardware that the Bell companies have
installed in their conventional networks with a few billion dollars
worth of VoIP software and servers. Eric J. Savits, Talk Gets Cheap:
Internet Telephony is Bad News for the Bells, but may be Great News for
the Cable Guys, Barron's, May 24, 2004.
\74\ Id.
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VoIP has been offered in various forms since at least 1995.
While early experience deterred investors and consumers from
adopting VoIP because it was deemed unreliable and poor in
quality, technology has now overcome such concerns. In addition
to such improvements, the VoIP market has been driven by the
creation of new IP services and increasing penetration of
broadband into the residential market. Further, market entry by
IP service providers such as Vonage appears to have spurred
deployment of IP-enabled voice services by established
telephony providers. For example, AT&T in 2003 announced that
it expected to enroll over one million customers in the next
two years.\75\ SBC, BellSouth, Qwest and Verizon either offer
VoIP currently or plan to offer VoIP in the near future.\76\
Wireless service providers have also begun to provide VoIP, and
Time Warner Cable predicted that it would offer IP telephony to
all of its subscribers by the end of 2004.\77\
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\75\ See Shawn Young, AT&T to Launch Internet-Based Telephone
Service, Wall St. J. B6 (Dec. 11, 2003).
\76\ See, e.g. Ben Charny, Qwest Taps into Net Telephony, CNET
News.com (Dec. 10, 2003); Ben Charny, Verizon Details Internet Phone
Plans, CNET News.com (Nov. 18, 2003).
\77\ See Presentation by John Billock, Vice Chairman & Chief
Operating Officer, Time Warner Cable, to FCC VoIP Forum, at 5 (Dec. 1,
2003), available at .
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Prior Legislation Relevant to VoIP.--Relevant to the
consideration of the proper regulatory treatment of VoIP are
the Communications Act of 1934,\78\ as amended by the
Telecommunications Act of 1996,\79\ and prior FCC orders. The
Communications Act defines the terms ``common carrier'' and
``carrier'' to include ``any person engaged as a common carrier
for hire, in interstate or foreign communication by wire or
radio.'' \80\ Next, the FCC has long distinguished between
``basic'' and ``enhanced'' service offerings. In the Computer
Inquiry line of decisions,\81\ the Commission specified that a
``basic'' service is a service offering transmission capacity
for the delivery of information without net change in form or
content.\82\ Providers of ``basic'' services were subjected to
common carrier regulation under Title II of the Act.\83\ In
contrast, an ``enhanced service contains a basic service
component but also ``employ[s] computer processing applications
that act on the format, content, code, protocol or similar
aspects of the subscriber's transmitted information; provide
the subscriber additional, different, or restructured
information; or involve subscriber interaction with stored
information.'' \84\ The Commission found that enhanced services
were subject to the Commission's jurisdiction.\85\ The
Commission further found that the enhanced service market was
highly competitive with low barriers to entry; therefore the
Commission declined to treat providers of enhanced services as
``common carriers'' subject to regulation under Title II of the
Act.\86\
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\78\ 47 U.S.C. Sec. 151 et. seq. (1934) (hereinafter
``Communications Act'').
\79\ 47 U.S.C. Sec. 151 et. seq. (1996) (hereinafter ``1996 Act'').
\80\ 47 U.S.C. Sec. 153(10). The Act specifically excludes persons
``engaged in radio broadcasting'' from this definition. Id.
\81\ See Regulatory and Policy Problems Presented by the
Interdependence of Computer and Communications Services and Facilities,
Docket No. 16979, Notice of Inquiry, 7 FCC 2d 11 (1996); Regulatory and
Policy Problems Presented by the Interdependence of Computer and
Communications Services and Facilities, Docket No. 16979, Final
Decision and Order, 28 FCC 2d 267 (1971); Amendment of Section 64.702
of the Commission's Rules and Regulations, Docket No. 20828, Tentative
Decision and Further Notice of Inquiry and Rulemaking, 72 FCC 2d 358
(1979); Amendment of Section 64.702 of the Commission's Rules and
Regulations, Docket No. 20828, Final Decision, 77 FCC 2d 384; Amendment
of Section 64.702 of the Commission's Rules and Regulations, CC Docket
No. 85-229, Report and Order, 104 FCC 2d 958.
\82\ 77 FCC 2d at 419-22, paras. 93-99.
\83\ Id. at 428, para. 114.
\84\ 47 C.F.R. Sec. 64.702; see also 77 FCC 2d at 420-21, para. 97.
\85\ 77 FCC 2d at 432, para. 125.
\86\ Id. at 432-35, paras. 126-132.
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The 1996 Act represented the first major overhaul of
telecommunications law in nearly 62 years. Enacted twelve years
after the breakup of the AT&T monopoly, the 1996 Act was
intended to move all telecommunications markets toward
competition. The Act envisioned competition in all
telecommunications markets, both in the markets for the various
elements that comprise the telecommunications network, as well
as for the final services the network creates. Building on the
experience of the long distance market, which was transformed
from a monopoly to an effectively competitive market, the Act
attempts to promote competition in the formerly monopolized
local exchange markets. Of the most important provisions of the
Act is the requirement that incumbent local exchange carriers
(ILECs) provide competitors access to their networks and lease
to competitors parts of their networks (unbundled network
elements) at reduced rates.\87\
---------------------------------------------------------------------------
\87\ 47 U.S.C. Sec. 251.
---------------------------------------------------------------------------
The 1996 Act codified, with minor modifications, the
Commission's distinction between regulated ``basic'' and
largely unregulated ``enhanced'' services. The Act defined the
terms ``telecommunications,'' ``telecommunications services''
and ``information services.'' \88\ As discussed below, a
distinction critical to the industry is whether VoIP is a
regulated telecommunications service, which has a long history
of substantial government regulation, or an ``information
service'' subject to federal jurisdiction but largely
unregulated. Reaching a definitive conclusion has thus far
eluded the FCC, at least in part due to the unique nature of
VoIP functionality and its disconnect with the current
telecommunications regulatory scheme.
---------------------------------------------------------------------------
\88\ The 1996 Act defines ``telecommunications'' as ``the
transmission, between or among points specified by the user, of
information of the user's choosing, without change in the form or
content of the information as sent and received.'' 47 U.S.C.
Sec. 153(43). ``Telecommunications service'' is defined as ``the
offering of telecommunications for a fee directly to the public, or to
such classes of users as to be effectively available directly to the
public, regardless of the facilities use.'' 47 U.S.C. Sec. 153(46).
``Information service'' is defined as ``the offering of a capability
for generating, acquiring, storing, transforming, processing,
retrieving, utilizing, or making available information via
telecommunications, and includes electronic publishing, but does not
include any use of any such capability for the management, control, or
operation of a telecommunications system or the management of a
telecommunications service.'' 47 U.S.C. Sec. 153(20).
---------------------------------------------------------------------------
The current telecommunications regulatory model reflects
the ``legacy PSTN era,'' in which specific platforms were
optimized for one and only one application.\89\ For example,
POTS required a physical wire connection to every home in order
for a connection to be made. In contrast, the concept of ``end
points'' has little relevance to VoIP. VoIP and other IP
platforms are not specific to one application; rather they can
operate on various applications. VoIP technology is therefore a
new paradigm because it has disconnected the architecture from
the application platform. In sum, because the current
telecommunications regulatory model does not accommodate VoIP
functionality, VoIP represents a unique regulatory challenge.
