Congressional Record, Volume 151 Issue 5 (Tuesday, January 25, 2005)

[Congressional Record Volume 151, Number 5 (Tuesday, January 25, 2005)]
[Senate]
[Pages S450-S502]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. GRASSLEY (for himself, Mr. Kohl, Mr. Hatch, Mr. Carper,
Mr. Frist, Mr. Chafee, Mr. Dodd, Mrs. Feinstein, Mr. Hagel, Mr.
Kyl, Ms. Landrieu, Mrs. Lincoln, Mr. Lugar, Mr. McConnell, Mr.
Schumer, Mr. Thune, Mr. Vitter, Mr. Voinovich, Mr. Lott, Mr.
Alexander, Ms. Snowe, Mr. Sessions, Mr. DeMint, Mr. Lieberman,
Mr. Martinez, and Mr. Ensign):
S. 5. A bill to amend the procedures that apply to consideration of
interstate class actions to assure fairer outcomes for class members
and defendants, and for other purposes; to the Committee on the
Judiciary.
Mr. KOHL. Mr. President, I rise today to join Senators Grassley,
Hatch, Carper, and many others in introducing the Class Action Fairness
Act of 2005. This legislation addresses the continuing problems in
class action litigation, particularly unfair and abusive settlements
that shortchange consumers across America.
The time for this bill has come. We have worked together on a
bipartisan basis on this legislation in past Congresses. In fact,
versions of this bill have passed the House of Representatives on two
occasions in the past. In the Senate, we passed this bill through the
Judiciary Committee in each of the last two Congresses and came within
one vote of gaining cloture on the bill.
We worked successfully to substantially improve this bill during the
last Congress. As a result of the interest of Senators Feinstein, Dodd,
Schumer and Landrieu, we have changed the bill in important ways. Now,
only cases that are truly national in scope will be tried primarily in
the Federal courts. Cases that primarily involve people from only one
State and that interpret State law will remain in State court. These
changes will ensure that class action cases are handled efficiently and
in the appropriate venues and that no case that has merit will be
turned away.
We have a simple story to tell. Consumers are too often getting the
short end of the stick in class action cases, recovering coupons or
pocket change, while their lawyers reap millions. Many of these complex
class action cases proceed exactly as we would hope. Injured parties,
represented by strong advocates, get their day in court or reach a
positive settlement that is good for the parties and handled well by
their attorney.
Unfortunately, this is not how it always works. Rather, more and more
frequently, some are taking advantage of the system and, as a result,
consumers are getting the short end of the stick, recovering coupons or
pocket change, while the real reward is going to others. The Washington
Post put it clearly, ``no portion of the American civil justice system
is more of a mess than the world of class actions.''
Our remedy is straightforward. Consumers deserve notices that are
written in plain English so they can understand their rights and
responsibilities in the lawsuit. Too many of the class action notices
are designed to be impossible to comprehend. Further, if the cases are
settled, the notice to the class members must clearly describe the
terms of the settlement, the benefits to each plaintiff and a summary
of the attorneys' fees in the case and how they were calculated. We are
grateful that the Federal Judicial Conference has adopted our idea and
has already begun to improve the notices provided to class action
plaintiffs.
Second, State attorneys general should be notified of proposed class
action settlements to stop abusive cases if they want. This encourages
a neutral third party to weigh in on whether a settlement is fair and
to alert the court if they do not believe that it is. The Attorney
General review is an extra layer of security for the plaintiffs and is
designed to ensure that abusive settlements are not approved without a
critical review by one or more experts.
Third, a class action consumer bill of rights will help limit coupon
or other unfair settlements.
Finally, we allow many class action lawsuits to be removed to Federal
court. This is only common sense. These are national cases affecting
consumers in 50 States. If the court rules were being drafted today,
these are exactly the types of cases which we would want and expect to
be tried in Federal court.
Stories of nightmare class action settlements that affect consumers
around the country are all too frequent. For example, a suit against
Blockbuster video yielded dollar off coupons for future video rentals
for the plaintiffs while their attorneys collected $9.25 million. In
California State court, a class of 40 million consumers received $13
rebates on their next purchase of a computer or monitor--in other words
they had to purchase hundreds of dollars more of the defendants'
product to redeem the coupons. In essence, the

[[Page S451]]

plaintiffs received nothing, while their attorneys took almost $6
million in legal fees. We could list many, many more examples, but let
me discuss just one more case that is almost too strange to believe.
I am speaking about the Bank of Boston class action suit and the
outrageous case of Martha Preston from Baraboo, WI. She was an unnamed
class member of a class action lawsuit against her mortgage company
that ended in a settlement. The plaintiffs' lawyers were supposed to
represent her. Instead, the settlement that they negotiated for her was
a bad joke. She received $4 and change in the lawsuit, while her
attorneys pocketed $8 million.
Yet, the huge sums her attorneys received were not the worst of the
story. Soon after receiving her $4, Ms. Preston discovered that her
lawyers took $80, 20 times her recovery, from her escrow account to
help pay their fees. Naturally shocked, she and the other plaintiffs
sued the lawyers who quickly turned around and sued her in Alabama, a
State she had never visited, for $25 million. Not only was she $75
poorer for her class action experience, but she also had to defend
herself against a $25 million suit by the very people who took
advantage of her in the first place.
No one can argue with a straight face that the class action process
is not in serious need of reform.
Comprehensive studies support the anecdotes we have discussed. For
example, a study on the class action problem by the Manhattan Institute
demonstrates that class action cases are being brought
disproportionately in a few counties where plaintiffs expect to be able
to take advantage of lax certification rules.
The study focused on three county courts--Madison County, IL;
Jefferson County, TX; and Palm Beach County, FL--that have seen a steep
rise in class action filings over the last several years that seems
disproportional to their populations. They found that rural Madison
County, IL, ranked third nationwide, after Los Angeles County, CA, and
Cook County, IL, in the estimated number of class actions filed each
year, whereas rural Jefferson County and Palm Beach County ranked
eighth and ninth, respectively. As plaintiff attorneys found that
Madison County was a welcoming host, the number of class action suits
filed there rose 1,850 percent between 1998 and 2000.
Another trend evident in the research was the use of ``cut-and-
paste'' complaints in which plaintiffs'' attorneys file a number of
suits against different defendants in the same industry challenging
standard industry practices. For example, in one situation, six law
firms filed nine nearly identical class actions in Madison County in
the same week alleging that the automobile insurance industry is
defrauding Americans in the way that they calculate claims rates for
totaled vehicles.
The system is not working as intended and needs to be fixed. The way
to fix it is to move more of these cases currently being brought in
small State courts like Madison County, IL, to Federal court.
The Federal courts are better venues for class actions for a variety
of reasons articulated clearly in a RAND study. RAND proposed three
primary explanations why these cases should be in Federal court.
``First, federal judges scrutinize class action allegations more
strictly than state judges, and deny certification in situations where
a state judge might grant it improperly. Second, state judges may not
have adequate resources to oversee and manage class actions with a
national scope. Finally, if a single judge is to be charged with
deciding what law will apply in a multistate class action, it is more
appropriate that this take place in federal court than in state
court.''
We all know that class actions can result in significant and
important benefits for class members and society, and that most class
lawyers and most State courts are acting responsibly. Class actions
have been used to desegregate racially divided schools, to obtain
redress for victims of employment discrimination, and to compensate
individuals exposed to toxic chemicals or defective products. Class
actions increase access to our civil justice system because they enable
people to pursue claims that collectively would otherwise be too
expensive to litigate.
The difficulty in any effort to improve a basically good system is
weeding out the abuses without causing undue damage. The legislation we
propose attempts to do this.
Let me emphasize the limited scope of this legislation. We do not
close the courthouse door to any class action. We do not require that
State attorneys general do anything with the notice they receive. We do
not deny reasonable fees for class lawyers. And we do not mandate that
every class action be brought in Federal court. Instead, we simply
promote closer and fairer scrutiny of class actions and class
settlements.
Right now, people across the country can be dragged into lawsuits
unaware of their rights and unarmed on the legal battlefield. What our
bill does is give back to regular people their rights and
representation. This measure may not stop all abuses, but it moves us
forward. It will help ensure that unsuspecting people like Martha
Preston don't get ripped off.
We believe this is a moderate approach to correct the worst abuses,
while preserving the benefits of class actions. It is both pro-consumer
and pro-defendant. We believe it will make a difference.
By Ms. COLLINS (for herself, Mr. Carper, Mr. Voinovich, Mr.
Feingold, Mr. Akaka, and Mr. Lieberman):
S. 21. A bill to provide for homeland security grant coordination and
simplification, and for other purposes; to the Committee on Homeland
Security and Governmental Affairs.
Ms. COLLINS. Mr. President I rise with my good friend Senator Carper
to offer the Homeland Security Grant Enhancement Act in order to
streamline and strengthen the way we help our States, communities, and
first responders protect our homeland.
Three years ago, the Senate spent nearly three months on the Homeland
Security Act, yet the law contains virtually no guidance on how the
Department is to assist State and local governments with their homeland
security needs. In fact, the 187-page Homeland Security Act mentions
the issue of grants to first responders in but a single paragraph. The
decisions on how Federal dollars should be spent or how much money
should be allocated to whom were left for another day. That day has
come.
During the 108th Congress, Senator Carper and I introduced similar
legislation to more than double the proportion of homeland Security
funding distributed based on risk, while also helping all States
achieve a baseline level of preparedness and an ability to respond. The
Senate Committee on Homeland Security and Governmental Affairs held
three hearings at which first responders, State and local officials,
and Secretary Ridge all testified that the grant distribution system
needs fixing. The 9/11 Commission also urged that the system be
changed. It is therefore time for Congress to finally address this
critical issue.
The bill that we introduce today is identical to legislation that
passed the Senate by voice-vote as an amendment to the Intelligence
reform bill at the end of the last Congress.
That measure was supported by Senators from big States--like Michigan
and Ohio--and small States like Maine, Delaware and Connecticut. The
wide breadth of support in the Senate is indicative of the fact that
this bill takes a balanced approach to homeland security funding.
It recognizes that threat-based funding is a critical part of
homeland security funding. It also recognizes that first responders in
every State and territory stand at the front lines of securing the
homeland.
This legislation will also coordinate government-wide homeland
security funding by promoting one-stop-shopping for homeland security
funding opportunities. It would establish an information clearinghouse
to assist first responders and State and local governments in accessing
homeland security grant information and other resources within the new
department. This clearinghouse will improve access to homeland security
grant information, coordinate technical assistance for vulnerability
and threat assessments, provide information regarding homeland security
best practices, and compile information regarding homeland security
equipment purchased with Federal funds.

[[Page S452]]

Establishment of these programs will mean first responders can spend
more time training to save lives and less-time filling out paper work.
The inflexible structure of past homeland security funding, along with
shifting federal requirements and increasing amounts of paperwork,
poses a number of challenges to State and local governments as they
attempt to provide these funds to first responders.
The legislation would provide greater flexibility in the use of those
unspent funds. It would give the Department of Homeland Security
flexibility to allow States, via a wavier from the Secretary, to use
funds from one category, such as training, for another purpose, such as
purchasing equipment.
The Senate Committee on Homeland Security and Governmental Affairs
will act promptly to mark-up and report this important measure to
establish a streamlined, efficient, and fair method for homeland
security funds to get into the hands of first responders.
______

By Mr. STEVENS (for himself, Mr. Inouye, Ms. Snowe, and Mr.
Dodd):
S. 39. A bill to establish a coordinated national ocean exploration
program within the National Oceanic and Atmospheric Administration; to
the Committee on Commerce, Science, and Transportation.
Mr. STEVENS. Mr. President, I introduce today S. 39, the ``National
Ocean Exploration Program Act'' to expand exploration and knowledge of
our Nation's oceans. When I introduced this bill in the 108th Congress,
Senator Hollings and Senator Inouye were original co-sponsors. Senator
Hollings has left this body, but he worked closely with Senator Inouye
and me on this bill and we thank him for his contributions to ocean
policy. Senators Snowe and Dodd would like to be added as original co-
sponsors of this bill.
Senator Inouye and I introduce this legislation today in an effort to
increase and coordinate research and exploration of our Nation's
oceans. Alaska and Hawaii are uniquely dependent on the ocean for food,
employment, recreation, and the delivery of goods. However,
approximately 95 percent of the ocean floor remains unexplored, much of
it located in the polar latitudes and the southern ocean. This
legislation will advance ocean exploration and increase funding for
greater research.
In its final report, the U.S. Commission on Ocean Policy recommended
that the National Oceanic and Atmospheric Administration and the
National Science Foundation lead an expanded National Ocean Exploration
Program. This legislation will accomplish that goal.
The National Exploration Program expands ocean exploration. Through
this program we will determine whether there are new marine substances
with potential therapeutic benefits; study unique marine ecosystems,
organisms and the geology of the world's oceans; and maximize ocean
research by integrating multiple scientific disciplines in the ocean
science community.
The program will focus on remote ocean research and exploration.
Specifically, research will be conducted on hydrothermal vents
communities and seamounts. Increased research in these areas, where
organisms exist in highly toxic environments, should yield significant
scientific and medical breakthroughs.
Decades ago I help Oscar Dyson, a great Alaska fisherman, secure a
small grant to explore the North Pacific. With that grant he discovered
a great number of marine species that are now considered vital to the
North Pacific. It is my hope that the National Ocean Exploration
Program Act will be the catalyst for that type of ocean exploration and
discovery.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 39

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``National Ocean Exploration
Program Act''.

SEC. 2. ESTABLISHMENT.

The Secretary of Commerce, through the Administrator of the
National Oceanic and Atmospheric Administration, shall, in
consultation with the National Science Foundation and other
appropriate Federal agencies, establish a coordinated
national ocean exploration program within the National
Oceanic and Atmospheric Administration.

SEC. 3. PURPOSES.

The purposes of the program are the following:
(1) To explore the physical, biological, chemical,
geological, archaeological, temporal, and other related
characteristics of the oceans to benefit, inform, and inspire
the American people.
(2) To create missions and scientific activities of
discovery that will improve our understanding, appreciation,
and stewardship of the unique marine ecosystems, organisms,
chemistry, and geology of the world's oceans, and to enhance
knowledge of submerged maritime historical and archaeological
sites.
(3) To facilitate discovery of marine natural products from
these ecosystems that may have potential beneficial uses,
including those that may help combat disease or provide
therapeutic benefits.
(4) To communicate such discoveries and knowledge to
policymakers, regulators, researchers, educators, and
interested nongovernmental entities in order to support
policy decisions and to spur additional scientific research
and development.
(5) To maximize effectiveness by integrating multiple
scientific disciplines, employing the diverse resources of
the ocean science community, and making ocean exploration
data and information available in a timely and consistent
manner.
(6) To achieve heightened education, environmental
literacy, public understanding and appreciation of the
oceans.

SEC. 4. AUTHORITIES.

In carrying out the program the Administrator of the
National Oceanic and Atmospheric Administration shall--
(1) conduct interdisciplinary exploration voyages or other
scientific activities in conjunction with other Federal
agencies or academic or educational institutions, to survey
little known areas of the marine environment, inventory,
observe, and assess living and nonliving marine resources,
and report such findings;
(2) give priority attention to deep ocean regions, with a
focus on surveying deep water marine systems that hold
potential for important scientific and medical discoveries,
such as hydrothermal vent communities and seamounts;
(3) conduct scientific voyages to locate, define, and
document historic shipwrecks, submerged sites, and other
ocean exploration activities that combine archaeology and
oceanographic sciences;
(4) develop, in consultation with the National Science
Foundation, a transparent process for reviewing and approving
proposals for activities to be conducted under this program;
(5) enhance the technical capability of the United States
marine science community by promoting the development of
improved oceanographic research, communication, navigation,
and data collection systems, as well as underwater platforms
and sensors;
(6) conduct public education and outreach activities that
improve the public understanding of ocean science, resources,
and processes, in conjunction with relevant educational
programs of the National Oceanic and Atmospheric
Administration, the National Science Foundation, and other
agencies;
(7) accept donations of property, data, and equipment to be
applied for the purpose of exploring the oceans or increasing
knowledge of the oceans; and
(8) establish an ocean exploration forum to encourage
partnerships and promote communication among experts and
other stakeholders in order to enhance the scientific and
technical expertise and relevance of the national program.

SEC. 5. EXPLORATION TECHNOLOGY AND INFRASTRUCTURE TASK FORCE.

The National Oceanic and Atmospheric Administration, in
coordination with the National Aeronautics and Space
Administration, the U.S. Geological Survey, Office of Naval
Research, and relevant governmental, non-governmental,
academic, and other experts, shall convene an ocean
technology and infrastructure task force to develop and
implement a strategy--
(1) to facilitate transfer of new exploration technology to
the program;
(2) to improve availability of communications
infrastructure, including satellite capabilities, to the
program;
(3) to develop an integrated, workable and comprehensive
data management information processing system that will make
information on unique and significant features obtained by
the program available for research and management purposes;
and
(4) to encourage cost-sharing partnerships with
governmental and non-governmental entities that will assist
in transferring exploration technology and technical
expertise to the program.

SEC. 6. INTERAGENCY FINANCING.

The National Oceanic and Atmospheric Administration, the
National Science Foundation, and other Federal agencies
involved in the program, are authorized to participate in
interagency financing and share, transfer, receive and spend
funds appropriated to any federal participant the program for
the purposes of carrying out any administrative or
programmatic project or activity under this section. Funds
may be transferred among such departments and agencies
through a appropriate instrument that specifies the

[[Page S453]]

goods, services, or space being acquired from another Federal
participant and the costs of the same.

SEC. 7. AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated to the National
Oceanic and Atmospheric Administration to carry out the
program--
(1) $45,000,000 for each of fiscal years 2006 through 2011;
and
(2) $55,000,000 for each of fiscal years 2012 through 2017.
______

By Mr. NELSON of Florida (for himself, Mr. Martinez, Mr.
Sessions, and Mr. Allen):
S. 145. A bill to amend title 10, United States Code, to require the
naval forces of the Navy to include not less than 12 operational
aircraft carriers; to the Committee on Armed Services.
Mr. NELSON of Florida. Mr. President, I feel strongly that any
reduction in the size of the Nation's carrier fleet is not in the best
interest of national security. Therefore, I am introducing legislation
to require the Navy to include not less than 12 operational aircraft
carriers. I am pleased to be joined by my co-sponsors, Senator
Martinez, Senator Allen, and Senator Sessions.
America's aircraft carrier fleet has played and continues to play a
critical role in the global war on terrorism. Carrier based strike,
electronic warfare, and reconnaissance aircraft, and even more
importantly, special operations forces have provided the most
responsive and capable support throughout operations in the Gulf
region. Nothing has changed in the strategic environment to suggest
that America is more, or as secure with eleven carriers as we are with
twelve. The operational tempo of our aircraft carriers has never been
higher and it is hard to imagine that it will slow any time soon.
The range of strategic threats and opportunities that face the Nation
at this moment in the war on terror does not support the idea that we
can reduce our carrier fleet without creating significant and
unavoidable risk to our global reach and sustainability. I urge my
colleagues to join with us to ensure the Navy's global flexibility and
striking power. Cutting our carrier fleet now increases strategic risk
and reduces our combat power and capability, all for relatively small
budgetary savings.
I look forward to working with Chairman Warner and Senator Levin to
gain the Armed Services Committee's approval of this legislation, and
its passage by the full Senate. Identical legislation is being
introduced in the House by Representative Ander Crenshaw, and I look
forward to working with my colleagues in both houses to see that this
vital national security legislation reaches the President's desk.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 145

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. REQUIREMENT FOR 12 OPERATIONAL AIRCRAFT CARRIERS
WITHIN NAVAL FORCES OF THE NAVY.

Section 5062 of title 10, United States Code, is amended--
(1) by redesignating subsections (b) and (c) as subsections
(c) and (d), respectively; and
(2) by inserting after subsection (a) the following new
subsection (b):
``(b) The naval combat forces of the Navy shall include not
less than 12 operational aircraft carriers. For purposes of
this subsection, an operational aircraft carrier includes an
aircraft carrier that is temporarily unavailable for
worldwide deployment due to routine or scheduled maintenance
or repair.''.
______

By Mr. INOUYE:
S. 146. A bill to amend title 38, United States Code, to deem certain
service in the organized military forces of the Government of the
Commonwealth of the Philippines and the Philippine Scouts to have been
active service for purposes of benefits under programs administered by
the Secretary of Veterans Affairs; to the Committee on Veterans'
Affairs.
Mr. INOUYE. Mr. President, many of you know of my continued support
and advocacy on the importance of addressing the plight of Filipino
World War II veterans. As an American, I believe the treatment of
Filipino World War II veterans is bleak and shameful. The Philippines
became a United States possession in 1898, when it was ceded by Spain,
following the Spanish-American War. In 1934, the Congress enacted the
Philippine Independence Act, Public Law 73-127, which provided a 10-
year time frame for the independence of the Philippines. Between 1934
and final independence in 1946, the United States retained certain
powers over the Philippines including the right to call military forces
organized by the newly-formed Commonwealth government into the service
of the United States Armed Forces.
The Commonwealth Army of the Philippines was called to serve with the
United States Armed Forces in the Far East during World War II under
President Roosevelt's July 26, 1941 military order. The Filipinos who
served were entitled to full veterans' benefits by reason of their
active service with our armed forces. Hundreds were wounded in battle
and many hundreds more died in battle. Shortly after Japan's surrender,
the Congress enacted the Armed Forces Voluntary Recruitment Act of 1945
for the purpose of sending Filipino troops to occupy enemy lands, and
to oversee military installations at various overseas locations. These
troops were authorized to receive pay and allowances for services
performed throughout the Western Pacific. Although hostilities had
ceased, wartime service of these troops continued as a matter of law
until the end of 1946.
Despite all of their sacrifices, on February 18, 1946, the Congress
passed the Rescission Act of 1946, now codified as Section 107 of Title
38 of the United States Code. The 1946 Act deemed that the service
performed by these Filipino veterans would not be recognized as
``active service'' for the purpose of any U.S. law conferring ``rights,
privileges, or benefits.'' Accordingly, Section 107 denied Filipino
veterans access to health care, particularly for non-service-connected
disabilities, and pension benefits. Section 107 also limited service-
connected disability and death compensation for Filipino veterans to 50
percent of what their American counterparts receive.
On May 27, 1946, the Congress enacted the Second Supplemental Surplus
Appropriations Rescission Act, which duplicated the language that had
eliminated Filipino veterans' benefits under the First Rescission Act.
Thus, Filipino veterans who fought in the service of the United States
during World War II have been precluded from receiving most of the
veterans' benefits that had been available to them before 1946, and
that are available to all other veterans of our armed forces regardless
of race, national origin, or citizenship status.
The Filipino Veterans Equity Act, which I introduce today, would
restore the benefits due to these veterans by granting full recognition
of service for the sacrifices they made during World War II. These
benefits include veterans health care, service-connected disability
compensation, non-service connected disability compensation, dependent
indemnity compensation, death pension, and full burial benefits.
Throughout the years, I have sponsored several measures to rectify
the lack of appreciation America has shown to these gallant men and
women who stood in harm's way with our American soldiers and fought the
common enemy during World War II. It is time that we as a Nation,
recognize our long-standing history and friendship with the
Philippines. Of the 120,000 that served in the Commonwealth Army during
World War II, there are approximately 60,000 Filipino veterans
currently residing in the United States and the Philippines. According
to the Department of Veterans Affairs, the Filipino veteran population
is expected to decrease to approximately 20,000 or roughly one-third of
the current population by 2010.
Heroes should never be forgotten or ignored; let us not turn our
backs on those who sacrificed so much. Let us instead work to repay all
of these brave men for their sacrifices by providing them the veterans'
benefits they deserve.
I ask unanimous consent that the text of my bill be printed in the
Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 146

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

[[Page S454]]

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Filipino Veterans Equity Act
of 2005''.

SEC. 2. CERTAIN SERVICE IN THE ORGANIZED MILITARY FORCES OF
THE PHILIPPINES AND THE PHILIPPINE SCOUTS
DEEMED TO BE ACTIVE SERVICE.

(a) In General.--Section 107 of title 38, United States
Code, is amended--
(1) in subsection (a)--
(A) by striking ``not'' after ``Army of the United States,
shall''; and
(B) by striking ``, except benefits under--'' and all that
follows in that subsection and inserting a period;
(2) in subsection (b)--
(A) by striking ``not'' after ``Armed Forces Voluntary
Recruitment Act of 1945 shall''; and
(B) by striking ``except--'' and all that follows in that
subsection and inserting a period; and
(3) by striking subsections (c) and (d).
(b) Conforming Amendments.--(1) The heading of such section
is amended to read as follows:

``Sec. 107. Certain service deemed to be active service:
service in organized military forces of the Philippines and
in the Philippine Scouts''.

(2) The item relating to such section in the table of
sections at the beginning of chapter 1 of such title is
amended to read as follows:

``107. Certain service deemed to be active service: service in
organized military forces of the Philippines and in the
Philippine Scouts.''.

SEC. 3. EFFECTIVE DATE.

(a) In General.--The amendments made by this Act shall take
effect on January 1, 2005.
(b) Applicability.--No benefits shall accrue to any person
for any period before the effective date of this Act by
reason of the amendments made by this Act.
______

By Mr. AKAKA (for himself and Mr. Inouye):
S. 147. A bill to express the policy of the United State regarding
the United States relationship with Native Hawaiians and to provide a
process for the recognition by the United States of the Native Hawaiian
governing entity; to the Committee on Indian Affairs.
Mr. AKAKA. Mr. President, I rise today with the senior Senator from
Hawaii to introduce the Native Hawaiian Government Reorganization Act
of 2005. This is bipartisan legislation that we have been working on
with our colleagues in Hawaii's Congressional delegation for the past 6
years. During the past 2 years, we have worked closely with Hawaii's
Governor, Linda Lingle, Hawaii's first Republican governor in 40 years,
to get this legislation enacted. We have also worked closely with the
Hawaii State legislature which has passed two resolutions unanimously
in support of Federal Recognition for Native Hawaiians. I mention this,
to underscore the fact that this is bipartisan legislation.
The Native Hawaiian Government Reorganization Act of 2005 does three
things:
(1) It authorizes the Office of Native Hawaiian Relations in the
Department of the Interior to serve as a liaison between Native
Hawaiians and the federal government. Funding for Native Hawaiian
programs currently administered by the Departments of Health and Human
Services, HHS, Education, or Housing and Urban Development, HUD, would
continue to be administered by those agencies.
(2) It establishes the Native Hawaiian Interagency Coordinating
Group--an interagency group to be composed of federal officials from
agencies which administer Native Hawaiian programs and services. Many
are not aware that Native Hawaiians have their own programs which are
currently administered by different agencies in the Federal Government.
This group would encourage communication and collaboration between the
Federal agencies working with Native Hawaiians.
(3) It establishes a process for the reorganization of the Native
Hawaiian governing entity. While Congress has traditionally treated
Native Hawaiians in a manner parallel to American Indians and Alaska
Natives, the formal policy of self-governance and self determination
has not been extended to Native Hawaiians. The bill establishes a
process for the reorganization of the Native Hawaiian governing entity
for the purposes of Federal recognition. The bill itself does not
extend Federal recognition--it authorizes the process for Federal
recognition.
Following recognition of the Native Hawaiian government, negotiations
will ensue between the Native Hawaiian governing entity and Federal and
State Governments over matters such as the transfer of lands and
natural resources; the exercise of governmental authority over any
transferred lands, natural resources and other assets, including land
use; the exercise of civil and criminal jurisdiction, and the
delegation of governmental powers and authorities to the Native
Hawaiian governing entity by the Federal and State Governments. This
reflects the cooperation between the Federal and State governments and
the Native Hawaiian governing entity. It also reflects a new paradigm
where recognition provides the governing entity with a seat at the
table to negotiate such matters.
The bill will not diminish funding for American Indians and Alaska
Natives because Native Hawaiians have their own education, health and
housing programs which have been separately funded since their creation
in 1988.
Finally, the bill does not authorize gaming in Hawaii.
Some have characterized this bill as race-based legislation. As
indigenous peoples, Native Hawaiians never relinquished their inherent
rights to sovereignty. We were a government that was overthrown. While
the history of the Native Hawaiian government ended in 1893 with great
emotion and despair, inspired by the dignity and grace of Queen
Liliuokalani, Native Hawaiians have preserved their culture, tradition,
subsistence rights, language, and distinct communities. We have tried
to hold on to our homeland. Hawaii, for us, is our homeland.
I am Native Hawaiian and Chinese. I appreciate the culture and
ethnicity of my ancestors. I can trace my Chinese roots back to Fukien
Province in China. My Native Hawaiian roots, however, are in Hawaii
because it is our Hawaiian homeland.
My Chinese ancestors came to Hawaii to build a better life. My Native
Hawaiian grandparents and parents had America come into their homeland
and forever change their lives. This is a profound difference.
I am proud to be an American, and I am proud to have served my
country in the military. As long as Hawaii is a part of the United
States, however, I believe the United States must fulfill its
responsibility to Hawaii's indigenous peoples. I believe it is
imperative to clarify the existing legal and political relationship
between the United States and Native Hawaiians by providing Native
Hawaiians with Federal recognition for the purposes of a government-to-
government relationship. Therefore, because this legislation is based
on the political and legal relationship between the United States and
its indigenous peoples, which has been upheld for many, many years, by
the United States Supreme Court, based on the Indian Commerce Clause, I
strenuously disagree with the mischaracterization of this legislation
as race-based.
Why is this bill so important? This bill is critical for the people
of Hawaii because of the monumental step forward it provides for
Hawaii's indigenous peoples. As many of my colleagues know, the Kingdom
of Hawaii was overthrown in 1893 with the assistance of agents from the
United States. In 1993, we enacted Public Law 103-150, commonly
referred to as the Apology Resolution, which acknowledged the illegal
overthrow of the Kingdom of Hawaii and the deprivation of the rights of
Native Hawaiians to self determination. The Apology Resolution
committed the United States to acknowledge the ramifications of the
overthrow in order to provide a proper foundation of reconciliation
between the United States and the Native Hawaiian people.
This bill provides a step forward in the process of reconciliation.
The bill establishes the structure for Native Hawaiians and non-Native
Hawaiians to discuss longstanding issues resulting from the overthrow
of the Kingdom of Hawaii. The structure is the negotiation process
between the federally recognized Native Hawaiian government and the
Federal and State governments that I referred to earlier in my
statement.
This discussion has been assiduously avoided because no one has known
how to address or deal with the emotions that are involved when these
matters are discussed. There has been no structured process. Instead,
there has been fear as to what the discussion would entail, causing
people to avoid and shirk the issues. Such behavior has led

[[Page S455]]

to high levels of anger and frustration as well as misunderstanding
between Native Hawaiians and non-Native Hawaiians.
As a young child, I was discouraged from speaking Hawaiian because I
was told that I needed to succeed in the Western world. My parents
witnessed the overthrow and lived during a time when all things
Hawaiian, including language, which they both spoke fluently, hula,
custom, and tradition, were viewed unfavorably and discouraged. I,
therefore, was discouraged from speaking the language and practicing
Hawaiian customs and tradition. My experience mirrors that of my
generation of Hawaiians.
My generation learned to accept what was ingrained into us by our
parents, and while we were concerned about the longstanding issues
resulting from the overthrow dealing with political status and lands,
we were told not to ``make waves'' by addressing these matters. My
children, however, have had the advantage of growing up during the
Hawaiian renaissance, a period of revival for Hawaiian language,
custom, and tradition. My grandchildren, benefitting from this revival,
can speak Hawaiian and know so much about our history.
It is this generation, however, that is growing impatient with the
lack of progress in efforts to resolve longstanding issues. It is this
generation that does not understand why we have not discussed these
matters. It is this generation that cannot believe that we, as Native
Hawaiians, have let the situation continue for 110 years.
It is an active minority within this generation, spurred by
frustration and sadness, that embraces independence from the United
States.
It is for this generation that I bring this bill forward to ensure
that there is a structured process to address these issues.
My point is that Hawaii's people, both Native Hawaiians and non-
Native Hawaiians, are no longer willing to pretend that the
longstanding issues resulting from the overthrow do not exist. We need
the structured process that this bill provides, first in reorganizing
the Native Hawaiian governing entity, and second by providing that
entity with the opportunity to negotiate and resolve issues with the
Federal and State governments to alleviate the growing mistrust,
misunderstanding, anger, and frustration about these matters in Hawaii.
This can only be done through a government-to-government relationship.
This bill is of significant importance in Hawaii. It has no impact on
any of the other states. Hawaii's entire Congressional delegation
supports this legislation. Our Governor, the first Republican to be
elected in 40 years, supports this legislation. Indeed, it is her
Number One Federal priority. The Hawaii State Legislature supports this
legislation. And most importantly, a clear majority of the Native
Hawaiian people and the people of Hawaii support this legislation.
I ask you to stand with me and my esteemed friend, Hawaii's revered
senior Senator, our two House members, our Governor, the Hawaii State
legislature, and the people of Hawaii to enact this critical measure
for my state.
I ask unanimous consent that the text of my bill be printed in the
Record.
Mr. AKAKA. Mr. President, I ask unanimous consent that the text of
the bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 147

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Native Hawaiian Government
Reorganization Act of 2005''.

SEC. 2. FINDINGS.

Congress finds that--
(1) the Constitution vests Congress with the authority to
address the conditions of the indigenous, native people of
the United States;
(2) Native Hawaiians, the native people of the Hawaiian
archipelago that is now part of the United States, are
indigenous, native people of the United States;
(3) the United States has a special political and legal
responsibility to promote the welfare of the native people of
the United States, including Native Hawaiians;
(4) under the treaty making power of the United States,
Congress exercised its constitutional authority to confirm
treaties between the United States and the Kingdom of Hawaii,
and from 1826 until 1893, the United States--
(A) recognized the sovereignty of the Kingdom of Hawaii;
(B) accorded full diplomatic recognition to the Kingdom of
Hawaii; and
(C) entered into treaties and conventions with the Kingdom
of Hawaii to govern commerce and navigation in 1826, 1842,
1849, 1875, and 1887;
(5) pursuant to the Hawaiian Homes Commission Act, 1920 (42
Stat. 108, chapter 42), the United States set aside
approximately 203,500 acres of land to address the conditions
of Native Hawaiians in the Federal territory that later
became the State of Hawaii;
(6) by setting aside 203,500 acres of land for Native
Hawaiian homesteads and farms, the Hawaiian Homes Commission
Act assists the members of the Native Hawaiian community in
maintaining distinct native settlements throughout the State
of Hawaii;
(7) approximately 6,800 Native Hawaiian families reside on
the Hawaiian Home Lands and approximately 18,000 Native
Hawaiians who are eligible to reside on the Hawaiian Home
Lands are on a waiting list to receive assignments of
Hawaiian Home Lands;
(8)(A) in 1959, as part of the compact with the United
States admitting Hawaii into the Union, Congress established
a public trust (commonly known as the ``ceded lands trust''),
for 5 purposes, 1 of which is the betterment of the
conditions of Native Hawaiians;
(B) the public trust consists of lands, including submerged
lands, natural resources, and the revenues derived from the
lands; and
(C) the assets of this public trust have never been
completely inventoried or segregated;
(9) Native Hawaiians have continuously sought access to the
ceded lands in order to establish and maintain native
settlements and distinct native communities throughout the
State;
(10) the Hawaiian Home Lands and other ceded lands provide
an important foundation for the ability of the Native
Hawaiian community to maintain the practice of Native
Hawaiian culture, language, and traditions, and for the
survival and economic self-sufficiency of the Native Hawaiian
people;
(11) Native Hawaiians continue to maintain other distinctly
native areas in Hawaii;
(12) on November 23, 1993, Public Law 103-150 (107 Stat.
1510) (commonly known as the ``Apology Resolution'') was
enacted into law, extending an apology on behalf of the
United States to the native people of Hawaii for the United
States' role in the overthrow of the Kingdom of Hawaii;
(13) the Apology Resolution acknowledges that the overthrow
of the Kingdom of Hawaii occurred with the active
participation of agents and citizens of the United States and
further acknowledges that the Native Hawaiian people never
directly relinquished to the United States their claims to
their inherent sovereignty as a people over their national
lands, either through the Kingdom of Hawaii or through a
plebiscite or referendum;
(14) the Apology Resolution expresses the commitment of
Congress and the President--
(A) to acknowledge the ramifications of the overthrow of
the Kingdom of Hawaii;
(B) to support reconciliation efforts between the United
States and Native Hawaiians; and
(C) to consult with Native Hawaiians on the reconciliation
process as called for in the Apology Resolution;
(15) despite the overthrow of the government of the Kingdom
of Hawaii, Native Hawaiians have continued to maintain their
separate identity as a distinct native community through
cultural, social, and political institutions, and to give
expression to their rights as native people to self-
determination, self-governance, and economic self-
sufficiency;
(16) Native Hawaiians have also given expression to their
rights as native people to self-determination, self-
governance, and economic self-sufficiency--
(A) through the provision of governmental services to
Native Hawaiians, including the provision of--
(i) health care services;
(ii) educational programs;
(iii) employment and training programs;
(iv) economic development assistance programs;
(v) children's services;
(vi) conservation programs;
(vii) fish and wildlife protection;
(viii) agricultural programs;
(ix) native language immersion programs;
(x) native language immersion schools from kindergarten
through high school;
(xi) college and master's degree programs in native
language immersion instruction;
(xii) traditional justice programs, and
(B) by continuing their efforts to enhance Native Hawaiian
self-determination and local control;
(17) Native Hawaiians are actively engaged in Native
Hawaiian cultural practices, traditional agricultural
methods, fishing and subsistence practices, maintenance of
cultural use areas and sacred sites, protection of burial
sites, and the exercise of their traditional rights to gather
medicinal plants and herbs, and food sources;
(18) the Native Hawaiian people wish to preserve, develop,
and transmit to future generations of Native Hawaiians their
lands and Native Hawaiian political and cultural identity in
accordance with their traditions, beliefs, customs and
practices, language, and social and political institutions,
to control

[[Page S456]]

and manage their own lands, including ceded lands, and to
achieve greater self-determination over their own affairs;
(19) this Act provides a process within the framework of
Federal law for the Native Hawaiian people to exercise their
inherent rights as a distinct, indigenous, native community
to reorganize a Native Hawaiian governing entity for the
purpose of giving expression to their rights as native people
to self-determination and self-governance;
(20) Congress--
(A) has declared that the United States has a special
responsibility for the welfare of the native peoples of the
United States, including Native Hawaiians;
(B) has identified Native Hawaiians as a distinct group of
indigenous, native people of the United States within the
scope of its authority under the Constitution, and has
enacted scores of statutes on their behalf; and
(C) has delegated broad authority to the State of Hawaii to
administer some of the United States' responsibilities as
they relate to the Native Hawaiian people and their lands;
(21) the United States has recognized and reaffirmed the
special political and legal relationship with the Native
Hawaiian people through the enactment of the Act entitled,
``An Act to provide for the admission of the State of Hawaii
into the Union'', approved March 18, 1959 (Public Law 86-3;
73 Stat. 4), by--
(A) ceding to the State of Hawaii title to the public lands
formerly held by the United States, and mandating that those
lands be held as a public trust for 5 purposes, 1 of which is
for the betterment of the conditions of Native Hawaiians; and
(B) transferring the United States' responsibility for the
administration of the Hawaiian Home Lands to the State of
Hawaii, but retaining the authority to enforce the trust,
including the exclusive right of the United States to consent
to any actions affecting the lands that comprise the corpus
of the trust and any amendments to the Hawaiian Homes
Commission Act, 1920 (42 Stat. 108, chapter 42) that are
enacted by the legislature of the State of Hawaii affecting
the beneficiaries under the Act;
(22) the United States has continually recognized and
reaffirmed that--
(A) Native Hawaiians have a cultural, historic, and land-
based link to the aboriginal, indigenous, native people who
exercised sovereignty over the Hawaiian Islands;
(B) Native Hawaiians have never relinquished their claims
to sovereignty or their sovereign lands;
(C) the United States extends services to Native Hawaiians
because of their unique status as the indigenous, native
people of a once-sovereign nation with whom the United States
has a political and legal relationship; and
(D) the special trust relationship of American Indians,
Alaska Natives, and Native Hawaiians to the United States
arises out of their status as aboriginal, indigenous, native
people of the United States; and
(23) the State of Hawaii supports the reaffirmation of the
political and legal relationship between the Native Hawaiian
governing entity and the United States as evidenced by 2
unanimous resolutions enacted by the Hawaii State Legislature
in the 2000 and 2001 sessions of the Legislature and by the
testimony of the Governor of the State of Hawaii before the
Committee on Indian Affairs of the Senate on February 25,
2003.