---------------------------------------------------------------------------
\89\ The current regulatory paradigm has been described as
conceptually ``vertical'' in organization, in which the communications
service offered and the underlying network utilized are deemed one in
the same. In contrast, VoIP and other IP-related services are, in
concept, horizontally layered stacks in which the services are no
longer tied to discrete networks, facilities or technologies.
---------------------------------------------------------------------------
FCC Action on VoIP.--While the FCC has not addressed VoIP
and IP-enabled services in a comprehensive manner, it has taken
steps to determine the appropriate regulatory approach.
VoIP Forum
On December 1, 2003, the FCC announced a year-long VoIP
Forum, in which all Commissioners would participate.\90\ The
purpose of the Forum was to discuss VoIP and to solicit
comments from the public on the impact that IP-enabled
services, including VoIP, have had and will continue to have on
the United States.\91\ Seventy parties submitted materials to
the VoIP Forum, including small- to medium-sized
telecommunications companies, larger concerns such as AT&T,
related associations, individuals working in related fields,
and Members of the other body.\92\
---------------------------------------------------------------------------
\90\ See http://www.fcc.gov/voip/voipforum.
\91\ Id.
\92\ Comments are posted on the FCC website at http://www.fcc.gov/
voip/materials-view.html.
---------------------------------------------------------------------------
FCC Rulings
To date, the FCC has issued a handful of rulings on the
regulatory treatment of VoIP, including:
Pulver.com
Pulver.com is a company offering a service entitled ``Free
World Dialup'' (``FWD''), which allows users of broadband
Internet services to make telephone calls, free of charge, to
others who installed FWD software, using WiFi telephones, or
other consumer devices.\93\ On February 5, 2003, company
founder Jeff Pulver had filed a petition for declaratory ruling
requiring the FCC to declare FWD to be neither a
``telecommunications service'' nor ``telecommunications'' as
defined in the Communications Act of 1934.\94\ Mr. Pulver
maintained that, because FWD originates on the Internet and
provides no transmission capabilities to its members, it should
not be subject to regulation as a telecommunications service.
Rather, Mr. Pulver argued, FWD is an Internet application that
provides its members information that members use to
communicate with other members.\95\
---------------------------------------------------------------------------
\93\ FWD operates by requiring members to complete an initial
registration process and comply with other requirements. Specifically,
members must have an existing broadband Internet access service as FWD
does not offer transmission service or transmission capability. In
addition, members must acquire download software or appropriately
configured phones that enable their personal computers to function as
``soft phones.'' Once these criteria are met, anyone anywhere in the
world may obtain a Pulver-assigned FWD number that enables members to
make free VoIP communications to other FWD members. Further, FWD
numbers are completely portable to any broadband-accessible location to
which a member may go. Pulver.com neither knows nor needs to know the
geographical location of its members in order for its members to use
FWD.
\94\ Federal Communications Commission, Pulver.com Petition for
Declaratory Ruling that pulver.com's Free World Dialup is Neither
Telecommunications Nor a Telecommunications Service, WC Docket No. 03-
45 (filed Feb. 5, 2003).
\95\ Id.
---------------------------------------------------------------------------
On February 12, 2004, more than one year after the
submission of comments by interested parties, the FCC issued a
29-page Memorandum opinion and Order (``Order'') agreeing with
Mr. Pulver.\96\ The Order declared that FWD is neither
``telecommunications,'' nor a ``telecommunications service,''
but that FWD is an unregulated ``information service'' subject
to federal jurisdiction.\97\ The Commission's Order noted that
pulver.com neither offers nor provides transmission to its
members.\98\ Rather, FWD members must ``bring their own
broadband'' transmission in order to interact with the FWD
server.\99\ The FCC further stated:
---------------------------------------------------------------------------
\96\ Federal Communications Commission, Memorandum Opinion and
Order, In the Matter of Petition for Declaratory Ruling that
pulver.com's Free World Dialup is Neither Telecommunications Nor a
Telecommunications Service, WC Docket No. 03-45, FC 04-27 (rel. Feb.
12, 2004).
\97\ Id. at 5.
\98\ Id. at 4.
\99\ Id. at 6.
Offerings such as Pulver's FWD promise significant
benefits in the form of lower prices, new pricing
models and enhanced functionality. Accordingly, our
action is part of a number of initiatives that are
designed to bring the benefits of * * * IP-based
services to American consumers.\100\
---------------------------------------------------------------------------
\100\ Id. at 1.
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AT&T's ``Phone-to-Phone'' VoIP Services
Following its Order concerning FWD, the Commission turned
its attention to the outstanding question of whether ``phone-
to-phone'' IP telephony services are subject to the access
charges applicable to circuit-switched interexchange calls. On
October 18, 2002, AT&T had filed a petition for declaratory
ruling to exempt its phone-to-phone telephony services from
access charges.\101\ AT&T's VoIP functionality differs from
that of FWD in that the service originates and terminates on
the PSTN.\102\
---------------------------------------------------------------------------
\101\ Federal Communications Commission, Petition for Declaratory
Ruling that AT&T's Phone-to-Phone IP Telephony Services Are Exempt from
Access Charges, WC Docket No. 02-361 (filed Oct. 18, 2002).
\102\ Specifically, AT&T's service consists of an interexchange
call that is initiated in the same manner as traditional interexchange
calls, by an end-user who dials 1 + the called number from a regular
telephone. When the call reaches AT&T's network, AT&T converts it from
its existing format into an IP format and transports it over AT&T's
Internet backbone. AT&T then converts the call back from the IP format
and delivers it to the called party through local-exchange-carrier
local business lines. Services such as AT&T's have been called ``IP in
the middle'' services. See Tech Law Journal, FCC Rules on AT&T's VOIP
Petition, April 21, 2004.
---------------------------------------------------------------------------
The Commission issued its Order on April 21, 2004, one and
one-half years after the filing of the petition.\103\ The FCC
stated that its Order was intended to provide clarity to the
industry with respect to the application of interstate access
charges pending the outcome of the FCC's notice of Proposed
Rulemaking on IP-Enabled Services (``NPRM''), discussed
supra.\104\ The Order rejected AT&T's petition, ruling that
traditional telephone calls that start and end on the PSTN, but
are carried part of the time on AT&T's Internet backbone, are
properly classified as a telecommunications service.\105\ Those
calls, the Commission ruled, are subject to the access charges
that are exchanged when a telephone call made through one
carrier ends on another carrier's network.\106\ FCC Chairman
Michael Powell remarked that the decision was ``correctly
decided on very narrow grounds. A straightforward application
of existing law places the long distance telephone service, as
it is factually described by AT&T, squarely in the category of
a telecommunications service.'' \107\
---------------------------------------------------------------------------
\103\ Federal Communications Commission Order In the Matter of
Petition for Declaratory Ruling that AT&T's Phone-to-Phone IP Telephony
Services Are Exempt from Access Charges, WC Docket No. 02-36, FCC 04-97
(rel. April 21, 2004).
\104\ Id. at 7.
\105\ Id. at 9.
\106\ Id.
\107\ Statement of Chairman Michael K. Powell Re: Petition for
Declaratory Ruling That AT&T's Phone-to-Phone IP Telephony Services Are
Exempt From Access Charges, WC Docket No. 02-361, Order, available at
www.fcc.gov.
---------------------------------------------------------------------------
Outstanding petitions
As of the subcommittee's June 23, 2004 hearing, several
outstanding petitions remained at the FCC, including that of
Vonage Holdings Corporation (``Vonage''), a VoIP service
offering computer-to-computer and phone-to-computer telephony.
In September, 2003 Vonage filed with the FCC a petition for
declaratory ruling that Vonage's service constituted an
information service and that federal policy preempts state
action in this area.\108\ Vonage's petition was contemporaneous
with its involvement in litigation with the Minnesota Public
Utilities Commission (MPUC), discussed in further detail infra.
The FCC has yet to issue an Opinion in this matter.
---------------------------------------------------------------------------
\108\ Federal Communications Commission, Vonage Petition for
Declaratory Ruling, WC Docket No. 03-211 (filed Sept. 22, 2003).
---------------------------------------------------------------------------
In addition, on December 23, 2003, Level 3 Communications
filed a petition with the FCC requesting that it forebear from
applying the requirements of Sec. 251(g) of the 1996 Act and
FCC rules to the extent that they might be interpreted to allow
local exchange carriers to impose interstate or intrastate
access charges on IP traffic that originates or terminates on
the PSTN.\109\ As of the time of this report, several other
petitions relating to the regulatory treatment of VoIP remain
outstanding with the FCC.\110\
---------------------------------------------------------------------------
\109\ Federal Communications Commission, Level 3 Communications
Petition for Forbearance Under 47 U.S.C. Sec. 160(c) from Enforcement
of 47 U.S.C. Sec. 251(g), Rule 51,701(b)(1), and Rule 69.5(b), WC
Docket No. 03-266 (filed Dec. 23, 2003).
\110\ Additional pending petitions related to the regulatory
treatment of VoIP are those of Vonage, SBC, and Inflexion.
---------------------------------------------------------------------------
Notice of proposed rulemaking in the matter of IP-Enabled Services
On March 10, 2004, the FCC issued a Notice of Proposed
Rulemaking (``NPRM'') regarding ``IP-Enabled Services.'' \111\
In the NPRM, the FCC raised issues relating to services and
applications making use of IP including, but not limited to,
VoIP, and solicited comments on a broad array of concerns,
including:
---------------------------------------------------------------------------
\111\ Federal Communications Commission, Notice of Proposed
Rulemaking, In the Matter of IP-Enabled Services, WC Docket No. 04-36,
FCC 04-48 (adopted Feb. 12, 2004) (hereinafter ``NPRM'').
---------------------------------------------------------------------------
1. The impact that such IP-enabled services,
including VoIP, have had and will continue to have on
the United States' communications landscape;\112\
---------------------------------------------------------------------------
\112\ NPRM at 2.
---------------------------------------------------------------------------
2. How the Commission might distinguish among such
services and on whether any regulatory treatment would
be appropriate for any class of IP services;\113\
---------------------------------------------------------------------------
\113\ Id. at 24.
---------------------------------------------------------------------------
3. Whether the proliferation of services and
applications utilizing a common protocol may permit
competitive developments in the marketplace to play the
key role once played by regulation; \114\
---------------------------------------------------------------------------
\114\ Id. at 5.
---------------------------------------------------------------------------
4. Whether there is a compelling rationale for
applying traditional economic regulation to providers
of IP-enabled services; \115\
---------------------------------------------------------------------------
\115\ Id. at 49.
---------------------------------------------------------------------------
5. How the regulatory classification of IP-enabled
services, including VoIP would affect the FCC's ability
to fund universal service; \116\ and
---------------------------------------------------------------------------
\116\ Id. at 43.
---------------------------------------------------------------------------
6. Whether to extend the application of the
Commission's ruling in Pulver.\117\
---------------------------------------------------------------------------
\117\ Id. at 24.
---------------------------------------------------------------------------
The FCC received 249 comments and reply comments in
response to the NPRM within the May 10, 2004 and June
10, 2004 deadlines, respectively. According to the FCC,
it has taken no further action on these
submissions.\118\ According to press reports, ``broad
VoIP rules are expected to be released'' by about May
2005.\119\
---------------------------------------------------------------------------
\118\ E-mail communication with FCC staff Russ Hauser, July 1,
2004.
\119\ See Josh Long, FCC Due to Explain IP Voice Rules/Tauzin:
``Silence Is Not Acceptable,'' Xchange, March 1, 2004.
---------------------------------------------------------------------------
State Action.--While the FCC has continued to consider the
matter, States have begun to address VoIP regulation. For
example, in September 2003, the Minnesota Public Utilities
Commission (MPUC) found that it had jurisdiction over the VoIP
services provided by companies such as Vonage, a service that
offered computer-to-computer and phone-to-computer telephony
only.\120\ The MPUC ordered Vonage to comply with state
statutes and rules regarding the offering of telephone service.
---------------------------------------------------------------------------
\120\ See Vonage Holdings Corp. v. Minnesota Pub. Utils. Comm'n,
290 F. Supp. 2d 993 (D. Minn. 2003) (citing In the Matter of the
Complaint of the Minnesota Department of Commerce Against Vonage
Holding Corp Regarding Lack of Authority to Operate in Minnesota,
Docket No. P-6214/C-03-108 (Minn. Pub. Utils. Comm'n Sept. 11, 2003)
(order finding jurisdiction and requiring compliance) (Minnesota
federal court decision hereinafter ``Vonage-Minnesota'').
---------------------------------------------------------------------------
Vonage sought review of the decision in federal court,\121\
and on October 16, 2003, the U.S. District Court for the
District of Minnesota concluded that Vonage ``uses
telecommunications services, rather than provides them.'' \122\
The court found Vonage's VoIP service to constitute an
information service within the meaning of the Communications
Act, noting that Vonage's process of transmitting customer
calls over the Internet requires Vonage to ``act on'' the
format and protocol of information.\123\ In other words, for
calls originating with one of Vonage's customers, calls in the
VoIP format must be transformed into the PSTN format before a
POTS user can receive the call.\124\ Further, the court held
that state ``regulation over VoIP services is not permissible
because of the recognizable congressional intent to leave the
Internet and information services largely unregulated.'' \125\
---------------------------------------------------------------------------
\121\ Id. Vonage also filed with the FCC a petition for declaratory
ruling that its service is an ``information service'' and that federal
policy preempts state action in this area. See supra n. 34.
\122\ Vonage-Minnesota at 999 (emphasis in original).
\123\ Id.
\124\ Id.
\125\ Id. at 98.
---------------------------------------------------------------------------
The State of New York initially reached the opposite
conclusion with regard to Vonage.\126\ In September 2003,
Frontier Telephone of Rochester, Inc. (``Frontier'') filed a
complaint against Vonage alleging Vonage was a telephone
corporation providing a telecommunications service under New
York State Public Law.\127\ Vonage argued that it was not a
telecommunications service, rather an ``information service.''
\128\ Vonage also argued that even if found to be a telephone
corporation, state regulation is preempted because the
interstate and intrastate aspects of its service cannot be
segregated.\129\
---------------------------------------------------------------------------
\126\ Complaint of Frontier Telephone of Rochester, Inc. Against
Vonage Holdings Corporation Concerning Provision of Local Exchange and
InterExchange Telephone Service in New York State in Violation of the
Public Service Law, Case 03-C-1285 (New York Public Service Comm'n May
21, 2004) (order establishing balanced regulatory framework for Vonage
Holdings Corporation) (hereinafter ``Vonage Minnesota'').