SEC. 3. DEFINITIONS.

In this Act:
(1) Aboriginal, indigenous, native people.--The term
``aboriginal, indigenous, native people'' means people whom
Congress has recognized as the original inhabitants of the
lands that later became part of the United States and who
exercised sovereignty in the areas that later became part of
the United States.
(2) Adult member.--The term ``adult member'' means a Native
Hawaiian who has attained the age of 18 and who elects to
participate in the reorganization of the Native Hawaiian
governing entity.
(3) Apology resolution.--The term ``Apology Resolution''
means Public Law 103-150, (107 Stat. 1510), a Joint
Resolution extending an apology to Native Hawaiians on behalf
of the United States for the participation of agents of the
United States in the January 17, 1893, overthrow of the
Kingdom of Hawaii.
(4) Commission.--The term ``commission'' means the
Commission established under section 7(b) to provide for the
certification that those adult members of the Native Hawaiian
community listed on the roll meet the definition of Native
Hawaiian set forth in paragraph (8).
(5) Council.--The term ``council'' means the Native
Hawaiian Interim Governing Council established under section
7(c)(2).
(6) Indigenous, native people.--The term ``indigenous,
native people'' means the lineal descendants of the
aboriginal, indigenous, native people of the United States.
(7) Interagency coordinating group.--The term ``Interagency
Coordinating Group'' means the Native Hawaiian Interagency
Coordinating Group established under section 6.
(8) Native hawaiian.--For the purpose of establishing the
roll authorized under section 7(c)(1) and before the
reaffirmation of the political and legal relationship between
the United States and the Native Hawaiian governing entity,
the term ``Native Hawaiian'' means--
(A) an individual who is one of the indigenous, native
people of Hawaii and who is a direct lineal descendant of the
aboriginal, indigenous, native people who--
(i) resided in the islands that now comprise the State of
Hawaii on or before January 1, 1893; and
(ii) occupied and exercised sovereignty in the Hawaiian
archipelago, including the area that now constitutes the
State of Hawaii; or
(B) an individual who is one of the indigenous, native
people of Hawaii and who was eligible in 1921 for the
programs authorized by the Hawaiian Homes Commission Act (42
Stat. 108, chapter 42) or a direct lineal descendant of that
individual.
(9) Native hawaiian governing entity.--The term ``Native
Hawaiian Governing Entity'' means the governing entity
organized by the Native Hawaiian people pursuant to this Act.
(10) Office.--The term ``Office'' means the United States
Office for Native Hawaiian Relations established by section
5(a).
(11) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.

SEC. 4. UNITED STATES POLICY AND PURPOSE.

(a) Policy.--The United States reaffirms that--
(1) Native Hawaiians are a unique and distinct, indigenous,
native people with whom the United States has a special
political and legal relationship;
(2) the United States has a special political and legal
relationship with the Native Hawaiian people which includes
promoting the welfare of Native Hawaiians;
(3) Congress possesses the authority under the
Constitution, including but not limited to Article I, section
8, clause 3, to enact legislation to address the conditions
of Native Hawaiians and has exercised this authority through
the enactment of--
(A) the Hawaiian Homes Commission Act, 1920 (42 Stat. 108,
chapter 42);
(B) the Act entitled ``An Act to provide for the admission
of the State of Hawaii into the Union'', approved March 18,
1959 (Public Law 86-3, 73 Stat. 4); and
(C) more than 150 other Federal laws addressing the
conditions of Native Hawaiians;
(4) Native Hawaiians have--
(A) an inherent right to autonomy in their internal
affairs;
(B) an inherent right of self-determination and self-
governance;
(C) the right to reorganize a Native Hawaiian governing
entity; and
(D) the right to become economically self-sufficient; and
(5) the United States shall continue to engage in a process
of reconciliation and political relations with the Native
Hawaiian people.
(b) Purpose.--The purpose of this Act is to provide a
process for the reorganization of the Native Hawaiian
governing entity and the reaffirmation of the political and
legal relationship between the United States and the Native
Hawaiian governing entity for purposes of continuing a
government-to-government relationship.

SEC. 5. UNITED STATES OFFICE FOR NATIVE HAWAIIAN RELATIONS.

(a) Establishment.--There is established within the Office
of the Secretary, the United States Office for Native
Hawaiian Relations.
(b) Duties.--The Office shall--
(1) continue the process of reconciliation with the Native
Hawaiian people in furtherance of the Apology Resolution;
(2) upon the reaffirmation of the political and legal
relationship between the Native Hawaiian governing entity and
the United States, effectuate and coordinate the special
political and legal relationship between the Native Hawaiian
governing entity and the United States through the Secretary,
and with all other Federal agencies;
(3) fully integrate the principle and practice of
meaningful, regular, and appropriate consultation with the
Native Hawaiian governing entity by providing timely notice
to, and consulting with, the Native Hawaiian people and the
Native Hawaiian governing entity before taking any actions
that may have the potential to significantly affect Native
Hawaiian resources, rights, or lands;
(4) consult with the Interagency Coordinating Group, other
Federal agencies, the Governor of the State of Hawaii and
relevant agencies of the State of Hawaii on policies,
practices, and proposed actions affecting Native Hawaiian
resources, rights, or lands; and
(5) prepare and submit to the Committee on Indian Affairs
and the Committee on Energy and Natural Resources of the
Senate and the Committee on Resources of the House of
Representatives an annual report detailing the activities of
the Interagency Coordinating Group that are undertaken with
respect to the continuing process of reconciliation and to
effect meaningful consultation with the Native Hawaiian
governing entity and providing recommendations for any
necessary changes to Federal law or regulations promulgated
under the authority of Federal law.

SEC. 6. NATIVE HAWAIIAN INTERAGENCY COORDINATING GROUP.

(a) Establishment.--In recognition that Federal programs
authorized to address the conditions of Native Hawaiians are
largely administered by Federal agencies other than the
Department of the Interior, there is established an
interagency coordinating group to be known as the ``Native
Hawaiian Interagency Coordinating Group''.
(b) Composition.--The Interagency Coordinating Group shall
be composed of officials, to be designated by the President,
from--

[[Page S457]]

(1) each Federal agency that administers Native Hawaiian
programs, establishes or implements policies that affect
Native Hawaiians, or whose actions may significantly or
uniquely impact Native Hawaiian resources, rights, or lands;
and
(2) the Office.
(c) Lead Agency.--
(1) In general.--The Department of the Interior shall serve
as the lead agency of the Interagency Coordinating Group.
(2) Meetings.--The Secretary shall convene meetings of the
Interagency Coordinating Group.
(d) Duties.--The Interagency Coordinating Group shall--
(1) coordinate Federal programs and policies that affect
Native Hawaiians or actions by any agency or agencies of the
Federal Government that may significantly or uniquely affect
Native Hawaiian resources, rights, or lands;
(2) ensure that each Federal agency develops a policy on
consultation with the Native Hawaiian people, and upon the
reaffirmation of the political and legal relationship between
the Native Hawaiian governing entity and the United States,
consultation with the Native Hawaiian governing entity; and
(3) ensure the participation of each Federal agency in the
development of the report to Congress authorized in section
5(b)(5).

SEC. 7. PROCESS FOR THE REORGANIZATION OF THE NATIVE HAWAIIAN
GOVERNING ENTITY AND THE REAFFIRMATION OF THE
POLITICAL AND LEGAL RELATIONSHIP BETWEEN THE
UNITED STATES AND THE NATIVE HAWAIIAN GOVERNING
ENTITY.

(a) Recognition of the Native Hawaiian Governing Entity.--
The right of the Native Hawaiian people to reorganize the
Native Hawaiian governing entity to provide for their common
welfare and to adopt appropriate organic governing documents
is recognized by the United States.
(b) Commission.--
(1) In general.--There is authorized to be established a
Commission to be composed of nine members for the purposes
of--
(A) preparing and maintaining a roll of the adult members
of the Native Hawaiian community who elect to participate in
the reorganization of the Native Hawaiian governing entity;
and
(B) certifying that the adult members of the Native
Hawaiian community proposed for inclusion on the roll meet
the definition of Native Hawaiian in paragraph (8) of section
3.
(2) Membership.--
(A) Appointment.--Within 180 days of the date of enactment
of this Act, the Secretary shall appoint the members of the
Commission in accordance with subclause (B). Any vacancy on
the Commission shall not affect its powers and shall be
filled in the same manner as the original appointment.
(B) Requirements.--The members of the Commission shall be
Native Hawaiian, as defined in section 3(8), and shall have
expertise in the determination of Native Hawaiian ancestry
and lineal descendancy.
(3) Expenses.--Each member of the Commission shall be
allowed travel expenses, including per diem in lieu of
subsistence, at rates authorized for employees of agencies
under subchapter I of chapter 57 of title 5, United States
Code, while away from their homes or regular places of
business in the performance of services for the Commission.
(4) Duties.--The Commission shall--
(A) prepare and maintain a roll of the adult members of the
Native Hawaiian community who elect to participate in the
reorganization of the Native Hawaiian governing entity; and
(B) certify that each of the adult members of the Native
Hawaiian community proposed for inclusion on the roll meets
the definition of Native Hawaiian in section 3(8).
(5) Staff.--
(A) In general.--The Commission may, without regard to the
civil service laws (including regulations), appoint and
terminate an executive director and such other additional
personnel as are necessary to enable the Commission to
perform the duties of the Commission.
(B) Compensation.--
(i) In general.--Except as provided in clause (ii), the
Commission may fix the compensation of the executive director
and other personnel without regard to the provisions of
chapter 51 and subchapter III of chapter 53 of title 5,
United States Code, relating to classification of positions
and General Schedule pay rates.
(ii) Maximum rate of pay.--The rate of pay for the
executive director and other personnel shall not exceed the
rate payable for level V of the Executive Schedule under
section 5316 of title 5, United States Code.
(6) Detail of federal government employees.--
(A) In general.--An employee of the Federal Government may
be detailed to the Commission without reimbursement.
(B) Civil service status.--The detail of the employee shall
be without interruption or loss of civil service status or
privilege.
(7) Procurement of temporary and intermittent services.--
The Commission may procure temporary and intermittent
services in accordance with section 3109(b) of title 5,
United States Code, at rates for individuals that do not
exceed the daily equivalent of the annual rate of basic pay
prescribed for level V of the Executive Schedule under
section 5316 of that title.
(8) Expiration.--The Secretary shall dissolve the
Commission upon the reaffirmation of the political and legal
relationship between the Native Hawaiian governing entity and
the United States.
(c) Process for the Reorganization of the Native Hawaiian
Governing Entity.--
(1) Roll.--
(A) Contents.--The roll shall include the names of the
adult members of the Native Hawaiian community who elect to
participate in the reorganization of the Native Hawaiian
governing entity and are certified to be Native Hawaiian as
defined in section 3(8) by the Commission.
(B) Formation of roll.--Each adult member of the Native
Hawaiian community who elects to participate in the
reorganization of the Native Hawaiian governing entity shall
submit to the Commission documentation in the form
established by the Commission that is sufficient to enable
the Commission to determine whether the individual meets the
definition of Native Hawaiian in section 3(8).
(C) Documentation.--The Commission shall--
(i) identify the types of documentation that may be
submitted to the Commission that would enable the Commission
to determine whether an individual meets the definition of
Native Hawaiian in section 3(8);
(ii) establish a standard format for the submission of
documentation; and
(iii) publish information related to clauses (i) and (ii)
in the Federal Register;
(D) Consultation.--In making determinations that each of
the adult members of the Native Hawaiian community proposed
for inclusion on the roll meets the definition of Native
Hawaiian in section 3(8), the Commission may consult with
Native Hawaiian organizations, agencies of the State of
Hawaii including but not limited to the Department of
Hawaiian Home Lands, the Office of Hawaiian Affairs, and the
State Department of Health, and other entities with expertise
and experience in the determination of Native Hawaiian
ancestry and lineal descendancy.
(E) Certification and submittal of roll to secretary.--The
Commission shall--
(i) submit the roll containing the names of the adult
members of the Native Hawaiian community who meet the
definition of Native Hawaiian in section 3(8) to the
Secretary within two years from the date on which the
Commission is fully composed; and
(ii) certify to the Secretary that each of the adult
members of the Native Hawaiian community proposed for
inclusion on the roll meets the definition of Native Hawaiian
in section 3(8).
(F) Publication.--Upon certification by the Commission to
the Secretary that those listed on the roll meet the
definition of Native Hawaiian in section 3(8), the Secretary
shall publish the roll in the Federal Register.
(G) Appeal.--The Secretary may establish a mechanism for an
appeal for any person whose name is excluded from the roll
who claims to meet the definition of Native Hawaiian in
section 3(8) and to be 18 years of age or older.
(H) Publication; update.--The Secretary shall--
(i) publish the roll regardless of whether appeals are
pending;
(ii) update the roll and the publication of the roll on the
final disposition of any appeal;
(iii) update the roll to include any Native Hawaiian who
has attained the age of 18 and who has been certified by the
Commission as meeting the definition of Native Hawaiian in
section 3(8) after the initial publication of the roll or
after any subsequent publications of the roll.
(I) Failure to act.--If the Secretary fails to publish the
roll, not later than 90 days after the date on which the roll
is submitted to the Secretary, the Commission shall publish
the roll notwithstanding any order or directive issued by the
Secretary or any other official of the Department of the
Interior to the contrary.
(J) Effect of publication.--The publication of the initial
and updated roll shall serve as the basis for the eligibility
of adult members of the Native Hawaiian community whose names
are listed on those rolls to participate in the
reorganization of the Native Hawaiian governing entity.
(2) Organization of the native hawaiian interim governing
council.--
(A) Organization.--The adult members of the Native Hawaiian
community listed on the roll published under this section
may--
(i) develop criteria for candidates to be elected to serve
on the Native Hawaiian Interim Governing Council;
(ii) determine the structure of the Council; and
(iii) elect members from individuals listed on the roll
published under this subsection to the Council.
(B) Powers.--
(i) In general.--The Council--

(I) may represent those listed on the roll published under
this section in the implementation of this Act; and
(II) shall have no powers other than powers given to the
Council under this Act.

(ii) Funding.--The Council may enter into a contract with,
or obtain a grant from, any Federal or State agency to carry
out clause (iii).
(iii) Activities.--

(I) In general.--The Council may conduct a referendum among
the adult members of the Native Hawaiian community listed on
the roll published under this subsection for the purpose of
determining the proposed elements of the organic governing
documents of the Native Hawaiian governing entity, including
but not limited to--

[[Page S458]]

(aa) the proposed criteria for citizenship of the Native
Hawaiian governing entity;
(bb) the proposed powers and authorities to be exercised by
the Native Hawaiian governing entity, as well as the proposed
privileges and immunities of the Native Hawaiian governing
entity;
(cc) the proposed civil rights and protection of the rights
of the citizens of the Native Hawaiian governing entity and
all persons affected by the exercise of governmental powers
and authorities of the Native Hawaiian governing entity; and
(dd) other issues determined appropriate by the Council.

(II) Development of organic governing documents.--Based on
the referendum, the Council may develop proposed organic
governing documents for the Native Hawaiian governing entity.
(III) Distribution.--The Council may distribute to all
adult members of the Native Hawaiian community listed on the
roll published under this subsection--

(aa) a copy of the proposed organic governing documents, as
drafted by the Council; and
(bb) a brief impartial description of the proposed organic
governing documents;

(IV) Elections.--The Council may hold elections for the
purpose of ratifying the proposed organic governing
documents, and on certification of the organic governing
documents by the Secretary in accordance with paragraph (4),
hold elections of the officers of the Native Hawaiian
governing entity pursuant to paragraph (5).

(3) Submittal of organic governing documents.--Following
the reorganization of the Native Hawaiian governing entity
and the adoption of organic governing documents, the Council
shall submit the organic governing documents of the Native
Hawaiian governing entity to the Secretary.
(4) Certifications.--
(A) In general.--Within the context of the future
negotiations to be conducted under the authority of section
8(b)(1), and the subsequent actions by the Congress and the
State of Hawaii to enact legislation to implement the
agreements of the 3 governments, not later than 90 days after
the date on which the Council submits the organic governing
documents to the Secretary, the Secretary shall certify that
the organic governing documents--
(i) establish the criteria for citizenship in the Native
Hawaiian governing entity;
(ii) were adopted by a majority vote of the adult members
of the Native Hawaiian community whose names are listed on
the roll published by the Secretary;
(iii) provide authority for the Native Hawaiian governing
entity to negotiate with Federal, State, and local
governments, and other entities;
(iv) provide for the exercise of governmental authorities
by the Native Hawaiian governing entity, including any
authorities that may be delegated to the Native Hawaiian
governing entity by the United States and the State of Hawaii
following negotiations authorized in section 8(b)(1) and the
enactment of legislation to implement the agreements of the 3
governments;
(v) prevent the sale, disposition, lease, or encumbrance of
lands, interests in lands, or other assets of the Native
Hawaiian governing entity without the consent of the Native
Hawaiian governing entity;
(vi) provide for the protection of the civil rights of the
citizens of the Native Hawaiian governing entity and all
persons affected by the exercise of governmental powers and
authorities by the Native Hawaiian governing entity; and
(vii) are consistent with applicable Federal law and the
special political and legal relationship between the United
States and the indigenous, native people of the United
States; provided that the provisions of Public Law 103-454,
25 U.S.C. 479a, shall not apply.
(B) Resubmission in case of noncompliance with the
requirements of subparagraph (A).--
(i) Resubmission by the secretary.--If the Secretary
determines that the organic governing documents, or any part
of the documents, do not meet all of the requirements set
forth in subparagraph (A), the Secretary shall resubmit the
organic governing documents to the Council, along with a
justification for each of the Secretary's findings as to why
the provisions are not in full compliance.
(ii) Amendment and resubmission of organic governing
documents.--If the organic governing documents are
resubmitted to the Council by the Secretary under clause (i),
the Council shall--

(I) amend the organic governing documents to ensure that
the documents meet all the requirements set forth in
subparagraph (A); and
(II) resubmit the amended organic governing documents to
the Secretary for certification in accordance with this
paragraph.

(C) Certifications deemed made.--The certifications under
paragraph (4) shall be deemed to have been made if the
Secretary has not acted within 90 days after the date on
which the Council has submitted the organic governing
documents of the Native Hawaiian governing entity to the
Secretary.
(5) Elections.--On completion of the certifications by the
Secretary under paragraph (4), the Council may hold elections
of the officers of the Native Hawaiian governing entity.
(6) Reaffirmation.--Notwithstanding any other provision of
law, upon the certifications required under paragraph (4) and
the election of the officers of the Native Hawaiian governing
entity, the political and legal relationship between the
United States and the Native Hawaiian governing entity is
hereby reaffirmed and the United States extends Federal
recognition to the Native Hawaiian governing entity as the
representative governing body of the Native Hawaiian people.

SEC. 8. REAFFIRMATION OF DELEGATION OF FEDERAL AUTHORITY;
NEGOTIATIONS; CLAIMS.

(a) Reaffirmation.--The delegation by the United States of
authority to the State of Hawaii to address the conditions of
the indigenous, native people of Hawaii contained in the Act
entitled ``An Act to provide for the admission of the State
of Hawaii into the Union'' approved March 18, 1959 (Public
Law 86-3, 73 Stat. 4), is reaffirmed.
(b) Negotiations.--
(1) In general.--Upon the reaffirmation of the political
and legal relationship between the United States and the
Native Hawaiian governing entity, the United States and the
State of Hawaii may enter into negotiations with the Native
Hawaiian governing entity designed to lead to an agreement
addressing such matters as--
(A) the transfer of lands, natural resources, and other
assets, and the protection of existing rights related to such
lands or resources;
(B) the exercise of governmental authority over any
transferred lands, natural resources, and other assets,
including land use;
(C) the exercise of civil and criminal jurisdiction;
(D) the delegation of governmental powers and authorities
to the Native Hawaiian governing entity by the United States
and the State of Hawaii; and
(E) any residual responsibilities of the United States and
the State of Hawaii.
(2) Amendments to existing laws.--Upon agreement on any
matter or matters negotiated with the United States, the
State of Hawaii, and the Native Hawaiian governing entity,
the parties are authorized to submit--
(A) to the Committee on Indian Affairs of the Senate, the
Committee on Energy and Natural Resources of the Senate, and
the Committee on Resources of the House of Representatives,
recommendations for proposed amendments to Federal law that
will enable the implementation of agreements reached between
the 3 governments; and
(B) to the Governor and the legislature of the State of
Hawaii, recommendations for proposed amendments to State law
that will enable the implementation of agreements reached
between the 3 governments.
(c) Claims.--
(1) In general.--Nothing in this Act serves as a settlement
of any claim against the United States.
(2) Statute of limitations.--Any claim against the United
States arising under Federal law that--
(A) is in existence on the date of enactment of this Act;
(B) is asserted by the Native Hawaiian governing entity on
behalf of the Native Hawaiian people; and
(C) relates to the legal and political relationship between
the United States and the Native Hawaiian people;

shall be brought in the court of jurisdiction over such
claims not later than 20 years after the date on which
Federal recognition is extended to the Native Hawaiian
governing entity under section 7(c)(6).

SEC. 9. APPLICABILITY OF CERTAIN FEDERAL LAWS.

(a) Indian Gaming Regulatory Act.--Nothing in this Act
shall be construed to authorize the Native Hawaiian governing
entity to conduct gaming activities under the authority of
the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.).
(b) Bureau of Indian Affairs.--Nothing contained in this
Act provides an authorization for eligibility to participate
in any programs and services provided by the Bureau of Indian
Affairs for any persons not otherwise eligible for the
programs or services.

SEC. 10. SEVERABILITY.

If any section or provision of this Act is held invalid, it
is the intent of Congress that the remaining sections or
provisions shall continue in full force and effect.

SEC. 11. AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated such sums as are
necessary to carry out this Act.

Mr. INOUYE. Mr. President, I am pleased to join my colleague, Senator
Akaka, as a cosponsor of the Native Hawaiian Government Reorganization
Act.
Having served on the Indian Affairs Committee for the past 27 years,
I know that most of our colleagues are more familiar with conditions
and circumstances in Indian country, and naturally, they bring their
experience with Indian country to bear in considering this measure,
which has been pending in the Senate for the past six years.
Accordingly, Mr. President, I believe it is important that our
colleagues understand what this bill seeks to accomplish as well as how
it differs from legislation affecting Indian country.
It is a little known fact that beginning in 1910 and since that time,
the

[[Page S459]]

Congress has passed and the President has signed into law over 160
Federal laws designed to address the conditions of Native Hawaiians.
Thus, Federal laws which authorize the provision of health care,
education, housing, and job training and employment services, as well
as programs to provide for the preservation of the Native Hawaiian
language, Native language immersion, Native cultural and grave
protections and repatriation of Native sacred objects have been in
place for decades.
The Native Hawaiian programs do not draw upon funding that is
appropriated for American Indians or Alaska Natives--there are separate
authorizations for programs that are administered by different Federal
agencies--not the Bureau of Indian Affairs or the Indian Health
Service, for instance--and the Native Hawaiian program funds are not
drawn from the Interior Appropriations Subcommittee account. Thus, they
have no impact on the funding that is provided for the other
indigenous, native people of the United States.
However, unlike the native people residing on the mainland, Native
Hawaiians have not been able to exercise their rights as Native people
to self-determination or self-governance because their government was
overthrown on January 17, 1893.
This bill would provide a process for the reorganization of the
Native Hawaiian government and the resumption of a political and legal
relationship between that government and the government of the United
States.
Because the Native Hawaiian government is not an Indian tribe, the
body of Federal Indian law that would otherwise customarily apply when
the United States extends Federal recognition to an Indian tribal group
does not apply.
Thus, the bill provides authority for a process of negotiations
amongst the United States, the State of Hawaii, and the reorganized
Native Hawaiian government to address such matters as the exercise of
civil and criminal jurisdiction by the respective governments, the
transfer of land and natural resources and other assets, and the
exercise of governmental authority over those lands, natural resources
and other assets.
Upon reaching agreement, the U.S. Congress and the legislature of
State of Hawaii would have to enact legislation implementing the
agreements of the three governments, including amendments that will
necessarily have to be made to existing Federal law, such as the Hawaii
Admissions Act and the Hawaiian Homes Commission Act, and to State law,
including amendments to the Hawaii State Constitution, before any of
the new governmental relationships and authorities can take effect.
That is why concerns which are premised on the manner in which
Federal Indian law provides for the respective governmental authorities
of the state governments and Indian tribal governments simply don't
apply in Hawaii.
Our state government, both the Governor and the state legislature of
Hawaii, fully support enactment of this measure. They will be at the
table with the United States and the Native Hawaiian government to
shape the relationships amongst governments that will best serve the
needs and interests not only of the Native Hawaiian community but those
of all of the citizens of Hawaii.
Mr. President, we have every confidence that consistent with the
Federal policy of the last 35 years, the restoration of the rights to
self-determination and self-governance will enable the Native Hawaiian
people, as the direct, lineal descendants of the aboriginal, indigenous
native people of what has become our nation's fiftieth state, to take
their rightful place in the family of governments that makes up our
constitutional system of governance.
______

By Mr. McCAIN (for himself, Mr. Stevens, and Mr. Dorgan):
S. 148. A bill to establish a United States Boxing Commission to
administer the Act, and for other purposes; to the Committee on
Commerce, Science, and Transportation.
Mr. McCAIN. Mr. President, today I am pleased to be joined by
Senators Stevens and Dorgan in introducing the Professional Boxing
Amendments Act of 2005. This legislation is virtually identical to a
measure approved unanimously by the Senate last year. I remain
committed to moving the Professional Boxing Amendments Act through the
Senate and I trust that my colleagues will once again vote favorably on
this important legislation. Simply put, this legislation would better
protect professional boxing from the fraud, corruption, and ineffective
regulation that have plagued the sport for far too many years, and that
have devastated physically and financially many of our Nation's
professional boxers.
For almost a decade, Congress has made efforts to improve the sport
of professional boxing--and for very good reason. With rare exception,
professional boxers come from the lowest rung on our economic ladder.
They are the least educated and most exploited athletes in our Nation.
The Professional Boxing Safety Act of 1996 and the Muhammad Ali Boxing
Reform Act of 2000 established uniform health and safety standards for
professional boxers, as well as basic protections for boxers against
the sometimes coercive, exploitative, and unethical business practices
of promoters, managers, and sanctioning organizations. But further
action is needed.
The Professional Boxing Amendments Act would strengthen existing
Federal boxing law by improving the basic health and safety standards
for professional boxers, establishing a centralized medical registry to
be used by local commissions to protect boxers, reducing the arbitrary
practices of sanctioning organizations, and enhancing the uniformity
and basic standards for professional boxing contracts. Most
importantly, this legislation would establish a Federal regulatory
entity to oversee professional boxing and set basic uniform standards
for certain aspects of the sport.
Current Federal boxing law has improved to some extent the state of
professional boxing. However, I remain concerned, as do many others,
that the sport remains at risk. Some State and tribal boxing
commissions still to this day do not comply with Federal boxing law,
and there is still a troubling lack of enforcement of the law by both
Federal and State officials. Indeed, professional boxing remains the
only major sport in the United States that does not have a strong,
centralized association, league, or other regulatory body to establish
and enforce uniform rules and practices. Because a powerful few benefit
greatly from the current system of patchwork compliance and enforcement
of Federal boxing law, a national self-regulating organization--though
preferable to Federal government oversight--is not a realistic option.
Ineffective and inconsistent oversight of professional boxing has
contributed to the continuing scandals, controversies, unethical
practices, and unnecessary deaths in the sport. These problems have led
many in professional boxing to conclude that the only solution is an
effective and accountable Federal boxing commission. The Professional
Boxing Amendments Act would create such an entity.
This bill would establish the United States Boxing Commission (USBC
or Commission). The Commission would be responsible for protecting the
health, safety, and general interests of professional boxers. The USBC
would also be responsible for ensuring uniformity, fairness, and
integrity in professional boxing. More specifically, the Commission
would administer Federal boxing law and coordinate with other Federal
regulatory agencies to ensure that this law is enforced; oversee all
professional boxing matches in the United States; and work with the
boxing industry and local commissions to improve the safety, integrity,
and professionalism of professional boxing in the United States.
The USBC would also license boxers, promoters, managers, and
sanctioning organizations. The Commission would have the authority to
revoke such a license for violations of Federal boxing law, to stop
unethical or illegal conduct, to protect the health and safety of a
boxer, or if the revocation is otherwise in the public interest.
It is important to state clearly and plainly for the record that the
purpose of the USBC is not to interfere with the daily operations of
State and tribal boxing commissions. Instead, the Commission would work
in consultation

[[Page S460]]

with local commissions, and it would only exercise its authority when
reasonable grounds exist for such intervention. In point of fact, the
Professional Boxing Amendments Act states explicitly that it would not
prohibit any boxing commission from exercising any of its powers,
duties, or functions with respect to the regulation or supervision of
professional boxing to the extent not inconsistent with the provisions
of Federal boxing law.
Let there be no doubt, however, of the very basic and pressing need
in professional boxing for a Federal boxing commission. The
establishment of the USBC would address that need.
The problems that plague the sport of professional boxing undermine
the credibility of the sport in the eyes of the public--and more
importantly--compromise the safety of boxers. The Professional Boxing
Amendments Act provides an effective approach to curbing these
problems. I again urge my colleagues to support this legislation.
I ask unanimous consent that the text of this bill be printed in the
Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 148

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) Short Title.--This Act may be cited as the
``Professional Boxing Amendments Act of 2005''.
(b) Table of Contents.--The table of contents for this Act
is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Amendment of Professional Boxing Safety Act of 1996.
Sec. 3. Definitions.
Sec. 4. Purposes.
Sec. 5. United States Boxing Commission approval, or ABC or commission
sanction, required for matches.
Sec. 6. Safety standards.
Sec. 7. Registration.
Sec. 8. Review.
Sec. 9. Reporting.
Sec. 10. Contract requirements.
Sec. 11. Coercive contracts.
Sec. 12. Sanctioning organizations.
Sec. 13. Required disclosures by sanctioning organizations.
Sec. 14. Required disclosures by promoters and broadcasters.
Sec. 15. Judges and referees.
Sec. 16. Medical registry.
Sec. 17. Conflicts of interest.
Sec. 18. Enforcement.
Sec. 19. Repeal of deadwood.
Sec. 20. Recognition of tribal law.
Sec. 21. Establishment of United States Boxing Commission.
Sec. 22. Study and report on definition of promoter.
Sec. 23. Effective date.

SEC. 2. AMENDMENT OF PROFESSIONAL BOXING SAFETY ACT OF 1996.

Except as otherwise expressly provided, whenever in this
title an amendment or repeal is expressed in terms of an
amendment to, or repeal of, a section or other provision, the
reference shall be considered to be made to a section or
other provision of the Professional Boxing Safety Act of 1996
(15 U.S.C. 6301 et seq.).

SEC. 3. DEFINITIONS.

(a) In General.--Section 2 (15 U.S.C. 6301) is amended to
read as follows:

``SEC. 2. DEFINITIONS.

``In this Act:
``(1) Commission.--The term `Commission' means the United
States Boxing Commission.
``(2) Bout agreement.--The term `bout agreement' means a
contract between a promoter and a boxer that requires the
boxer to participate in a professional boxing match for a
particular date.
``(3) Boxer.--The term `boxer' means an individual who
fights in a professional boxing match.
``(4) Boxing commission.--The term `boxing commission'
means an entity authorized under State or tribal law to
regulate professional boxing matches.
``(5) Boxer registry.--The term `boxer registry' means any
entity certified by the Commission for the purposes of
maintaining records and identification of boxers.
``(6) Boxing service provider.--The term `boxing service
provider' means a promoter, manager, sanctioning body,
licensee, or matchmaker.
``(7) Contract provision.--The term `contract provision'
means any legal obligation between a boxer and a boxing
service provider.
``(8) Indian lands; indian tribe.--The terms `Indian lands'
and `Indian tribe' have the meanings given those terms by
paragraphs (4) and (5), respectively, of section 4 of the
Indian Gaming Regulatory Act (25 U.S.C. 2703).
``(9) Licensee.--The term `licensee' means an individual
who serves as a trainer, corner man, second, or cut man for a
boxer.
``(10) Manager.--The term `manager' means a person other
than a promoter who, under contract, agreement, or other
arrangement with a boxer, undertakes to control or
administer, directly or indirectly, a boxing-related matter
on behalf of that boxer, including a person who is a booking
agent for a boxer.
``(11) Matchmaker.--The term `matchmaker' means a person
that proposes, selects, and arranges for boxers to
participate in a professional boxing match.
``(12) Physician.--The term `physician' means a doctor of
medicine legally authorized to practice medicine by the State
in which the physician performs such function or action and
who has training and experience in dealing with sports
injuries, particularly head trauma.
``(13) Professional boxing match.--The term `professional
boxing match' means a boxing contest held in the United
States between individuals for financial compensation. The
term `professional boxing match' does not include a boxing
contest that is regulated by a duly recognized amateur sports
organization, as approved by the Commission.
``(14) Promoter.--The term `promoter'--
``(A) means the person primarily responsible for
organizing, promoting, and producing a professional boxing
match; but
``(B) does not include a hotel, casino, resort, or other
commercial establishment hosting or sponsoring a professional
boxing match unless--
``(i) the hotel, casino, resort, or other commercial
establishment is primarily responsible for organizing,
promoting, and producing the match; and
``(ii) there is no other person primarily responsible for
organizing, promoting, and producing the match.
``(15) Promotional agreement.--The term `promotional
agreement' means a contract, for the acquisition of rights
relating to a boxer's participation in a professional boxing
match or series of boxing matches (including the right to
sell, distribute, exhibit, or license the match or matches),
with--
``(A) the boxer who is to participate in the match or
matches; or
``(B) the nominee of a boxer who is to participate in the
match or matches, or the nominee is an entity that is owned,
controlled or held in trust for the boxer unless that nominee
or entity is a licensed promoter who is conveying a portion
of the rights previously acquired.
``(16) State.--The term `State' means each of the 50
States, Puerto Rico, the District of Columbia, and any
territory or possession of the United States, including the
Virgin Islands.
``(17) Sanctioning organization.--The term `sanctioning
organization' means an organization, other than a boxing
commission, that sanctions professional boxing matches, ranks
professional boxers, or charges a sanctioning fee for
professional boxing matches in the United States--
``(A) between boxers who are residents of different States;
or
``(B) that are advertised, otherwise promoted, or broadcast
(including closed circuit television) in interstate commerce.
``(18) Suspension.--The term `suspension' includes within
its meaning the temporary revocation of a boxing license.
``(19) Tribal organization.--The term `tribal organization'
has the same meaning as in section 4(l) of the Indian Self-
Determination and Education Assistance Act (25 U.S.C.
450b(l)).''.
(b) Conforming Amendment.--Section 21 (15 U.S.C. 6312) is
amended to read as follows:

``SEC. 21. PROFESSIONAL BOXING MATCHES CONDUCTED ON INDIAN
LANDS.

``(a) In General.--Notwithstanding any other provision of
law, a tribal organization may establish a boxing commission
to regulate professional boxing matches held on Indian land
under the jurisdiction of that tribal organization.
``(b) Standards and Licensing.--A tribal organization that
establishes a boxing commission shall, by tribal ordinance or
resolution, establish and provide for the implementation of
health and safety standards, licensing requirements, and
other requirements relating to the conduct of professional
boxing matches that are at least as restrictive as--
``(1) the otherwise applicable requirements of the State in
which the Indian land on which the professional boxing match
is held is located; or
``(2) the guidelines established by the United States
Boxing Commission.
``(c) Application of Act to Boxing Matches on Tribal
Lands.--The provisions of this Act apply to professional
boxing matches held on tribal lands to the same extent and in
the same way as they apply to professional boxing matches
held in any State.''.

SEC. 4. PURPOSES.

Section 3(2) (15 U.S.C. 6302(2)) is amended by striking
``State''.

SEC. 5. UNITED STATES BOXING COMMISSION APPROVAL, OR ABC OR
COMMISSION SANCTION, REQUIRED FOR MATCHES.