\127\ Id.
\128\ Id.
\129\ Id.
---------------------------------------------------------------------------
The New York State Public Services Commission (``NYPSC'')
found in favor of Frontier in May 2004.\130\ The NYPSC held
that Vonage is not an ``information service'' under the
Telecommunications Act of 1996, but rather a
``telecommunications service'' which can be regulated by the
states.\131\ The Commission held that Vonage is a telephone
corporation under state law and as such subject to statutory
requirements.\132\ The Commission reasoned that Vonage is
reselling to its own customers capabilities it acquires from
the other, third party, telephone corporations.\133\ Finally,
the NYPSC found Vonage ``should be subject to, at most, the
same limited regulatory regime to which comparable circuit
switched competitive carriers are currently subject to in New
York.'' \134\
---------------------------------------------------------------------------
\130\ Id.
\131\ Id.
\132\ Id.
\133\ Id.
\134\ Id. Jeff Pulver criticized the decision, stating, ``I am
quite disappointed to see that New York State decided to apply legacy
telephone regulation to Internet-based communications, while the FCC is
in the process of figuring out the right regulatory treatment for VoIP.
* * * Between his decision in New York and a pending decision in
California, these new developments may lead to the introduction of new
regulatory barriers that in fact could slow the adoption of IP
communication services and delay the extraordinary benefits available
from such services.'' See Evan Hansen, New York Classifies Vonage as
Phone Company; Handing a Setback to Emerging Net Phone Services, the
State's Public Service Commission Rules that Vonage Holdings is a
Telephone Company and thus Subject to State Regulation, CNETNews.com
(May 19, 2004).
---------------------------------------------------------------------------
However, on June 30, 2004, Magistrate Judge Douglas F.
Eaton, U.S. District Court (Southern District of New York)
announced his intention to enjoin the NYPSC from regulating
Vonage as a telecommunications carrier.\135\ Judge Eaton will
consider the merits of a permanent injunction in January
2005.\136\ Although Judge Eaton's action reinforces the Vonage
Minnesota decision, the formation of a national framework for
the emerging VoIP industry remains incomplete. Indeed, it is
not surprising that Vonage CEO Jeffrey Citron calls the threat
of increased regulation ``one of the biggest uncertainties''
his company faces.\137\
---------------------------------------------------------------------------
\135\ See Ben Charney, Vonage Beats Back New York Ruling, CNET
News.com, June 30, 2004.
\136\ Id.
\137\ Brian M. Carney, Business, Make Way for the VoIP Revolution,
Wall St. J. Eur., June 14, 2004.
---------------------------------------------------------------------------
Further, about half of all states have launched regulatory
or legal proceedings addressing VoIP.\138\ Some, such as
Colorado, have postponed their efforts until the FCC completes
its NPRM.\139\ In response to increasing state involvement,
some state regulators have urged the FCC to take a prompt
stance on VoIP.\140\ Members of the California and Florida
public-utilities commissions warned that many state regulators
and legislators are being driven by an ``irrational fear of
Internet telephone services,'' and stated that the FCC ``must
pre-empt states from tampering'' with VoIP.\141\ The members
warned that, in the absence of needed federal pre- emption,
states will occupy the VoIP field. The California member
concluded, ``We need the FCC to step in and take the bullets
for us at the federal level.'' \142\
---------------------------------------------------------------------------
\138\ Mark Wigfield, It Looks Like a Duck; or Does It? Should
Regulators Treat Internet Phone Service Like a Phone or the Internet?
Its Future May Depend on the Answer, Wall St. J. R8 (May 24, 2004).
\139\ Id.
\140\ Drew Clark, State Regulators Urge FCC Stand on Internet
Telephony, Tech. Daily PM, June 22, 2004.
\141\ Id.
\142\ Id.
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Legislative Initiatives.--On April 2, 2004, Rep. Charles
``Chip'' Pickering introduced H.R. 4129, the ``VoIP Regulatory
Freedom Act of 2004.'' \143\ The intent of H.R. 4129 was to
provide a clear structure for the regulatory treatment for the
offering or provision of VoIP applications. The bill reserved
sole authority to regulate VoIP applications to the federal
government. H.R. 4129 prohibited state regulation of VoIP
applications as well as the delegation of reserved authority to
any state or political authority.
---------------------------------------------------------------------------
\143\ H.R. 4129, 108th Cong., 2004. The bill currently has two
cosponsors, Subcommittee on Commercial and Administrative Law Chairman
Chris Cannon and Rep. James T. Walsh.
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The bill directed the FCC to: (1) establish rules and
standards for appropriate arrangements to compensate providers
of facilities and equipment used to transmit communications
employing a connected VoIP application; and (2) maximize
participation in the support of universal service among the
greatest number of providers of connected VoIP applications.
H.R. 4129 also requires the FCC to appoint an appropriate
representative industry organization to develop guidelines and
protocols related to the offering of connected VoIP
applications for: (1) providing emergency 911 services; (2)
improving use by the disabled community; and (3) improving the
reliability and security of voice communications.
Further, H.R. 4129 prohibited states or their subdivisions
from taxing or imposing other charges on the offering or
provision of a VoIP application. The bill would not affect the
authority to regulate transmission facilities nor would it
authorize regulation of such authorities.
H.R. 4129 had a companion bill in the other body, S. 2281,
which was similar, although not identical, to H.R. 4129.\144\
No action was taken by the House on H.R. 4129. S. 2281 was
reported by the Committee on Commerce, Science and
Transportation on November 19, 2004 to the Senate, which took
no further action.
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\144\ Both bills provide that regulation of VoIP is an exclusively
federal prerogative, that states cannot tax the offering or provision
of a VoIP application, and that the FCC has regulatory authority only
in the enumerated areas of interprovider compensation, universal
service contributions, and law enforcement surveillance. The bills
differ in the nature and extent of the FCC's regulatory authority in
these latter categories. See, e.g., ``Summary of VOIP Regulatory
Freedom Bills,'' Tech Law Journal, E-Mail Alert No. 872, (April 8,
2004). A hearing was held on S. 2281 in the Committee on Commerce,
Science & Transportation in the other body on June 16, 2004. Witnesses
at the hearing included: Jeff Pulver, Thomas Rutledge; Chief Operating
Officer, Cablevision Systems Corporation; David Jones, Director of
Emergency Services, Spartanburg County Communications/9-1-1; the
Honorable Stan Wise, Commissioner of the Georgia Public Service
Commission; and James X. Dempsey, Executive Director, Center for
Democracy & Technology. On July 22, 2004, S. 2281 was reported
favorably by the Committee on Commerce, Science & Transportation with
an amendment in the nature of a substitute which, rather than imposing
a blanket prohibition on state taxation of VoIP, would limit the
preemption of state regulation on VoIP to three years.