(a) In General.--Section 4 (15 U.S.C. 6303) is amended to
read as follows:

``SEC. 4. APPROVAL OR SANCTION REQUIREMENT.

``(a) In General.--No person may arrange, promote,
organize, produce, or fight in a professional boxing match
within the United States unless the match--
``(1) is approved by the Commission; and
``(2) is held in a State, or on tribal land of a tribal
organization, that regulates professional boxing matches in
accordance with

[[Page S461]]

standards and criteria established by the Commission.
``(b) Approval Presumed.--
``(1) In general.--For purposes of subsection (a), the
Commission shall be presumed to have approved any match other
than--
``(A) a match with respect to which the Commission has been
informed of an alleged violation of this Act and with respect
to which it has notified the supervising boxing commission
that it does not approve;
``(B) a match advertised to the public as a championship
match;
``(C) a match scheduled for 10 rounds or more; or
``(D) a match in which 1 of the boxers has--
``(i) suffered 10 consecutive defeats in professional
boxing matches; or
``(ii) has been knocked out 5 consecutive times in
professional boxing matches.
``(2) Delegation of approval authority.--Notwithstanding
paragraph (1), the Commission shall be presumed to have
approved a match described in subparagraph (B), (C), or (D)
of paragraph (1) if--
``(A) the Commission has delegated its approval authority
with respect to that match to a boxing commission; and
``(B) the boxing commission has approved the match.
``(3) Knocked-out defined.--Except as may be otherwise
provided by the Commission by rule, in paragraph (1)(D)(ii),
the term `knocked out' means knocked down and unable to
continue after a count of 10 by the referee or stopped from
continuing because of a technical knockout.''.
(b) Conforming Amendment.--Section 19 (15 U.S.C. 6310) is
repealed.

SEC. 6. SAFETY STANDARDS.

Section 5 (15 U.S.C. 6304) is amended--
(1) by striking ``requirements or an alternative
requirement in effect under regulations of a boxing
commission that provides equivalent protection of the health
and safety of boxers:'' and inserting ``requirements:'';
(2) by adding at the end of paragraph (1) ``The examination
shall include testing for infectious diseases in accordance
with standards established by the Commission.'';
(3) by striking paragraph (2) and inserting the following:
``(2) An ambulance continuously present on site.'';
(4) by redesignating paragraphs (3) and (4) as paragraphs
(4) and (5), respectively, and inserting after paragraph (2)
the following:
``(3) Emergency medical personnel with appropriate
resuscitation equipment continuously present on site.''; and
(5) by striking ``match.'' in paragraph (5), as
redesignated, and inserting ``match in an amount prescribed
by the Commission.''.

SEC. 7. REGISTRATION.

Section 6 (15 U.S.C. 6305) is amended--
(1) by inserting ``or Indian tribe'' after ``State'' the
second place it appears in subsection (a)(2);
(2) by striking the first sentence of subsection (c) and
inserting ``A boxing commission shall, in accordance with
requirements established by the Commission, make a health and
safety disclosure to a boxer when issuing an identification
card to that boxer.'';
(3) by striking ``should'' in the second sentence of
subsection (c) and inserting ``shall, at a minimum,''; and
(4) by adding at the end the following:
``(d) Copy of Registration and Identification Cards To Be
Sent to Commission.--A boxing commission shall furnish a copy
of each registration received under subsection (a), and each
identification card issued under subsection (b), to the
Commission.''.

SEC. 8. REVIEW.

Section 7 (15 U.S.C. 6306) is amended--
(1) by striking ``that, except as provided in subsection
(b), no'' in subsection (a)(2) and inserting ``that no'';
(2) by striking paragraphs (3) and (4) of subsection (a)
and inserting the following:
``(3) Procedures to review a summary suspension when a
hearing before the boxing commission is requested by a boxer,
licensee, manager, matchmaker, promoter, or other boxing
service provider which provides an opportunity for that
person to present evidence.'';
(3) by striking subsection (b); and
(4) by striking ``(a) Procedures.--''.

SEC. 9. REPORTING.

Section 8 (15 U.S.C. 6307) is amended--
(1) by striking ``48 business hours'' and inserting ``2
business days'';
(2) by striking ``bxoing'' and inserting ``boxing''; and
(3) by striking ``each boxer registry.'' and inserting
``the Commission.''.

SEC. 10. CONTRACT REQUIREMENTS.

Section 9 (15 U.S.C. 6307a) is amended to read as follows:

``SEC. 9. CONTRACT REQUIREMENTS.

``(a) In General.--The Commission, in consultation with the
Association of Boxing Commissions, shall develop guidelines
for minimum contractual provisions that shall be included in
each bout agreement, boxer-manager contract, and promotional
agreement. Each boxing commission shall ensure that these
minimal contractual provisions are present in any such
agreement or contract submitted to it.
``(b) Filing and Approval Requirements.--
``(1) Commission.--A manager or promoter shall submit a
copy of each boxer-manager contract and each promotional
agreement between that manager or promoter and a boxer to the
Commission, and, if requested, to the boxing commission with
jurisdiction over the bout.
``(2) Boxing commission.--A boxing commission may not
approve a professional boxing match unless a copy of the bout
agreement related to that match has been filed with it and
approved by it.
``(c) Bond or Other Surety.--A boxing commission may not
approve a professional boxing match unless the promoter of
that match has posted a surety bond, cashier's check, letter
of credit, cash, or other security with the boxing commission
in an amount acceptable to the boxing commission.''.

SEC. 11. COERCIVE CONTRACTS.

Section 10 (15 U.S.C. 6307b) is amended--
(1) by striking paragraph (3) of subsection (a);
(2) by inserting ``or elimination'' after ``mandatory'' in
the heading of subsection (b); and
(3) by inserting ``or elimination'' after ``mandatory'' in
subsection (b).

SEC. 12. SANCTIONING ORGANIZATIONS.

(a) In General.--Section 11 (15 U.S.C. 6307c) is amended to
read as follows:

``SEC. 11. SANCTIONING ORGANIZATIONS.

``(a) Objective Criteria.--Within 1 year after the date of
enactment of the Professional Boxing Amendments Act of 2005,
the Commission shall develop guidelines for objective and
consistent written criteria for the rating of professional
boxers based on the athletic merits and professional record
of the boxers. Within 90 days after the Commission's
promulgation of the guidelines, each sanctioning organization
shall adopt the guidelines and follow them.
``(b) Notification of Change in Rating.--A sanctioning
organization shall, with respect to a change in the rating of
a boxer previously rated by such organization in the top 10
boxers--
``(1) post a copy, within 7 days after the change, on its
Internet website or home page, if any, including an
explanation of the change, for a period of not less than 30
days;
``(2) provide a copy of the rating change and a thorough
explanation in writing under penalty of perjury to the boxer
and the Commission;
``(3) provide the boxer an opportunity to appeal the
ratings change to the sanctioning organization; and
``(4) apply the objective criteria for ratings required
under subsection (a) in considering any such appeal.
``(c) Challenge of Rating.--If, after disposing with an
appeal under subsection (b)(3), a sanctioning organization
receives a petition from a boxer challenging that
organization's rating of the boxer, it shall (except to the
extent otherwise required by the Commission), within 7 days
after receiving the petition--
``(1) provide to the boxer a written explanation under
penalty of perjury of the organization's rating criteria, its
rating of the boxer, and the rationale or basis for its
rating (including a response to any specific questions
submitted by the boxer); and
``(2) submit a copy of its explanation to the Association
of Boxing Commissions and the Commission for their review.''.
(b) Conforming Amendments.--Section 18(e) (15 U.S.C.
6309(e)) is amended--
(1) by striking ``Federal Trade Commission,'' in the
subsection heading and inserting ``United States Boxing
Commission''; and
(2) by striking ``Federal Trade Commission,'' in paragraph
(1) and inserting ``United States Boxing Commission,''.

SEC. 13. REQUIRED DISCLOSURES BY SANCTIONING ORGANIZATIONS.

Section 12 (15 U.S.C. 6307d) is amended--
(1) by striking the matter preceding paragraph (1) and
inserting ``Within 7 days after a professional boxing match
of 10 rounds or more, the sanctioning organization, if any,
for that match shall provide to the Commission, and, if
requested, to the boxing commission in the State or on Indian
land responsible for regulating the match, a written
statement of--'';
(2) by striking ``will assess'' in paragraph (1) and
inserting ``has assessed, or will assess,''; and
(3) by striking ``will receive'' in paragraph (2) and
inserting ``has received, or will receive,''.

SEC. 14. REQUIRED DISCLOSURES BY PROMOTERS AND BROADCASTERS.

Section 13 (15 U.S.C. 6307e) is amended--
(1) by striking ``PROMOTERS.'' in the section caption and
inserting ``PROMOTERS AND BROADCASTERS.'';
(2) by striking so much of subsection (a) as precedes
paragraph (1) and inserting the following:
``(a) Disclosures to Boxing Commissions and the
Commission.--Within 7 days after a professional boxing match
of 10 rounds or more, the promoter of any boxer participating
in that match shall provide to the Commission, and, if
requested, to the boxing commission in the State or on Indian
land responsible for regulating the match--'';
(3) by striking ``writing,'' in subsection (a)(1) and
inserting ``writing, other than a bout agreement previously
provided to the commission,'';
(4) by striking ``all fees, charges, and expenses that will
be'' in subsection (a)(3)(A) and inserting ``a written
statement of all fees, charges, and expenses that have been,
or will be,'';
(5) by inserting ``a written statement of'' before ``all''
in subsection (a)(3)(B);
(6) by inserting ``a statement of'' before ``any'' in
subsection (a)(3)(C);

[[Page S462]]

(7) by striking the matter in subsection (b) following
``Boxer.--'' and preceding paragraph (1) and inserting
``Within 7 days after a professional boxing match of 10
rounds or more, the promoter of the match shall provide to
each boxer participating in the bout or match with whom the
promoter has a bout or promotional agreement a statement of--
'';
(8) by striking ``match;'' in subsection (b)(1) and
inserting ``match, and that the promoter has paid, or agreed
to pay, to any other person in connection with the match;'';
and
(9) by adding at the end the following:
``(d) Required Disclosures by Broadcasters.--
``(1) In general.--A broadcaster that owns the television
broadcast rights for a professional boxing match of 10 rounds
or more shall, within 7 days after that match, provide to the
Commission--
``(A) a statement of any advance, guarantee, or license fee
paid or owed by the broadcaster to a promoter in connection
with that match;
``(B) a copy of any contract executed by or on behalf of
the broadcaster with--
``(i) a boxer who participated in that match; or
``(ii) the boxer's manager, promoter, promotional company,
or other representative or the owner or representative of the
site of the match; and
``(C) a list identifying sources of income received from
the broadcast of the match.
``(2) Copy to boxing commission.--Upon request from the
boxing commission in the State or Indian land responsible for
regulating a match to which paragraph (1) applies, a
broadcaster shall provide the information described in
paragraph (1) to that boxing commission.
``(3) Confidentiality.--The information provided to the
Commission or to a boxing commission pursuant to this
subsection shall be confidential and not revealed by the
Commission or a boxing commission, except that the Commission
may publish an analysis of the data in aggregate form or in a
manner which does not disclose confidential information about
identifiable broadcasters.
``(4) Television broadcast rights.--In paragraph (1), the
term `television broadcast rights' means the right to
broadcast the match, or any part thereof, via a broadcast
station, cable service, or multichannel video programming
distributor as such terms are defined in section 3(5),
602(6), and 602(13) of the Communications Act of 1934 (47
U.S.C. 153(5), 602(6), and 602(13), respectively).''.

SEC. 15. JUDGES AND REFEREES.

(a) In General.--Section 16 (15 U.S.C. 6307h) is amended--
(1) by inserting ``(a) Licensing and Assignment
Requirement.--'' before ``No person'';
(2) by striking ``certified and approved'' and inserting
``selected'';
(3) by inserting ``or Indian lands'' after ``State''; and
(4) by adding at the end the following:
``(b) Championship and 10-round Bouts.--In addition to the
requirements of subsection (a), no person may arrange,
promote, organize, produce, or fight in a professional boxing
match advertised to the public as a championship match or in
a professional boxing match scheduled for 10 rounds or more
unless all referees and judges participating in the match
have been licensed by the Commission.
``(c) Role of Sanctioning Organization.--A sanctioning
organization may provide a list of judges and referees deemed
qualified by that organization to a boxing commission, but
the boxing commission shall select, license, and appoint the
judges and referees participating in the match.
``(d) Assignment of Nonresident Judges and Referees.--A
boxing commission may assign judges and referees who reside
outside that commission's State or Indian land.
``(e) Required Disclosure.--A judge or referee shall
provide to the boxing commission responsible for regulating a
professional boxing match in a State or on Indian land a
statement of all consideration, including reimbursement for
expenses, that the judge or referee has received, or will
receive, from any source for participation in the match. If
the match is scheduled for 10 rounds or more, the judge or
referee shall also provide such a statement to the
Commission.''.
(b) Conforming Amendment.--Section 14 (15 U.S.C. 6307f) is
repealed.

SEC. 16. MEDICAL REGISTRY.

The Act is amended by inserting after section 13 (15 U.S.C.
6307e) the following:

``SEC. 14. MEDICAL REGISTRY.

``(a) In General.--The Commission shall establish and
maintain, or certify a third party entity to establish and
maintain, a medical registry that contains comprehensive
medical records and medical denials or suspensions for every
licensed boxer.
``(b) Content; Submission.--The Commission shall
determine--
``(1) the nature of medical records and medical suspensions
of a boxer that are to be forwarded to the medical registry;
and
``(2) the time within which the medical records and medical
suspensions are to be submitted to the medical registry.
``(c) Confidentiality.--The Commission shall establish
confidentiality standards for the disclosure of personally
identifiable information to boxing commissions that will--
``(1) protect the health and safety of boxers by making
relevant information available to the boxing commissions for
use but not public disclosure; and
``(2) ensure that the privacy of the boxers is
protected.''.

SEC. 17. CONFLICTS OF INTEREST.

Section 17 (15 U.S.C. 6308) is amended--
(1) by striking ``enforces State boxing laws,'' in
subsection (a) and inserting ``implements State or tribal
boxing laws, no officer or employee of the Commission,'';
(2) by striking ``belong to,'' and inserting ``hold office
in,'' in subsection (a);
(3) by striking the last sentence of subsection (a);
(4) by striking subsection (b) and inserting the following:
``(b) Boxers.--A boxer may not own or control, directly or
indirectly, an entity that promotes the boxer's bouts if that
entity is responsible for--
``(1) executing a bout agreement or promotional agreement
with the boxer's opponent; or
``(2) providing any payment or other compensation to--
``(A) the boxer's opponent for participation in a bout with
the boxer;
``(B) the boxing commission that will regulate the bout; or
``(C) ring officials who officiate at the bout.''.

SEC. 18. ENFORCEMENT.

Section 18 (15 U.S.C. 6309) is amended--
(1) by striking ``(a) Injunctions.--'' in subsection (a)
and inserting ``(a) Actions by Attorney General.--'';
(2) by inserting ``any officer or employee of the
Commission,'' after ``laws,'' in subsection (b)(3);
(3) by inserting ``has engaged in or'' after
``organization'' in subsection (c);
(4) by striking ``subsection (b)'' in subsection (c)(3) and
inserting ``subsection (b), a civil penalty, or''; and
(5) by striking ``boxer'' in subsection (d) and inserting
``person''.

SEC. 19. REPEAL OF DEADWOOD.

Section 20 (15 U.S.C. 6311) is repealed.

SEC. 20. RECOGNITION OF TRIBAL LAW.

Section 22 (15 U.S.C. 6313) is amended--
(1) by insert ``OR TRIBAL'' in the section heading after
``STATE''; and
(2) by inserting ``or Indian tribe'' after ``State''.

SEC. 21. ESTABLISHMENT OF UNITED STATES BOXING COMMISSION.

(a) In General.--The Act is amended by adding at the end
the following:

``TITLE II--UNITED STATES BOXING COMMISSION

``SEC. 201. PURPOSE.

``The purpose of this title is to protect the health,
safety, and welfare of boxers and to ensure fairness in the
sport of professional boxing.

``SEC. 202. UNITED STATES BOXING COMMISSION.

``(a) In General.--The United States Boxing Commission is
established as a commission within the Department of
Commerce.
``(b) Members.--
``(1) In general.--The Commission shall consist of 3
members appointed by the President, by and with the advice
and consent of the Senate.
``(2) Qualifications.--
``(A) In general.--Each member of the Commission shall be a
citizen of the United States who--
``(i) has extensive experience in professional boxing
activities or in a field directly related to professional
sports;
``(ii) is of outstanding character and recognized
integrity; and
``(iii) is selected on the basis of training, experience,
and qualifications and without regard to political party
affiliation.
``(B) Specific qualifications for certain members.--At
least 1 member of the Commission shall be a former member of
a local boxing authority. If practicable, at least 1 member
of the Commission shall be a physician or other health care
professional duly licensed as such.
``(C) Disinterested persons.--No member of the Commission
may, while serving as a member of the Commission--
``(i) be engaged as a professional boxer, boxing promoter,
agent, fight manager, matchmaker, referee, judge, or in any
other capacity in the conduct of the business of professional
boxing;
``(ii) have any pecuniary interest in the earnings of any
boxer or the proceeds or outcome of any boxing match; or
``(iii) serve as a member of a boxing commission.
``(3) Bipartisan membership.--Not more than 2 members of
the Commission may be members of the same political party.
``(4) Geographic balance.--Not more than 2 members of the
Commission may be residents of the same geographic region of
the United States when appointed to the Commission. For
purposes of the preceding sentence, the area of the United
States east of the Mississippi River is a geographic region,
and the area of the United States west of the Mississippi
River is a geographic region.
``(5) Terms.--
``(A) In general.--The term of a member of the Commission
shall be 3 years.
``(B) Reappointment.--Members of the Commission may be
reappointed to the Commission.
``(C) Midterm vacancies.--A member of the Commission
appointed to fill a vacancy in the Commission occurring
before the expiration of the term for which the member's
predecessor was appointed shall be appointed for the
remainder of that unexpired term.
``(D) Continuation pending replacement.--A member of the
Commission may

[[Page S463]]

serve after the expiration of that member's term until a
successor has taken office.
``(6) Removal.--A member of the Commission may be removed
by the President only for cause.
``(c) Executive Director.--
``(1) In general.--The Commission shall employ an Executive
Director to perform the administrative functions of the
Commission under this Act, and such other functions and
duties of the Commission as the Commission shall specify.
``(2) Discharge of functions.--Subject to the authority,
direction, and control of the Commission the Executive
Director shall carry out the functions and duties of the
Commission under this Act.
``(d) General Counsel.--The Commission shall employ a
General Counsel to provide legal counsel and advice to the
Executive Director and the Commission in the performance of
its functions under this Act, and to carry out such other
functions and duties as the Commission shall specify.
``(e) Staff.--The Commission shall employ such additional
staff as the Commission considers appropriate to assist the
Executive Director and the General Counsel in carrying out
the functions and duties of the Commission under this Act.
``(f) Compensation.--
``(1) Members of commission.--
``(A) In general.--Each member of the Commission shall be
compensated at a rate equal to the daily equivalent of the
annual rate of basic pay prescribed for level IV of the
Executive Schedule under section 5315 of title 5, United
States Code, for each day (including travel time) during
which such member is engaged in the performance of the duties
of the Commission.
``(B) Travel expenses.--The members of the Commission shall
be allowed travel expenses, including per diem in lieu of
subsistence, at rates authorized for employees of agencies
under subchapter I of chapter 57 of title 5, United States
Code, while away from their homes or regular places of
business in the performance of services for the Commission.
``(2) Executive director and staff.--The Commission shall
fix the compensation of the Executive Director, the General
Counsel, and other personnel of the Commission. The rate of
pay for the Executive Director, the General Counsel, and
other personnel may not exceed the rate payable for level V
of the Executive Schedule under section 5316 of title 5,
United States Code.

``SEC. 203. FUNCTIONS.

``(a) Primary Functions.--The primary functions of the
Commission are--
``(1) to protect the health, safety, and general interests
of boxers consistent with the provisions of this Act; and
``(2) to ensure uniformity, fairness, and integrity in
professional boxing.
``(b) Specific Functions.--The Commission shall--
``(1) administer title I of this Act;
``(2) promulgate uniform standards for professional boxing
in consultation with the Association of Boxing Commissions;
``(3) except as otherwise determined by the Commission,
oversee all professional boxing matches in the United States;
``(4) work with the boxing commissions of the several
States and tribal organizations--
``(A) to improve the safety, integrity, and professionalism
of professional boxing in the United States;
``(B) to enhance physical, medical, financial, and other
safeguards established for the protection of professional
boxers; and
``(C) to improve the status and standards of professional
boxing in the United States;
``(5) ensure, in cooperation with the Attorney General (who
shall represent the Commission in any judicial proceeding
under this Act), the chief law enforcement officer of the
several States, and other appropriate officers and agencies
of Federal, State, and local government, that Federal and
State laws applicable to professional boxing matches in the
United States are vigorously, effectively, and fairly
enforced;
``(6) review boxing commission regulations for professional
boxing and provide assistance to such authorities in meeting
minimum standards prescribed by the Commission under this
title;
``(7) serve as the coordinating body for all efforts in the
United States to establish and maintain uniform minimum
health and safety standards for professional boxing;
``(8) if the Commission determines it to be appropriate,
publish a newspaper, magazine, or other publication and
establish and maintain a website consistent with the purposes
of the Commission;
``(9) procure the temporary and intermittent services of
experts and consultants to the extent authorized by section
3109(b) of title 5, United States Code, at rates the
Commission determines to be reasonable; and
``(10) promulgate rules, regulations, and guidance, and
take any other action necessary and proper to accomplish the
purposes of, and consistent with, the provisions of this
title.
``(c) Prohibitions.--The Commission may not--
``(1) promote boxing events or rank professional boxers; or
``(2) provide technical assistance to, or authorize the use
of the name of the Commission by, boxing commissions that do
not comply with requirements of the Commission.
``(d) Use of Name.--The Commission shall have the exclusive
right to use the name `United States Boxing Commission'. Any
person who, without the permission of the Commission, uses
that name or any other exclusive name, trademark, emblem,
symbol, or insignia of the Commission for the purpose of
inducing the sale or exchange of any goods or services, or to
promote any exhibition, performance, or sporting event, shall
be subject to suit in a civil action by the Commission for
the remedies provided in the Act of July 5, 1946 (commonly
known as the `Trademark Act of 1946'; 15 U.S.C. 1051 et
seq.).

``SEC. 204. LICENSING AND REGISTRATION OF BOXING PERSONNEL.

``(a) Licensing.--
``(1) Requirement for license.--No person may compete in a
professional boxing match or serve as a boxing manager,
boxing promoter, or sanctioning organization for a
professional boxing match except as provided in a license
granted to that person under this subsection.
``(2) Application and Term.--
``(A) In general.--The Commission shall--
``(i) establish application procedures, forms, and fees;
``(ii) establish and publish appropriate standards for
licenses granted under this section; and
``(iii) issue a license to any person who, as determined by
the Commission, meets the standards established by the
Commission under this title.
``(B) Duration.--A license issued under this section shall
be for a renewable--
``(i) 4-year term for a boxer; and
``(ii) 2-year term for any other person.
``(C) Procedure.--The Commission may issue a license under
this paragraph through boxing commissions or in a manner
determined by the Commission.
``(b) Licensing Fees.--
``(1) Authority.--The Commission may prescribe and charge
reasonable fees for the licensing of persons under this
title. The Commission may set, charge, and adjust varying
fees on the basis of classifications of persons, functions,
and events determined appropriate by the Commission.
``(2) Limitations.--In setting and charging fees under
paragraph (1), the Commission shall ensure that, to the
maximum extent practicable--
``(A) club boxing is not adversely effected;
``(B) sanctioning organizations and promoters pay
comparatively the largest portion of the fees; and
``(C) boxers pay as small a portion of the fees as is
possible.
``(3) Collection.--Fees established under this subsection
may be collected through boxing commissions or by any other
means determined appropriate by the Commission.

``SEC. 205. NATIONAL REGISTRY OF BOXING PERSONNEL.

``(a) Requirement for Registry.--The Commission shall
establish and maintain (or authorize a third party to
establish and maintain) a unified national computerized
registry for the collection, storage, and retrieval of
information related to the performance of its duties.
``(b) Contents.--The information in the registry shall
include the following:
``(1) Boxers.--A list of professional boxers and data in
the medical registry established under section 114 of this
Act, which the Commission shall secure from disclosure in
accordance with the confidentiality requirements of section
114(c).
``(2) Other personnel.--Information (pertinent to the sport
of professional boxing) on boxing promoters, boxing
matchmakers, boxing managers, trainers, cut men, referees,
boxing judges, physicians, and any other personnel determined
by the Commission as performing a professional activity for
professional boxing matches.

``SEC. 206. CONSULTATION REQUIREMENTS.

``The Commission shall consult with the Association of
Boxing Commissions--
``(1) before prescribing any regulation or establishing any
standard under the provisions of this title; and
``(2) not less than once each year regarding matters
relating to professional boxing.

``SEC. 207. MISCONDUCT.

``(a) Suspension and Revocation of License or
Registration.--
``(1) Authority.--The Commission may, after notice and
opportunity for a hearing, suspend or revoke any license
issued under this title if the Commission finds that--
``(A) the license holder has violated any provision of this
Act;
``(B) there are reasonable grounds for belief that a
standard prescribed by the Commission under this title is not
being met, or that bribery, collusion, intentional losing,
racketeering, extortion, or the use of unlawful threats,
coercion, or intimidation have occurred in connection with a
license; or
``(C) the suspension or revocation is necessary for the
protection of health and safety or is otherwise in the public
interest.
``(2) Period of suspension.--
``(A) In general.--A suspension of a license under this
section shall be effective for a period determined
appropriate by the Commission except as provided in
subparagraph (B).
``(B) Suspension for medical reasons.--In the case of a
suspension or denial of the license of a boxer for medical
reasons by the Commission, the Commission may terminate the
suspension or denial at any time that a physician certifies
that the boxer is fit to participate in a professional boxing
match. The Commission shall prescribe the standards and
procedures for accepting certifications under this
subparagraph.
``(3) Period of revocation.--In the case of a revocation of
the license of a boxer, the

[[Page S464]]

revocation shall be for a period of not less than 1 year.
``(b) Investigations and Injunctions.--
``(1) Authority.--The Commission may--
``(A) conduct any investigation that it considers necessary
to determine whether any person has violated, or is about to
violate, any provision of this Act or any regulation
prescribed under this Act;
``(B) require or permit any person to file with it a
statement in writing, under oath or otherwise as the
Commission shall determine, as to all the facts and
circumstances concerning the matter to be investigated;
``(C) in its discretion, publish information concerning any
violations; and
``(D) investigate any facts, conditions, practices, or
matters to aid in the enforcement of the provisions of this
Act, in the prescribing of regulations under this Act, or in
securing information to serve as a basis for recommending
legislation concerning the matters to which this Act relates.
``(2) Powers.--
``(A) In general.--For the purpose of any investigation
under paragraph (1) or any other proceeding under this
title--
``(i) any officer designated by the Commission may
administer oaths and affirmations, subpena or otherwise
compel the attendance of witnesses, take evidence, and
require the production of any books, papers, correspondence,
memoranda, or other records the Commission considers relevant
or material to the inquiry; and
``(ii) the provisions of sections 6002 and 6004 of title
18, United States Code, shall apply.
``(B) Witnesses and evidence.--The attendance of witnesses
and the production of any documents under subparagraph (A)
may be required from any place in the United States,
including Indian land, at any designated place of hearing.
``(3) Enforcement of subpoenas.--
``(A) Civil action.--In case of contumacy by, or refusal to
obey a subpoena issued to, any person, the Commission may
file an action in any district court of the United States
within the jurisdiction of which an investigation or
proceeding is carried out, or where that person resides or
carries on business, to enforce the attendance and testimony
of witnesses and the production of books, papers,
correspondence, memorandums, and other records. The court may
issue an order requiring the person to appear before the
Commission to produce records, if so ordered, or to give
testimony concerning the matter under investigation or in
question.
``(B) Failure to obey.--Any failure to obey an order issued
by a court under subparagraph (A) may be punished as contempt
of that court.
``(C) Process.--All process in any contempt case under
subparagraph (A) may be served in the judicial district in
which the person is an inhabitant or in which the person may
be found.
``(4) Evidence of criminal misconduct.--
``(A) In general.--No person may be excused from attending
and testifying or from producing books, papers, contracts,
agreements, and other records and documents before the
Commission, in obedience to the subpoena of the Commission,
or in any cause or proceeding instituted by the Commission,
on the ground that the testimony or evidence, documentary or
otherwise, required of that person may tend to incriminate
the person or subject the person to a penalty or forfeiture.
``(B) Limited immunity.--No individual may be prosecuted or
subject to any penalty or forfeiture for, or on account of,
any transaction, matter, or thing concerning the matter about
which that individual is compelled, after having claimed a
privilege against self-incrimination, to testify or produce
evidence, documentary or otherwise, except that the
individual so testifying shall not be exempt from prosecution
and punishment for perjury committed in so testifying.
``(5) Injunctive relief.--If the Commission determines that
any person is engaged or about to engage in any act or
practice that constitutes a violation of any provision of
this Act, or of any regulation prescribed under this Act, the
Commission may bring an action in the appropriate district
court of the United States, the United States District Court
for the District of Columbia, or the United States courts of
any territory or other place subject to the jurisdiction of
the United States, to enjoin the act or practice, and upon a
proper showing, the court shall grant without bond a
permanent or temporary injunction or restraining order.
``(6) Mandamus.--Upon application of the Commission, the
district courts of the United States, the United States
District Court for the District of Columbia, and the United
States courts of any territory or other place subject to the
jurisdiction of the United States, shall have jurisdiction to
issue writs of mandamus commanding any person to comply with
the provisions of this Act or any order of the Commission.
``(c) Intervention in Civil Actions.--
``(1) In general.--The Commission, on behalf of the public
interest, may intervene of right as provided under rule 24(a)
of the Federal Rules of Civil Procedure in any civil action
relating to professional boxing filed in a district court of
the United States.
``(2) Amicus filing.--The Commission may file a brief in
any action filed in a court of the United States on behalf of
the public interest in any case relating to professional
boxing.
``(d) Hearings by Commission.--Hearings conducted by the
Commission under this Act shall be public and may be held
before any officer of the Commission. The Commission shall
keep appropriate records of the hearings.

``SEC. 208. NONINTERFERENCE WITH BOXING COMMISSIONS.

``(a) Noninterference.--Nothing in this Act prohibits any
boxing commission from exercising any of its powers, duties,
or functions with respect to the regulation or supervision of
professional boxing or professional boxing matches to the
extent not inconsistent with the provisions of this Act.
``(b) Minimum Standards.--Nothing in this Act prohibits any
boxing commission from enforcing local standards or
requirements that exceed the minimum standards or
requirements promulgated by the Commission under this Act.

``SEC. 209. ASSISTANCE FROM OTHER AGENCIES.

``Any employee of any executive department, agency, bureau,
board, commission, office, independent establishment, or
instrumentality may be detailed to the Commission, upon the
request of the Commission, on a reimbursable or
nonreimbursable basis, with the consent of the appropriate
authority having jurisdiction over the employee. While so
detailed, an employee shall continue to receive the
compensation provided pursuant to law for the employee's
regular position of employment and shall retain, without
interruption, the rights and privileges of that employment.

``SEC. 210. REPORTS.

``(a) Annual Report.--The Commission shall submit a report
on its activities to the Senate Committee on Commerce,
Science, and Transportation and the House of Representatives
Committee on Commerce each year. The annual report shall
include--
``(1) a detailed discussion of the activities of the
Commission for the year covered by the report; and
``(2) an overview of the licensing and enforcement
activities of the State and tribal organization boxing
commissions.
``(b) Public Report.--The Commission shall annually issue
and publicize a report of the Commission on the progress made
at Federal and State levels and on Indian lands in the reform
of professional boxing, which shall include comments on
issues of continuing concern to the Commission.
``(c) First Annual Report on the Commission.--The first
annual report under this title shall be submitted not later
than 2 years after the effective date of this title.

``SEC. 211. INITIAL IMPLEMENTATION.

``(a) Temporary exemption.--The requirements for licensing
under this title do not apply to a person for the performance
of an activity as a boxer, boxing judge, or referee, or the
performance of any other professional activity in relation to
a professional boxing match, if the person is licensed by a
boxing commission to perform that activity as of the
effective date of this title.
``(b) Expiration.--The exemption under subsection (a) with
respect to a license issued by a boxing commission expires on
the earlier of--
``(1) the date on which the license expires; or
``(2) the date that is 2 years after the date of the
enactment of the Professional Boxing Amendments Act of 2005.

``SEC. 212. AUTHORIZATION OF APPROPRIATIONS.

``(a) In General.--There are authorized to be appropriated
for the Commission for each fiscal year such sums as may be
necessary for the Commission to perform its functions for
that fiscal year.
``(b) Receipts Credited as Offsetting Collections.--
Notwithstanding section 3302 of title 31, United States Code,
any fee collected under this title--
``(1) shall be credited as offsetting collections to the
account that finances the activities and services for which
the fee is imposed;
``(2) shall be available for expenditure only to pay the
costs of activities and services for which the fee is
imposed; and
``(3) shall remain available until expended.''.
(b) Conforming Amendments.--
(1) PBSA.--The Professional Boxing Safety Act of 1996, as
amended by this Act, is further amended--
(A) by amending section 1 to read as follows:

``SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

``(a) Short Title.--This Act may be cited as the
`Professional Boxing Safety Act'.
``(b) Table of Contents.--The table of contents for this
Act is as follows:

``Sec. 1. Short title; table of contents.
``Sec. 2. Definitions.

``TITLE I--PROFESSIONAL BOXING SAFETY

``Sec. 101. Purposes.
``Sec. 102. Approval or sanction requirement.
``Sec. 103. Safety standards.
``Sec. 104. Registration.
``Sec. 105. Review.
``Sec. 106. Reporting.
``Sec. 107. Contract requirements.
``Sec. 108. Protection from coercive contracts.
``Sec. 109. Sanctioning organizations.
``Sec. 110. Required disclosures to State boxing commissions by
sanctioning organizations.
``Sec. 111. Required disclosures by promoters and broadcasters.
``Sec. 112. Medical registry.
``Sec. 113. Confidentiality.
``Sec. 114. Judges and referees.

[[Page S465]]

``Sec. 115. Conflicts of interest.
``Sec. 116. Enforcement.
``Sec. 117. Professional boxing matches conducted on Indian lands.
``Sec. 118. Relationship with State or Tribal law.

``TITLE II--UNITED STATES BOXING COMMISSION

``Sec. 201. Purpose.
``Sec. 202. United States Boxing Commission.
``Sec. 203. Functions.
``Sec. 204. Licensing and registration of boxing personnel.
``Sec. 205. National registry of boxing personnel.
``Sec. 206. Consultation requirements.
``Sec. 207. Misconduct.
``Sec. 208. Noninterference with boxing commissions
``Sec. 209. Assistance from other agencies.
``Sec. 210. Reports.
``Sec. 211. Initial implementation.
``Sec. 212. Authorization of appropriations.'';

(B) by inserting before section 3 the following:
``TITLE I--PROFESSIONAL BOXING SAFETY'';
(C) by redesignating sections 3, 4, 5, 6, 7, 8, 9, 10, 11,
12, 13, 14, 15, 16, 17, 18, 21, and 22 as sections 101
through 118, respectively;
(D) by striking subsection (a) of section 113, as
redesignated, and inserting the following:
``(a) In General.--Except to the extent required in a
legal, administrative, or judicial proceeding, a boxing
commission, an Attorney General, or the Commission may not
disclose to the public any matter furnished by a promoter
under section 111.'';
(E) by striking ``section 13'' in subsection (b) of section
113, as redesignated, and inserting ``section 111'';
(F) by striking ``9(b), 10, 11, 12, 13, 14, or 16,'' in
paragraph (1) of section 116(b), as redesignated, and
inserting ``107, 108, 109, 110, 111, or 114,'';
(G) by striking ``9(b), 10, 11, 12, 13, 14, or 16'' in
paragraph (2) of section 116(b), as redesignated, and
inserting ``107, 108, 109, 110, 111, or 114'';
(H) by striking ``section 17(a)'' in subsection (b)(3) of
section 116, as redesignated, and inserting ``section
115(a)'';
(I) by striking ``section 10'' in subsection (e)(3) of
section 116, as redesignated, and inserting ``section 108'';
and
(J) by striking ``of this Act'' each place it appears in
sections 101 through 120, as redesignated, and inserting ``of
this title''.
(2) Compensation of Members.--Section 5315 of title 5,
United States Code, is amended by adding at the end the
following:
``Members of the United States Boxing Commission.''.

SEC. 22. STUDY AND REPORT ON DEFINITION OF PROMOTER.

(a) Study.--The United States Boxing Commission shall
conduct a study on how the term ``promoter'' should be
defined for purposes of the Professional Boxing Safety Act.
(b) Hearings.--As part of that study, the Commission shall
hold hearings and solicit testimony at those hearings from
boxers, managers, promoters, premium, cable, and satellite
program service providers, hotels, casinos, resorts, and
other commercial establishments that host or sponsor
professional boxing matches, and other interested parties
with respect to the definition of that term as it is used in
the Professional Boxing Safety Act.
(c) Report.--Not later than 12 months after the date of the
enactment of this Act, the Commission shall submit to the
Committee on Commerce, Science, and Transportation of the
Senate and the Committee on Energy and Commerce of the House
of Representatives a report on the study conducted under
subsection (a). The report shall--
(1) set forth a proposed definition of the term
``promoter'' for purposes of the Professional Boxing Safety
Act; and
(2) describe the findings, conclusions, and rationale of
the Commission for the proposed definition, together with any
recommendations of the Commission, based on the study.

SEC. 23. EFFECTIVE DATE.

(a) In General.--Except as provided in subsection (b), the
amendments made by this Act shall take effect on the date of
enactment of this Act.
(b) 1-year Delay for Certain Title II Provisions.--Sections
205 through 212 of the Professional Boxing Safety Act of
1996, as added by section 21(a) of this Act, shall take
effect 1 year after the date of enactment of this Act.
______

By Mr. JEFFORDS (for himself, Ms. Collins, Mr. Lieberman, Ms.
Snowe, Mr. Schumer, Mr. Biden, Mrs. Boxer, Mrs. Clinton, Mr.
Corzine, Mr. Dodd, Mr. Feingold, Mrs. Feinstein, Mr. Kennedy,
Mr. Kerry, Mr. Lautenberg, Mr. Leahy, Mr. Reed, and Mr.
Sarbanes):
S. 150. A bill to amend the Clean Air Act to reduce emissions from
electric powerplants, and for other purposes; to the Committee on
Environment and Public Works.
Mr. JEFFORDS. Mr. President, I am both sad and happy to re-introduce
the Clean Power Act again with Senators Lieberman and Collins and the
other 16 cosponsors of the legislation from the last Congress. I am
happy that they are all still as committed as I am to the fight to
reduce pollution and to protect the public's health and to clean up and
conserve the environment for future generations.
I am sad that we have not made more progress in this fight to reduce
harmful emissions of sulfur dioxides (SOX), nitrogen oxides
(NOX), mercury, and carbon dioxide from fossil fuel power
plants. More than 25,000 people are dying prematurely every year
because of fine particulate pollution (PM-2.5) that is
emitted by power plants in the form of SOX and
NOX. More than 4,000 people are dying of heart attacks due
to ozone exposure, part of which is caused by power plant emissions.
And, over 160 million people are living in areas with unhealthy air
quality.
Acid rain continues to fall on our forests and lakes stressing
ecosystems in the Northeast and the Southeast. Nearly all the States
have some kind of fish consumption warning or advisory due to mercury
contamination. And, earlier this week, the chairman of the
International Panel on Climate Change, who was placed at the request of
the Bush Administration, said that he personally believes that the
world has ``already reached the level of dangerous concentrations of
carbon dioxide in the atmosphere.''
I am sad because there has been zero movement on multi-pollutant
legislation in Congress since this legislation was approved by the
Senate Committee on Environment and Public Works in June 2002 in
basically the same form we are introducing. As Senators may be aware,
prior to that Committee action, I and Senator Reid before me, sought to
engage in a bipartisan dialogue to move four pollutant legislation.
Though the President promised to support such legislation while a
candidate in 2000, he reversed himself on that pledge in early 2001.
Since early 2001, the Administration refused to negotiate, to
consider compromise or even to respond to legitimate requests for
information or timely technical assistance. Instead, they have
concentrated their efforts on undermining the Clean Air Act with a
particularly focus on gutting New Source Review. They have not shown
any real interest in legislating in this matter.
I am sad that the Administration's general approach has been to go
backward before 1990, to undue President Bush Sr.'s legacy. That is not
what the American people want and it is not what they and their
children deserve. They deserve better. They deserve the promise of the
Clean Air Act which is constant improvement and moving forward to
provide safe air for everyone to breathe.
It is long past time that all power plants in this country meet
modern emission performance standards. There is simply no excuse in a
technologically advanced society like ours to have power plants running
on 1930s technology. It should be embarrassing for us all and requires
a swift and concerted effort and significantly more funding than the
Administration and Congress have appropriated thus far to maximize the
use of all of our energy resources, including coal and renewables, in
an environmentally friendly way.
Simply letting these old dirty dinosaurs keep chugging along is bad
for public health and the environment and bad for innovation and the
development of new technologies. It is a stone age response to a modern
day problem.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 150

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Clean Power Act of 2005''.

SEC. 2. ELECTRIC ENERGY GENERATION EMISSION REDUCTIONS.

(a) In General.--The Clean Air Act (42 U.S.C. 7401 et seq.)
is amended by adding at the end the following:

``TITLE VII--ELECTRIC ENERGY GENERATION EMISSION REDUCTIONS

``Sec. 701. Findings.
``Sec. 702. Purposes.
``Sec. 703. Definitions.

[[Page S466]]

``Sec. 704. Emission limitations.
``Sec. 705. Emission allowances.
``Sec. 706. Permitting and trading of emission allowances.
``Sec. 707. Emission allowance allocation.
``Sec. 708. Mercury emission limitations.
``Sec. 709. Other hazardous air pollutants.
``Sec. 710. Effect of failure to promulgate regulations.
``Sec. 711. Prohibitions.
``Sec. 712. Modernization of electricity generating facilities.
``Sec. 713. Relationship to other law.

``SEC. 701. FINDINGS.

``Congress finds that--
``(1) public health and the environment continue to suffer
as a result of pollution emitted by powerplants across the
United States, despite the success of Public Law 101-549
(commonly known as the `Clean Air Act Amendments of 1990')
(42 U.S.C. 7401 et seq.) in reducing emissions;
``(2) according to the most reliable scientific knowledge,
acid rain precursors must be significantly reduced for the
ecosystems of the Northeast and Southeast to recover from the
ecological harm caused by acid deposition;
``(3) because lakes and sediments across the United States
are being contaminated by mercury emitted by powerplants,
there is an increasing risk of mercury poisoning of aquatic
habitats and fish-consuming human populations;
``(4)(A) electricity generation accounts for approximately
40 percent of the total emissions in the United States of
carbon dioxide, a major greenhouse gas causing global
warming; and
``(B) the quantity of carbon dioxide in the atmosphere is
growing without constraint and well beyond the international
commitments of the United States;
``(5) the cumulative impact of powerplant emissions on
public and environmental health must be addressed swiftly by
reducing those harmful emissions to levels that are less
threatening; and
``(6)(A) the atmosphere is a public resource; and
``(B) emission allowances, representing permission to use
that resource for disposal of air pollution from electricity
generation, should be allocated to promote public purposes,
including--
``(i) protecting electricity consumers from adverse
economic impacts;
``(ii) providing transition assistance to adversely
affected employees, communities, and industries; and
``(iii) promoting clean energy resources and energy
efficiency.

``SEC. 702. PURPOSES.

``The purposes of this title are--
``(1) to alleviate the environmental and public health
damage caused by emissions of sulfur dioxide, nitrogen
oxides, carbon dioxide, and mercury resulting from the
combustion of fossil fuels in the generation of electric and
thermal energy;
``(2) to reduce by 2010 the annual national emissions from
electricity generating facilities to not more than--
``(A) 2,250,000 tons of sulfur dioxide;
``(B) 1,510,000 tons of nitrogen oxides; and
``(C) 2,050,000,000 tons of carbon dioxide;
``(3) to reduce by 2009 the annual national emissions of
mercury from electricity generating facilities to not more
than 5 tons;
``(4) to effectuate the reductions described in paragraphs
(2) and (3) by--
``(A) requiring electricity generating facilities to comply
with specified emission limitations by specified deadlines;
and
``(B) allowing electricity generating facilities to meet
the emission limitations (other than the emission limitation
for mercury) through an alternative method of compliance
consisting of an emission allowance and transfer system; and
``(5) to encourage energy conservation, use of renewable
and clean alternative technologies, and pollution prevention
as long-range strategies, consistent with this title, for
reducing air pollution and other adverse impacts of energy
generation and use.

``SEC. 703. DEFINITIONS.

``In this title:
``(1) Covered pollutant.--The term `covered pollutant'
means--
``(A) sulfur dioxide;
``(B) any nitrogen oxide;
``(C) carbon dioxide; and
``(D) mercury.
``(2) Electricity generating facility.--The term
`electricity generating facility' means an electric or
thermal electricity generating unit, a combination of such
units, or a combination of 1 or more such units and 1 or more
combustion devices, that--
``(A) has a nameplate capacity of 15 megawatts or more (or
the equivalent in thermal energy generation, determined in
accordance with a methodology developed by the
Administrator);
``(B) generates electric energy, for sale, through
combustion of fossil fuel; and
``(C) emits a covered pollutant into the atmosphere.
``(3) Electricity intensive product.--The term `electricity
intensive product' means a product with respect to which the
cost of electricity consumed in the production of the product
represents more than 5 percent of the value of the product.
``(4) Emission allowance.--The term `emission allowance'
means a limited authorization to emit in accordance with this
title--
``(A) 1 ton of sulfur dioxide;
``(B) 1 ton of nitrogen oxides; or
``(C) 1 ton of carbon dioxide.
``(5) Energy efficiency project.--The term `energy
efficiency project' means any specific action (other than
ownership or operation of an energy efficient building)
commenced after the date of enactment of this title--
``(A) at a facility (other than an electricity generating
facility), that verifiably reduces the annual electricity or
natural gas consumption per unit output of the facility, as
compared with the annual electricity or natural gas
consumption per unit output that would be expected in the
absence of an allocation of emission allowances (as
determined by the Administrator); or
``(B) by an entity that is primarily engaged in the
transmission and distribution of electricity, that
significantly improves the efficiency of that type of entity,
as compared with standards for efficiency developed by the
Administrator, in consultation with the Secretary of Energy,
after the date of enactment of this title.
``(6) Energy efficient building.--The term `energy
efficient building' means a residential building or
commercial building completed after the date of enactment of
this title for which the projected lifetime consumption of
electricity or natural gas for heating, cooling, and
ventilation is at least 30 percent less than the lifetime
consumption of a typical new residential building or
commercial building, as determined by the Administrator (in
consultation with the Secretary of Energy)--
``(A) on a State or regional basis; and
``(B) taking into consideration--
``(i) applicable building codes; and
``(ii) consumption levels achieved in practice by new
residential buildings or commercial buildings in the absence
of an allocation of emission allowances.
``(7) Energy efficient product.--The term `energy efficient
product' means a product manufactured after the date of
enactment of this title that has an expected lifetime
electricity or natural gas consumption that--
``(A) is less than the average lifetime electricity or
natural gas consumption for that type of product; and
``(B) does not exceed the lesser of--
``(i) the maximum energy consumption that qualifies for the
applicable Energy Star label for that type of product; or
``(ii) the average energy consumption of the most efficient
25 percent of that type of product manufactured in the same
year.
``(8) Lifetime.--The term `lifetime' means--
``(A) in the case of a residential building that is an
energy efficient building, 30 years;
``(B) in the case of a commercial building that is an
energy efficient building, 15 years; and
``(C) in the case of an energy efficient product, a period
determined by the Administrator to be the average life of
that type of energy efficient product.
``(9) Mercury.--The term `mercury' includes any mercury
compound.
``(10) New clean fossil fuel-fired electricity generating
unit.--The term `new clean fossil fuel-fired electricity
generating unit' means a unit that--
``(A) has been in operation for 10 years or less; and
``(B) is--
``(i) a natural gas fired generator that--

``(I) has an energy conversion efficiency of at least 55
percent; and
``(II) uses best available control technology (as defined
in section 169);

``(ii) a generator that--

``(I) uses integrated gasification combined cycle
technology;
``(II) uses best available control technology (as defined
in section 169); and
``(III) has an energy conversion efficiency of at least 45
percent; or

``(iii) a fuel cell operating on fuel derived from a
nonrenewable source of energy.
``(11) Nonwestern region.--The term `nonwestern region'
means the area of the States that is not included in the
western region.
``(12) Renewable electricity generating unit.--The term
`renewable electricity generating unit' means a unit that--
``(A) has been in operation for 10 years or less; and
``(B) generates electric energy by means of--
``(i) wind;
``(ii) biomass;
``(iii) landfill gas;
``(iv) a geothermal, solar thermal, or photovoltaic source;
or
``(v) a fuel cell operating on fuel derived from a
renewable source of energy.
``(13) Small electricity generating facility.--The term
`small electricity generating facility' means an electric or
thermal electricity generating unit, or combination of units,
that--
``(A) has a nameplate capacity of less than 15 megawatts
(or the equivalent in thermal energy generation, determined
in accordance with a methodology developed by the
Administrator);
``(B) generates electric energy, for sale, through
combustion of fossil fuel; and
``(C) emits a covered pollutant into the atmosphere.
``(14) Western region.--The term `western region' means the
area comprising the States of Arizona, California, Colorado,
Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington,
and Wyoming.

[[Page S467]]

``SEC. 704. EMISSION LIMITATIONS.

``(a) In General.--Subject to subsections (b) and (c), the
Administrator shall promulgate regulations to ensure that,
during 2010 and each year thereafter, the total annual
emissions of covered pollutants from all electricity
generating facilities located in all States does not exceed--
``(1) in the case of sulfur dioxide--
``(A) 275,000 tons in the western region; or
``(B) 1,975,000 tons in the nonwestern region;
``(2) in the case of nitrogen oxides, 1,510,000 tons;
``(3) in the case of carbon dioxide, 2,050,000,000 tons; or
``(4) in the case of mercury, 5 tons.
``(b) Excess Emissions Based on Unused Allowances.--The
regulations promulgated under subsection (a) shall authorize
emissions of covered pollutants in excess of the national
emission limitations established under that subsection for a
year to the extent that the number of tons of the excess
emissions is less than or equal to the number of emission
allowances that are--
``(1) used in the year; but
``(2) allocated for any previous year under section 707.
``(c) Reductions.--For 2010 and each year thereafter, the
quantity of emissions specified for each covered pollutant in
subsection (a) shall be reduced by the sum of--
``(1) the number of tons of the covered pollutant that were
emitted by small electricity generating facilities in the
second preceding year; and
``(2) any number of tons of reductions in emissions of the
covered pollutant required under section 705(h).

``SEC. 705. EMISSION ALLOWANCES.

``(a) Creation and Allocation.--
``(1) In general.--For 2010 and each year thereafter,
subject to paragraph (2), there are created, and the
Administrator shall allocate in accordance with section 707,
emission allowances as follows:
``(A) In the case of sulfur dioxide--
``(i) 275,000 emission allowances for each year for use in
the western region; and
``(ii) 1,975,000 emission allowances for each year for use
in the nonwestern region.
``(B) In the case of nitrogen oxides, 1,510,000 emission
allowances for each year.
``(C) In the case of carbon dioxide, 2,050,000,000 emission
allowances for each year.
``(2) Reductions.--For 2010 and each year thereafter, the
number of emission allowances specified for each covered
pollutant in paragraph (1) shall be reduced by a number equal
to the sum of--
``(A) the number of tons of the covered pollutant that were
emitted by small electricity generating facilities in the
second preceding year; and
``(B) any number of tons of reductions in emissions of the
covered pollutant required under subsection (h).
``(b) Nature of Emission Allowances.--
``(1) Not a property right.--An emission allowance
allocated by the Administrator under subsection (a) is not a
property right.
``(2) No limit on authority to terminate or limit.--Nothing
in this title or any other provision of law limits the
authority of the United States to terminate or limit an
emission allowance.
``(3) Tracking and transfer of emission allowances.--
``(A) In general.--Not later than 1 year after the date of
enactment of this title, the Administrator shall promulgate
regulations to establish an emission allowance tracking and
transfer system for emission allowances of sulfur dioxide,
nitrogen oxides, and carbon dioxide.
``(B) Requirements.--The emission allowance tracking and
transfer system established under subparagraph (A) shall--
``(i) incorporate the requirements of subsections (b) and
(d) of section 412 (except that written certification by the
transferee shall not be necessary to effect a transfer); and
``(ii) permit any entity--

``(I) to buy, sell, or hold an emission allowance; and
``(II) to permanently retire an unused emission allowance.

``(C) Proceeds of transfers.--Proceeds from the transfer of
emission allowances by any person to which the emission
allowances have been allocated--
``(i) shall not constitute funds of the United States; and
``(ii) shall not be available to meet any obligations of
the United States.
``(c) Identification and Use.--
``(1) In general.--Each emission allowance allocated by the
Administrator shall bear a unique serial number, including--
``(A) an identifier of the covered pollutant to which the
emission allowance pertains; and
``(B) the first year for which the allowance may be used.
``(2) Sulfur dioxide emission allowances.--In the case of
sulfur dioxide emission allowances, the Administrator shall
ensure that the emission allowances allocated to electricity
generating facilities in the western region are
distinguishable from emission allowances allocated to
electricity generating facilities in the nonwestern region.
``(3) Year of use.--Each emission allowance may be used in
the year for which the emission allowance is allocated or in
any subsequent year.
``(d) Annual Submission of Emission Allowances.--
``(1) In general.--On or before April 1, 2011, and April 1
of each year thereafter, the owner or operator of each
electricity generating facility shall submit to the
Administrator 1 emission allowance for the applicable covered
pollutant (other than mercury) for each ton of sulfur
dioxide, nitrogen oxides, or carbon dioxide emitted by the
electricity generating facility during the previous calendar
year.
``(2) Special rule for ozone exceedances.--
``(A) Identification of facilities contributing to
nonattainment.--Not later than December 31, 2009, and the end
of each 3-year period thereafter, each State, consistent with
the obligations of the State under section 110(a)(2)(D),
shall identify the electricity generating facilities in the
State and in other States that are significantly contributing
(as determined based on guidance issued by the Administrator)
to nonattainment of the national ambient air quality standard
for ozone in the State.
``(B) Submission of additional allowances.--In 2010 and
each year thereafter, on petition from a State or a person
demonstrating that the control measures in effect at an
electricity generating facility that is identified under
subparagraph (A) as significantly contributing to
nonattainment of the national ambient air quality standard
for ozone in a State during the previous year are inadequate
to prevent the significant contribution described in
subparagraph (A), the Administrator, if the Administrator
determines that the electricity generating facility is
inadequately controlled for nitrogen oxides, may require that
the electricity generating facility submit 3 nitrogen oxide
emission allowances for each ton of nitrogen oxides emitted
by the electricity generating facility during any period of
an exceedance of the national ambient air quality standard
for ozone in the State during the previous year.
``(3) Regional limitations for sulfur dioxide.--The
Administrator shall not allow--
``(A) the use of sulfur dioxide emission allowances
allocated for the western region to meet the obligations
under this subsection of electricity generating facilities in
the nonwestern region; or
``(B) the use of sulfur dioxide emission allowances
allocated for the nonwestern region to meet the obligations
under this subsection of electricity generating facilities in
the western region.
``(e) Emission Verification, Monitoring, and
Recordkeeping.--
``(1) In general.--The Administrator shall ensure that
Federal regulations, in combination with any applicable State
regulations, are adequate to verify, monitor, and document
emissions of covered pollutants from electricity generating
facilities.
``(2) Inventory of emissions from small electricity
generating facilities.--On or before July 1, 2006, the
Administrator, in cooperation with State agencies, shall
complete, and on an annual basis update, a comprehensive
inventory of emissions of sulfur dioxide, nitrogen oxides,
carbon dioxide, and particulate matter from small electricity
generating facilities.
``(3) Monitoring information.--
``(A) In general.--Not later than 180 days after the date
of enactment of this title, the Administrator shall
promulgate regulations to require each electricity generating
facility to submit to the Administrator--
``(i) not later than April 1 of each year, verifiable
information on covered pollutants emitted by the electricity
generating facility in the previous year, expressed in--

``(I) tons of covered pollutants; and
``(II) tons of covered pollutants per megawatt hour of
energy (or the equivalent thermal energy) generated; and

``(ii) as part of the first submission under clause (i),
verifiable information on covered pollutants emitted by the
electricity generating facility in 2002, 2003, and 2004, if
the electricity generating facility was required to report
that information in those years.
``(B) Source of information.--Information submitted under
subparagraph (A) shall be obtained using a continuous
emission monitoring system (as defined in section 402).
``(C) Availability to the public.--The information
described in subparagraph (A) shall be made available to the
public--
``(i) in the case of the first year in which the
information is required to be submitted under that
subparagraph, not later than 18 months after the date of
enactment of this title; and
``(ii) in the case of each year thereafter, not later than
April 1 of the year.
``(4) Ambient air quality monitoring for sulfur dioxide and
hazardous air pollutants.--
``(A) In general.--Beginning January 1, 2006, each coal-
fired electricity generating facility with an aggregate
generating capacity of 50 megawatts or more shall, in
accordance with guidelines issued by the Administrator,
commence ambient air quality monitoring within a 30-mile
radius of the coal-fired electricity generating facility for
the purpose of measuring maximum concentrations of sulfur
dioxide and hazardous air pollutants emitted by the coal-
fired electricity generating facility.
``(B) Location of monitoring points.--Monitoring under
subparagraph (A) shall include monitoring at not fewer than 2
points--
``(i) that are at ground level and within 3 miles of the
coal-fired electricity generating facility;

[[Page S468]]

``(ii) at which the concentration of pollutants being
monitored is expected to be the greatest; and
``(iii) at which the monitoring shall be the most frequent.
``(C) Frequency of monitoring of sulfur dioxide.--
Monitoring of sulfur dioxide under subparagraph (A) shall be
carried out on a continuous basis and averaged over 5-minute
periods.
``(D) Availability to the public.--The results of the
monitoring under subparagraph (A) shall be made available to
the public.
``(f) Excess Emission Penalty.--
``(1) In general.--Subject to paragraph (2), section 411
shall be applicable to an owner or operator of an electricity
generating facility.
``(2) Calculation of penalty.--
``(A) In general.--Except as provided in subparagraph (B),
the penalty for failure to submit emission allowances for
covered pollutants as required under subsection (d) shall be
equal to 3 times the product obtained by multiplying--
``(i) as applicable--

``(I) the number of tons emitted in excess of the emission
limitation requirement applicable to the electricity
generating facility; or
``(II) the number of emission allowances that the owner or
operator failed to submit; and

``(ii) the average annual market price of emission
allowances (as determined by the Administrator).
``(B) Mercury.--In the case of mercury, the penalty shall
be equal to 3 times the product obtained by multiplying--
``(i) the number of grams emitted in excess of the emission
limitation requirement for mercury applicable to the
electricity generating facility; and
``(ii) the average cost of mercury controls at electricity
generating units that have a nameplate capacity of 15
megawatts or more in all States (as determined by the
Administrator).
``(g) Significant Adverse Local Impacts.--
``(1) In general.--If the Administrator determines that
emissions of an electricity generating facility may
reasonably be anticipated to cause or contribute to a
significant adverse impact on an area (including endangerment
of public health, contribution to acid deposition in a
sensitive receptor area, and other degradation of the
environment), the Administrator shall limit the emissions of
the electricity generating facility as necessary to avoid
that impact.
``(2) Violation.--Notwithstanding the availability of
emission allowances, it shall be a violation of this Act for
any electricity generating facility to exceed any limitation
on emissions established under paragraph (1).
``(h) Additional Reductions.--
``(1) Protection of public health or welfare or the
environment.--If the Administrator determines that the
emission levels necessary to achieve the national emission
limitations established under section 704 are not reasonably
anticipated to protect public health or welfare or the
environment (including protection of children, pregnant
women, minority or low-income communities, and other
sensitive populations), the Administrator may require
reductions in emissions from electricity generating
facilities in addition to the reductions required under the
other provisions of this title.
``(2) Emission allowance trading.--
``(A) Studies.--
``(i) In general.--In 2013 and at the end of each 3-year
period thereafter, the Administrator shall complete a study
of the impacts of the emission allowance trading authorized
under this title.
``(ii) Required assessment.--The study shall include an
assessment of ambient air quality in areas surrounding
electricity generating facilities that participate in
emission allowance trading, including a comparison between--

``(I) the ambient air quality in those areas; and
``(II) the national average ambient air quality.

``(B) Limitation on emissions.--If the Administrator
determines, based on the results of a study under
subparagraph (A), that adverse local impacts result from
emission allowance trading, the Administrator may require
reductions in emissions from electricity generating
facilities in addition to the reductions required under the
other provisions of this title.
``(i) Use of certain other emission allowances.--
``(1) In general.--Subject to paragraph (2), emission
allowances or other emission trading instruments created
under title I or IV for sulfur dioxide or nitrogen oxides
shall not be valid for submission under subsection (d).
``(2) Emission allowances placed in reserve.--
``(A) In general.--Except as provided in subparagraph (B),
an emission allowance described in paragraph (1) that was
placed in reserve under section 404(a)(2) or 405 or through
regulations implementing controls on nitrogen oxides, because
an affected unit emitted fewer tons of sulfur dioxide or
nitrogen oxides than were permitted under an emission
limitation imposed under title I or IV before the date of
enactment of this title, shall be considered to be equivalent
to \1/4\ of an emission allowance created by subsection (a)
for sulfur dioxide or nitrogen oxides, respectively.
``(B) Emission allowances resulting from achievement of new
source performance standards.--If an emission allowance
described in subparagraph (A) was created and placed in
reserve during the period of 2001 through 2009 by the owner
or operator of an electricity generating facility through the
application of pollution control technology that resulted in
the achievement and maintenance by the electricity generating
facility of the applicable standards of performance required
of new sources under section 111, the emission allowance
shall be valid for submission under subsection (d).

``SEC. 706. PERMITTING AND TRADING OF EMISSION ALLOWANCES.

``(a) In General.--Not later than 1 year after the date of
enactment of this title, the Administrator shall promulgate
regulations to establish a permitting and emission allowance
trading compliance program to implement the limitations on
emissions of covered pollutants from electricity generating
facilities established under section 704.
``(b) Emission Allowance Trading With Facilities Other Than
Electricity Generating Facilities.--
``(1) In general.--Subject to paragraph (2) and section
705(i), the regulations promulgated to establish the program
under subsection (a) shall prohibit use of emission
allowances generated from other emission control programs for
the purpose of demonstrating compliance with the limitations
on emissions of covered pollutants from electricity
generating facilities established under section 704.
``(2) Exception for certain carbon dioxide emission control
programs.--The prohibition described in paragraph (1) shall
not apply in the case of carbon dioxide emission allowances
generated from an emission control program that limits total
carbon dioxide emissions from the entirety of any industrial
sector.
``(c) Methodology.--The program established under
subsection (a) shall clearly identify the methodology for the
allocation of emission allowances, including standards for
measuring annual electricity generation and energy efficiency
as the standards relate to emissions.

``SEC. 707. EMISSION ALLOWANCE ALLOCATION.

``(a) Allocation to Electricity Consumers.--
``(1) In general.--For 2010 and each year thereafter, after
making allocations of emission allowances under subsections
(b) through (f), the Administrator shall allocate the
remaining emission allowances created by section 705(a) for
the year for each covered pollutant other than mercury to
households served by electricity.
``(2) Allocation among households.--The allocation to each
household shall reflect--
``(A) the number of persons residing in the household; and
``(B) the ratio that--
``(i) the quantity of the residential electricity
consumption of the State in which the household is located;
bears to
``(ii) the quantity of the residential electricity
consumption of all States.
``(3) Regulations.--Not later than 1 year after the date of
enactment of this title, the Administrator shall promulgate
regulations making appropriate arrangements for the
allocation of emission allowances to households under this
subsection, including as necessary the appointment of 1 or
more trustees--
``(A) to receive the emission allowances for the benefit of
the households;
``(B) to obtain fair market value for the emission
allowances; and
``(C) to distribute the proceeds to the beneficiaries.
``(b) Allocation for Transition Assistance.--
``(1) In general.--For 2010 and each year thereafter
through 2019, the Administrator shall allocate the percentage
specified in paragraph (2) of the emission allowances created
by section 705(a) for the year for each covered pollutant
other than mercury in the following manner:
``(A) 80 percent shall be allocated to provide transition
assistance to--
``(i) dislocated workers (as defined in section 101 of the
Workforce Investment Act of 1998 (29 U.S.C. 2801)) whose
employment has been terminated or who have been laid off as a
result of the emission reductions required by this title; and
``(ii) communities that have experienced disproportionate
adverse economic impacts as a result of the emission
reductions required by this title.
``(B) 20 percent shall be allocated to producers of
electricity intensive products in a number equal to the
product obtained by multiplying--
``(i) the ratio that--

``(I) the quantity of each electricity intensive product
produced by each producer in the previous year; bears to
``(II) the quantity of the electricity intensive product
produced by all producers in the previous year;

``(ii) the average quantity of electricity used in
producing the electricity intensive product by producers that
use the most energy efficient process for producing the
electricity intensive product; and
``(iii) with respect to the previous year, the national
average quantity (expressed in tons) of emissions of each
such pollutant per megawatt hour of electricity generated by
electricity generating facilities in all States.
``(2) Specified percentages.--The percentages referred to
in paragraph (1) are--
``(A) in the case of 2010, 6 percent;

[[Page S469]]

``(B) in the case of 2011, 5.5 percent;
``(C) in the case of 2012, 5 percent;
``(D) in the case of 2013, 4.5 percent;
``(E) in the case of 2014, 4 percent;
``(F) in the case of 2015, 3.5 percent;
``(G) in the case of 2016, 3 percent;
``(H) in the case of 2017, 2.5 percent;
``(I) in the case of 2018, 2 percent; and
``(J) in the case of 2019, 1.5 percent.
``(3) Regulations for allocation for transition assistance
to dislocated workers and communities.--
``(A) In general.--Not later than 1 year after the date of
enactment of this title, the Administrator shall promulgate
regulations making appropriate arrangements for the
distribution of emission allowances under paragraph (1)(A),
including as necessary the appointment of 1 or more
trustees--
``(i) to receive the emission allowances allocated under
paragraph (1)(A) for the benefit of the dislocated workers
and communities;
``(ii) to obtain fair market value for the emission
allowances; and
``(iii) to apply the proceeds to providing transition
assistance to the dislocated workers and communities.
``(B) Form of transition assistance.--Transition assistance
under paragraph (1)(A) may take the form of--
``(i) grants to employers, employer associations, and
representatives of employees--

``(I) to provide training, adjustment assistance, and
employment services to dislocated workers; and
``(II) to make income-maintenance and needs-related
payments to dislocated workers; and

``(ii) grants to States and local governments to assist
communities in attracting new employers or providing
essential local government services.
``(c) Allocation to Renewable Electricity Generating Units,
Efficiency Projects, and Cleaner Energy Sources.--For 2010
and each year thereafter, the Administrator shall allocate
not more than 20 percent of the emission allowances created
by section 705(a) for the year for each covered pollutant
other than mercury--
``(1) to owners and operators of renewable electricity
generating units, in a number equal to the product obtained
by multiplying--
``(A) the number of megawatt hours of electricity generated
in the previous year by each renewable electricity generating
unit; and
``(B) with respect to the previous year, the national
average quantity (expressed in tons) of emissions of each
such pollutant per megawatt hour of electricity generated by
electricity generating facilities in all States;
``(2) to owners and operators of energy efficient
buildings, producers of energy efficient products, and
entities that carry out energy efficient projects, in a
number equal to the product obtained by multiplying--
``(A) the number of megawatt hours of electricity or cubic
feet of natural gas saved in the previous year as a result of
each energy efficient building, energy efficient product, or
energy efficiency project; and
``(B) with respect to the previous year, the national
average quantity (expressed in tons) of emissions of each
such pollutant per, as appropriate--
``(i) megawatt hour of electricity generated by electricity
generating facilities in all States; or
``(ii) cubic foot of natural gas burned for a purpose other
than generation of electricity in all States;
``(3) to owners and operators of new clean fossil fuel-
fired electricity generating units, in a number equal to the
product obtained by multiplying--
``(A) the number of megawatt hours of electricity generated
in the previous year by each new clean fossil fuel-fired
electricity generating unit; and
``(B) with respect to the previous year, \1/2\ of the
national average quantity (expressed in tons) of emissions of
each such pollutant per megawatt hour of electricity
generated by electricity generating facilities in all States;
and
``(4) to owners and operators of combined heat and power
electricity generating facilities, in a number equal to the
product obtained by multiplying--
``(A) the number of British thermal units of thermal energy
produced and put to productive use in the previous year by
each combined heat and power electricity generating facility;
and
``(B) with respect to the previous year, the national
average quantity (expressed in tons) of emissions of each
such pollutant per British thermal unit of thermal energy
generated by electricity generating facilities in all States.
``(d) Transition Assistance to Electricity Generating
Facilities.--
``(1) In general.--For 2010 and each year thereafter
through 2019, the Administrator shall allocate the percentage
specified in paragraph (2) of the emission allowances created
by section 705(a) for the year for each covered pollutant
other than mercury to the owners or operators of electricity
generating facilities in the ratio that--
``(A) the quantity of electricity generated by each
electricity generating facility in 2003; bears to
``(B) the quantity of electricity generated by all
electricity generating facilities in 2003.
``(2) Specified percentages.--The percentages referred to
in paragraph (1) are--
``(A) in the case of 2010, 10 percent;
``(B) in the case of 2011, 9 percent;
``(C) in the case of 2012, 8 percent;
``(D) in the case of 2013, 7 percent;
``(E) in the case of 2014, 6 percent;
``(F) in the case of 2015, 5 percent;
``(G) in the case of 2016, 4 percent;
``(H) in the case of 2017, 3 percent;
``(I) in the case of 2018, 2 percent; and
``(J) in the case of 2019, 1 percent.
``(e) Allocation to Encourage Biological Carbon
Sequestration.--
``(1) In general.--For 2010 and each year thereafter, the
Administrator shall allocate, on a competitive basis and in
accordance with paragraphs (2) and (3), not more than 0.075
percent of the carbon dioxide emission allowances created by
section 705(a) for the year for the purposes of--
``(A) carrying out projects to reduce net carbon dioxide
emissions through biological carbon dioxide sequestration in
the United States that--
``(i) result in benefits to watersheds and fish and
wildlife habitats; and
``(ii) are conducted in accordance with project reporting,
monitoring, and verification guidelines based on--

``(I) measurement of increases in carbon storage in excess
of the carbon storage that would have occurred in the absence
of such a project;
``(II) comprehensive carbon accounting that--

``(aa) reflects net increases in carbon reservoirs; and
``(bb) takes into account any carbon emissions resulting
from disturbance of carbon reservoirs in existence as of the
date of commencement of the project;

``(III) adjustments to account for--

``(aa) emissions of carbon that may result at other
locations as a result of the impact of the project on timber
supplies; or
``(bb) potential displacement of carbon emissions to other
land owned by the entity that carries out the project; and

``(IV) adjustments to reflect the expected carbon storage
over various time periods, taking into account the likely
duration of the storage of the carbon stored in a carbon
reservoir; and

``(B) conducting accurate inventories of carbon sinks.
``(2) Carbon inventory.--The Administrator, in consultation
with the Secretary of Agriculture, shall allocate not more
than \1/3\ of the emission allowances described in paragraph
(1) to not more than 5 State or multistate land or forest
management agencies or nonprofit entities that--
``(A) have a primary goal of land conservation; and
``(B) submit to the Administrator proposals for projects--
``(i) to demonstrate and assess the potential for the
development and use of carbon inventorying and accounting
systems;
``(ii) to improve the standards relating to, and the
identification of, incremental carbon sequestration in
forests, agricultural soil, grassland, or rangeland; or
``(iii) to assist in development of a national biological
carbon storage baseline or inventory.
``(3) Revolving loan program.--The Administrator shall
allocate not more than \2/3\ of the emission allowances
described in paragraph (1) to States, based on proposals
submitted by States to conduct programs under which each
State shall--
``(A) use the value of the emission allowances to establish
a State revolving loan fund to provide loans to owners of
nonindustrial private forest land in the State to carry out
forest and forest soil carbon sequestration activities that
will achieve the purposes specified in paragraph (2)(B); and
``(B) for 2011 and each year thereafter, contribute to the
program of the State an amount equal to 25 percent of the
value of the emission allowances received under this
paragraph for the year in cash, in-kind services, or
technical assistance.
``(4) Use of emission allowances.--An entity that receives
an allocation of emission allowances under this subsection
may use the proceeds from the sale or other transfer of the
emission allowances only for the purpose of carrying out
activities described in this subsection.
``(5) Recommendations concerning carbon dioxide emission
allowances.--
``(A) In general.--Not later than 4 years after the date of
enactment of this title, the Administrator, in consultation
with the Secretary of Agriculture, shall submit to Congress
recommendations for establishing a system under which
entities that receive grants or loans under this section may
be allocated carbon dioxide emission allowances created by
section 705(a) for incremental carbon sequestration in
forests, agricultural soils, rangeland, or grassland.
``(B) Guidelines.--The recommendations shall include
recommendations for development, reporting, monitoring, and
verification guidelines for quantifying net carbon
sequestration from land use projects that address the
elements specified in paragraph (1)(A).
``(f) Allocation to Encourage Geological Carbon
Sequestration.--
``(1) In general.--For 2010 and each year thereafter, the
Administrator shall allocate not more than 1.5 percent of the
carbon dioxide emission allowances created by section 705(a)
to entities that carry out geological sequestration of carbon
dioxide produced by an electric generating facility in
accordance with requirements established by the
Administrator--

[[Page S470]]

``(A) to ensure the permanence of the sequestration; and
``(B) to ensure that the sequestration will not cause or
contribute to significant adverse effects on the environment.
``(2) Number of emission allowances.--For 2010 and each
year thereafter, the Administrator shall allocate to each
entity described in paragraph (1) a number of emission
allowances that is equal to the number of tons of carbon
dioxide produced by the electric generating facility during
the previous year that is geologically sequestered as
described in paragraph (1).
``(3) Use of emission allowances.--An entity that receives
an allocation of emission allowances under this subsection
may use the proceeds from the sale or other transfer of the
emission allowances only for the purpose of carrying out
activities described in this subsection.

``SEC. 708. MERCURY EMISSION LIMITATIONS.