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Hearing by Subcommittee on Commercial and Administrative Law
On July 23, 2004, the Subcommittee on Commercial and
Administrative Law held an oversight hearing entitled
``Regulatory Aspects of Voice over Internet Protocol.'' \145\
The purpose of the hearing was to discuss aspects of VoIP
relevant to the consideration of the appropriate regulatory
treatment of this technology. Witnesses at the hearing were
Robert Pepper, Ph.D., chief of policy development at the FCC;
John Langhauser, vice-president, law, and chief counsel to the
Consumer Services Group of AT&T Corporation; Stephen Cordi,
deputy comptroller for the Maryland Comptroller of the Treasury
and immediate past president of the Federation of Tax
Administrators; and James Kirkland, general counsel and senior
vice-president of Covad Communications Group.
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\145\ Regulatory Aspects of Voice Over Internet Protocol: Hearing
Before the Subcomm. on Commercial and Administrative Law of the House
Comm. on the Judiciary, 108th Cong. (2004) (hereinafter ``Hearing
Transcript'').
---------------------------------------------------------------------------
Mr. Pepper began his testimony stating that VoIP presents
unique challenges to the FCC because it does not conform to the
traditional economic and regulatory structures that have
governed the traditional telephone industry for more than a
century.\146\ According to Mr. Pepper, ``[s]aying that VoIP is
just another way to make a phone call is much like saying that
Ebay is just another way to have a garage sale.'' \147\ A
fundamental change is associated with the transmission of voice
over the Internet, because, according to Mr. Pepper, it has
made voice simply one of many applications over a digital
broadband network with multiple uses.\148\ Due to the
fundamental shifts associated with VoIP, Mr. Pepper reasoned,
``it would be irrational for regulators to ignore these changes
and automatically apply legacy regulation without first
seriously examining whether it is relevant.'' \149\ Pointing to
cell phones and the Internet as positive examples of a
``deregulatory course,'' \150\ Mr. Pepper noted that the FCC
has begun careful and thorough examination of VoIP because
``development of this promising technology might very well be
hampered by unjustified, conflicting and burdensome regulatory
requirements that could result as different state commissions
and courts begin to address this area.'' \151\ Further, he
testified that the FCC ``cannot simply assume that inaction
will create an environment that encourages innovation,
investment and competition.'' \152\ Mr. Pepper summarized the
many activities in which the FCC is engaged pertaining to VoIP,
including the Notice of Proposed Rulemaking, the consideration
of VoIP-related petitions, and questions related to the
universal service fund, but noted that the FCC is nonetheless
constrained by the amount of flexibility and discretion granted
to it by Congress through the Telecommunications Act.\153\
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\146\ Hearing Transcript at 63.
\147\ Id.
\148\ Id.
\149\ Id.
\150\ Id. at 64.
\151\ Id.
\152\ Id.
\153\ Id.
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Mr. Langhauser testified that the benefits of VoIP to be
derived by small businesses and the larger economy alike will
only be realized if Congress and regulators ``bring certainty
and stability to the regulatory rules surrounding VoIP.'' \154\
Mr. Langhauser called for strong leadership at the Federal
level with regard to VoIP, stating that this technology should
be allowed to develop into another technology controlled via
the anticompetitive practices of the Bell monopolies.\155\ Mr.
Langhauser stated that such anticompetitive practices include
the Bells' refusal to sell broadband to customers purchasing
voice services from a competitor.\156\ Legislative and
regulatory certainty, he reasoned, would ``encourage AT&T to
invest in VoIP and remain in the domestic residential voice
market.'' \157\ Mr. Langhauser commended the efforts of
Judiciary Committee Chairman Sensenbrenner and Ranking Member
Conyers in offering H.R. 4412, the ``Clarification of Antitrust
Remedies in Telecommunications Act of 2004,'' \158\ legislation
to ensure that the Telecommunications Act is not construed to
supersede the antitrust laws.\159\ In conclusion, Mr.
Langhauser asked Congress to allow VoIP to deliver on its
promising potential by not regulating it like ``plain old
telephone service,'' noting in particular that the FCC's delays
in achieving reforms have only benefitted the incumbent local
exchange carriers.\160\
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\154\ Id. at 72.
\155\ Id. at 73.
\156\ Id.
\157\ Id.
\158\ H.R. 4412, 108th Cong. (2004).
\159\ Hearing Transcript at 73.
\160\ Id.
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The prepared testimony of Mr. Cordi, who represented the
Federation of Tax Administrators, addressed only his objections
to H.R. 4129. Mr. Cordi presented four objections to the bill:
(1) it discriminates against other providers of voice
communications services; (2) it represents a considerable
fiscal cost to the state governments; (3) it runs counter to
the system of federalism; and (4) no case has been made for
preempting state and local tax authority.\161\ Mr. Cordi
elaborated that, in nurturing a new technology, we must not
forget existing and competing products. Since a primary goal of
tax policy is to treat similar taxpayers and similar goods in a
similar fashion, Mr. Cordi stated, the government should not
put traditional phone service (i.e., land-line service) at a
disadvantage through tax preemption of VoIP. Mr. Cordi reasoned
that VoIP, wireless telephone, and traditional telephone
services are functional equivalents and should be taxed in a
similar manner. Mr. Cordi also cautioned that preemption would
reduce state revenues by at least $3 billion per year within
five years, and possibly lead to much more in the future. Mr.
Cordi also objected to H.R. 4129 on the grounds that states are
sovereign entities and Congress ``has heretofore generally
limited preemption of state and local taxation to narrow
situations'' such as excessive reporting burdens or a
compelling need for uniformity. Mr. Cordi concluded that there
is no evidence of such a compelling need to preempt state
taxing authority with regard to VoIP.
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\161\ Id. at 80-83.
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Mr. Kirkland offered the perspective of Covad
Communications, stressing that the Judiciary Committee's
oversight in ensuring the proper application of antitrust laws
to telecommunications was of paramount importance. Citing the
recent Trinko \162\ line of decisions, Mr. Kirkland noted that
there appears to have been a ``bait and switch'' since 1996,
when the Telecommunications Act was promulgated to encourage
competition in the industry. Mr. Kirkland explained the
difference between the offerings of Covad versus that of other
organizations: while services such as AT&T's CallVantage and
Vonage offer applications and software packages that can be
delivered over any kind of broadband network, Covad provides
the underlying transmission facilities. Mr. Kirkland continued
that the one ``ubiquitous set of loops that connects all homes
and all businesses in this country,'' however, remains the
local telephone network. In order to achieve continued
innovation and competition, therefore, companies such as Covad
will still require access to those loops in order to provide
VoIP service. Thus, Mr. Kirkland concluded, pro-competitive
market regulation with regard to VoIP ``still has a critical
role to play.''
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\162\ Verizon Communications Inc. v. Law Offices of Curtis. V.
Trinko, 124 S. Ct. 872 (2004) (Complaint by customer of competing
telephone service against incumbent carrier alleging antitrust and
Telecommunications Act violations did not state an antitrust claim
under Section 2 of the Sherman Act. Telecommunications Act of 1996 has
no effect upon the application of traditional antitrust principles, in
light of antitrust-specific savings clause which barred fining of
implied immunity); rev'g Law offices of Curits V. Trinko, L.L.P, v.
Bell, 305 F. 3d 89 (2d Cir. 2002) (Customer bringining action for
alleged violations of Telecommunications Act has standing to bring
antitrust action, and Telecommunications Act does not take precedence
over general antitrust laws.): aff'g in part, vacating in part, Law
offices of Curtis V. Trinko, L.L.P. v. Bell Atlantic Corp., 294 F. 3d
307 (S.D.N.Y. 2000) (alleged violations of Telecommunications Act
obligations do not constitute antitrust violations under Section 2 of
the Sherman Act).