``(a) In General.--
``(1) Regulations.--
``(A) In general.--Not later than 1 year after the date of
enactment of this title, the Administrator shall promulgate
regulations to establish emission limitations for mercury
emissions by coal-fired electricity generating facilities.
``(B) No exceedance of national limitation.--The
regulations shall ensure that the national limitation for
mercury emissions from each coal-fired electricity generating
facility established under section 704(a)(4) is not exceeded.
``(C) Emission limitations for 2009 and thereafter.--In
carrying out subparagraph (A), for 2009 and each year
thereafter, the Administrator shall not--
``(i) subject to subsections (e) and (f) of section 112,
establish limitations on emissions of mercury from coal-fired
electricity generating facilities that allow emissions in
excess of 2.48 grams of mercury per 1000 megawatt hours; or
``(ii) differentiate between facilities that burn different
types of coal.
``(2) Annual review and determination.--
``(A) In general.--Not later than April 1 of each year, the
Administrator shall--
``(i) review the total mercury emissions during the 2
previous years from electricity generating facilities located
in all States; and
``(ii) determine whether, during the 2 previous years, the
total mercury emissions from facilities described in clause
(i) exceeded the national limitation for mercury emissions
established under section 704(a)(4).
``(B) Exceedance of national limitation.--If the
Administrator determines under subparagraph (A)(ii) that,
during the 2 previous years, the total mercury emissions from
facilities described in subparagraph (A)(i) exceeded the
national limitation for mercury emissions established under
section 704(a)(4), the Administrator shall, not later than 1
year after the date of the determination, revise the
regulations promulgated under paragraph (1) to reduce the
emission rates specified in the regulations as necessary to
ensure that the national limitation for mercury emissions is
not exceeded in any future year.
``(3) Compliance flexibility.--
``(A) In general.--Each coal-fired electricity generating
facility subject to an emission limitation under this section
shall be in compliance with that limitation if that
limitation is greater than or equal to the quotient obtained
by dividing--
``(i) the total mercury emissions of the coal-fired
electricity generating facility during each 30-day period; by
``(ii) the quantity of electricity generated by the coal-
fired electricity generating facility during that period.
``(B) More than 1 unit at a facility.--In any case in which
more than 1 coal-fired electricity generating unit at a coal-
fired electricity generating facility subject to an emission
limitation under this section was operated in 1999 under
common ownership or control, compliance with the emission
limitation may be determined by averaging the emission rates
of all coal-fired electricity generating units at the
electricity generating facility during each 30-day period.
``(b) Prevention of Re-Release.--
``(1) Regulations.--Not later than July 1, 2006, the
Administrator shall promulgate regulations to ensure that any
mercury captured or recovered by emission controls installed
at an electricity generating facility is not re-released into
the environment.
``(2) Required elements.--The regulations shall require--
``(A) daily covers on all active waste disposal units, and
permanent covers on all inactive waste disposal units, to
prevent the release of mercury into the air;
``(B) monitoring of groundwater to ensure that mercury or
mercury compounds do not migrate from the waste disposal
unit;
``(C) waste disposal siting requirements and cleanup
requirements to protect groundwater and surface water
resources;
``(D) elimination of agricultural application of coal
combustion wastes; and
``(E) appropriate limitations on mercury emissions from
sources or processes that reprocess or use coal combustion
waste, including manufacturers of wallboard and cement.

``SEC. 709. OTHER HAZARDOUS AIR POLLUTANTS.

``(a) In General.--Not later than January 1, 2006, the
Administrator shall issue to owners and operators of coal-
fired electricity generating facilities requests for
information under section 114 that are of sufficient scope to
generate data sufficient to support issuance of standards
under section 112(d) for hazardous air pollutants other than
mercury emitted by coal-fired electricity generating
facilities.
``(b) Deadline for Submission of Requested Information.--
The Administrator shall require each recipient of a request
for information described in subsection (a) to submit the
requested data not later than 180 days after the date of the
request.
``(c) Promulgation of Emission Standards.--The
Administrator shall--
``(1) not later than January 1, 2006, propose emission
standards under section 112(d) for hazardous air pollutants
other than mercury; and
``(2) not later than January 1, 2007, promulgate emission
standards under section 112(d) for hazardous air pollutants
other than mercury.
``(d) Prohibition on Excess Emissions.--It shall be
unlawful for an electricity generating facility subject to
standards for hazardous air pollutants other than mercury
promulgated under subsection (c) to emit, after December 31,
2008, any such pollutant in excess of the standards.
``(e) Effect on Other Law.--Nothing in this section or
section 708 affects any requirement of subsection (e),
(f)(2), or (n)(1)(A) of section 112, except that the emission
limitations established by regulations promulgated under this
section shall be deemed to represent the maximum achievable
control technology for mercury emissions from electricity
generating units under section 112(d).

``SEC. 710. EFFECT OF FAILURE TO PROMULGATE REGULATIONS.

``If the Administrator fails to promulgate regulations to
implement and enforce the limitations specified in section
704--
``(1)(A) each electricity generating facility shall
achieve, not later than January 1, 2010, an annual quantity
of emissions that is less than or equal to--
``(i) in the case of nitrogen oxides, 15 percent of the
annual emissions by a similar electricity generating facility
that has no controls for emissions of nitrogen oxides; and
``(ii) in the case of carbon dioxide, 75 percent of the
annual emissions by a similar electricity generating facility
that has no controls for emissions of carbon dioxide; and
``(B) each electricity generating facility that does not
use natural gas as the primary combustion fuel shall achieve,
not later than January 1, 2010, an annual quantity of
emissions that is less than or equal to--
``(i) in the case of sulfur dioxide, 5 percent of the
annual emissions by a similar electricity generating facility
that has no controls for emissions of sulfur dioxide; and
``(ii) in the case of mercury, 10 percent of the annual
emissions by a similar electricity generating facility that
has no controls included specifically for the purpose of
controlling emissions of mercury; and
``(2) the applicable permit under this Act for each
electricity generating facility shall be deemed to
incorporate a requirement for achievement of the reduced
levels of emissions specified in paragraph (1).

``SEC. 711. PROHIBITIONS.

``It shall be unlawful--
``(1) for the owner or operator of any electricity
generating facility--
``(A) to operate the electricity generating facility in
noncompliance with the requirements of this title (including
any regulations implementing this title);
``(B) to fail to submit by the required date any emission
allowances, or pay any penalty, for which the owner or
operator is liable under section 705;
``(C) to fail to provide and comply with any plan to offset
excess emissions required under section 705(f); or
``(D) to emit mercury in excess of the emission limitations
established under section 708; or
``(2) for any person to hold, use, or transfer any emission
allowance allocated under this title except in accordance
with regulations promulgated by the Administrator.

``SEC. 712. MODERNIZATION OF ELECTRICITY GENERATING
FACILITIES.

``(a) In General.--Beginning on the later of January 1,
2014, or the date that is 40 years after the date on which
the electricity generating facility commences operation, each
electricity generating facility shall be subject to emission
limitations reflecting the application of best available
control technology on a new major source of a similar size
and type (as determined by the Administrator) as determined
in accordance with the procedures specified in part C of
title I.
``(b) Additional Requirements.--The requirements of this
section shall be in addition to the other requirements of
this title.

``SEC. 713. RELATIONSHIP TO OTHER LAW.

``(a) In General.--Except as expressly provided in this
title, nothing in this title--
``(1) limits or otherwise affects the application of any
other provision of this Act; or
``(2) precludes a State from adopting and enforcing any
requirement for the control of emissions of air pollutants
that is more stringent than the requirements imposed under
this title.
``(b) Regional Seasonal Emission Controls.--Nothing in this
title affects any regional seasonal emission control for
nitrogen oxides established by the Administrator or a State
under title I.''.
(b) Conforming Amendment.--Section 412(a) of the Clean Air
Act (42 U.S.C. 7651k(a)) is amended in the first sentence by

[[Page S471]]

striking ``opacity'' and inserting ``mercury, opacity,''.

SEC. 3. SAVINGS CLAUSE.

Section 193 of the Clean Air Act (42 U.S.C. 7515) is
amended by striking ``date of the enactment of the Clean Air
Act Amendments of 1990'' each place it appears and inserting
``date of enactment of the Clean Power Act of 2005''.

SEC. 4. ACID PRECIPITATION RESEARCH PROGRAM.

Section 103(j) of the Clean Air Act (42 U.S.C. 7403(j)) is
amended--
(1) in paragraph (3)--
(A) in subparagraph (F)(i), by striking ``effects; and''
and inserting ``effects, including an assessment of--

``(I) acid-neutralizing capacity; and
``(II) changes in the number of water bodies in the
sensitive ecosystems referred to in subparagraph (G)(ii) with
an acid-neutralizing capacity greater than zero; and''; and

(B) by adding at the end the following:
``(G) Sensitive ecosystems.--
``(i) In general.--Beginning in 2006, and every 4 years
thereafter, the report under subparagraph (E) shall include--

``(I) an identification of environmental objectives
necessary to be achieved (and related indicators to be used
in measuring achievement of the objectives) to adequately
protect and restore sensitive ecosystems; and
``(II) an assessment of the status and trends of the
environmental objectives and indicators identified in
previous reports under this paragraph.

``(ii) Sensitive ecosystems to be addressed.--Sensitive
ecosystems to be addressed under clause (i) include--

``(I) the Adirondack Mountains, mid-Appalachian Mountains,
Rocky Mountains, and southern Blue Ridge Mountains;
``(II) the Great Lakes, Lake Champlain, Long Island Sound,
and the Chesapeake Bay; and
``(III) other sensitive ecosystems, as determined by the
Administrator.

``(H) Acid deposition standards.--Beginning in 2006, and
every 4 years thereafter, the report under subparagraph (E)
shall include a revision of the report under section 404 of
Public Law 101-549 (42 U.S.C. 7651 note) that includes a
reassessment of the health and chemistry of the lakes and
streams that were subjects of the original report under that
section.''; and
(2) by adding at the end the following:
``(4) Protection of sensitive ecosystems.--
``(A) Determination.--Not later than December 31, 2012, the
Administrator, taking into consideration the findings and
recommendations of the report revisions under paragraph
(3)(H), shall determine whether emission reductions under
titles IV and VII are sufficient to--
``(i) achieve the necessary reductions identified under
paragraph (3)(F); and
``(ii) ensure achievement of the environmental objectives
identified under paragraph (3)(G).
``(B) Regulations.--
``(i) In general.--Not later than 2 years after the
Administrator makes a determination under subparagraph (A)
that emission reductions are not sufficient, the
Administrator shall promulgate regulations to protect the
sensitive ecosystems referred to in paragraph (3)(G)(ii).
``(ii) Contents.--Regulations under clause (i) shall
include modifications to--

``(I) provisions relating to nitrogen oxide and sulfur
dioxide emission reductions;
``(II) provisions relating to allocations of nitrogen oxide
and sulfur dioxide allowances; and
``(III) such other provisions as the Administrator
determines to be necessary.''.

SEC. 5. AUTHORIZATION OF APPROPRIATIONS FOR DEPOSITION
MONITORING.

(a) Operational Support.--In addition to amounts made
available under any other law, there are authorized to be
appropriated for each of fiscal years 2006 through 2015--
(1) for operational support of the National Atmospheric
Deposition Program National Trends Network--
(A) $2,000,000 to the United States Geological Survey;
(B) $600,000 to the Environmental Protection Agency;
(C) $600,000 to the National Park Service; and
(D) $400,000 to the Forest Service;
(2) for operational support of the National Atmospheric
Deposition Program Mercury Deposition Network--
(A) $400,000 to the Environmental Protection Agency;
(B) $400,000 to the United States Geological Survey;
(C) $100,000 to the National Oceanic and Atmospheric
Administration; and
(D) $100,000 to the National Park Service;
(3) for the National Atmospheric Deposition Program
Atmospheric Integrated Research Monitoring Network $1,500,000
to the National Oceanic and Atmospheric Administration;
(4) for the Clean Air Status and Trends Network $5,000,000
to the Environmental Protection Agency; and
(5) for the Temporally Integrated Monitoring of Ecosystems
and Long-Term Monitoring Program $2,500,000 to the
Environmental Protection Agency.
(b) Modernization.--In addition to amounts made available
under any other law, there are authorized to be
appropriated--
(1) for equipment and site modernization of the National
Atmospheric Deposition Program National Trends Network
$6,000,000 to the Environmental Protection Agency;
(2) for equipment and site modernization and network
expansion of the National Atmospheric Deposition Program
Mercury Deposition Network $2,000,000 to the Environmental
Protection Agency;
(3) for equipment and site modernization and network
expansion of the National Atmospheric Deposition Program
Atmospheric Integrated Research Monitoring Network $1,000,000
to the National Oceanic and Atmospheric Administration; and
(4) for equipment and site modernization and network
expansion of the Clean Air Status and Trends Network
$4,600,000 to the Environmental Protection Agency.
(c) Availability of Amounts.--Each of the amounts
appropriated under subsection (b) shall remain available
until expended.

SEC. 6. TECHNICAL AMENDMENTS.

Title IV of the Clean Air Act (relating to noise pollution)
(42 U.S.C. 7641 et seq.)--
(1) is amended by redesignating sections 401 through 403 as
sections 801 through 803, respectively; and
(2) is redesignated as title VIII and moved to appear at
the end of that Act.

Ms. COLLINS. Mr. President, I rise today to join Senator Jeffords and
Senator Lieberman in introducing the Clean Power Act of 2005. This bill
closes the loophole that has allowed the dirtiest, most polluting power
plants in the Nation to escape significant pollution controls for more
than 30 years.
Maine is one of the most beautiful and pristine States in the Nation.
It is also one of the most environmentally responsible States in the
Nation. Maine has fewer emissions of the pollutants that cause smog and
acid rain than all but a handful of States. It also has one of the
lowest emissions of carbon dioxide nationwide.
Unfortunately, despite the collective environmental commitment of
both its citizens and industries, Maine still suffers from air
pollution. Every freshwater lake, river, and stream in Maine is subject
to a State mercury advisory that warns pregnant women and young
children to limit consumption of fish caught in those waters. Even
Acadia National Park, one of our most beautiful national parks,
experiences days in which visibility is obscured by smog.
Where does all this pollution come from? A large part of it comes
from a relatively small number of mostly coal-fired powerplants that
exploit loopholes to escape the provisions of the Clean Air Act. Coal-
fired powerplants are the single largest source of air pollution,
mercury contamination, and greenhouse gas emissions in the Nation. A
single coal-fired powerplant can emit more of the pollutants that cause
smog and acid rain than all of the cars, factories, and businesses in
Maine combined.
As the easternmost State in the Nation, Maine is downwind of almost
all powerplants in the United States. Many of the pollutants emitted by
these powerplants--mercury, sulfur dioxide, nitrogen oxides, and carbon
dioxide--end up in or over Maine. Airborne mercury falls into our lakes
and streams, contaminating freshwater fish and threatening our people's
health. Carbon dioxide is causing climate change that threatens to
alter Maine's delicate ecological balance. Sulfur dioxide and nitrogen
oxides come to Maine in the form of acid rain and smog that damage the
health of our people and the health of our environment.
A single powerplant can emit nearly a ton of mercury in a single
year. That's equivalent to incinerating over one million mercury
thermometers and is enough to contaminate millions of acres of
freshwater lakes. In contrast, Maine has zero powerplant emissions of
mercury. This bill would reduce mercury emissions from powerplants by
90 percent.
Powerplants are also one of the largest contributors of greenhouse
gas emissions in the United States. In fact, powerplants account for 40
percent of our carbon dioxide emissions, which scientists believe are
the primary cause of man-made global warming.
I recently had the opportunity to view firsthand some of the dramatic
impacts of global warming. In August, I traveled with Senator McCain
and several other Senators to the northernmost community in the world.
We visited Ny-Alesund on the Norwegian island of Spitsbergen. Located
at 79 deg.N, Ny-Alesund lies well north of the Arctic Circle and is
much closer to the North Pole than to Oslo, the country's

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capital. It has even served as a starting point for several polar
expeditions.
Scientists tell us that the global climate is changing more rapidly
than at any time since the beginning of civilization. They further
state that the region of the globe changing most rapidly is the Arctic.
The changes are remarkable and disturbing.
In the last 30 years, the Arctic has lost sea-ice cover over an area
10 times as large as the State of Maine. In the summer, the change is
even more dramatic, with twice as much ice loss. The ice that remains
is as much as 40% thinner than it was just a few decades ago. In
addition to disappearing sea-ice, Arctic glaciers are also rapidly
retreating. In Ny-Alesund, Senator McCain and I witnessed massive
blocks of ice falling off glaciers that had already retreated well back
from the shores where they once rested.
The Clean Power Act takes an important step in addressing global
warming by reducing powerplant emissions of carbon dioxide to 2000
levels by the year 2010. Although doing so will not solve the problem
of global warming, it is an important first step. In light of the rapid
warming in the Arctic and the significance that this warming portends
for the rest of the planet, reducing carbon dioxide emissions is a step
that we can no longer afford to put off.
I am pleased that the Senate Environment and Public Works Committee
will be considering clean air legislation in the 109th Congress. The
Jeffords-Collins-Lieberman bill does more to reduce smog, acid rain,
mercury pollution, and global warming than any other bill. Our bill
provides more public health and environmental benefits than any other
serious proposal, and it provides those benefits sooner.
I believe it is time to stop acid rain, free our lakes from mercury
pollution, reduce global warming, and eliminate the smog that drifts in
to obscure Maine skies and jeopardize our health. I look forward to
working with the administration and my colleagues on both sides of the
aisle to provide cleaner air.
Ms. SNOWE. Mr. President, I rise today to cosponsor Senator Jeffords'
bill--as I have in the last three Congresses--because I remain
dedicated to reducing power plant emissions that cause some of the
Nation's--and Maine's--most serious public health and environmental
problems.
For too many years, coal-burning power plants exempt from emissions
standards under the Clean Air Act have created massive pollution
problems for the Northeast because whatever spews out of their
smokestacks in the Midwest, blows into the Northeast, including my
State of Maine, giving it the dubious distinction of being at the ``end
of the tailpipe'', so to speak.
The Jeffords' legislation calls for reductions of power plant
emissions for pollutants that cause smog, soot, respiratory disease;
acid rain that kills our forests and may be affecting Atlantic salmon
streams; mercury that contaminates our lakes, rivers and streams; and
poses health risks to children and the unborn, and climate
variabilities from manmade carbon dioxide emissions that cause severe
shifts in our weather patterns. Maine currently leads the nation in
asthma cases per capita, which is not a surprise, but which it can do
little about when nearly 80 percent of the State's dirty air--some days
as high as 90 percent--is not of their own making but is transported by
winds blowing in from the Midwest and Southeast.
This bill will dramatically cut aggregate power plant emissions by
2010 for the four major power plant pollutants: nitrogen oxides
(NOX), the primary cause of smog, by 71 percent from 2000
levels; sulfur dioxide (SO2), that causes acid rain and
respiratory disease, by 81 percent from 2000 levels; mercury (Hg),
which poisons our lakes and rivers, causing fish to be unfit for human
consumption, through a 90 percent reduction by 2009; and carbon dioxide
(CO2), the greenhouse gas most directly linked to global
climate change, by 21 percent from 2000 levels. Of note, the
NOX, SO2, and mercury reductions are set at
levels that are known to be cost-effective with available technology.
The Clean Power Act will also eliminate the outdated coal-burning
power plants that were grandfathered in under the Clean Air Act unless
they apply the best available pollution control technology by their
40th birthday or 2014, whichever is later. The thinking for the
exemption in the Clean Air Act was based, at the time, on the
assumption that the plants would not stay on line much longer. However,
as energy has gotten more expensive, companies are keeping these older,
dirtier plants up and running.
Furthermore, just as the Clean Air Act already provides tradable
allowances for sulfur dioxide that causes acid rain, the Jeffords'
legislation also allows for tradable allowances to control emissions
for three other pollutants--NOX, SOX, and
CO2--by using market-oriented mechanisms to meet emissions
reduction requirements.
The tradable allowances would be distributed to five main categories,
including 63 percent or more to households; six percent for transition
assistance to affected communities and industries, which will decline
over time; up to 20 percent to renewable energy generation, efficiency
projects and cleaner energy sources, based on avoided pollution; 10
percent to existing electric generating facilities based on 2003
output; and up to 1.5 percent of the carbon dioxide allowances for
biological and geological carbon sequestration. Of note, trading will
not be allowed if it enables a power plant to pollute at a level that
damages public health or the environment.
I am disappointed that the Clear Skies initiative addresses neither
carbon dioxide as a pollutant nor anthropogenic emissions reductions
for CO2. While I recognize that the pollutants listed under
the Clean Air Act were chosen in order to achieve healthier air for
humans by cutting back on smog and soot, and also for mercury
contamination, I believe it is long past due that carbon dioxide be
recognized as a pollutant that is harming the health of the planet, and
indirectly, all of us.

I am supporting the goal of CO2 emissions reduction in the
Jeffords' bill in the hopes that the bill will be a rallying point to
further the debate for reducing CO2 and at the same time,
get our air cleaner on a quicker timeframe. In particular, Congress
needs to develop a market mechanism approach for CO2
emissions trading--such as we now have for acid rain--to allow U.S.
industries the flexibility and certainty to reduce CO2
emissions without the threat of higher energy production costs in the
future that will be passed on to the consumer. I will continue to work
with my colleagues, the White House and representatives from various
industry groups, and environmental organizations to achieve this goal.
The bottom line is that we have the opportunity to raise the bar for
cleaner domestic energy production in an economically effective manner.
Solutions exist in available and developing technologies, and most of
all in the entrepreneurial spirit of the American people who want a
cleaner and healthier environment, including those in Maine who want to
ensure that the State's pristine lakes and coast will remain clean and
our forests and fish healthy for generations to come.
My State of Maine is leading the way in attempting to reduce
CO2 emissions as it is the first state in the nation to
enact a law setting goals for the reduction of global warming
emissions, through An Act to Provide Leadership in Addressing the
Threat of Climate Change. The Act requires Maine to develop a climate
change action plan to reduce carbon dioxide emissions to 1990 levels by
2010, 10 percent below 1990 levels by 2020, and by as much as 75 to 80
percent over the long term. These are the cuts previously agreed to by
the New England Governors and Eastern Canadian Premiers. The State law
will also inventory and reduce CO2 emissions from state-
funded programs and facilities, and to spur at least 50 partnerships
with businesses and non-profit organizations to reduce CO2
emissions.
While Maine was the first to put into effect a comprehensive climate
change law, other states from the Northeast and around the country have
taken, or are currently taking, actions to address climate change at
the state or regional level. The Jeffords' legislation calls for
Federal leadership as well and sends a powerful message to those who
would heavily pollute our air: your days are numbered.
I am optimistic that the Congress can come together with the
President, industry and all those who want cleaner, healthier air to
create a cohesive

[[Page S473]]

policy that is best suited for our nation, and I urge my colleagues to
support the Jeffords' four-pollutant legislation.
______

By Mr. COLEMAN (for himself and Mr. Pryor):
S. 151. A bill to amend title 38, United States Code, to require an
annual plan on outreach activities of the Department of Veterans
Affairs; to the Committee on Veterans' Affairs.
Mr. COLEMAN. Mr. President, today I am pleased to introduce the
Veterans Benefits Outreach Act of 2005 with my good friend and
colleague, Senator Mark Pryor of Arkansas.
The idea for this legislation emanated from a very troubling story I
read in my hometown paper, the Saint Paul Pioneer Press entitled,
``Wounded and Forgotten.''
The article reported that nearly 600,000 veterans are eligible for
benefits but not receiving them simply because they don't know they are
eligible.
It is clear that we need to do a better job of reaching out to
veterans so they get the benefits they have earned. Our bill would do
this by requiring the Veterans Administration to develop an annual plan
to identify veterans who are eligible for but not receiving their
benefits and an outreach plan to enroll them.
Pretty simply really: matching benefits with people who have earned
them, and often through a lot of sacrifice for us and the freedoms we
enjoy every day.
I hope the Senate will be able to act on this important legislation
early this year so my hometown newspaper can report that our veterans
are always remembered.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 151

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Veterans Benefits Outreach
Act of 2005''.

SEC. 2. ANNUAL PLAN ON OUTREACH ACTIVITIES.

(a) Annual Plan Required.--Subchapter II of chapter 5 of
title 38, United States Code, is amended by inserting after
section 523 the following new section:

``Sec. 523A. Annual plan on outreach activities

``(a) Annual Plan Required.--The Secretary shall prepare
each year a plan for the outreach activities of the
Department for the following year.
``(b) Elements.--Each annual plan under subsection (a)
shall include the following:
``(1) Plans for efforts to identify veterans who are not
enrolled or registered with the Department for benefits or
services under the programs administered by the Secretary.
``(2) Plans for informing veterans and their dependents of
modifications of the benefits and services under the programs
administered by the Secretary, including eligibility for
medical and nursing care and services.
``(c) Coordination in Development.--In developing an annual
plan under subsection (a), the Secretary shall consult with
the following:
``(1) Directors or other appropriate officials of
organizations recognized by the Secretary under section 5902
of this title.
``(2) Directors or other appropriate officials of State and
local education and training programs.
``(3) Representatives of non-governmental organizations
that carry out veterans outreach programs.
``(4) Representatives of State and local veterans
employment organizations.
``(5) Businesses and professional organizations.
``(6) Other individuals and organizations that assist
veterans in adjusting to civilian life.
``(d) Incorporation of Assessment of Previous Annual
Plans.--In developing an annual plan under subsection (a),
the Secretary shall take into account the lessons learned
from the implementation of previous annual plans under such
subsection.
``(e) Incorporation of Recommendations to Improve Outreach
and Awareness.--In developing an annual plan under subsection
(a), the Secretary shall incorporate the recommendations for
the improvement of veterans outreach and awareness activities
included in the report submitted to Congress by the Secretary
pursuant to section 805 of the Veterans Benefits Improvement
Act of 2004 (Public Law 108-454).''.
(b) Clerical Amendment.--The table of sections at the
beginning of such chapter is amended by inserting after the
item relating to section 523 the following new item:

``523A. Annual plan on outreach activities.''.
______

By Mrs. FEINSTEIN (for herself and Mrs. Boxer):
S. 153. A bill to direct the Secretary of the Interior to conduct a
resource study of the Rim of the Valley Corridor in the State of
California to evaluate alternatives for protecting the resources of the
Corridor, and for other purposes; to the Committee on Energy and
Natural Resources.
Mrs. FEINSTEIN. Mr. President, I am pleased to introduce this bill
today along with Senator Boxer as cosponsor to direct the Interior
Secretary to conduct a study to evaluate the suitability and
feasibility of expanding the Santa Monica National Recreation Area to
include the Rim of the Valley Corridor.
The Rim of the Valley Corridor encircles the San Fernando Valley, La
Crescenta, Simi, Conejo, and Santa Clarita Valleys, consisting of parts
of the Santa Monica Mountains, Santa Susanna Mountains, San Gabriel
Mountains, Verdugo Mountains, San Rafael Hills and connects to the
adjacent Los Padres and San Bernardino National Forests.
This parcel of land is unique because of its rare Mediterranean
ecosystem and wildlife corridor that stretches north from the Santa
Monicas. With the population growth forecasted to multiply
exponentially over the next several decades, the need for parks to
balance out the expected population growth has become critical in
California.
Since the creation of the Santa Monica Recreation Area in 1978,
Federal, State, and local authorities have worked successfully together
to create and maintain the highly successful Santa Monica Mountains
National Recreation Area, the world's largest urban park, hemmed in on
all sides by development.
Park and recreational lands provide people with a vital refuge from
urban life while preserving valuable habitat and wildlife. With the
passage of this legislation, Congress will hold true to its original
commitment to preserve the scenic, natural, and historic setting of the
Santa Monica Mountains Recreation Area.
With the inclusion of the Rim of the Valley Corridor in the Santa
Monica Mountains Recreation Area, greater ecological health and
diversity will be promoted, particularly for larger animals like
mountain lions, bobcats, and the golden eagle. By creating a single
contiguous Rim of the Valley Trail, people will enjoy greater access to
existing trails in the Recreational Area.
After the study called for in this bill is complete, the Secretary of
the Interior and Congress will be in a key position to determine
whether all or portions of the Rim of the Valley Corridor warrant
national park status.
This bill enjoys strong support from local and State officials and I
hope that it will have as much strong bipartisan support this Congress,
as it did last Congress. Congressman Adam Schiff plans to introduce
companion legislation for this bill in the House and I applaud his
commitment to this issue.
I urge my colleagues to support this legislation and I ask unanimous
consent that the text of this proposed legislation be printed in the
Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 153

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Rim of the Valley Corridor
Study Act''.

SEC. 2. DEFINITIONS.

In this Act:
(1) Corridor.--
(A) In general.--The term ``Corridor'' means the land,
water, and interests of the area in the State known as the
``Rim of the Valley Corridor''.
(B) Inclusions.--The term ``Corridor'' includes the
mountains surrounding the San Fernando, La Crescenta, Santa
Clarita, Simi, and Conejo valleys in the State.
(2) Recreation area.--The term ``Recreation Area'' means
the Santa Monica Mountains National Recreation Area in the
State.
(3) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(4) State.--The term ``State'' means the State of
California

SEC. 3. RESOURCE STUDY OF THE RIM OF THE VALLEY CORRIDOR,
CALIFORNIA.

(a) In General.--The Secretary shall conduct a resource
study of the Corridor to evaluate various alternatives for
protecting the resources of the Corridor, including
designating all or a portion of the Corridor as a unit of the
Recreation Area.
(b) Requirements.--In conducting the study under subsection
(a), the Secretary shall--

[[Page S474]]

(1) seek to achieve the objectives of--
(A) protecting wildlife populations in the Recreation Area
by preserving habitat linkages and wildlife movement
corridors between large blocks of habitat in adjoining
regional open space;
(B) establishing connections along the State-designated Rim
of the Valley Trail System for the purposes of--
(i) creating a single contiguous Rim of the Valley Trail;
and
(ii) encompassing major feeder trails connecting adjoining
communities and regional transit to the Rim of the Valley
Trail System;
(C) preserving recreational opportunities;
(D) facilitating access to open space for a variety of
recreational users;
(E) protecting--
(i) rare, threatened, or endangered plant and animal
species; and
(ii) rare or unusual plant communities and habitats;
(F) protecting historically significant landscapes,
districts, sites, and structures; and
(G) respecting the needs of communities in, or in the
vicinity of, the Corridor;
(2) analyze the potential impact of each alternative on
staffing and other potential costs to Federal, State, and
local agencies and other organizations; and
(3) analyze the potential impact that designating all or a
portion of the Corridor as a unit of the Recreation Area
would have on land in or bordering the area that is privately
owned as of the date on which the study is conducted.
(c) Consultation.--In conducting the study, the Secretary
shall consult with appropriate Federal, State, county, and
local government entities.
(d) Applicable Law.--Section 8(c) of Public Law 91-383 (16
U.S.C. 1a-5(c)) shall apply to the conduct and completion of
the study required by subsection (a).

SEC. 4. REPORT.

(a) In General.--Not later than 3 years after the date on
which funds are first made available for the study, the
Secretary shall submit to the Committee on Energy and Natural
Resources of the Senate and to the Committee on Resources of
the House of Representatives a report that describes the
results of the study conducted under section 3.
(b) Inclusion.--The report submitted under subsection shall
include the concerns of private landowners within the
boundaries of the Recreation Area.
______

By Mrs. FEINSTEIN (for herself, Mr. Hatch, Mr. Grassley, Mr.
Cornyn, and Mr. Kyl):
S. 155. A bill to increase and enhance law enforcement resources
committed to investigation and prosecution of violent gangs, to deter
and punish violent gang crime, to protect law-abiding citizens and
communities from violent criminals, to revise and enhance criminal
penalties for violent crimes, to reform and facilitate prosecution of
juvenile gang members who commit violent crimes, to expand and improve
gang prevention programs, and for other purposes; to the Committee on
the Judiciary.
Mrs. FEINSTEIN. Mr. President, I rise today to join my good friend
and colleague Senator Orrin Hatch, to introduce the ``Gang Prevention
and Effective Deterrence Act of 2005.''
Gangs are spreading across our country, increasing in violence and
power in every State. The growth and spread of these gangs illustrate
the simple fact that they are no longer a local problem. They are a
national problem, and require a national solution. This bill is
designed to contribute to that solution by bringing together Federal,
State and local law enforcement, equipping them with the right legal
tools, and providing authorization for funds to make this partnership
effective.
First, let me illustrate the scope of the problem we face: In 2002,
there were approximately 731,500 gang members and 21,500 gangs in the
United States. Additionally, the FBI report on national crime
statistics found that youth-gang homicides had jumped to more than
1,100 in 2002, up from 692 in 1999. According to a report commissioned
by a coalition of big city police chiefs, gang-related killings
skyrocketed by 50 percent from 1999 to 2002. In 2002, there were a
little more than 16,000 homicides in the United States--more than a
thousand of those murders were gang-related. In Southern California
alone there have been about 3,100 gang-related killings since 1999. 87
percent of U.S. cities with a population of more than 100,000 have
reported gang problems, according to the Department of justice.
The bottom line is that this is a major problem.
This legislation before us today squarely addresses these serious
issues. Its main point is to create a new type of crime, by defining
and criminalizing ``Criminal Street Gangs.'' This recognizes the basic
point of a street gang--it is more powerful, and more dangerous, than
its individual members. Defeating gangs means recognizing what is so
dangerous about them, and then making that conduct against the law.
This bill does exactly that. It makes illegal participation in a
criminal street gang a federal crime. A ``criminal street gang'' is
defined to mean a formal or informal group, club, organization or
association of 3 or more persons who act together to commit gang
crimes. This legislation makes it a crime for a member of a criminal
street gang to commit, conspire or attempt to commit two or more
predicate gang crimes; or to get another individual to commit a gang
crime. The term ``gang crime'' is defined to include violent and other
serious State and Federal felony crimes such as: murder, maiming,
manslaughter, kidnapping, arson, robbery, assault with a dangerous
weapon, obstruction of justice, carjacking, distribution of a
controlled substance, certain firearms offenses and money laundering.
And it criminalizes violent crimes in furtherance or in aid of criminal
street gangs.

These two provisions are at the heart of this legislation. Armed with
this new law, Federal prosecutors, working in tandem with State and
local law enforcement, will be able to take on gangs in much the same
way that traditional Mafia families have been systematically destroyed
by effective RICO prosecutions. The legislation also recognizes that
the core changes, standing alone, are not sufficient.
The Gang Prevention and Effective Deterrence Act is a comprehensive
bill to increase gang prosecution and prevention efforts. The bill
authorizes approximately $650 million over the next five years to
support Federal, State and local law enforcement efforts against
violent gangs including the funding of witness protection programs and
for intervention and prevention programs for at-risk youth. In support
of this effort, the bill increases funding for Federal prosecutors and
FBI agents to increase coordinated enforcement efforts against violent
gangs.
Witness protection is particularly important--as an example, recent
press reports from Boston show that gang members are distributing what
is, in essence, a witness intimidation media kit, complete with
graphics and CDs that warn potential witnesses that they will be
killed--one CD depicts three bodies on its covers. In another incident,
a witnesses' grand jury testimony was taped to his home--soon afterward
he was killed.
The Act also creates new criminal gang prosecution offenses, enhances
existing gang and violent crime penalties to deter and punish illegal
street gangs, proposes violent crime reforms needed to effectively
prosecute gang members, and proposes a limited reform of the juvenile
justice system to facilitate Federal prosecution of 16 and 17 year old
gang members who commit serious acts of violence--specifically it:
Makes recruiting minors to join criminal street gangs a Federal crime
and requires offenders to pay the costs associated with housing and
treating any recruited minor who is prosecuted for their gang activity.
Makes murder and other violent crimes committed in connection with
drug trafficking Federal crimes.
Creates a new offense of multiple interstate murders, where an
individual crosses State lines and intends to cause the death of two or
more people.
Allows for prosecution of gang members who cross State lines to
obstruct justice, intimidate or retaliate against witnesses, jurors,
informants, or victims.
Creates tougher laws for certain Federal crimes like assault,
carjacking, manslaughter, conspiracy, and for specific types of crimes
occurring in Indian country.
Requires that someone convicted of hiring another person to commit
murder be punished with imprisonment, instead of a fine.
Makes sexual assault a predicate act under RICO and increases the
maximum sentences for these RICO crimes.
Allows for detention of persons charged with firearms who have been
previously convicted of prior crimes of violence or serious drug
offenses. Current law does not allow a prosecutor to

[[Page S475]]

ask that a person be held without bail even if the person has
previously been convicted of a crime of violence or a serious drug
offense. This bill would allow prosecutors to make that request of a
judge but would allow a criminal defendant the right to argue why he or
she should not be held.
Makes it clear that in a death penalty case, the case can be tried
where the murder, or related conduct, occurred.
Extends the time within which a violent crime case can be charged and
tried. For violent crime cases, the time is extended from 5 years to 10
years after the offense occurred or the continuing offense was
completed, and from 5 years to 8 years after the date on which the
violation was first discovered.
Permits wiretaps to be used for new gang crimes created by this bill.
Allows for a murdered witness's statements to be admitted at trial in
cases where the defendant caused the witness's death.
Makes clear where a case can be tried involving retaliation against a
witness--in either the district where the case is being tried, or where
the intimidation took place.
Increases penalties for criminal use of firearms in crimes of
violence and drug trafficking.
Includes modified juvenile provisions. This bill will allow
prosecutors to more easily charge 16 and 17 year olds who are charged
with serious violent felonies. A judge will review every decision a
prosecutor makes to charge a juvenile as an adult.
Creates and provides assistance for ``High Intensity'' Interstate
Gang Activity areas. This legislation requires the Attorney General to
designate certain locations as ``high intensity interstate gang
activity areas'' and provides assistance in the form of criminal street
gang enforcement teams made up of local, State and Federal law
enforcement authorities to investigate and prosecute criminal street
gangs in each high intensity interstate gang activity area.
Authorizes funding of $500 million for 2004 through 2008 to meet the
goals of suppression and intervention: $50 million a year will be used
to support the criminal gang enforcement teams. $50 million a year will
be used to make grants available for community-based programs to
provide for crime prevention and intervention services for gang members
and at-risk youth in areas designated as high intensity interstate gang
activity areas.

Authorizes $150 million over five years to support anti-gang efforts
including: Expanding the Project Safe Neighborhood program to require
U.S. Attorneys to identify and prosecute significant gangs within their
district; coordinating such prosecutions among all local, State, and
Federal law enforcement; and coordinating criminal street gang
enforcement teams in designated high intensity interstate gang activity
areas. Supporting the Federal Bureau of Investigation's Safe Streets
Program. Creating and expanding witness protection programs, the hiring
of additional State and local prosecutors, funding gang prevention and
community prosecution programs and purchasing equipment to increase the
accurate identification and prosecution of violent offenders.
The bottom line is that this legislation would provide the tools and
the resources to begin that national task of destroying criminal street
gangs. It is designed to emphasize and encourage Federal, State and
local cooperation. It combines enforcement with prevention. It is a
tough, effective and fair approach.
This is not a new bill. I have been working on it for almost ten
years. In 1996, I joined Senator Hatch and others to develop the
Federal Gang Violence Act, which would have increased criminal
penalties for gang members, made recruiting persons into a criminal
street gang a crime, and enhanced penalties for transferring a gun to a
minor. Many of the provisions of that bill were incorporated into the
1999 Juvenile Justice bill, which was approved overwhelmingly (73-25)
by the Senate in the 106th Congress. However, the Juvenile Justice bill
stalled in conference, and these provisions were never signed into law.
In the years that followed we kept up our efforts, with Republicans
and Democrats working together on this critical issue. In the 108th
Congress a version of this bill was introduced, and eventually was co-
sponsored by Senators Hatch and others. That bill was the subject of
much discussion and debate. Some of my colleagues raised some valuable
suggestions and criticisms, many of which were incorporated in the bill
last year. The result of that compromise was reported favorably by the
Judiciary Committee last Fall, but was never considered by the full
Senate.
The legislation today is the same as that which was approved by the
Judiciary Committee, and I hope this year we will move quickly to pass
it into law. That said, I understand that some of my colleagues are
still concerned about certain aspects of the bill. My intention is to
continue to negotiate in the weeks ahead. I am open to change, and
welcome further discussion and analysis.
We all agree that gangs are a terrible and growing problem. We all
agree that something needs to be done. I believe that this legislation
is desperately needed, and I look forward to working with my colleagues
on both sides of the aisle to take this bill and make it law.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 155

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) Short Title.--This Act may be cited as the ``Gang
Prevention and Effective Deterrence Act of 2005''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.

TITLE I--CRIMINAL STREET GANG ABATEMENT ACT

Sec. 100. Findings.

Subtitle A--Criminal Law Reforms and Enhanced Penalties to Deter and
Punish Illegal Street Gang Activity

Sec. 101. Solicitation or recruitment of persons in criminal street
gang activity.
Sec. 102. Criminal street gangs.
Sec. 103. Violent crimes in furtherance or in aid of criminal street
gangs.
Sec. 104. Interstate and foreign travel or transportation in aid of
criminal street gangs.
Sec. 105. Amendments relating to violent crime in areas of exclusive
Federal jurisdiction.
Sec. 106. Increased penalties for use of interstate commerce facilities
in the commission of murder-for-hire and other felony
crimes of violence.
Sec. 107. Increased penalties for violent crimes in aid of racketeering
activity.
Sec. 108. Murder and other violent crimes committed during and in
relation to a drug trafficking crime.

Subtitle B--Increased Federal Resources to Deter and Prevent At-Risk
Youth From Joining Illegal Street Gangs

Sec. 110. Designation of and assistance for ``high intensity''
interstate gang activity areas.
Sec. 111. Enhancement of project safe neighborhoods initiative to
improve enforcement of criminal laws against violent
gangs.
Sec. 112. Additional resources needed by the Federal Bureau of
Investigation to investigate and prosecute violent
criminal street gangs.
Sec. 113. Grants to State and local prosecutors to combat violent crime
and to protect witnesses and victims of crimes.
Sec. 114. Reauthorize the gang resistance education and training
projects program.

TITLE II--VIOLENT CRIME REFORMS NEEDED TO DETER AND PREVENT ILLEGAL
GANG CRIME

Sec. 201. Multiple interstate murder.
Sec. 202. Expansion of rebuttable presumption against release of
persons charged with firearms offenses.
Sec. 203. Venue in capital cases.
Sec. 204. Statute of limitations for violent crime.
Sec. 205. Predicate crimes for authorization of interception of wire,
oral, and electronic communications.
Sec. 206. Clarification to hearsay exception for forfeiture by
wrongdoing.
Sec. 207. Clarification of venue for retaliation against a witness.
Sec. 208. Amendment of sentencing guidelines relating to certain gang
and violent crimes.
Sec. 209. Increased penalties for criminal use of firearms in crimes of
violence and drug trafficking.

[[Page S476]]

Sec. 210. Possession of firearms by dangerous felons.
Sec. 211. Conforming amendment.

TITLE III--JUVENILE CRIME REFORM FOR VIOLENT OFFENDERS

Sec. 301. Treatment of Federal juvenile offenders.
Sec. 302. Notification after arrest.
Sec. 303. Release and detention prior to disposition.
Sec. 304. Speedy trial.
Sec. 305. Federal sentencing guidelines.

TITLE I--CRIMINAL STREET GANG ABATEMENT ACT

SEC. 100. FINDINGS.

Congress finds that--
(1) violent crime and drug trafficking are pervasive
problems at the national, State, and local level;
(2) the crime rate is exacerbated by the association of
persons in gangs to commit acts of violence and drug
offenses;
(3) according to the most recent National Drug Threat
Assessment, criminal street gangs are responsible for the
distribution of much of the cocaine, methamphetamine, heroin,
and other illegal drugs being distributed in rural and urban
communities throughout the United States;
(4) gangs commit acts of violence or drug offenses for
numerous motives, such as membership in or loyalty to the
gang, for protecting gang territory, and for profit;
(5) gang presence has a pernicious effect on the free flow
of commerce in local businesses and directly affects the
freedom and security of communities plagued by gang activity;
(6) gangs often recruit and utilize minors to engage in
acts of violence and other serious offenses out of a belief
that the criminal justice systems are more lenient on
juvenile offenders;
(7) gangs often intimidate and threaten witnesses to
prevent successful prosecutions;
(8) gang recruitment can be deterred through increased
vigilance, strong criminal penalties, equal partnerships with
State and local law enforcement, and proactive intervention
efforts, particularly targeted at juveniles, prior to gang
involvement;
(9) State and local prosecutors, in hearings before the
Committee on the Judiciary of the Senate, enlisted the help
of Congress in the prevention, investigation, and prosecution
of gang crimes and in the protection of witnesses and victims
of gang crimes; and
(10) because State and local prosecutors and law
enforcement have the expertise, experience, and connection to
the community that is needed to combat gang violence,
consultation and coordination between Federal, State, and
local law enforcement is critical to the successful
prosecutions of criminal street gangs.

Subtitle A--Criminal Law Reforms and Enhanced Penalties To Deter and
Punish Illegal Street Gang Activity

SEC. 101. SOLICITATION OR RECRUITMENT OF PERSONS IN CRIMINAL
STREET GANG ACTIVITY.

Chapter 26 of title 18, United States Code, is amended by
adding at the end the following:

``Sec. 522. Recruitment of persons to participate in a
criminal street gang

``(a) Prohibited Acts.--It shall be unlawful for any person
to recruit, employ, solicit, induce, command, or cause
another person to be or remain as a member of a criminal
street gang, or conspire to do so, with the intent to cause
that person to participate in an offense described in section
521(a).
``(b) Definition.--In this section:
``(1) Criminal street gang.--The term `criminal street
gang' shall have the same meaning as in section 521(a) of
this title.
``(2) Minor.--The term `minor' means a person who is less
than 18 years of age.
``(c) Penalties.--Any person who violates subsection (a)
shall--
``(1) be imprisoned not more than 5 years, fined under this
title, or both; or
``(2) if the person recruited, solicited, induced,
commanded, or caused to participate or remain in a criminal
street gang is under the age of 18--
``(A) be imprisoned for not more than 10 years, fined under
this title, or both; and
``(B) at the discretion of the sentencing judge, be liable
for any costs incurred by the Federal Government, or by any
State or local government, for housing, maintaining, and
treating the person until the person attains the age of 18
years.''.

SEC. 102. CRIMINAL STREET GANGS.

(a) Criminal Street Gang Prosecutions.--Section 521 of
title 18, United States Code, is amended to read as follows:

``Sec. 521. Criminal street gang prosecutions

``(a) Definitions.--As used in this chapter:
``(1) Criminal street gang.--The term `criminal street
gang' means a formal or informal group, club, organization,
or association of 3 or more individuals, who individually,
jointly, or in combination, have committed or attempted to
commit for the direct or indirect benefit of, at the
direction of, in furtherance of, or in association with the
group, club organization, or association at least 2 separate
acts, each of which is a predicate gang crime, 1 of which
occurs after the date of enactment of the Gang Prevention and
Effective Deterrence Act of 2004 and the last of which occurs
not later than 10 years (excluding any period of
imprisonment) after the commission of a prior predicate gang
crime, and 1 predicate gang crime is a crime of violence or
involves manufacturing, importing, distributing, possessing
with intent to distribute, or otherwise dealing in a
controlled substance or listed chemicals (as those terms are
defined in section 102 of the Controlled Substances Act (21
U.S.C. 802)) provided that the activities of the criminal
street gang affect interstate or foreign commerce, or involve
the use of any facility of, or travel in, interstate or
foreign commerce.
``(2) Predicate gang crime.--The term `predicate gang
crime' means--
``(A) any act, threat, conspiracy, or attempted act, which
is chargeable under Federal or State law and punishable by
imprisonment for more than 1 year involving--
``(i) murder;
``(ii) manslaughter;
``(iii) maiming;
``(iv) assault with a dangerous weapon;
``(v) assault resulting in serious bodily injury;
``(vi) gambling;
``(vii) kidnapping;
``(viii) robbery;
``(ix) extortion;
``(x) arson;
``(xi) obstruction of justice;
``(xii) tampering with or retaliating against a witness,
victim, or informant;
``(xiii) burglary;
``(xiv) sexual assault (which means any offense that
involves conduct that would violate chapter 109A if the
conduct occurred in the special maritime and territorial
jurisdiction);
``(xv) carjacking; or
``(xvi) manufacturing, importing, distributing, possessing
with intent to distribute, or otherwise dealing in a
controlled substance or listed chemicals (as those terms are
defined in section 102 of the Controlled Substances Act (21
U.S.C. 802));
``(B) any act punishable by imprisonment for more than 1
year under--
``(i) section 844 (relating to explosive materials);
``(ii) section 922(g)(1) (where the underlying conviction
is a violent felony (as defined in section 924(e)(2)(B) of
this title) or is a serious drug offense (as defined in
section 924(e)(2)(A) of this title));
``(iii) subsection (a)(2), (b), (c), (g), or (h) of section
924 (relating to receipt, possession, and transfer of
firearms);
``(iv) sections 1028 and 1029 (relating to fraud and
related activity in connection with identification documents
or access devices);
``(v) section 1503 (relating to obstruction of justice);
``(vi) section 1510 (relating to obstruction of criminal
investigations);
``(vii) section 1512 (relating to tampering with a witness,
victim, or informant), or section 1513 (relating to
retaliating against a witness, victim, or informant);
``(viii) section 1708 (relating to theft of stolen mail
matter);
``(ix) section 1951 (relating to interference with
commerce, robbery or extortion);
``(x) section 1952 (relating to racketeering);
``(xi) section 1956 (relating to the laundering of monetary
instruments);
``(xii) section 1957 (relating to engaging in monetary
transactions in property derived from specified unlawful
activity);
``(xiii) section 1958 (relating to use of interstate
commerce facilities in the commission of murder-for-hire); or
``(xiv) sections 2312 through 2315 (relating to interstate
transportation of stolen motor vehicles or stolen property);
or
``(C) any act involving the Immigration and Nationality
Act, section 274 (relating to bringing in and harboring
certain aliens), section 277 (relating to aiding or assisting
certain aliens to enter the United States), or section 278
(relating to importation of alien for immoral purpose).
``(3) State.--The term `State' means each of the several
States of the United States, the District of Columbia, and
any commonwealth, territory, or possession of the United
States.
``(b) Participation in Criminal Street Gangs.--It shall be
unlawful--
``(1) to commit, or conspire or attempt to commit a
predicate crime--
``(A) in furtherance or in aid of the activities of a
criminal street gang;
``(B) for the purpose of gaining entrance to or maintaining
or increasing position in such a gang; or
``(C) for the direct or indirect benefit of the criminal
street gang, or in association with the criminal street gang;
or
``(2) to employ, use, command, counsel, persuade, induce,
entice, or coerce any individual to commit, cause to commit,
or facilitate the commission of, a predicate gang crime--
``(A) in furtherance or in aid of the activities of a
criminal street gang;
``(B) for the purpose of gaining entrance to or maintaining
or increasing position in such a gang; or
``(C) for the direct or indirect benefit or the criminal
street gang, or in association with the criminal street gang.
``(c) Penalties.--Whoever violates paragraph (1) or (2) of
subsection (b)--
``(1) shall be fined under this title, imprisoned for not
more than 30 years, or both; and
``(2) if the violation is based on a predicate gang crime
for which the maximum penalty includes life imprisonment,
shall be fined under this title, imprisoned for any term of
years or for life, or both.
``(d) Forfeiture.--
``(1) In general.--The court, in imposing sentence on a
person who is convicted of an offense under this section,
shall order that the defendant forfeit to the United States--

[[Page S477]]

``(A) any property, real or personal, constituting or
traceable to gross proceeds obtained from such offense; and
``(B) any property used or intended to be used, in any
manner or part, to commit or to facilitate the commission of
such violation.
``(2) Criminal procedures.--The procedures set forth in
section 413 of the Controlled Substances Act (21 U.S.C. 853),
other than subsection (d) of that section, and in rule 32.2
of the Federal Rules of Criminal Procedure, shall apply to
all stages of a criminal forfeiture proceeding under this
section.
``(3) Civil procedures.--Property subject to forfeiture
under paragraph (1) may be forfeited in a civil case pursuant
to the procedures set forth in chapter 46 of this title.''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 26 of title 18, United States Code, is
amended to read as follows:
``521. Criminal street gang prosecutions.''.

SEC. 103. VIOLENT CRIMES IN FURTHERANCE OR IN AID OF CRIMINAL
STREET GANGS.

(a) Violent Crimes and Criminal Street Gang Recruitment.--
Chapter 26 of title 18, United States Code, as amended by
section 101, is amended by adding at the end the following:

``Sec. 523. Violent crimes in furtherance or in aid of a
criminal street gang

``(a) Any person who, for the purpose of gaining entrance
to or maintaining or increasing position in, or in
furtherance or in aid of, or for the direct or indirect
benefit of, or in association with a criminal street gang, or
as consideration for the receipt of, or as consideration for
a promise or agreement to pay, anything of pecuniary value to
or from a criminal street gang, murders, kidnaps, sexually
assaults (which means any offense that involved conduct that
would violate chapter 109A if the conduct occurred in the
special maritime and territorial jurisdiction), maims,
assaults with a dangerous weapon, commits assault resulting
in serious bodily injury upon, commits any other crime of
violence or threatens to commit a crime of violence against
any individual, or attempts or conspires to do so, shall be
punished, in addition and consecutive to the punishment
provided for any other violation of this chapter--
``(1) for murder, by death or imprisonment for any term of
years or for life, a fine under this title, or both;
``(2) for kidnapping or sexual assault, by imprisonment for
any term of years or for life, a fine under this title, or
both;
``(3) for maiming, by imprisonment for any term of years or
for life, a fine under this title, or both;
``(4) for assault with a dangerous weapon or assault
resulting in serious bodily injury, by imprisonment for not
more than 30 years, a fine under this title, or both;
``(5) for any other crime of violence, by imprisonment for
not more than 20 years, a fine under this title, or both;
``(6) for threatening to commit a crime of violence
specified in paragraphs (1) through (4), by imprisonment for
not more than 10 years, a fine under this title, or both;
``(7) for attempting or conspiring to commit murder,
kidnapping, maiming, or sexual assault, by imprisonment for
not more than 30 years, a fine under this title, or both; and
``(8) for attempting or conspiring to commit a crime
involving assault with a dangerous weapon or assault
resulting in serious bodily injury, by imprisonment for not
more than 20 years, a fine under this title, or both.
``(b) Definition.--In this section, the term `criminal
street gang' has the same meaning as in section 521 of this
title.''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 26 of title 18, United States Code, is
amended by adding at the end the following:
``522. Recruitment of persons to participate in a criminal street gang.
``523. Violent crimes in furtherance of a criminal street gang.''.

SEC. 104. INTERSTATE AND FOREIGN TRAVEL OR TRANSPORTATION IN
AID OF RACKETEERING ENTERPRISES AND CRIMINAL
STREET GANGS.

Section 1952 of title 18, United States Code, is amended--
(1) in subsection (a)--
(A) by striking ``and thereafter performs or attempts to
perform'' and inserting ``and thereafter performs, or
attempts or conspires to perform'';
(B) by striking ``5 years'' and inserting ``10 years''; and
(C) by inserting ``punished by death or'' after ``if death
results shall be'';
(2) by redesignating subsections (b) and (c) as subsections
(c) and (d), respectively;
(3) by inserting after subsection (a) the following:
``(b) Whoever travels in interstate or foreign commerce or
uses the mail or any facility in interstate or foreign
commerce, with the intent to kill, assault, bribe, force,
intimidate, or threaten any person, to delay or influence the
testimony of, or prevent from testifying, a witness in a
State criminal proceeding and thereafter performs, or
attempts or conspires to perform, an act described in this
subsection, shall--
``(1) be fined under this title, imprisoned for any term of
years, or both; and
``(2) if death results, be punished by death or
imprisonment for any term of years or for life.''; and
(4) in subsection (c)(2), as redesignated under
subparagraph (B), by inserting ``intimidation of, or
retaliation against, a witness, victim, juror, or
informant,'' after ``extortion, bribery,''.

SEC. 105. AMENDMENTS RELATING TO VIOLENT CRIME IN AREAS OF
EXCLUSIVE FEDERAL JURISDICTION.

(a) Assault Within Maritime and Territorial Jurisdiction of
United States.--Section 113(a)(3) of title 18, United States
Code, is amended by striking ``with intent to do bodily harm,
and without just cause or excuse,''.
(b) Manslaughter.--Section 1112(b) of title 18, United
States Code, is amended by--
(1) striking ``ten years'' and inserting ``20 years''; and
(2) striking ``six years'' and inserting ``10 years''.
(c) Offenses Committed Within Indian Country.--Section
1153(a) of title 18, United States Code, is amended by
inserting ``an offense for which the maximum statutory term
of imprisonment under section 1363 is greater than 5 years,''
after ``a felony under chapter 109A,''.
(d) Racketeer Influenced and Corrupt Organizations.--
Section 1961(1) of title 18, United States Code, is amended--
(1) in subparagraph (A), by inserting ``, or would have
been so chargeable if the act or threat (other than lawful
forms of gambling) had not been committed in Indian country
(as defined in section 1151) or in any other area of
exclusive Federal jurisdiction,'' after ``chargeable under
State law''; and
(2) in subparagraph (B), by inserting ``section 1123
(relating to multiple interstate murder),'' after ``section
1084 (relating to the transmission of wagering
information),''.
(e) Carjacking.--Section 2119 of title 18, United States
Code, is amended by striking ``, with the intent to cause
death or serious bodily harm''.
(f) Clarification of Illegal Gun Transfers To Commit Drug
Trafficking Crime or Crimes of Violence.--Section 924(h) of
title 18, United States Code, is amended to read as follows:
``(h) Illegal Transfers.--Whoever knowingly transfers a
firearm, knowing that the firearm will be used to commit, or
possessed in furtherance of, a crime of violence (as defined
in subsection (c)(3)) or drug trafficking crime (as defined
in subsection (c)(2)), shall be imprisoned for not more than
10 years, fined under this title, or both.''.
(g) Amendment of Special Sentencing Provision.--Section
3582(d) of title 18, United States Code, is amended--
(1) by striking ``chapter 95 (racketeering) or 96
(racketeer influenced and corrupt organizations) of this
title'' and inserting ``section 521 (criminal street gangs)
or 522 (violent crimes in furtherance or in aid of criminal
street gangs), in chapter 95 (racketeering) or 96 (racketeer
influenced and corrupt organizations),''; and
(2) by inserting ``a criminal street gang or'' before ``an
illegal enterprise''.
(h) Conforming Amendment Relating to Orders for
Restitution.--Section 3663(c)(4) of title 18, United States
Code, is amended by striking ``chapter 46 or chapter 96 of
this title'' and inserting ``section 521, under chapter 46 or
96,''.
(i) Special Provision for Indian Country.--No person
subject to the criminal jurisdiction of an Indian tribal
government shall be subject to section 3559(e) of title 18,
United States Code, for any offense for which Federal
jurisdiction is solely predicated on Indian country (as
defined in section 1151 of such title 18) and which occurs
within the boundaries of such Indian country unless the
governing body of such Indian tribe elects to subject the
persons under the criminal jurisdiction of the tribe to
section 3559(e) of such title 18.

SEC. 106. INCREASED PENALTIES FOR USE OF INTERSTATE COMMERCE
FACILITIES IN THE COMMISSION OF MURDER-FOR-HIRE
AND OTHER FELONY CRIMES OF VIOLENCE.

Section 1958 of title 18, United States Code, is amended--
(1) by striking the header and inserting the following:

``Sec. 1958. Use of interstate commerce facilities in the
Commission of murder-for-hire and other felony crimes of
violence''

; and
(2) by amending subsection (a) to read as follows:
``(a) Any person who travels in or causes another
(including the intended victim) to travel in interstate or
foreign commerce, or uses or causes another (including the
intended victim) to use the mail or any facility in
interstate or foreign commerce, with intent that a murder or
other felony crime of violence be committed in violation of
the laws of any State or the United States as consideration
for the receipt of, or as consideration for a promise or
agreement to pay, anything of pecuniary value, or who
conspires to do so--
``(1) may be fined under this title and shall be imprisoned
not more than 20 years;
``(2) if personal injury results, may be fined under this
title and shall be imprisoned for not more than 30 years; and
``(3) if death results, may be fined not more than
$250,000, and shall be punished by death or imprisoned for
any term of years or for life, or both.''.

SEC. 107. INCREASED PENALTIES FOR VIOLENT CRIMES IN AID OF
RACKETEERING ACTIVITY.

Section 1959(a) of title 18, United States Code, is amended
to read as follows:
``(a) Any person who, as consideration for the receipt of,
or as consideration for a

[[Page S478]]

promise or agreement to pay, anything of pecuniary value from
an enterprise engaged in racketeering activity, or for the
purpose of gaining entrance to or maintaining or increasing
position in an enterprise engaged in racketeering activity,
or in furtherance or in aid of an enterprise engaged in
racketeering activity, murders, kidnaps, sexually assaults
(which means any offense that involved conduct that would
violate chapter 109A if the conduct occurred in the special
maritime and territorial jurisdiction), maims, assaults with
a dangerous weapon, commits assault resulting in serious
bodily injury upon, or threatens to commit a crime of
violence against any individual in violation of the laws of
any State or the United States, or attempts or conspires to
do so, shall be punished, in addition and consecutive to the
punishment provided for any other violation of this chapter--
``(1) for murder, by death or imprisonment for any term of
years or for life, a fine under this title, or both;
``(2) for kidnapping or sexual assault, by imprisonment for
any term of years or for life, a fine under this title, or
both;
``(3) for maiming, by imprisonment for any term of years or
for life, a fine under this title, or both;
``(4) for assault with a dangerous weapon or assault
resulting in serious bodily injury, by imprisonment for not
more than 30 years, a fine under this title, or both;
``(5) for threatening to commit a crime of violence, by
imprisonment for not more than 10 years, a fine under this
title, or both;
``(6) for attempting or conspiring to commit murder,
kidnapping, maiming, or sexual assault, by imprisonment for
not more than 30 years, a fine under this title, or both; and
``(7) for attempting or conspiring to commit assault with a
dangerous weapon or assault which would result in serious
bodily injury, by imprisonment for not more than 20 years, a
fine under this title, or both.''.

SEC. 108. MURDER AND OTHER VIOLENT CRIMES COMMITTED DURING
AND IN RELATION TO A DRUG TRAFFICKING CRIME.

(a) In General.--Part D of the Controlled Substances Act
(21 U.S.C. 841 et seq.) is amended by adding at the end the
following:

``MURDER AND OTHER VIOLENT CRIMES COMMITTED DURING AND IN RELATION TO A
DRUG TRAFFICKING CRIME.

``Sec. 424. (a) In General.--Any person who, during and in
relation to any drug trafficking crime, murders, kidnaps,
sexually assaults (which means any offense that involved
conduct that would violate chapter 109A if the conduct
occurred in the special maritime and territorial
jurisdiction), maims, assaults with a dangerous weapon,
commits assault resulting in serious bodily injury upon,
commits any other crime of violence or threatens to commit a
crime of violence against, any individual, or attempts or
conspires to do so, shall be punished, in addition and
consecutive to the punishment provided for the drug
trafficking crime--
``(1) in the case of murder, by death or imprisonment for
any term of years or for life, a fine under title 18, United
States Code, or both;
``(2) in the case of kidnapping or sexual assault by
imprisonment for any term of years or for life, a fine under
such title 18, or both;
``(3) in the case of maiming, by imprisonment for any term
of years or for life, a fine under such title 18, or both;
``(4) in the case of assault with a dangerous weapon or
assault resulting in serious bodily injury, by imprisonment
not more than 30 years, a fine under such title 18, or both;
``(5) in the case of committing any other crime of
violence, by imprisonment for not more than 20 years, a fine
under this title, or both;
``(6) in the case of threatening to commit a crime of
violence specified in paragraphs (1) through (4), by
imprisonment for not more than 10 years, a fine under such
title 18, or both;
``(7) in the case of attempting or conspiring to commit
murder, kidnapping, maiming, or sexual assault, by
imprisonment for not more than 30 years, a fine under such
title 18, or both; and
``(8) in the case of attempting or conspiring to commit a
crime involving assault with a dangerous weapon or assault
resulting in serious bodily injury, by imprisonment for not
more than 20 years, a fine under such title 18, or both.
``(b) Venue.--A prosecution for a violation of this section
may be brought in--
``(1) the judicial district in which the murder or other
crime of violence occurred; or
``(2) any judicial district in which the drug trafficking
crime may be prosecuted.
``(c) Applicable Death Penalty Procedures.--A defendant who
has been found guilty of an offense under this section for
which a sentence of death is provided shall be subject to the
provisions of chapter 228 of title 18, United States Code.
``(d) Definitions.--As used in this section--
``(1) the term `crime of violence' has the meaning given
that term in section 16 of title 18, United States Code; and
``(2) the term `drug trafficking crime' has the meaning
given that term in section 924(c)(2) of title 18, United
States Code.''.
(b) Clerical Amendment.--The table of contents for the
Controlled Substances Act is amended by inserting after the
item relating to section 423, the following:
``Sec. 424. Murder and other violent crimes committed during and in
relation to a drug trafficking crime.''.

Subtitle B--Increased Federal Resources To Suppress, Deter, and Prevent
At-Risk Youth From Joining Illegal Street Gangs

SEC. 110. DESIGNATION OF AND ASSISTANCE FOR ``HIGH
INTENSITY'' INTERSTATE GANG ACTIVITY AREAS.

(a) Definitions.--In this section the following definitions
shall apply:
(1) Governor.--The term ``Governor'' means a Governor of a
State or the Mayor of the District of Columbia.
(2) High intensity interstate gang activity area.--The term
``high intensity interstate gang activity area'' means an
area within a State that is designated as a high intensity
interstate gang activity area under subsection (b)(1).
(3) State.--The term ``State'' means a State of the United
States, the District of Columbia, and any commonwealth,
territory, or possession of the United States. The term
``State'' shall include an ``Indian tribe'', as defined by
section 102 of the Federally Recognized Indian Tribe List Act
of 1994 (25 U.S.C. 479a).
(b) High Intensity Interstate Gang Activity Areas.--
(1) Designation.--The Attorney General, after consultation
with the Governors of appropriate States, may designate as
high intensity interstate gang activity areas, specific areas
that are located within 1 or more States. To the extent that
the goals of a high intensity interstate gang activity area
(HIIGAA) overlap with the goals of a high intensity drug
trafficking area (HIDTA), the Attorney General may merge the
2 areas to serve as a dual-purpose entity. The Attorney
General may not make the final designation of a high
intensity interstate gang activity area without first
consulting with and receiving comment from local elected
officials representing communities within the State of the
proposed designation.
(2) Assistance.--In order to provide Federal assistance to
high intensity interstate gang activity areas, the Attorney
General shall--
(A) establish criminal street gang enforcement teams,
consisting of Federal, State, and local law enforcement
authorities, for the coordinated investigation, disruption,
apprehension, and prosecution of criminal street gangs and
offenders in each high intensity interstate gang activity
area;
(B) direct the reassignment or detailing from any Federal
department or agency (subject to the approval of the head of
that department or agency, in the case of a department or
agency other than the Department of Justice) of personnel to
each criminal street gang enforcement team; and
(C) provide all necessary funding for the operation of the
criminal street gang enforcement team in each high intensity
interstate gang activity area.
(3) Composition of criminal street gang enforcement team.--
The team established pursuant to paragraph (2)(A) shall
consist of agents and officers, where feasible, from--
(A) the Bureau of Alcohol, Tobacco, Firearms, and
Explosives;
(B) the Department of Homeland Security;
(C) the Department of Housing and Urban Development;
(D) the Drug Enforcement Administration;
(E) the Internal Revenue Service;
(F) the Federal Bureau of Investigation;
(G) the United States Marshal's Service;
(H) the United States Postal Service;
(I) State and local law enforcement; and
(J) Federal, State and local prosecutors.
(4) Criteria for designation.--In considering an area for
designation as a high intensity interstate gang activity area
under this section, the Attorney General shall consider--
(A) the current and predicted levels of gang crime activity
in the area;
(B) the extent to which violent crime in the area appears
to be related to criminal street gang activity, such as drug
trafficking, murder, robbery, assaults, carjacking, arson,
kidnapping, extortion, and other criminal activity;
(C) the extent to which State and local law enforcement
agencies have committed resources to--
(i) respond to the gang crime problem; and
(ii) participate in a gang enforcement team;
(D) the extent to which a significant increase in the
allocation of Federal resources would enhance local response
to the gang crime activities in the area; and
(E) any other criteria that the Attorney General considers
to be appropriate.
(c) Authorization of Appropriations.--
(1) In general.--There are authorized to be appropriated
$100,000,000 for each of the fiscal years 2005 to 2009 to
carry out this section.
(2) Use of funds.--Of amounts made available under
paragraph (1) in each fiscal year--
(A) 50 percent shall be used to carry out subsection
(b)(2); and
(B) 50 percent shall be used to make grants available for
community-based programs to provide crime prevention,
research, and intervention services that are designed for
gang members and at-risk youth in areas designated pursuant
to this section as high intensity interstate gang activity
areas.
(3) Reporting requirements.--By February 1st of each year,
the Attorney General shall provide a report to Congress which
describes, for each designated high intensity interstate gang
activity area--
(A) the specific long-term and short-term goals and
objectives;

[[Page S479]]

(B) the measurements used to evaluate the performance of
the high intensity interstate gang activity area in achieving
the long-term and short-term goals;
(C) the age, composition, and membership of ``gangs'';
(D) the number and nature of crimes committed by ``gangs'';
and
(E) the definition of the term ``gang'' used to compile
this report.

SEC. 111. ENHANCEMENT OF PROJECT SAFE NEIGHBORHOODS
INITIATIVE TO IMPROVE ENFORCEMENT OF CRIMINAL
LAWS AGAINST VIOLENT GANGS.

(a) In General.--While maintaining the focus of Project
Safe Neighborhoods as a comprehensive, strategic approach to
reducing gun violence in America, the Attorney General is
authorized to expand the Project Safe Neighborhoods program
to require each United States attorney to--
(1) identify, investigate, and prosecute significant
criminal street gangs operating within their district;
(2) coordinate the identification, investigation, and
prosecution of criminal street gangs among Federal, State,
and local law enforcement agencies; and
(3) coordinate and establish criminal street gang
enforcement teams, established under section 110(b), in high
intensity interstate gang activity areas within a United
States attorney's district.
(b) Additional Staff for Project Safe Neighborhoods.--
(1) In general.--The Attorney General may hire Assistant
United States attorneys, non-attorney coordinators, or
paralegals to carry out the provisions of this section.
(2) Authorization of appropriations.--There are authorized
to be appropriated $7,500,000 for each of the fiscal years
2005 through 2009 to carry out this section.

SEC. 112. ADDITIONAL RESOURCES NEEDED BY THE FEDERAL BUREAU
OF INVESTIGATION TO INVESTIGATE AND PROSECUTE
VIOLENT CRIMINAL STREET GANGS.

(a) Responsibilities of Attorney General.--The Attorney
General is authorized to require the Federal Bureau of
Investigation to--
(1) increase funding for the Safe Streets Program; and
(2) support the criminal street gang enforcement teams,
established under section 110(b), in designated high
intensity interstate gang activity areas.
(b) Authorization of Appropriations.--
(1) In general.--In addition to amounts otherwise
authorized, there are authorized to be appropriated to the
Attorney General $5,000,000 for each of the fiscal years 2005
through 2009 to carry out the Safe Streets Program.
(2) Availability.--Any amounts appropriated pursuant to
paragraph (1) shall remain available until expended.

SEC. 113. GRANTS TO PROSECUTORS AND LAW ENFORCEMENT TO COMBAT
VIOLENT CRIME AND TO PROTECT WITNESSES AND
VICTIMS OF CRIMES.

(a) In General.--Section 31702 of the Violent Crime Control
and Law Enforcement Act of 1994 (42 U.S.C. 13862) is
amended--
(1) in paragraph (3), by striking ``and'' at the end;
(2) in paragraph (4), by striking the period at the end and
inserting a semicolon; and
(3) by adding at the end the following:
``(5) to hire additional prosecutors to--
``(A) allow more cases to be prosecuted; and
``(B) reduce backlogs;
``(6) to fund technology, equipment, and training for
prosecutors and law enforcement in order to increase accurate
identification of gang members and violent offenders, and to
maintain databases with such information to facilitate
coordination among law enforcement and prosecutors; and
``(7) to create and expand witness and victim protection
programs to prevent threats, intimidation, and retaliation
against victims of, and witnesses to, violent crimes.''.
(b) Authorization of Appropriations.--Section 31707 of the
Violent Crime Control and Law Enforcement Act of 1994 (42
U.S.C. 13867) is amended to read as follows:

``SEC. 31707. AUTHORIZATION OF APPROPRIATIONS.

``(a) In General.--There are authorized to be appropriated
$20,000,000 for each of the fiscal years 2005 through 2009 to
carry out this subtitle.
``(b) Use of Funds.--Of the amounts made available under
subsection (a), in each fiscal year 60 percent shall be used
to carry out section 31702(7) to create and expand witness
and victim protection programs to prevent threats,
intimidation, and retaliation against victims of, and
witnesses to, violent crimes.''.

SEC. 114. REAUTHORIZE THE GANG RESISTANCE EDUCATION AND
TRAINING PROJECTS PROGRAM.

Section 32401(b) of the Violent Crime Control Act of 1994
(42 U.S.C. 13921(b)) is amended by striking paragraphs (1)
through (6) and inserting the following:
``(1) $20,000,000 for fiscal year 2005;
``(2) $20,000,000 for fiscal year 2006;
``(3) $20,000,000 for fiscal year 2007;
``(4) $20,000,000 for fiscal year 2008; and
``(5) $20,000,000 for fiscal year 2009.''.

TITLE II--VIOLENT CRIME REFORMS NEEDED TO DETER AND PREVENT ILLEGAL
GANG CRIME

SEC. 201. MULTIPLE INTERSTATE MURDER.

Chapter 51 of title 18, United States Code, is amended by
adding at the end of the new section:

``Sec. 1123. Multiple murders in furtherance of common scheme
of purpose

``(a) In General.--Whoever, having committed murder in
violation of the laws of any State or the United States,
moves or travels in interstate or foreign commerce with the
intent to commit one or more murders in violation of the laws
of any State or the United States, and thereafter commits one
or more murders in violation of the laws of any State or the
United States in furtherance of a common scheme or purpose,
or who conspires to do so--
``(1) shall be fined under this title, imprisoned for not
more than 30 years, or both, for each murder; and
``(2) if death results, may be fined not more than $250,000
under this title, and shall be punished by death or
imprisoned for any term of years or for life for each murder.
``(b) Definition.--The term `State' means each of the
several States of the United States, the District of
Columbia, and any commonwealth, territory, or possession of
the United States.''.

SEC. 202. EXPANSION OF REBUTTABLE PRESUMPTION AGAINST RELEASE
OF PERSONS CHARGED WITH FIREARMS OFFENSES.

Section 3142 of title 18, United States Code, is amended--
(1) in subsection (e), in the matter following paragraph
(3)--
(A) by inserting ``an offense under section 922(g)(1) where
the underlying conviction is a serious drug offense as
defined in section 924(e)(2)(A) of title 18, United States
Code, for which a period of not more than 10 years has
elapsed since the date of the conviction or the release of
the person from imprisonment, whichever is later, or is a
serious violent felony as defined in section 3559(c)(2)(F) of
title 18, United States Code,'' after ``that the person
committed''; and
(B) by inserting ``or'' before ``the Maritime'';
(2) in subsection (f)(1)--
(A) in subparagraph (C), by striking ``or'' at the end; and
(B) by adding at the end the following:
``(E) an offense under section 922(g); or''; and
(3) in subsection (g), by amending paragraph (1) to read as
follows:
``(1) the nature and circumstances of the offense charged,
including whether the offense is a crime of violence, or
involves a drug, firearm, explosive, or destructive
devise;''.

SEC. 203. VENUE IN CAPITAL CASES.

Section 3235 of title 18, United States Code, is amended to
read as follows:

``Sec. 3235. Venue in capital cases

``(a) The trial for any offense punishable by death shall
be held in the district where the offense was committed or in
any district in which the offense began, continued, or was
completed.
``(b) If the offense, or related conduct, under subsection
(a) involves activities which affect interstate or foreign
commerce, or the importation of an object or person into the
United States, such offense may be prosecuted in any district
in which those activities occurred.''.

SEC. 204. STATUTE OF LIMITATIONS FOR VIOLENT CRIME.

(a) In General.--Chapter 214 of title 18, United States
Code, is amended by adding at the end the following:

``Sec. 3297. Violent crime offenses

``Except as otherwise expressly provided by law, no person
shall be prosecuted, tried, or punished for any noncapital
felony, crime of violence (as defined in section 16),
including any racketeering activity or gang crime which
involves any violent crime, unless the indictment is found or
the information is instituted by the later of--
``(1) 10 years after the date on which the alleged
violation occurred;
``(2) 10 years after the date on which the continuing
offense was completed; or
``(3) 8 years after the date on which the alleged violation
was first discovered.''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 214 of title 18, United States Code, is
amended by adding at the end the following:
``3296. Violent crime offenses.''.

SEC. 205. PREDICATE CRIMES FOR AUTHORIZATION OF INTERCEPTION
OF WIRE, ORAL, AND ELECTRONIC COMMUNICATIONS.

Section 2516(1) of title 18, United States Code, is
amended--
(1) in paragraph (q), by striking ``or'.'';
(2) by redesignating paragraph (r) as paragraph (u); and
(3) by inserting after paragraph (q) the following:
``(r) any violation of section 424 of the Controlled
Substances Act (relating to murder and other violent crimes
in furtherance of a drug trafficking crime);
``(s) any violation of 1123 of title 18, United States Code
(relating to multiple interstate murder);
``(t) any violation of section 521, 522, or 523 (relating
to criminal street gangs); or''.