---------------------------------------------------------------------------
Mr. Cannon then proceeded to question the witnesses
regarding the tax base of VoIP. Specifically, since the cost of
VoIP was, at present, approximately \1/5\ that of traditional
telephone service, and will reduce over time, it appeared that
taxation of VoIP would inevitably result in smaller state tax
revenue. Mr. Cordi conceded that the reduced cost of VoIP
service would result in a smaller state tax collections, and
this would present a problem for states over time. Mr. Cordi
stated that, to the extent that states would need additional
revenue, they would either have to increase rates for their
services, find other sources of revenue, or cut expenditures.
Mr. Pepper offered that affordable telephone service is a
shared goal of everyone, including the FCC, states and
Congress, and that lower costs for telephone service will
contribute to the goal of providing affordable telephone
service to all Americans. Mr. Pepper added that broadband
deployment is a good example of the advantages that new
technologies bring to communities.
Mr. Cannon then questioned the witnesses as to whether a
tax on a fundamental service, such as VoIP was inherently a
regressive tax that broadens the ``digital divide'' between
those who benefit from technology and those that do not. Mr.
Pepper agreed, offering that, ironically, it is the poorest
Americans, who make many long-distance calls, that tend to bear
the greatest telecommunications tax burdens. Mr. Langhauser,
also agreeing on the question of regressiveness, added that the
telecommunications industry has been singled out for a myriad
of state and local taxation, and is treated somewhat
punitively, as if it were tobacco or alcohol.
Building on this observation, Mr. Kirkland proffered that
real inequities exist in the telecommunications industry with
regard to taxes and fees that are based on the legacy system
created under the Telecommunications Act. Mr. Kirkland stated
that regulators must carefullyexamine the current system,
consider the rationalization for the existence of rules generated under
it, and undertake a fundamental and equitable restructuring of the
paradigm. Mr. Cordi, in responding to the question of regressive
taxation, initially argued that preemption of the type found in H.R.
4129 is in fact regressive, given the fact that wealthier citizens
would benefit from H.R. 4129 because it is they who are computer-
literate and can afford to buy broadband access. Mr. Cannon then
responded by pointing out that VoIP requires only that a person own a
telephone, not a computer, and the poorest citizens tend to live in
densely packed urban areas where DSL connections are widely available
for use by VoIP companies. Mr. Cannon questioned Mr. Cordi whether
these were the type of people that should be brought to the right side
of the ``digital divide'' (i.e., given the opportunity to benefit from
the advantages of new technology). Mr. Cordi agreed with Mr. Cannon
following these comments.
Mr. Cannon then questioned Mr. Pepper about the FCC's
efforts to address the social issues associated with VoIP,
including the universal service fund and 911 service. Mr.
Pepper responded that the FCC believes it very important to
``separate economic regulation from * * * social or consumer
policies.'' \163\ In this regard, the FCC has organized a
series of summits to discuss the issues and work toward
potential solutions. Finally, when questioned about
intercarrier compensation (the price one provider of a service
pays another to terminate a call), Mr. Pepper noted that the
FCC has undertaken a separate proceeding on the issue to
resolve problems including that of multiple prices for the same
service.
---------------------------------------------------------------------------
\163\ Id. at 106.
---------------------------------------------------------------------------
Conclusion
Several points were underscored at the hearing, notably
that VoIP is a unique and dynamic technology that offers
greater consumer options in telecommunications at a lower cost.
The testimony of the witnesses emphasized that this technology
should be fostered and allowed to develop to its full
potential, although the social obligations associated with
telecommunications should not be ignored. There was general
agreement that preemption of state taxation on VoIP stands to
benefit poor Americans and avail them of the advantages offered
by new technology. Since both the FCC and Congress have
critical roles to play in establishing the appropriate
regulatory framework for VoIP, continuing oversight by the
Judiciary Committee is important to ensure development of the
technology and proper competition in the industry.
Oversight hearing on the ``Streamlined Sales Tax Agreement: States''
Efforts to Facilitate Sales Tax Collection from Remote
Vendors''
The Streamlined Sales and Use Tax Agreement (SSTA) is the
result of an effort by State and local tax administrators to
design and implement a system radically simplifying sales and
use taxes.\164\ Organizers of this project are referred to
generally as the ``Streamline Sales Tax Project'' (SSTP or
``Project''). The SSTP has worked with the support of the
National Governors' Association (NGA) and the National
Conference of State Legislatures (NCSL).
---------------------------------------------------------------------------
\164\ See http://www.geocities.com/streamlined2000/ and http://
www.streamlinedsalestax.org for information on the SSTP.
---------------------------------------------------------------------------
On November 12, 2002, the State participants approved a
final agreement outlining a comprehensive system to streamline
and make uniform the States' current sales tax rules and
administrative requirements.
The SSTA would mark a significant departure from the sales
and use tax system now in place in the United States.
Currently, a State is prohibited under the Supreme Court's
decision in Quill \165\ from compelling a remote seller lacking
a physical presence in the State to collect and remit sales
taxes for sales made to citizens within that States boundaries.
The Project is expected to ask Congress to approve the
agreement, and thereby authorize the States to compel out-of-
State merchants to collect sales taxes on all sales to
customers in their respective States. Without Congressional
authorization, compliance with the SSTA will be voluntary.
---------------------------------------------------------------------------
\165\ Quill Corp. v. North Dakota, 504 U.S. 298 (1992).
---------------------------------------------------------------------------
On October 1, 2003, the Subcommittee conducted a hearing on
the SSTA.\166\ Witnesses included: the Honorable Bill Owens,
Governor of the State of Colorado; Maureen Riehl, Vice
President, State and Government Relations Counsel, the National
Retail Federation; George Isaacson, tax counsel, the Direct
Marketing Association; and Jack VanWoerkom, Executive Vice
President and General Counsel, Staples Incorporated.
---------------------------------------------------------------------------
\166\ Hearing entitled: ``Streamline Sales and Use Tax Agreement:
States' Efforts to Facilitate Sales Tax Collection from Remote
Vendors'', Serial No. 57. October 1, 2003.
---------------------------------------------------------------------------
Governor Owens testified that the SSTA raises many
questions about whether it will in effect be viewed as a new
tax that would, in effect, negate tax relief Congress has
granted to the American people over the past several years. He
viewed the SSTA as being essentially unfair to consumers and
raising troubling questions of fairness in how states will deal
with retailers. He indicated his concerns about whether the
SSTA respected principles of federalism by ceding authority
over State tax policy to ``a board of unelected, out-of-State
members of the sales tax administrative bureaucracy.'' \167\
---------------------------------------------------------------------------
\167\ Hearing Transcript at 11.
---------------------------------------------------------------------------
Ms. Riehl testified in favor of the SSTA, indicating that
in her view it was ``very pro-retail.'' \168\ She indicated
that the SSTA would provide certainty for retailers and give
them the benefits of ``common definitions, centralized
administration of the sales tax, limits on audits, which are an
enormous cost burden to retailers and we can have simplicity
down to one rate per zip code.'' \169\
---------------------------------------------------------------------------
\168\ Id. at 13.
\169\ Id.