SEC. 206. CLARIFICATION TO HEARSAY EXCEPTION FOR FORFEITURE
BY WRONGDOING.

Rule 804(b)(6) of the Federal Rules of Evidence is amended
to read as follows:
``(6) Forfeiture by wrongdoing. A statement offered against
a party that has engaged, acquiesced, or conspired, in
wrongdoing that was intended to, and did, procure

[[Page S480]]

the unavailability of the declarant as a witness.''.

SEC. 207. CLARIFICATION OF VENUE FOR RETALIATION AGAINST A
WITNESS.

Section 1513 of title 18, United States Code, is amended
by--
(1) redesignating subsection (e) beginning with ``Whoever
conspires'' as subsection (f); and
(2) adding at the end the following:
``(g) A prosecution under this section may be brought in
the district in which the official proceeding (whether or not
pending, about to be instituted or was completed) was
intended to be affected or was completed, or in which the
conduct constituting the alleged offense occurred.''.

SEC. 208. AMENDMENT OF SENTENCING GUIDELINES RELATING TO
CERTAIN GANG AND VIOLENT CRIMES.

(a) Directive to the United States Sentencing Commission.--
Pursuant to its authority under section 994(p) of title 28,
United States Code, and in accordance with this section, the
United States Sentencing Commission shall review and, if
appropriate, amend its guidelines and its policy statements
to conform to the provisions of title I and this title.
(b) Requirements.--In carrying out this section, the
Sentencing Commission shall--
(1) establish new guidelines and policy statements, as
warranted, in order to implement new or revised criminal
offenses created under this title;
(2) ensure that the sentencing guidelines and policy
statements reflect the serious nature of the offenses and the
penalties set forth in this title, the growing incidence of
serious gang and violent crimes, and the need to modify the
sentencing guidelines and policy statements to deter,
prevent, and punish such offenses;
(3) consider the extent to which the guidelines and policy
statements adequately address--
(A) whether the guideline offense levels and enhancements
for gang and violent crimes--
(i) are sufficient to deter and punish such offenses; and
(ii) are adequate in view of the statutory increases in
penalties contained in the Act; and
(B) whether any existing or new specific offense
characteristics should be added to reflect congressional
intent to increase gang and violent crime penalties, punish
offenders, and deter gang and violent crime;
(4) assure reasonable consistency with other relevant
directives and with other sentencing guidelines;
(5) account for any additional aggravating or mitigating
circumstances that might justify exceptions to the generally
applicable sentencing ranges;
(6) make any necessary conforming changes to the sentencing
guidelines; and
(7) assure that the guidelines adequately meet the purposes
of sentencing under section 3553(a)(2) of title 18, United
States Code.

SEC. 209. INCREASED PENALTIES FOR CRIMINAL USE OF FIREARMS IN
CRIMES OF VIOLENCE AND DRUG TRAFFICKING.

(a) In General.--Section 924(c)(1)(A) of title 18, United
States Code, is amended--
(1) by striking ``shall'' and inserting ``or conspires to
commit any of the above acts, shall, for each instance in
which the firearm is used, carried, or possessed'';
(2) in clause (i), by striking ``5 years'' and inserting
``7 years''; and
(3) by striking clause (ii).
(b) Conforming Amendments.--Section 924 of title 18, United
States Code, is amended--
(1) in subsection (c), by striking paragraph (4); and
(2) by striking subsection (o).

SEC. 210. POSSESSION OF FIREARMS BY DANGEROUS FELONS.

(a) In General.--Section 924(e) of title 18, United States
Code, is amended to read as follows:
``(e)(1) In the case of a person who violates section
922(g) of this title and has previously been convicted by any
court referred to in section 922(g)(1) for a violent felony
or a serious drug offense shall--
``(A) in the case of 1 such prior conviction, where a
period of not more than 10 years has elapsed since the date
of conviction or release of the person from imprisonment for
that conviction, be subject to imprisonment for not more than
15 years, a fine under this title, or both;
``(B) in the case of 2 such prior convictions, committed on
occasions different from one another, and where a period of
not more than 10 years has elapsed since the date of
conviction or release of the person from imprisonment for
that conviction, be subject to imprisonment for not more than
20 years, a fine under this title, or both; and
``(C) in the case of 3 such prior convictions, committed on
occasions different from one another, be subject to
imprisonment for not less than 15 years, a fine under this
title, or both, and notwithstanding any other provision of
law, the court shall not suspend the sentence of, or grant a
probationary sentence to, such person with respect to the
conviction under section 922(g).
``(2) As used in this subsection--
``(A) the term `serious drug offense' means--
``(i) an offense under the Controlled Substances Act (21
U.S.C. 801 et seq.), the Controlled Substances Import and
Export Act (21 U.S.C. 951 et seq.), or the Maritime Drug Law
Enforcement Act (46 U.S.C. App. 1901 et seq.), punishable by
a maximum term of imprisonment of not less than 10 years; or
``(ii) an offense under State law, involving manufacturing,
distributing, or possessing with intent to manufacture or
distribute, a controlled substance (as defined in section 102
of the Controlled Substances Act (21 U.S.C. 802)), punishable
by a maximum term of imprisonment of not less than 10 years;
``(B) the term `violent felony' means any crime punishable
by a term of imprisonment exceeding 1 year, or any act of
juvenile delinquency involving the use or carrying of a
firearm, knife, or destructive device that would be
punishable by a maximum term of imprisonment for such term if
committed by an adult, that--
``(i) has, as an element of the crime or act, the use,
attempted use, or threatened use of physical force against
the person of another; or
``(ii) is burglary, arson, or extortion, involves the use
of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another; and
``(C) the term `conviction' includes a finding that a
person has committed an act of juvenile delinquency involving
a violent felony.''.
(b) Amendment to Sentencing Guidelines.--Pursuant to its
authority under section 994(p) of title 28, United States
Code, the United States Sentencing Commission shall amend the
Federal Sentencing Guidelines to provide for an appropriate
increase in the offense level for violations of section
922(g) of title 18, United States Code, in accordance with
section 924(e) of such title 18, as amended by subsection
(a).

SEC. 211. CONFORMING AMENDMENT.

The matter before paragraph (1) in section 922(d) of title
18, United States Code, is amended by inserting ``,
transfer,'' after ``sell''.

TITLE III--JUVENILE CRIME REFORM FOR VIOLENT OFFENDERS

SEC. 301. TREATMENT OF FEDERAL JUVENILE OFFENDERS.

(a) In General.--Section 5032 of title 18, United States
Code, is amended to read as follows:

``Sec. 5032. Delinquency proceedings in district courts;
juveniles tried as adults; transfer for criminal
prosecution

``(a) Delinquency Proceedings in District Courts.--
``(1) In general.--A juvenile alleged to have committed an
act of juvenile delinquency, other than a violation of law
committed within the special maritime and territorial
jurisdiction of the United States for which the maximum
authorized term of imprisonment does not exceed 6 months,
shall not be proceeded against in any court of the United
States unless the Attorney General, after investigation,
certifies to the appropriate district court of the United
States that--
``(A) the juvenile court or other appropriate court of a
State does not have jurisdiction or refuses to assume
jurisdiction over that juvenile with respect to such alleged
act of juvenile delinquency;
``(B) the State does not have available programs and
services adequate for the needs of juveniles; or
``(C) the offense charged is a crime of violence that is a
felony or an offense described in section 401 of the
Controlled Substances Act (21 U.S.C. 841), section 1002(a),
1003, 1005, 1009, or 1010(b) (1), (2), or (3) of the
Controlled Substances Import and Export Act (21 U.S.C.
952(a), 953, 955, 959, 960(b) (1), (2), (3)), section 922(x),
or section 924 (b), (g), or (h) of this title, and there is a
substantial Federal interest in the case or the offense to
warrant the exercise of Federal jurisdiction.
``(2) Failure to certify.--If the Attorney General does not
certify under paragraph (1), the juvenile shall be
surrendered to the appropriate legal authorities of such
State.
``(3) Federal proceedings.--If an alleged juvenile
delinquent is not surrendered to the authorities of a State
pursuant to this section, any proceedings against him shall
be in an appropriate district court of the United States. For
such purposes, the court may be convened at any time and
place within the district, in chambers or otherwise. The
Attorney General shall proceed by information or as
authorized under section 3401(g) of this title, and no
criminal prosecution shall be instituted for the alleged act
of juvenile delinquency except as provided below.
``(b) Transfer for Federal Criminal Prosecution.--
``(1) In general.--A juvenile who is alleged to have
committed an act of juvenile delinquency and who is not
surrendered to State authorities shall be proceeded against
under this chapter unless--
``(A) the juvenile has requested in writing upon advice of
counsel to be proceeded against as an adult;
``(B) with respect to a juvenile 15 years and older alleged
to have committed an act after his fifteenth birthday which
if committed by an adult would be a felony that is a crime of
violence or an offense described in section 401 of the
Controlled Substances Act (21 U.S.C. 841), or section
1002(a), 1005, or 1009 of the Controlled Substances Import
and Export Act (21 U.S.C. 952(a), 955, 959), or section
922(x) of this title, or in section 924 (b), (g), or (h) of
this title, the Attorney General makes a motion to transfer
the criminal prosecution on the basis of the alleged act in
the appropriate district court of the United States and the
court finds, after hearing, such transfer would be in the
interest of justice as provided in paragraph (2); or

[[Page S481]]

``(C) with respect to a juvenile 13 years and older alleged
to have committed an act after his thirteenth birthday which
if committed by an adult would be a felony that is the crime
of violence under section 113 (a), (b), (c), 1111, 1113, or,
if the juvenile possessed a firearm during the offense, an
offense under section 2111, 2113, 2241(a), or 2241(c), the
Attorney General makes a motion to transfer the criminal
prosecution on the basis of the alleged act in the
appropriate district court of the United States and the court
finds, after hearing, such transfer would be in the interest
of justice as provided in paragraph (2).

Notwithstanding sections 1152 and 1153, no person subject to
the criminal jurisdiction of an Indian tribal government
shall be subject to subparagraph (C) for any offense the
Federal jurisdiction for which is predicated solely on Indian
country (as defined in section 1151), and which has occurred
within the boundaries of such Indian country, unless the
governing body of the tribe has elected that the preceding
sentence have effect over land and persons subject to its
criminal jurisdiction.
``(2) Factors.--
``(A) In general.--Evidence of the following factors shall
be considered, and findings with regard to each factor shall
be made in the record, in assessing whether a transfer under
subparagraph (B) or (C) of paragraph (1), and paragraph (4)
of subsection (d), would be in the interest of justice:
``(i) The age and social background of the juvenile.
``(ii) The nature of the alleged offense, including the
extent to which the juvenile played a leadership role in an
organization, or otherwise influenced other persons to take
part in criminal activities.
``(iii) Whether prosecution of the juvenile as an adult
would protect public safety.
``(iv) The extent and nature of the juvenile's prior
delinquency record.
``(v) The juvenile's present intellectual development and
psychological maturity.
``(vi) The nature of past treatment efforts and the
juvenile's response to such efforts.
``(vii) The availability of programs designed to treat the
juvenile's behavioral problems.
``(B) Nature of the offense.--In considering the nature of
the offense, as required by this paragraph, the court shall
consider the extent to which the juvenile played a leadership
role in an organization, or otherwise influenced other
persons to take part in criminal activities, involving the
use or distribution of controlled substances or firearms.
Such a factor, if found to exist, shall weigh in favor of a
transfer to adult status, but the absence of this factor
shall not preclude such a transfer.
``(C) Notice.--Reasonable notice of the transfer hearing
under subparagraph (B) or (C) of paragraph (1) shall be given
to the juvenile, the juvenile's parents, guardian, or
custodian and to the juvenile's counsel. The juvenile shall
be assisted by counsel during the transfer hearing, and at
every other critical stage of the proceedings.
``(c) Mandatory Transfer of Juvenile 16 or Older.--A
juvenile who is alleged to have committed an act on or after
his sixteenth birthday, which if committed by an adult would
be a felony offense, that has an element thereof the use,
attempted use, or threatened use of physical force against
the person of another, or that, by its very nature, involves
a substantial risk that physical force against the person of
another, may be used in committing the offense or would be an
offense described in section 32, 81, or 2275 or subsection
(d), (e), (f), (h), or (i) of section 844 of this title,
subsection (d) or (e) or subparagraphs (A), (B), (C), (D), or
(E) of subsection (b)(1) of section 401 of the Controlled
Substances Act, or section 1002(a), 1003, or 1009, or
paragraphs (1), (2), or (3) of section 1010(b) of the
Controlled Substances Import and Export Act (21 U.S.C.
952(a), 953, 959, 960(b) (1), (2), and (3)), and who has
previously been found guilty of an act which if committed by
an adult would have been one of the offenses set forth in
this subsection or subsection (b), or an offense in violation
of a State felony statute that would have been such an
offense if a circumstance giving rise to Federal jurisdiction
had existed, shall be transferred, upon notification by the
United States, to the appropriate district court of the
United States for criminal prosecution.
``(d) Sixteen and Seventeen Year Olds Charged With the Most
Serious Violent Felonies.--
``(1) In general.--Notwithstanding any other provision of
law, a juvenile may be prosecuted as an adult if the juvenile
is alleged to have committed, conspired, solicited or
attempted to commit, on or after the day the juvenile attains
the age of 16 any offense involving--
``(A) murder;
``(B) manslaughter;
``(C) assault with intent to commit murder;
``(D) sexual assault (which means any offense that involves
conduct that would violate chapter 109A if the conduct
occurred in the special maritime and territorial
jurisdiction);
``(E) robbery (as described in section 2111, 2113, or
2118);
``(F) carjacking with a dangerous weapon;
``(G) extortion;
``(H) arson;
``(I) firearms use;
``(J) firearms possession (as described in section 924(c);
``(K) drive-by shooting;
``(L) kidnapping;
``(M) maiming;
``(N) assault resulting in serious bodily injury; or
``(O) obstruction of justice (as described in 1512(a)(1))
on or after the day the juvenile attains the age of 16.
``(2) Other offenses.--In a prosecution under this
subsection the juvenile may be prosecuted and convicted as an
adult for any other offense which is properly joined under
the Federal Rules of Criminal Procedure, and may also be
convicted as an adult of a lesser included offense.
``(3) Reviewability.--Except as otherwise provided by this
subsection, a determination to approve or not to approve, or
to institute or not to institute, a prosecution under this
subsection shall not be reviewable in any court.
``(4) Prosecution.--(A) In any prosecution of a juvenile
under this subsection, upon motion of the defendant, the
court in which the criminal charges have been filed shall
after a hearing determine whether to issue an order that the
defendant should be transferred to juvenile status.
``(B) A motion by a defendant under this paragraph shall
not be considered unless filed no later than 30 days after
the date on which the defendant initially appears through
counsel or expressly waives the right to counsel and elects
to proceed pro se.
``(C) The court shall not order the transfer of a defendant
to juvenile status under this paragraph unless the defendant
establishes by clear and convincing evidence that removal to
juvenile status would be in the interest of justice. In
making a determination under this paragraph, the court shall
consider the factors specified in subsection (b)(2) of this
section.
``(5) Order.--An order of the court made in ruling on a
motion by a defendant to transfer a defendant to juvenile
status under this subsection shall not be a final order for
the purpose of enabling an appeal, except that an appeal by
the United States shall lie to a court of appeals pursuant to
section 3731 of this title from an order of a district court
removing a defendant to juvenile status. Upon receipt of a
notice of appeal of an order under this paragraph, a court of
appeals shall hear and determine the appeal on an expedited
basis. The court of appeals shall give due regard to the
opportunity of the district court to judge the credibility of
the witnesses, and shall accept the findings of fact of the
district court unless they are clearly erroneous, and the
court of appeals shall review de novo the district court's
application of the law to the facts.
``(e) Sixteen and Seventeen Year Olds Charged With Other
Serious Violent Felonies.--
``(1) In general.--Except as provided by subsection (d), a
juvenile may be prosecuted as an adult if the juvenile is
alleged to have committed an act on or after the day the
juvenile attains the age of 16 which is committed by an adult
would be a serious violent felony as described in paragraphs
(2) and (3) of section 3559(a).
``(2) Other offenses.--In a prosecution under this
subsection the juvenile may be prosecuted and convicted as an
adult for any other offense which is properly joined under
the Federal Rules of Criminal Procedure, and may also be
convicted as an adult of a lesser included offense.
``(3) Reviewability.--Except as otherwise provided by this
subsection, a determination to approve or not to approve, or
to institute or not to institute, a prosecution under this
subsection shall not be reviewable in any court.
``(4) Prosecution.--(A) In any prosecution of a juvenile
under this subsection, upon motion of the defendant, the
court in which the criminal charges have been filed shall
after a hearing determine whether to issue an order that the
defendant should be transferred to juvenile status.
``(B) A motion by a defendant under this paragraph shall
not be considered unless filed no later than 30 days after
the date on which the defendant initially appears through
counsel or expressly waives the right to counsel and elects
to proceed pro se.
``(C) The court shall not order the transfer of a defendant
to juvenile status under this paragraph unless the defendant
establishes by clear and convincing evidence that removal to
juvenile status would be in the interest of justice. In
making a determination under this paragraph, the court shall
consider the factors specified in subsection (b)(2) of this
section.
``(5) Order.--An order of the court made in ruling on a
motion by a defendant to transfer a defendant to juvenile
status under this subsection shall be a final order for the
purpose of enabling an appeal. Upon receipt of a notice of
appeal of an order under this paragraph, a court of appeals
shall hear and determine the appeal on an expedited basis.
The court of appeals shall give due regard to the opportunity
of the district court to judge the credibility of the
witnesses, and shall accept the findings of fact of the
district court unless they are clearly erroneous, and the
court of appeals shall review de novo the district court's
application of the law to the facts.
``(f) Proceedings.--
``(1) Subsequent proceeding barred.--Once a juvenile has
entered a plea of guilty or the proceeding has reached the
stage that evidence has begun to be taken with respect

[[Page S482]]

to a crime or an alleged act of juvenile delinquency
subsequent criminal prosecution or juvenile proceedings based
upon such alleged act of delinquency shall be barred.
``(2) Statements.--Statements made by a juvenile prior to
or during a transfer hearing under this section shall not be
admissible at subsequent criminal prosecutions except for
impeachment purposes or in a prosecution for perjury or
making a false statement.
``(3) Further proceedings.--Whenever a juvenile transferred
to district court under subsection (b) or (c) is not
convicted of the crime upon which the transfer was based or
another crime which would have warranted transfer had the
juvenile been initially charged with that crime, further
proceedings concerning the juvenile shall be conducted
pursuant to the provisions of this chapter.
``(4) Receipt of records.--A juvenile shall not be
transferred to adult prosecution under subsection (b) nor
shall a hearing be held under section 5037 (disposition after
a finding of juvenile delinquency) until any prior juvenile
court records of such juvenile have been received by the
court, or the clerk of the juvenile court has certified in
writing that the juvenile has no prior record, or that the
juvenile's record is unavailable and why it is unavailable.
``(5) Specific acts described.--Whenever a juvenile is
adjudged delinquent pursuant to the provisions of this
chapter, the specific acts which the juvenile has been found
to have committed shall be described as part of the official
record of the proceedings and part of the juvenile's official
record.
``(g) State.--For purposes of this section, the term
`State' includes a State of the United States, the District
of Columbia, and any commonwealth, territory, or possession
of the United States.''.
(b) Conforming Amendment.--The analysis for chapter 403 of
title 18, United States Code, is amended by striking the item
relating to section 5032 and inserting the following:
``5032. Delinquency proceedings in district courts; juveniles tried as
adults; transfer for criminal prosecution.''.

SEC. 302. NOTIFICATION AFTER ARREST.

Section 5033 of title 18, United States Code, is amended in
the first sentence, by striking ``immediately notify the
Attorney General and'' and inserting ``immediately, or as
soon as practicable thereafter, notify the Attorney General
and shall promptly take reasonable steps to notify''.

SEC. 303. RELEASE AND DETENTION PRIOR TO DISPOSITION.

(a) Duties of Magistrate Judge.--Section 5034 of title 18,
United States Code, is amended--
(1) in the first undesignated paragraph, by striking ``The
magistrate judge shall insure'' and inserting the following:
``(a) In General.--
``(1) Representation by counsel.--The magistrate judge
shall ensure'';
(2) in the second undesignated paragraph, by striking ``The
magistrate judge may appoint'' and inserting the following:
``(2) Guardian ad litem.--The magistrate judge may
appoint'';
(3) in the third undesignated paragraph, by striking ``If
the juvenile'' and inserting the following:
``(b) Release Prior to Disposition.--Except as provided in
subsection (c), if the juvenile''; and
(4) by adding at the end the following:
``(c) Release of Certain Juveniles.--
``(1) In general.--A juvenile, who is to be tried as an
adult under section 5032, shall be released pending trial in
accordance with the applicable provisions of chapter 207.
``(2) Conditions.--A release under paragraph (1) shall be
conducted in the same manner, and shall be subject to the
same terms, conditions, and sanctions for violation of a
release condition, as provided for an adult under chapter
207.
``(d) Penalty for an Offense Committed While on Release.--
``(1) In general.--A juvenile alleged to have committed,
while on release under this section, an offense that, if
committed by an adult, would be a Federal criminal offense,
shall be subject to prosecution under section 5032.
``(2) Applicability of certain penalties.--Section 3147
shall apply to a juvenile who is to be tried as an adult
under section 5032 for an offense committed while on release
under this section.''.
(b) Detention Prior to Disposition.--Section 5035 of title
18, United States Code, is amended--
(1) by striking ``A juvenile'' and inserting the following:
``(a) In General.--Except as provided in subsection (b), a
juvenile''; and
(2) by adding at the end the following:
``(b) Detention of Certain Juveniles.--A juvenile who is to
be tried as an adult under section 5032 shall be subject to
detention in accordance with chapter 207.''.

SEC. 304. SPEEDY TRIAL.

Section 5036 of title 18, United States Code, is amended to
read as follows:

``Sec. 5036. Speedy trial

``(a) In General.--If an alleged delinquent, who is to be
proceeded against as a juvenile pursuant to section 5032 and
who is in detention pending trial, is not brought to trial
within 70 days from the date upon which such detention began,
the information shall be dismissed on motion of the alleged
delinquent or at the direction of the court.
``(b) Periods of Exclusion.--The periods of exclusion under
section 3161(h) shall apply to this section.
``(c) Judicial Considerations.--In determining whether an
information should be dismissed with or without prejudice,
the court shall consider--
``(1) the seriousness of the alleged act of juvenile
delinquency;
``(2) the facts and circumstances of the case that led to
the dismissal; and
``(3) the impact of a reprosecution on the administration
of justice.''.

SEC. 305. FEDERAL SENTENCING GUIDELINES.

(a) Application of Guidelines to Certain Juvenile
Defendants.--Section 994(h) of title 28, United States Code,
is amended by inserting ``, or in which the defendant is a
juvenile who is tried as an adult,'' after ``old or older''.
(b) Guidelines for Juvenile Cases.--Section 994 of title
28, United States Code, is amended by adding at the end the
following:
``(z) Guidelines for Juvenile Cases.--Not later than May 1,
2006, the Commission, pursuant to its rules and regulations
and consistent with all pertinent provisions of any Federal
statute, shall promulgate and distribute, to all courts of
the United States and to the United States Probation System,
guidelines, as described in this section, for use by a
sentencing court in determining the sentence to be imposed in
a criminal case if the defendant committed the offense as a
juvenile, and is tried as an adult pursuant to section 5032
of title 18.''.

Mr. HATCH. Mr. President, I rise today to introduce with my
colleagues, Senators Feinstein, Grassley, Kyl, and Cornyn, a
comprehensive bipartisan bill to increase gang prosecution and
prevention efforts. The bill I introduce today is identical to S. 1735
that was favorably reported by the Senate Judiciary Committee in the
108th Congress.
This legislation, ``The Gang Prevention and Effective Deterrence Act
of 2005,'' authorizes approximately $650 million over the next five
years to support law enforcement and efforts to prevent youngsters from
joining gangs. Of that, $450 million would be used to support Federal,
State and local law enforcement efforts against violent gangs, and $200
million would be used for intervention and prevention programs for at-
risk youth. The bill increases funding for the Federal prosecutors and
Federal Bureau of Investigation (FBI) agents needed to conduct
coordinated enforcement efforts against violent gangs.
This bill also creates new criminal gang prosecution offenses,
enhances existing gang and violent crime penalties to deter and punish
illegal street gangs, enacts violent crime reforms needed to prosecute
effectively gang members, and implements a limited reform of the
juvenile justice system to facilitate Federal prosecution of 16- and
17-year-old gang members who commit serious violent felonies.
The problem of gang violence in America is not a new one, nor is it a
problem that is limited to major urban areas. Once thought to be only a
problem in our Nation's largest cities, gangs have invaded smaller
communities. Gangs in Salt Lake County result in significant measure
from the influence of gangs existing in Los Angeles and Chicago, but
with local mutations.
Constituents frequently mention to me their extreme concern about
gang violence in Utah. According to the Salt Lake Area Gang Project, a
multi-jurisdictional task force created in 1989 to fight gang crime in
the Salt Lake area, there are at least 250 identified gangs in Utah
with over 3,500 members. In Utah, there are street gangs that are
ethnically oriented, such as Hispanic gangs, as well as those
affiliated with gangs from other cities, such as the Crips and Bloods,
Folks and People, motorcycle gangs, Straight Edge gangs, Animal
Liberation Front, Skinheads, Varrio Loco Town, Oquirrh Shadow Boys,
Salt Lake Posse, and the list goes on. Some of these gangs are racist;
some are extremist.
And what I find particularly troubling is that over one-third of the
total gang membership is made up of juveniles. Thus, these crimes have
a particular impact on youths.
Gangs now resemble organized crime syndicates which readily engage in
gun violence, illegal gun trafficking, illegal drug trafficking and
other serious crimes. All too often we read in the headlines about
gruesome and tragic stories of rival gang members gunned down, innocent
bystanders--adults, teenagers and children--caught in the cross fire of
gangland shootings, and family members crying out in grief as they lose
loved ones to the gang wars plaguing our communities.

[[Page S483]]

Recent studies confirm that gang violence is an increasing problem in
all of our communities. Based on the latest available National Youth
Gang Survey, it is now estimated that there are more than 25,000 gangs,
and over 750,000 gang members who are active in more than 3,000
jurisdictions across the United States. The most current reports
indicate that in 2002 alone, after five years of decline, gang
membership has spiked nationwide.
I have been--and remain--committed to supporting Federal, State and
local task forces as a model for effective gang enforcement strategies.
Working together, these task forces have demonstrated that they can
make a difference in the community. In Salt Lake City, the Metro Gang
Multi-Jurisdiction Task Force stands out as a critical player in
fighting gang violence in Salt Lake City. We need to reassure
outstanding organizations like this that there will be adequate
resources available to expand and fund these critical task force
operations to fight gang violence.
In my study of this problem, it has become clear that the government
needs to work with communities to meet this problem head-on and defeat
it. If we really want to reduce gang violence, we must ensure that law
enforcement has adequate resources and legal tools, and that our
communities have the ability to implement proven intervention and
prevention strategies, so that gang members who are removed from the
community are not simply replaced by the next generation of new gang
members.
In closing, I want to commend my colleagues--Senators Feinstein,
Grassley, Kyl and Cornyn. They have worked very closely with me as we
considered these issues last Congress and I look forward to working
with them and others as we proceed this year. I urge my colleagues to
join with us in promptly passing this important legislation.
______

By Mr. BINGAMAN (for himself and Mr. Domenici):
S. 156. A bill to designate the Ojito Wilderness Study Area as
wilderness, to take certain land into trust for the Pueblo of Zia, and
for other purposes; to the Committee on Energy and Natural Resources.
Mr. BINGAMAN. Mr. President, I am proud to introduce the ``Ojito
Wilderness Act''. This bill was passed in various forms by both the
Senate and the House of Representatives in the 108th Congress. I am
pleased that the senior Senator from New Mexico, Mr. Domenici, is
cosponsoring this bill.
The support for this proposal truly is impressive. It has been
formally endorsed by the Governor of New Mexico; the local Sandoval
County Commission and the neighboring Bernalillo County Commission; the
Albuquerque City Council; New Mexico House of Representatives Energy
and Natural Resources Committee Chairman James Roger Madalena; the
Governors of the Pueblos of Zia, Santa Ana, Santo Domingo, Cochiti,
Tesuque, San Ildefonso, Pojoaque, Nambe, Santa Clara, San Juan, Sandia,
Laguna, Acoma, Isleta, Picuris, and Taos; the National Congress of
American Indians; the Hopi Tribe; The Wilderness Society; the New
Mexico Wilderness Alliance; the Coalition for New Mexico Wilderness, on
behalf of more than 375 businesses and organizations; the Rio Grande
Chapter of the Sierra Club; the National Parks Conservation
Association; the Albuquerque Convention and Visitors Bureau; 1000
Friends of New Mexico; and numerous individuals.
The Ojito provides a unique wilderness area that is important not
only to its local stewards, but also to the nearby residents of
Albuquerque and Santa Fe, as well as visitors from across the country.
It is an outdoor geology laboratory, offering a spectacular and unique
opportunity to view from a single location the juxtaposition of the
southwestern margin of the Rocky Mountains, the Colorado Plateau, and
the Rio Grande Rift, along with the volcanic necks of the Rio Puerco
Fault. Its rugged terrain offers a rewarding challenge to hikers,
backpackers, and photographers. It shelters ancient Puebloan ruins and
an endemic endangered plant, solitude and inspiration. Designating
Ojito as a wilderness area ensures that the beauty of this special
place will be protected and enjoyed for years to come.
I have made a number of changes to this bill in order clarify a
number of issues and to facilitate its enactment, and I hope that it
will be enacted quickly.
I ask unanimous consent that the text of the bill I have introduced
today be printed in Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 156

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Ojito Wilderness Act''.

SEC. 2. DEFINITIONS.

In this Act:
(1) Map.--The term ``map'' means the map entitled ``Ojito
Wilderness Act'' and dated October 1, 2004.
(2) Pueblo.--The term ``Pueblo'' means the Pueblo of Zia.
(3) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(4) State.--The term ``State'' means the State of New
Mexico.

SEC. 3. DESIGNATION OF THE OJITO WILDERNESS.

(a) In General.--In furtherance of the purposes of the
Wilderness Act (16 U.S.C. 1131 et seq.), there is hereby
designated as wilderness, and, therefore, as a component of
the National Wilderness Preservation System, certain land in
the Albuquerque District-Bureau of Land Management, New
Mexico, which comprise approximately 11,183 acres, as
generally depicted on the map, and which shall be known as
the ``Ojito Wilderness''.
(b) Map and Legal Description.--The map and a legal
description of the wilderness area designated by this Act
shall--
(1) be filed by the Secretary with the Committee on Energy
and Natural Resources of the Senate and the Committee on
Resources of the House of Representatives as soon as
practicable after the date of enactment of this Act;
(2) have the same force and effect as if included in this
Act, except that the Secretary may correct clerical and
typographical errors in the legal description and map; and
(3) be on file and available for public inspection in the
appropriate offices of the Bureau of Land Management.
(c) Management of Wilderness.--Subject to valid existing
rights, the wilderness area designated by this Act shall be
managed by the Secretary in accordance with the Wilderness
Act (16 U.S.C. 1131 et seq.) and this Act, except that, with
respect to the wilderness area designated by this Act, any
reference in the Wilderness Act to the effective date of the
Wilderness Act shall be deemed to be a reference to the date
of enactment of this Act.
(d) Management of Newly Acquired Land.--If acquired by the
United States, the following land shall become part of the
wilderness area designated by this Act and shall be managed
in accordance with this Act and other applicable law:
(1) Section 12 of township 15 north, range 01 west, New
Mexico Principal Meridian.
(2) Any land within the boundaries of the wilderness area
designated by this Act.
(e) Management of Lands To Be Added.--The lands generally
depicted on the map as ``Lands to be Added'' shall become
part of the wilderness area designated by this Act if the
United States acquires, or alternative adequate access is
available to, section 12 of township 15 north, range 01 west.
(f) Release.--The Congress hereby finds and directs that
the lands generally depicted on the map as ``Lands to be
Released'' have been adequately studied for wilderness
designation pursuant to section 603 of the Federal Land
Policy and Management Act of 1976 (43 U.S.C. 1782) and no
longer are subject to the requirement of section 603(c) of
such Act (43 U.S.C. 1782(c)) pertaining to the management of
wilderness study areas in a manner that does not impair the
suitability of such areas for preservation as wilderness.
(g) Grazing.--Grazing of livestock in the wilderness area
designated by this Act, where established before the date of
enactment of this Act, shall be administered in accordance
with the provisions of section 4(d)(4) of the Wilderness Act
(16 U.S.C. 1133(d)(4)) and the guidelines set forth in
Appendix A of the Report of the Committee on Interior and
Insular Affairs to accompany H.R. 2570 of the One Hundred
First Congress (H. Rept. 101-405).
(h) Fish and Wildlife.--As provided in section 4(d)(7) of
the Wilderness Act (16 U.S.C. 1133(d)(7)), nothing in this
section shall be construed as affecting the jurisdiction or
responsibilities of the State with respect to fish and
wildlife in the State.
(i) Water Rights.--
(1) Findings.--Congress finds that--
(A) the land designated as wilderness by this Act is arid
in nature and is generally not suitable for use or
development of new water resource facilities; and
(B) because of the unique nature and hydrology of the
desert land designated as wilderness by this Act, it is
possible to provide for proper management and protection of
the wilderness and other values of lands in ways different
from those used in other legislation.
(2) Statutory construction.--Nothing in this Act--

[[Page S484]]

(A) shall constitute or be construed to constitute either
an express or implied reservation by the United States of any
water or water rights with respect to the land designated as
wilderness by this Act;
(B) shall affect any water rights in the State existing on
the date of enactment of this Act, including any water rights
held by the United States;
(C) shall be construed as establishing a precedent with
regard to any future wilderness designations;
(D) shall affect the interpretation of, or any designation
made pursuant to, any other Act; or
(E) shall be construed as limiting, altering, modifying, or
amending any of the interstate compacts or equitable
apportionment decrees that apportion water among and between
the State and other States.
(3) State water law.--The Secretary shall follow the
procedural and substantive requirements of the law of the
State in order to obtain and hold any water rights not in
existence on the date of enactment of this Act with respect
to the wilderness area designated by this Act.
(4) New projects.--
(A) Water resource facility.--As used in this subsection,
the term ``water resource facility''--
(i) means irrigation and pumping facilities, reservoirs,
water conservation works, aqueducts, canals, ditches,
pipelines, wells, hydropower projects, and transmission and
other ancillary facilities, and other water diversion,
storage, and carriage structures; and
(ii) does not include wildlife guzzlers.
(B) Restriction on new water resource facilities.--Except
as otherwise provided in this Act, on and after the date of
enactment of this Act, neither the President nor any other
officer, employee, or agent of the United States shall fund,
assist, authorize, or issue a license or permit for the
development of any new water resource facility within the
wilderness area designated by this Act.
(j) Withdrawal.--Subject to valid existing rights, the
wilderness area designated by this Act, the lands to be added
under subsection (e), and lands identified on the map as the
``BLM Lands Authorized to be Acquired by the Pueblo of Zia''
are withdrawn from--
(1) all forms of entry, appropriation, and disposal under
the public land laws;
(2) location, entry, and patent under the mining laws; and
(3) operation of the mineral leasing, mineral materials,
and geothermal leasing laws.
(k) Exchange.--Not later than 3 years after the date of
enactment of this Act, the Secretary shall seek to complete
an exchange for State land within the boundaries of the
wilderness area designated by this Act.

SEC. 4. LAND HELD IN TRUST.

(a) In General.--Subject to valid existing rights and the
conditions under subsection (d), all right, title, and
interest of the United States in and to the lands (including
improvements, appurtenances, and mineral rights to the lands)
generally depicted on the map as ``BLM Lands Authorized to be
Acquired by the Pueblo of Zia'' shall, on receipt of
consideration under subsection (c) and adoption and approval
of regulations under subsection (d), be declared by the
Secretary to be held in trust by the United States for the
Pueblo and shall be part of the Pueblo's Reservation.
(b) Description of Lands.--The boundary of the lands
authorized by this section for acquisition by the Pueblo
where generally depicted on the map as immediately adjacent
to CR906, CR923, and Cucho Arroyo Road shall be 100 feet from
the center line of the road.
(c) Consideration.--
(1) In general.--In consideration for the conveyance
authorized under subsection (a), the Pueblo shall pay to the
Secretary the amount that is equal to the fair market value
of the land conveyed, as subject to the terms and conditions
in subsection (d), as determined by an independent appraisal.
(2) Appraisal.--To determine the fair market value, the
Secretary shall conduct an appraisal paid for by the Pueblo
that is performed in accordance with the Uniform Appraisal
Standards for Federal Land Acquisitions and the Uniform
Standards of Professional Appraisal Practice.
(3) Availability.--Any amounts paid under paragraph (1)
shall be available to the Secretary, without further
appropriation and until expended, for the acquisition from
willing sellers of land or interests in land in the State.
(d) Public Access.--
(1) In general.--Subject to paragraph (2), the declaration
of trust and conveyance under subsection (a) shall be subject
to the continuing right of the public to access the land for
recreational, scenic, scientific, educational,
paleontological, and conservation uses, subject to any
regulations for land management and the preservation,
protection, and enjoyment of the natural characteristics of
the land that are adopted by the Pueblo and approved by the
Secretary; Provided that the Secretary shall ensure that the
rights provided for in this paragraph are protected and that
a process for resolving any complaints by an aggrieved party
is established.
(2) Conditions.--Except as provided in subsection (f)--
(A) the land conveyed under subsection (a) shall be
maintained as open space and the natural characteristics of
the land shall be preserved in perpetuity; and
(B) the use of motorized vehicles (except on existing roads
or as is necessary for the maintenance and repair of
facilities used in connection with grazing operations),
mineral extraction, housing, gaming, and other commercial
enterprises shall be prohibited within the boundaries of the
land conveyed under subsection (a).
(e) Rights of Way.--
(1) Existing rights of way.--Nothing in this section shall
affect--
(A) any validly issued right-of-way or the renewal thereof;
or
(B) the access for customary construction, operation,
maintenance, repair, and replacement activities in any right-
of-way issued, granted, or permitted by the Secretary.
(2) New rights of way and renewals.--
(A) In general.--The Pueblo shall grant any reasonable
request for rights-of-way for utilities and pipelines over
the land acquired under subsection (a) that is designated as
the ``Rights-of-Way corridor #1'' in the Rio Puerco Resource
Management Plan that is in effect on the date of the grant.
(B) Administration.--Any right-of-way issued or renewed
after the date of enactment of this Act located on land
authorized to be acquired under this section shall be
administered in accordance with the rules, regulations, and
fee payment schedules of the Department of the Interior,
including the Rio Puerco Resources Management Plan that is in
effect on the date of issuance or renewal of the right-of-
way.
(f) Judicial Relief.--
(1) In general.--To enforce subsection (d), any person may
bring a civil action in the United States District Court for
the District of New Mexico seeking declaratory or injunctive
relief.
(2) Sovereign immunity.--The Pueblo shall not assert
sovereign immunity as a defense or bar to a civil action
brought under paragraph (1).
(3) Effect.--Nothing in this section--
(A) authorizes a civil action against the Pueblo for money
damages, costs, or attorneys fees; or
(B) except as provided in paragraph (2), abrogates the
sovereign immunity of the Pueblo.
______

By Mr. KOHL:
S. 157. A bill to amend the Internal Revenue Code of 1986 to permit
interest on Federally guaranteed water, wastewater, and essential
community facilities loans to be tax exempt; to the Committee on
Finance.
Mr. KOHL. Mr. President, I'm introducing a bill today that is aimed
at helping rural communities build or improve essential community
facilities such as shelters, nursing homes, hospitals, medical clinics,
and fire and rescue-type projects. My bill would make it possible for
project sponsors to accept certain USDA loan guarantees without risking
the tax exempt status that enables them to finance these initiatives.
Clarification of existing tax rules, as proposed in this bill, will
provide certainty for project sponsors, help lower project costs for
rural communities, and help deal with a backlog of loan applications
for small communities.
The needs are great in many rural communities. This measure will help
communities help themselves and I look forward to working with the
Senate Finance Committee on this important topic.
I ask unanimous consent that the text of the measure be printed in
the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 157

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. TAX-EXEMPT INTEREST ON FEDERALLY GUARANTEED WATER,
WASTEWATER, AND FEDERALLY GUARANTEED ESSENTIAL
COMMUNITY FACILITIES LOANS.