---------------------------------------------------------------------------
Mr. Isaacson noted that while there has been general
agreement among commentators on the American sales and use tax
system that a major problem is the existence of thousands of
taxing jurisdictions. The SSTA, however, involves no reduction
in the number of these jurisdictions, he noted. He testified
that in 1967 there were approximately 3000 taxing
jurisdictions, while there are now more than 8,000. ``The
problem worsens and the SSTA does not address it,'' he
said.\170\ He emphasized the complexity of the sales and use
tax collection was not considered in the development of the
SSTA, ``nor do we have conforming legislation that matches even
the weakest version of uniformity that SST project has passed.
What is important is to go back to the drawing board and do it
right.'' \171\
---------------------------------------------------------------------------
\170\ Id. at 18
\171\ Id. at 19.
---------------------------------------------------------------------------
Mr. VanWoerkom testified in support of the SSTA because it
``levels the playing field among all retailers by requiring
remote retailers to collect and remit State sales taxes in the
same manner as brick-and-mortar retailers * * * We also support
it because it simplifies the enormous task of complying with
State sales tax, and it is enormous.'' \172\ He indicated that
consistent definitions would be a benefit to retailers.
---------------------------------------------------------------------------
\172\ Id. at 74.
---------------------------------------------------------------------------
Oversight Hearings on the reauthorization of the United States
Department of Justice: Executive Office for United States
Attorneys, Civil Division, Environment and Natural Resources
Division, Executive Office for United States Trustees, and
Office of the Solicitor General
Pursuant to House Rules, the Judiciary Committee has
jurisdiction over the functions of the Department of Justice
(``Department'' or ``DOJ''). The Subcommittee on Commercial and
Administrative Law has jurisdiction over the following
components of the Department of Justice: the Executive Office
for United States Attorneys, the Civil Division, the
Environment and Natural Resources Division, the Executive
Office for United States Trustees, the Office of the Solicitor
General of the United States, and any other areas which may be
assigned to it by the Chairman.
During the 108th Congress, the Subcommittee two oversight
hearings on the reauthorization requests of the DOJ components
over which it has jurisdiction. The first hearing was held on
April 8, 2003. Testifying on behalf of the DOJ were: Lawrence
Friedman, Director, Executive Office for United States
Trustees; Guy Lewis, Director, Executive Office for United
States Attorneys; Honorable Thomas Sansonetti, Assistant
Attorney General, Environment and Natural Resources Division;
and Stuart Schiffer, Deputy Assistant Attorney General, Civil
Division. The second hearing was held on March 9, 2004.
Testifying at this hearing were the following: Lawrence
Friedman, Director, Executive Office for United States
Trustees; Guy Lewis, Director, Executive Office for United
States Attorneys; Honorable Thomas Sansonetti, Assistant
Attorney General, Environment and Natural Resources Division;
and Peter D. Keisler, Assistant Attorney General, Civil
Division.
(a) Executive Office for United States Attorneys (EOUSA)
During the two reauthorization oversight hearings, the
Subcommittee examined the budget priorities for programs within
the responsibility of the United States Attorneys (USAs) to
determine whether adequate resources were being devoted to
these responsibilities. The Subcommittee also examined how well
the EOUSA and the Attorney General oversaw and coordinated the
efforts of the 94 USAs.
(b) Office of the Solicitor General (OSG)
The Subcommittee received written statements for both
hearings from Theodore B. Olson, the Solicitor General,
discussing the criteria utilized by the OSG in determining
which issues to appeal, the relationship between the OSG and
other areas of the DOJ with respect to the control of appellate
matters, improving efficiency and other administrative matters.
(c) Executive Office for United States Trustees
The United States Trustee Program is responsible for
overseeing the administration of bankruptcy cases and private
trustees. The Program is overseen by the Executive Office for
United States Trustees, which provides policy and management
direction to United States Trustees. The Program operates
through a system of 21 regions.
Specific responsibilities of the United States Trustees
include appointing and supervising private trustees who
administer chapter 7,\173\ 12,\174\ and 13 \175\ bankruptcy
estates; taking legal action to enforce the requirements of the
Bankruptcy Code; ferreting out fraud and abuse; referring
matters for investigation and criminal prosecution when
appropriate; ensuring that bankruptcy estates are administered
promptly and efficiently; ensuring that professional fees are
reasonable; appointing and convening creditors' committees in
chapter 11 business reorganization cases; \176\ and reviewing
disclosure statements and retention applications for
professional persons retained to represent certain interested
parties in bankruptcy cases.
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\173\ Under chapter 7, a debtor's non-exempt assets are collected
and liquidated to satisfy the claims of creditors. The United States
Trustee appoints a private trustee who serves as a fiduciary for the
debtor's creditors and adminsiters the chapter 7 bankruptcy estate. An
eligible debtor may receive a discharge from his or her debts under
chapter 7, except for certain debts prohibited from discharge under the
Bankruptcy Code.
\174\ Chapter 12 permits an eligible family farmer to reorganize
the farm's financial obligations while continuing his or her farming
operations. The United States Trustree typically appoints a standing
trustee who serves as a fiduciary for the debtor's creditors and
oversees the fulfillment of debtor's obligaitons under a repayment
plan. Upon completion of the plan payments, the chapter 12, debtor is
eligible to receive a discharge.
\175\ Chapter 13 is used primarily be individual consumers to
reorganize their financial affairs under a repayment plan that must be
completed within five years. To be eligible for chapter 13 relief, a
consumer must have regular income and may not have more than a certain
amount of debt. A standing trustee appointed by the United States
Trustee serves as a fiduciary for the debotr's creditors and oversees
the fulfillment of the debtor's obligations under a repayment plan.
Upon completion of the plan playments, the chapter 13 debtor is
eligible to receive a discharge.
\176\ Chapter 11 provides an individual or business entity the
opportunity to reorganize financial liabilities while remaining in
business. The debtor, typically with the participation of its
creditors, prepares a reorganization plan to repay all or part of its
debts.
---------------------------------------------------------------------------
The oversight hearings conducted in 2003 and 2004 provided
an opportunity for the Subcommittee to consider various issues,
including the following:
(1) In light of DOJ Inspector General's 2003 Audit
Report on the United States Trustee Program's Efforts
to Prevent Bankruptcy Fraud and Abuse--which was rather
critical of the Program's efforts to detect criminal
fraud and abuse--what efforts had the Program
undertaken to respond to the Audit Report's findings?
(2) Has the Program's refocused emphasis on
dismissing chapter 7 cases for substantial abuse taken
resources away from other Program priorities, such as
detecting criminal fraud and abuse?
(3) Does the Program currently screen every chapter 7
case for substantial abuse?
(4) In fiscal year 2002, the Program obtained
discharge denials in 308 chapter 7 cases out of
approximately 1 million chapter 7 cases filed that
year. What is the significance of these statistics?
In addition, the Subcommittee inquired into how the Program
utilizes federal training and meeting facilities.
As a result of these hearings, the Subcommittee
successfully sought to have included two provisions in H.R.
3036, the ``Department of Justice Appropriations Authorization
Act, Fiscal
Years 2004 through 2006.'' Section 304 of the bill provides
that unless specifically authorized in writing by the Attorney
General, the Department of Justice (and each entity within it)
must use for any predominately internal training or conference
meeting only a facility that does not require payment to a
private entity for use of the facility. In addition, section
306 of the bill requires the Director of the Executive Office
for United States Trustees to prepare an annual report to the
Congress detailing the following: (1) the number and types of
criminal referrals made by the United States Trustee Program;
(2) the outcomes of each criminal referral; (3) for any year in
which the number of criminal referrals is less than for the
prior year, an explanation of the decrease; and (4) the United
States Trustee Program's efforts to prevent bankruptcy fraud
and abuse, particularly with respect to the establishment of
uniform internal controls to detect common, higher risk frauds,
such as a debtor's failure to disclose all assets.
(d) Civil Division
The Civil Division is one of six litigating divisions
within the Justice Department, and represent the United States,
its departments and agencies, Members of Congress, Cabinet
officers, and other Federal employees. The Division itself is
comprised of seven branches: Commercial Litigation; Federal
Programs; Torts; Office of Immigration Litigation; Office of
Consumer Litigation; Office of Management Programs; and
Appellate Staff. The Subcommittee focused questioning on
decentralization of Division attorneys from Main Justice to
field offices, and current status of Cobell v. Norton involving
Individual Indian Trust Accounts.
(e) Environment and Natural Resources Division (ENRD)
ENRD handles disputes involving federal lands, water, and
Indian disputes. The Division is composed of the following
sections: Environmental Crimes; Environmental Enforcement;
Environmental Defense; Wildlife and Marine Resources; General
Litigation; Indian Resources; Land Acquisition; Policy,
Legislation, and Special Litigation; and Appellate. Assistant
Attorney General Sansonetti testified before the Subcommittee,
with questioning centering around the Division's past handling
of the Cobell v. Norton case, and general issues involving
futurepotential claims arising from the Department of
Interior's handling of Individual and Tribal Trust Accounts.
Oversight hearing on the Legal Services Corporation (LSC): Inquiry into
the activities of the California Rural Legal Assistance Program
and testimony relating to the merits of client co-pay
The hearing on LSC took place on March 31, 2004. Witnesses
for the hearing were Helaine M. Barnett, President of LSC; Jose
R. Padilla, Executive Director of California Rural Legal
Assistance, Inc.; and Jeanne Charn, Director of the Hale and
Dorr Legal Services Center, and Director, Bellow-Sachs Access
to Legal Services Project, Harvard Law School.
LSC is a private, non-profit corporation established by
Congress to provide civil legal assistance to those who would
otherwise be unable to afford it. LSC was created in 1974 and
is funded through congressional appropriation. LSC does not
provide services directly. Instead, it acts as the funding
source to various grantees organized across the country that
provide the actual legal services. LSC acts as the oversight
and administrative body to assure that the federal funds are
expended in accordance with congressional intent and in an
efficient and effective manner. These grantees provide service
in every county in America, as well as U.S. territories, and
also specialize in migrant farmworker and Native American needs
in certain coverage areas.
LSC is headed by an 11-member Board of Directors appointed
by the President and confirmed by the Senate. The board is
bipartisan, and no more than six members of the board may be
affiliated with the same political party. Local programs are
governed by their own board of Directors, which set priorities
and determine the types of cases that will be handled by the
grantee, subject to the restrictions placed by Congress. These
boards are comprised of members of local bar associations as
well as others. Each board hires its own executive director,
who in turn hires the program staff. Programs may supplement
their LSC grants with additional funds from state and local
governments, IOLTA (Interest on Lawyer Trust Accounts), other
federal agencies, bar associations, United Way and other
charitable organizations, foundations and corporations, and
individual donors. They further leverage federal funds by
involving private attorneys in the delivery of legal services
for the poor, mostly through volunteer pro bono work.
Congressionally-mandated restrictions specify which cases a
grantee may undertake. LSC-funded programs may not handle
criminal cases, nor may they accept fee-generating cases that
private attorneys are willing to accept on a contingency basis.
In addition, Congress imposed further restrictions through the
1996 LSC Appropriations Act, which clarified the scope of work
which an LSC funded grantee may undertake, even with non-LSC
funds. Among them were prohibitions on class actions,
challenges to welfare reform, collection of attorneys' fees,
rulemaking, lobbying, litigation on behalf of prisoners,
representation in drug-related public housing evictions, and
representation of certain categories of aliens. It is the duty
of LSC to make sure that grantees are operating within the
restrictions set by Congress.
LSC states that its legal services delivery system is based
on several principles. These include: local priorities,
national accountability, competition for grants, and a strong
public- private partnership. Local programs are independent
entities, governed by Boards of Directors drawn from the local
bar and client community. All legal services programs must
comply with laws enacted by Congress and the implementing
regulations promulgated by LSC.
The hearing provided an opportunity for the Subcommittee to
explore the notion of co-payments between clients and grantees.
In addition, the hearing considered the activities of the
California Rural Legal Assistance (CRLA), which had been the
subject of LSC Inspector General reports.
Congressman Doolittle prompted an Inspector General report
regarding CRLA's involvement in Hernandez v. Board of Education
of Stockton Unified School District. Pursuant to the
investigation conducted by LSC's Inspector General, it found
that involvement in the Hernandez case in 2002 and 2003
violated the statutory and regulatory prohibitions on
participation in class actions cases. However, the Inspector
General also indicated that continued participation in a
desegregation case was permissible because CRLA reasonably
relied on LSC guidance for pre-existing desegregation cases
provided in 1977. Finally, there was insufficient evidence to
substantiate the allegation that CRLA acted unilaterally by not
consulting with clients. The Inspector General has recommended
that CRLA withdraw from the Hernandez case, and reportedly CRLA
has agreed to file the proper motion to withdraw.
The Inspector General conducted an audit of CRLA that
revealed multiple concerns regarding the administration and
function of CRLA and, specifically, its compliance with certain
requirements of 45 CFR Part 1610, a regulation which prohibits
grantees from transferring LSC funds to an organization that
engages in activities prohibited by the LSC Act, and LSC
Appropriations Acts, and LSC regulations. To comply with these
requirements, grantees must be legally separate from such
organizations, not transfer LSC funds to them, not subsidize
any restricted activity, and maintain physical and financial
separation from them. The report by the Inspector General
indicated that, in the period between January 1, 2000 and May
10, 2002: (1) CRLA did not maintain objective integrity and
independence from a legal organization which engaged in
prohibited activities; (2) CRLA did not prepare statements of
facts and identify clients in certain cases; and, (3) CRLA
improperly made rental payments for an organization in further
contradiction of 45 CFR 1610.
Specifically, CRLA was found to subsidize the restricted
activities of another separate entity that was involved in
restricted activity while also maintaining a sufficiently close
relationship with the restricted entity that it was difficult
to distinguish between the two organizations. This was
demonstrated through co-counseled cases, shared staff, rent
subsidy, and the physical separation (or lack thereof) of
facilities. Additionally, in contravention of 45 CFR 1636.2,
the grantee did not prepare statements of facts nor identify
all clients as required, leaving out the identity of some 197
clients. Section 1636.2 of LSC's regulations requires that when
a grantee files a complaint in court or participates in
litigation, it must identify each plaintiff and prepare a
statement of facts that each plaintiff signs. And, finally,
CRLA improperly paid rent for a separate organization, the San
Luis Obispo Legal Alternatives Corporation (SLOLAC). SLOLAC, a
separate legal organization which provides legal services to
the elderly, was co-located with the one of CRLA's branch
offices, and CRLA gave rent subsidization during 2000 and 2001
in an amount of $6,845.