(a) In General.--Section 149(b)(3)(A) of the Internal
Revenue Code 1986 (relating to certain insurance programs) is
amended by striking ``or'' at the end of clause (ii), by
striking period at the end of clause (iii) and inserting ``,
or'', and by adding at the end the following new clause:
``(iv) any guarantee by the Secretary of Agriculture
pursuant to section 306(a)(1) of the Consolidated Farm and
Rural Development Act (7 U.S.C. 1926(a)(1)) to finance water,
wastewater, and essential community facilities.''.
(b) Effective Date.--The amendments made by this section
shall apply to bonds issued after the date of the enactment
of this Act.
______

By Mr. LIEBERMAN (for himself, Mrs. Clinton, Mr. Dodd, and Mr.
Schumer):
S. 158. A bill to establish the Long Island Sound Stewardship
Initiative; to the Committee on Environment and Public Works.

[[Page S485]]

Mr. LIEBERMAN. Mr. President, I rise today to re-introduce
legislation that would establish a new system to preserve the
environmental quality of Long Island Sound by identifying, protecting,
and enhancing sites within the Long Island Sound ecosystem that have
significant ecological, educational, open space, public access, or
recreational value.
With this legislation, we hope to preserve the natural beauty and
ecological wonder of the majestic waterway between New York and
Connecticut, which my New York and Connecticut colleagues and I have
worked hard together to improve. We have come a long way in restoring
the Sound and its rich biodiversity over the past several decades, but
our progress may be in jeopardy if we do not take measures now to
protect remaining sites of biological diversity. Despite our best
efforts, we are continuing to lose unprotected open sites along the
shore. That is why this Act is so important.
One of the important features of the Stewardship Act I am introducing
is that it will use new approaches to address an old problem, the
proper conservation of our resources. The legislation includes novel
conservation techniques that are designed to accomplish their goals at
the least cost. First, it involves purchasing property or property
rights or entering into binding legal agreements with property owners,
but does so through a process that is voluntary and that explicitly
respects the interests and rights of private property owners. It also
uses established scientific methods for identifying potential coastal
sites. Finally, it incorporates a flexible management system that
institutionalizes learning and ensures efficiency in the identification
and acquisition of conservation and recreation sites.
The value of this legislation, which passed the Senate by unanimous
consent during the last Congress, is clear. I look forward to working
with my co-sponsors from Connecticut and New York, Senators Dodd,
Clinton, and Schumer, and a bipartisan group of our Connecticut and New
York House colleagues to enact this legislation and ensure that we can
take necessary common-sense steps to protect and preserve Long Island
Sound for generations to come.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 158

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Long Island Sound
Stewardship Act of 2005''.

SEC. 2. FINDINGS AND PURPOSE.

(a) Findings.--Congress finds that--
(1) Long Island Sound is a national treasure of great
cultural, environmental, and ecological importance;
(2) 8,000,000 people live within the Long Island Sound
watershed and 28,000,000 people (approximately 10 percent of
the population of the United States) live within 50 miles of
Long Island Sound;
(3) activities that depend on the environmental health of
Long Island Sound contribute more than $5,000,000,000 each
year to the regional economy;
(4) the portion of the shoreline of Long Island Sound that
is accessible to the general public (estimated at less than
20 percent of the total shoreline) is not adequate to serve
the needs of the people living in the area;
(5) existing shoreline facilities are in many cases
overburdened and underfunded;
(6) large parcels of open space already in public ownership
are strained by the effort to balance the demand for
recreation with the needs of sensitive natural resources;
(7) approximately \1/3\ of the tidal marshes of Long Island
Sound have been filled, and much of the remaining marshes
have been ditched, dyked, or impounded, reducing the
ecological value of the marshes; and
(8) much of the remaining exemplary natural landscape is
vulnerable to further development.
(b) Purpose.--The purpose of this Act is to establish the
Long Island Sound Stewardship Initiative to identify,
protect, and enhance sites within the Long Island Sound
ecosystem with significant ecological, educational, open
space, public access, or recreational value through a bi-
State network of sites best exemplifying these values.

SEC. 3. DEFINITIONS.

In this Act:
(1) Adaptive management.--The term ``adaptive management''
means a scientific process--
(A) for--
(i) developing predictive models;
(ii) making management policy decisions based upon the
model outputs;
(iii) revising the management policies as data become
available with which to evaluate the policies; and
(iv) acknowledging uncertainty, complexity, and variance in
the spatial and temporal aspects of natural systems; and
(B) that requires that management be viewed as
experimental.
(2) Administrator.--The term ``Administrator'' means the
Administrator of the Environmental Protection Agency.
(3) Committee.--The term ``Committee'' means the Long
Island Sound Stewardship Advisory Committee established by
section 5(a).
(4) Region.--The term ``Region'' means the Long Island
Sound Stewardship Initiative Region established by section
4(a).
(5) States.--The term ``States'' means the States of
Connecticut and New York.
(6) Stewardship site.--The term ``stewardship site'' means
a site that--
(A) qualifies for identification by the Committee under
section 8; and
(B) is an area of land or water or a combination of land
and water--
(i) that is in the Region; and
(ii) that is--

(I) Federal, State, local, or tribal land or water;
(II) land or water owned by a nonprofit organization; or
(III) privately owned land or water.

(7) Systematic site selection.--The term ``systematic site
selection'' means a process of selecting stewardship sites
that--
(A) has explicit goals, methods, and criteria;
(B) produces feasible, repeatable, and defensible results;
(C) provides for consideration of natural, physical, and
biological patterns,
(D) addresses reserve size, replication, connectivity,
species viability, location, and public recreation values;
(E) uses geographic information systems technology and
algorithms to integrate selection criteria; and
(F) will result in achieving the goals of stewardship site
selection at the lowest cost.
(8) Threat.--The term ``threat'' means a threat that is
likely to destroy or seriously degrade a conservation target
or a recreation area.

SEC. 4. LONG ISLAND SOUND STEWARDSHIP INITIATIVE REGION.

(a) Establishment.--There is established in the States the
Long Island Sound Stewardship Initiative Region.
(b) Boundaries.--The Region shall encompass the immediate
coastal upland and underwater areas along Long Island Sound,
including--
(1) those portions of the Sound with coastally influenced
vegetation, as described on the map entitled the ``Long
Island Sound Stewardship Region'' and dated April 21, 2004;
and
(2) the Peconic Estuary, as described on the map entitled
``Peconic Estuary Program Study Area Boundaries'', included
in the Comprehensive Conservation and Management Plan for the
Peconic Estuary Program and dated November 15, 2001.

SEC. 5. LONG ISLAND SOUND STEWARDSHIP ADVISORY COMMITTEE.

(a) Establishment.--There is established a committee to be
known as the ``Long Island Sound Stewardship Advisory
Committee''.
(b) Chairperson.--The Chairperson of the Committee shall be
the Director of the Long Island Sound Office of the
Environmental Protection Agency, or a designee of the
Director.
(c) Membership.--
(1) Composition.--
(A) Appointment of members.--
(i) In general.--The Chairperson shall appoint the members
of the Committee in accordance with this subsection and
section 320(c) of the Federal Water Pollution Control Act (33
U.S.C. 1330(c)).
(ii) Additional members.--In addition to the requirements
described in clause (i), the Committee shall include--

(I) a representative from the Regional Plan Association;
(II) a representative of the marine trade organizations;
and
(III) a representative of private landowner interests.

(B) Representation.--In appointing members to the
Committee, the Chairperson shall consider--
(i) Federal, State, and local government interests;
(ii) the interests of nongovernmental organizations;
(iii) academic interests; and
(iv) private interests.
(2) Date of appointments.--Not later than 180 days after
the date of enactment of this Act, the appointment of all
members of the Committee shall be made.
(d) Term; Vacancies.--
(1) Term.--
(A) In general.--A member shall be appointed for a term of
4 years.
(B) Multiple terms.--A person may be appointed as a member
of the Committee for more than 1 term.
(2) Vacancies.--A vacancy on the Committee shall--
(A) be filled not later than 90 days after the vacancy
occurs;
(B) not affect the powers of the Committee; and
(C) be filled in the same manner as the original
appointment was made.

[[Page S486]]

(3) Staff.--
(A) In general.--The Chairperson of the Committee may
appoint and terminate personnel as necessary to enable the
Committee to perform the duties of the Committee.
(B) Personnel as federal employees.--
(i) In general.--Any personnel of the Committee who are
employees of the Committee shall be employees under section
2105 of title 5, United States Code, for purposes of chapters
63, 81, 83, 84, 85, 87, 89, and 90 of that title.
(ii) Members of committee.--Clause (i) does not apply to
members of the Committee.
(e) Initial Meeting.--Not later than 30 days after the date
on which all members of the Committee have been appointed,
the Committee shall hold the initial meeting of the
Committee.
(f) Meetings.--The Committee shall meet at the call of the
Chairperson, but no fewer than 4 times each year.
(g) Quorum.--A majority of the members of the Committee
shall constitute a quorum, but a lesser number of members may
hold hearings.

SEC. 6. DUTIES OF THE COMMITTEE.

The Committee shall--
(1) consistent with the guidelines described in section 8--
(A) evaluate applications from government or nonprofit
organizations qualified to hold conservation easements for
funds to purchase land or development rights for stewardship
sites;
(B) evaluate applications to develop and implement
management plans to address threats;
(C) evaluate applications to act on opportunities to
protect and enhance stewardship sites; and
(D) recommend that the Administrator award grants to
qualified applicants;
(2) recommend guidelines, criteria, schedules, and due
dates for evaluating information to identify stewardship
sites;
(3) publish a list of sites that further the purposes of
this Act, provided that owners of sites shall be--
(A) notified prior to the publication of the list; and
(B) allowed to decline inclusion on the list;
(4) raise awareness of the values of and threats to these
sites; and
(5) leverage additional resources for improved stewardship
of the Region.

SEC. 7. POWERS OF THE COMMITTEE.

(a) Hearings.--The Committee may hold such hearings, meet
and act at such times and places, take such testimony, and
receive such evidence as the Committee considers advisable to
carry out this Act.
(b) Information From Federal Agencies.--
(1) In general.--The Committee may secure directly from a
Federal agency such information as the Committee considers
necessary to carry out this Act.
(2) Provision of information.--
(A) In general.--Subject to subparagraph (C), on request of
the Chairperson of the Committee, the head of a Federal
agency shall provide the information requested by the
Chairperson to the Committee.
(B) Administration.--The furnishing of information by a
Federal agency to the Committee shall not be considered a
waiver of any exemption available to the agency under section
552 of title 5, United States Code.
(C) Information to be kept confidential.--
(i) In general.--For purposes of section 1905 of title 18,
United States Code--

(I) the Committee shall be considered an agency of the
Federal Government; and
(II) any individual employed by an individual, entity, or
organization that is a party to a contract with the Committee
under this Act shall be considered an employee of the
Committee.

(ii) Prohibition on disclosure.--Information obtained by
the Committee, other than information that is available to
the public, shall not be disclosed to any person in any
manner except to an employee of the Committee as described in
clause (i) for the purpose of receiving, reviewing, or
processing the information.
(c) Postal Services.--The Committee may use the United
States mails in the same manner and under the same conditions
as other agencies of the Federal Government.
(d) Donations.--The Committee may accept, use, and dispose
of donations of services or property that advance the goals
of the Long Island Sound Stewardship Initiative.

SEC. 8. STEWARDSHIP SITES.

(a) Initial Sites.--
(1) Identification.--
(A) In general.--The Committee shall identify 20 initial
Long Island Sound stewardship sites that the Committee has
determined--
(i)(I) are natural resource-based recreation areas; or
(II) are exemplary natural areas with ecological value; and
(ii) best promote the purposes of this Act.
(B) Exemption.--Sites described in subparagraph (A) are not
subject to the site identification process described in
subsection (d).
(2) Equitable distribution of funds for initial sites.--In
identifying initial sites under paragraph (1), the Committee
shall exert due diligence to recommend an equitable
distribution of funds between the States for the initial
sites.
(b) Application for Identification as a Stewardship Site.--
Subsequent to the identification of the initial stewardship
sites under subsection (a), owners of sites may submit
applications to the Committee in accordance with subsection
(c) to have the sites identified as stewardship sites.
(c) Identification.--The Committee shall review
applications submitted by owners of potential stewardship
sites to determine whether the sites should be identified as
exhibiting values consistent with the purposes of this Act.
(d) Site Identification Process.--
(1) Natural resource-based recreation areas.--The Committee
shall identify additional recreation areas with potential as
stewardship sites using a selection technique that includes--
(A) public access;
(B) community support;
(C) areas with high population density;
(D) environmental justice (as defined in section 385.3 of
title 33, Code of Federal Regulations (or successor
regulations));
(E) connectivity to existing protected areas and open
spaces;
(F) cultural, historic, and scenic areas; and
(G) other criteria developed by the Committee.
(2) Natural areas with ecological value.--The Committee
shall identify additional natural areas with ecological value
and potential as stewardship sites--
(A) based on measurable conservation targets for the
Region; and
(B) following a process for prioritizing new sites using
systematic site selection, which shall include--
(i) ecological uniqueness;
(ii) species viability;
(iii) habitat heterogeneity;
(iv) size;
(v) quality;
(vi) connectivity to existing protected areas and open
spaces;
(vii) land cover;
(viii) scientific, research, or educational value;
(ix) threats; and
(x) other criteria developed by the Committee.
(3) Publication of list.--After completion of the site
identification process, the Committee shall--
(A) publish in the Federal Register a list of sites that
further the purposes of this Act; and
(B) prior to publication of the list, provide to owners of
the sites to be published--
(i) a notification of publication; and
(ii) an opportunity to decline inclusion of the site of the
owner on the list.
(4) Deviation from process.--
(A) In general.--The Committee may identify as a potential
stewardship site, a site that does not meet the criteria in
paragraph (1) or (2), or reject a site selected under
paragraph (1) or (2), if the Committee--
(i) selects a site that makes significant ecological or
recreational contributions to the Region;
(ii) publishes the reasons that the Committee decided to
deviate from the systematic site selection process; and
(iii) before identifying or rejecting the potential
stewardship site, provides to the owners of the site the
notification of publication, and the opportunity to decline
inclusion of the site on the list published under paragraph
(3)(A), described in paragraph (3)(B).
(5) Public comment.--In identifying potential stewardship
sites, the Committee shall consider public comments.
(e) General Guidelines for Management.--
(1) In general.--The Committee shall use an adaptive
management framework to identify the best policy initiatives
and actions through--
(A) definition of strategic goals;
(B) definition of policy options for methods to achieve
strategic goals;
(C) establishment of measures of success;
(D) identification of uncertainties;
(E) development of informative models of policy
implementation;
(F) separation of the landscape into geographic units;
(G) monitoring key responses at different spatial and
temporal scales; and
(H) evaluation of outcomes and incorporation into
management strategies.
(2) Application of adaptive management framework.--The
Committee shall apply the adaptive management framework to
the process for updating the list of recommended stewardship
sites.

SEC. 9. REPORTS.

(a) In General.--For each of fiscal years 2006 through
2013, the Committee shall submit to the Administrator an
annual report that contains--
(1) a detailed statement of the findings and conclusions of
the Committee since the last report;
(2) a description of all sites recommended by the Committee
to be approved as stewardship sites;
(3) the recommendations of the Committee for such
legislation and administrative actions as the Committee
considers appropriate; and
(4) in accordance with subsection (b), the recommendations
of the Committee for the awarding of grants.
(b) General Guidelines for Recommendations.--
(1) In general.--The Committee shall recommend that the
Administrator award

[[Page S487]]

grants to qualified applicants to help to secure and improve
the open space, public access, or ecological values of
stewardship sites, through--
(A) purchase of the property of the site;
(B) purchase of relevant property rights of the site; or
(C) entering into any other binding legal arrangement that
ensures that the values of the site are sustained, including
entering into an arrangement with a land manager or owner to
develop or implement an approved management plan that is
necessary for the conservation of natural resources.
(2) Equitable distribution of funds.--The Committee shall
exert due diligence to recommend an equitable distribution of
funds between the States.
(c) Action by the Administrator.--
(1) In general.--Not later than 90 days after receiving a
report under subsection (a), the Administrator shall--
(A) review the recommendations of the Committee; and
(B) take actions consistent with the recommendations of the
Committee, including the approval of identified stewardship
sites and the award of grants, unless the Administrator makes
a finding that any recommendation is unwarranted by the
facts.
(2) Report.--Not later than 1 year after the date of
enactment of this Act, the Administrator shall develop and
publish a report that--
(A) assesses the current resources of and threats to Long
Island Sound;
(B) assesses the role of the Long Island Sound Stewardship
Initiative in protecting Long Island Sound;
(C) establishes guidelines, criteria, schedules, and due
dates for evaluating information to identify stewardship
sites;
(D) includes information about any grants that are
available for the purchase of land or property rights to
protect stewardship sites;
(E) accounts for funds received and expended during the
previous fiscal year;
(F) shall be made available to the public on the Internet
and in hardcopy form; and
(G) shall be updated at least every other year, except that
information on funding and any new stewardship sites
identified shall be published more frequently.

SEC. 10. PRIVATE PROPERTY PROTECTION.

(a) Access to Private Property.--Nothing in this Act--
(1) requires any private property owner to allow public
access (including Federal, State, or local government access)
to the private property; or
(2) modifies any provision of Federal, State, or local law
with regard to public access to or use of private property,
except as entered into by voluntary agreement of the owner or
custodian of the property.
(b) Liability.--Approval of the Long Island Sound
Stewardship Initiative Region does not create any liability,
or have any effect on any liability under any other law, of
any private property owner with respect to any person injured
on the private property.
(c) Recognition of Authority to Control Land Use.--Nothing
in this Act modifies the authority of Federal, State, or
local governments to regulate land use.
(d) Participation of Private Property Owners in the Long
Island Sound Stewardship Initiative Region.--Nothing in this
Act requires the owner of any private property located within
the boundaries of the Region to participate in or be
associated with the Initiative.
(e) Effect of Establishment.--
(1) In general.--The boundaries approved for the Region
represent the area within which Federal funds appropriated
for the purpose of this Act may be expended.
(2) Regulatory authority.--The establishment of the Region
and the boundaries of the Region does not provide any
regulatory authority not in existence on the date of
enactment of this Act on land use in the Region by any
management entity, except for such property rights as may be
purchased from or donated by the owner of the property
(including the Federal Government or a State or local
government, if applicable).

SEC. 11. AUTHORIZATION OF APPROPRIATIONS.

(a) In General.--There is authorized to be appropriated to
carry out this Act $25,000,000 for each of fiscal years 2006
through 2013.
(b) Use of Funds.--For each fiscal year, funds made
available under subsection (a) shall be used by the
Administrator, after reviewing the recommendations of the
Committee submitted under section 9, for--
(1) acquisition of land and interests in land;
(2) development and implementation of site management
plans;
(3) site enhancements to reduce threats or promote
stewardship; and
(4) administrative expenses of the Committee.
(c) Federal Share.--The Federal share of the cost of an
activity carried out using any assistance or grant under this
Act shall not exceed 75 percent of the total cost of the
activity.

SEC. 12. LONG ISLAND SOUND AUTHORIZATION OF APPROPRIATIONS.

Section 119(f) of the Federal Water Pollution Control Act
(33 U.S.C. 1269(f)) is amended by striking ``2005'' each
place it appears and inserting ``2009''.

SEC. 13. TERMINATION OF COMMITTEE.

The Committee shall terminate on December 31, 2013.
______

By Mr. McCAIN (for himself and Mr. Kyl):
S. 161. A bill to provide for a land exchange in the State of Arizona
between the Secretary of Agriculture and Yavapai Ranch Limited
Partnership; to the Committee on Energy and Natural Resources.
Mr. McCAIN. Mr. President, I am pleased to join with Senator Kyl in
introducing the Northern Arizona Forest Lands Exchange and Verde River
Basin Partnership Act of 2005. The Senate passed by unanimous consent a
nearly identical measure late last year. Unfortunately, the House did
not have the time to pass the bill before the 108th Congress adjourned.
It is my hope that this compromise bill will pass quickly in both
Houses and become law in the near future.
This legislation is the product of many years of negotiation and
compromise. It provides a sound framework for a fair and equal value
exchange of 50,000 acres of private and public land in Northern
Arizona. The bill also addresses water issues associated with the
exchange of lands located within the Verde River Basin watershed by
limiting water usage on certain exchanged lands and supporting the
development of a collaborative science-based water resource planning
and management entity for the Verde River Basin watershed.
After countless hours of deliberation and discussion by all parties,
I believe that the compromise reached on the bill is both balanced and
foresighted in addressing the various issues raised by the exchange. I
want to thank Senator Kyl and his staff, as well as Senators Domenici
and Bingaman, and their staffs on the Senate Energy and Natural
Resources Committee, for their tireless efforts in reaching this
agreement at the end of the last session. I also want to recognize the
work of Congressmen Renzi and Hayworth who have championed this
legislation in the House of Representatives. Representative Renzi plans
to introduce a companion bill in the House this week.
The Arizona delegation is strongly supportive of the legislation
because it will offer significant benefits for all parties. Benefits
will accrue to the U.S. Forest Service and the public with the
consolidation of checkerboard lands and the protection and enhanced
management of extensive forest and grasslands. The communities of
Flagstaff, Williams, and Camp Verde will also benefit in terms of
economic development opportunities, water supply, and other important
purposes.
While facilitating the exchange of public and private lands is a very
important objective of this legislation, and indeed, was the original
purpose when we began working on it several years ago, I now consider
the provisions concerning water management even more crucial. Since
introducing the original legislation in April 2003, I have heard from
hundreds of Arizonans and learned first-hand of the significant water
issues raised by the transfer of Federal land into private ownership.
We have modified the bill to take into account many of the concerns
raised during meetings held in Northern Arizona by limiting water usage
on exchanged lands and removing certain lands entirely from the
exchange.
There is growing recognition throughout Arizona of the need to face
the crucial challenge of wise management of limited water supplies,
particularly with the extended drought coupled with rapid population
growth. Earlier this month, I had the opportunity to participate in an
Arizona Water Conservation Forum which was attended by educators,
business leaders, and State and local officials. I think the majority
of us came away more aware of the management measures needed to provide
for a more secure water future.
This bill promotes an important opportunity to encourage sound water
management in Northern Arizona by supporting the creation of a
collaborative, science-based decision-making body to advance essential
planning and management at the State and local level. To be successful,
this effort will require the involvement of all the stakeholders with
water supply responsibilities and interests and a solid foundation of
knowledge about available resources and existing demands. We are
fortunate to have an existing model of collaborative science-based
water resource planning and management with the Upper San Pedro
Partnership in

[[Page S488]]

the Sierra Vista subwatershed of Arizona. In my view, the establishment
of a similar, cooperative body in the Verde Basin will be a vital step
in assuring the wise use of our limited water resources.
I look forward to the expeditious passage of this legislation in this
Congress and again thank all of the parties involved with this effort
during the past several years. I ask unanimous consent that the text of
the bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 161

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) Short Title.--This Act may be cited as the ``Northern
Arizona Land Exchange and Verde River Basin Partnership Act
of 2005''.
(b) Table of Contents.--The table of contents of this Act
is as follows:

Sec. 1. Short title; table of contents.

TITLE I--NORTHERN ARIZONA LAND EXCHANGE

Sec. 101. Definitions.
Sec. 102. Land exchange.
Sec. 103. Description of non-Federal land.
Sec. 104. Description of Federal land.
Sec. 105. Status and management of land after exchange.
Sec. 106. Miscellaneous provisions.
Sec. 107. Conveyance of additional land.

TITLE II--VERDE RIVER BASIN PARTNERSHIP

Sec. 201. Purpose.
Sec. 202. Definitions.
Sec. 203. Verde River Basin Partnership.
Sec. 204. Verde River Basin studies.
Sec. 205. Verde River Basin Partnership final report.
Sec. 206. Memorandum of understanding.
Sec. 207. Effect.

TITLE I--NORTHERN ARIZONA LAND EXCHANGE

SEC. 101. DEFINITIONS.

In this title:
(1) Camp.--The term ``camp'' means Camp Pearlstein,
Friendly Pines, Patterdale Pines, Pine Summit, Sky Y, and
Young Life Lost Canyon camps in the State of Arizona.
(2) Cities.--The term ``cities'' means the cities of
Flagstaff, Williams, and Camp Verde, Arizona.
(3) Federal land.--The term ``Federal land'' means the land
described in section 104.
(4) Non-federal land.--The term ``non-Federal land'' means
the land described in section 103.
(5) Secretary.--The term ``Secretary'' means the Secretary
of Agriculture.
(6) Yavapai ranch.--The term ``Yavapai Ranch'' means the
Yavapai Ranch Limited Partnership, an Arizona Limited
Partnership, and the Northern Yavapai, L.L.C., an Arizona
Limited Liability Company.

SEC. 102. LAND EXCHANGE.

(a) In General.--(1) Upon the conveyance by Yavapai Ranch
of title to the non-Federal land identified in section 103,
the Secretary shall simultaneously convey to Yavapai Ranch
title to the Federal land identified in section 104.
(2) Title to the lands to be exchanged shall be in a form
acceptable to the Secretary and Yavapai Ranch.
(3) The Federal and non-Federal lands to be exchanged under
this title may be modified prior to the exchange as provided
in this title.
(4)(A) By mutual agreement, the Secretary and Yavapai Ranch
may make minor and technical corrections to the maps and
legal descriptions of the lands and interests therein
exchanged or retained under this title, including changes, if
necessary to conform to surveys approved by the Bureau of
Land Management.
(B) In the case of any discrepancy between a map and legal
description, the map shall prevail unless the Secretary and
Yavapai Ranch agree otherwise.
(b) Exchange Process.--(1) Except as otherwise provided in
this title, the land exchange under subsection (a) shall be
undertaken in accordance with section 206 of the Federal Land
Policy and Management Act (43 U.S.C. 1716).
(2) Before completing the land exchange under this title,
the Secretary shall perform any necessary land surveys and
pre-exchange inventories, clearances, reviews, and approvals,
including those relating to hazardous materials, threatened
and endangered species, cultural and historic resources, and
wetlands and flood plains.
(c) Equal Value Exchange.--(1) The value of the Federal
land and the non-Federal land shall be equal, or equalized by
the Secretary by adjusting the acreage of the Federal land in
accordance with paragraph (2).
(2) If the final appraised value of the Federal land
exceeds the final appraised value of the non-Federal land,
prior to making other adjustments, the Federal lands shall be
adjusted by deleting all or part of the parcels or portions
of the parcels in the following order:
(A) A portion of the Camp Verde parcel described in section
104(a)(4), comprising approximately 316 acres, located in the
Prescott National Forest, and more particularly described as
lots 1, 5, and 6 of section 26, the NE\1/4\NE\1/4\ portion of
section 26 and the N\1/2\N\1/2\ portion of section 27,
Township 14 North, Range 4 East, Gila and Salt River Base and
Meridian, Yavapai County, Arizona.
(B) A portion of the Camp Verde parcel described in section
104(a)(4), comprising approximately 314 acres, located in the
Prescott National Forest, and more particularly described as
lots 2, 7, 8, and 9 of section 26, the SE\1/4\NE\1/4\ portion
of section 26, and the S\1/2\N\1/2\ of section 27, Township
14 North, Range 4 East, Gila and Salt River Base and
Meridian, Yavapai County, Arizona.
(C) Beginning at the south boundary of section 31, Township
20 North, Range 5 West, Gila and Salt River Base and
Meridian, Yavapai County, Arizona, and sections 33 and 35,
Township 20 North, Range 6 West, Gila and Salt River Base and
Meridian, Yavapai County, Arizona, by adding to the non-
Federal land to be conveyed to the United States in \1/8\-
section increments (E-W 64th line) while deleting from the
conveyance to Yavapai Ranch Federal land in the same
incremental portions of section 32, Township 20 North, Range
5 West, Gila and Salt River Base and Meridian, Yavapai
County, Arizona, and sections 32, 34, and 36 in Township 20
North, Range 6 West, Gila and Salt River Base and Meridian,
Yavapai County, Arizona, to establish a linear and continuous
boundary that runs east-to-west across the sections.
(D) Any other parcels, or portions thereof, agreed to by
the Secretary and Yavapai Ranch.
(3) If any parcel of Federal land or non-Federal land is
not conveyed because of any reason, that parcel of land, or
portion thereof, shall be excluded from the exchange and the
remaining lands shall be adjusted as provided in this
subsection.
(4) If the value of the Federal land exceeds the value of
the non-Federal land by more than $50,000, the Secretary and
Yavapai Ranch shall, by mutual agreement, delete additional
Federal land from the exchange until the value of the Federal
land and non-Federal land is, to the maximum extent
practicable, equal.
(d) Appraisals.--(1) The value of the Federal land and non-
Federal land shall be determined by appraisals prepared in
accordance with the Uniform Appraisal Standards for Federal
Land Acquisitions and the Uniform Standards of Professional
Appraisal Practice.
(2)(A) After the Secretary has reviewed and approved the
final appraised values of the Federal land and non-Federal
land to be exchanged, the Secretary shall not be required to
reappraise or update the final appraised values before the
completion of the land exchange.
(B) This paragraph shall apply during the three-year period
following the approval by the Secretary of the final
appraised values of the Federal land and non-Federal land
unless the Secretary and Yavapai Ranch have entered into an
agreement to implement the exchange.
(3) During the appraisal process, the appraiser shall
determine the value of each parcel of Federal land and non-
Federal land (including the contributory value of each
individual section of the intermingled Federal and non-
Federal land of the property described in sections 103(a) and
104(a)(1)) as an assembled transaction.
(4)(A) To ensure the timely and full disclosure to the
public of the final appraised values of the Federal land and
non-Federal land, the Secretary shall provide public notice
of any appraisals approved by the Secretary and copies of
such appraisals shall be available for public inspection in
appropriate offices of the Prescott, Coconino, and Kaibab
National Forests.
(B) The Secretary shall also provide copies of any approved
appraisals to the cities and the owners of the camps
described in section 101(1).
(e) Contracting.--(1) If the Secretary lacks adequate staff
or resources to complete the exchange by the date specified
in section 106(c), Yavapai Ranch, subject to the agreement of
the Secretary, may contract with independent third-party
contractors to carry out any work necessary to complete the
exchange by that date.
(2) If, in accordance with this subsection, Yavapai Ranch
contracts with an independent third-party contractor to carry
out any work that would otherwise be performed by the
Secretary, the Secretary shall reimburse Yavapai Ranch for
the costs for the third-party contractors.
(f) Easements.--(1) The exchange of non-Federal and Federal
land under this title shall be subject to any easements,
rights-of-way, utility lines, and any other valid
encumbrances in existence on the date of enactment of this
Act, including acquired easements for water pipelines as
generally depicted on the map entitled ``Yavapai Ranch Land
Exchange, YRLP Acquired Easements for Water Lines'' dated
August 2004, and any other reservations that may be agreed to
by the Secretary and Yavapai Ranch.
(2) Upon completion of the land exchange under this title,
the Secretary and Yavapai Ranch shall grant each other at no
charge reciprocal easements for access and utilities across,
over, and through--
(A) the routes depicted on the map entitled ``Yavapai Ranch
Land Exchange, Road and Trail Easements, Yavapai Ranch Area''
dated August 2004; and
(B) any relocated routes that are agreed to by the
Secretary and Yavapai Ranch.

[[Page S489]]

(3) An easement described in paragraph (2) shall be
unrestricted and non-exclusive in nature and shall run with
and benefit the land.
(g) Conveyance of Federal Land to Cities and Camps.--(1)
Prior to the completion of the land exchange between Yavapai
Ranch and the Secretary, the cities and the owners of the
camps may enter into agreements with Yavapai Ranch whereby
Yavapai Ranch, upon completion of the land exchange, will
convey to the cities or the owners of the camps the
applicable parcel of Federal land or portion thereof.
(2) If Yavapai Ranch and the cities or camp owners have not
entered into agreements in accordance with paragraph (1), the
Secretary shall, on notification by the cities or owners of
the camps no later than 30 days after the date the relevant
approved appraisal is made publicly available, delete the
applicable parcel or portion thereof from the land exchange
between Yavapai Ranch and the United States as follows:
(A) Upon request of the City of Flagstaff, Arizona, the
parcels, or portion thereof, described in section 104(a)(2).
(B) Upon request of the City of Williams, Arizona, the
parcels, or portion thereof, described in section 104(a)(3).
(C) Upon request of the City of Camp Verde, Arizona, a
portion of the parcel described in section 104(a)(4),
comprising approximately 514 acres located southeast of the
southeastern boundary of the I-17 right-of-way, and more
particularly described as the SE\1/4\ portion of the
southeast quarter of section 26, the E\1/2\ and the E\1/
2\W\1/2\ portions of section 35, and lots 5 through 7 of
section 36, Township 14 North, Range 4 East, Gila and Salt
River Base and Meridian, Yavapai County, Arizona.
(D) Upon request of the owners of the Younglife Lost Canyon
camp, the parcel described in section 104(a)(5).
(E) Upon request of the owner of Friendly Pines Camp,
Patterdale Pines Camp, Camp Pearlstein, Pine Summit, or Sky Y
Camp, as applicable, the corresponding parcel described in
section 104(a)(6).
(3)(A) Upon request of the specific city or camp referenced
in paragraph (2), the Secretary shall convey to such city or
camp all right, title, and interest of the United States in
and to the applicable parcel of Federal land or portion
thereof, upon payment of the fair market value of the parcel
and subject to any terms and conditions the Secretary may
require.
(B) A conveyance under this paragraph shall not require new
administrative or environmental analyses or appraisals beyond
those prepared for the land exchange.
(4) A city or owner of a camp purchasing land under this
subsection shall reimburse Yavapai Ranch for any costs
incurred which are directly associated with surveys and
appraisals of the specific property conveyed.
(5) A conveyance of land under this subsection shall not
affect the timing of the land exchange.
(6) Nothing in this subsection limits the authority of the
Secretary or Yavapai Ranch to delete any of the parcels
referenced in this subsection from the land exchange.
(7)(A) The Secretary shall deposit the proceeds of any sale
under paragraph (2) in a special account in the fund
established under Public Law 90-171 (commonly known as the
``Sisk Act'') (16 U.S.C. 484a).
(B) Amounts deposited under subparagraph (A) shall be
available to the Secretary, without further appropriation, to
be used for the acquisition of land in the State of Arizona
for addition to the National Forest System, including the
land to be exchanged under this title.

SEC. 103. DESCRIPTION OF NON-FEDERAL LAND.

(a) In General.--The non-Federal land referred to in this
title consists of approximately 35,000 acres of privately-
owned land within the boundaries of the Prescott National
Forest, as generally depicted on the map entitled ``Yavapai
Ranch Land Exchange, Non-Federal Lands'', dated August 2004.
(b) Easements.--(1) The conveyance of non-Federal land to
the United States under section 102 shall be subject to the
reservation of--
(A) water rights and perpetual easements that run with and
benefit the land retained by Yavapai Ranch for--
(i) the operation, maintenance, repair, improvement,
development, and replacement of not more than 3 wells in
existence on the date of enactment of this Act;
(ii) related storage tanks, valves, pumps, and hardware;
and
(iii) pipelines to point of use; and
(B) easements for reasonable access to accomplish the
purposes of the easements described in subparagraph (A).
(2) Each easement for an existing well referred to in
paragraph (1) shall be 40 acres in area, and to the maximum
extent practicable, centered on the existing well.
(3) The United States shall be entitled to one-half the
production of each existing or replacement well, not to
exceed a total of 3,100,000 gallons of water annually for
National Forest System purposes.
(4) The locations of the easements and wells shall be as
generally depicted on the map entitled ``Yavapai Ranch Land
Exchange, Reserved Easements for Water Lines and Wells'',
dated August 2004.

SEC. 104. DESCRIPTION OF FEDERAL LAND.

(a) In General.--The Federal land referred to in this title
consists of the following:
(1) Certain land comprising approximately 15,300 acres
located in the Prescott National Forest, as generally
depicted on the map entitled ``Yavapai Ranch Land Exchange,
Yavapai Ranch Area Federal Lands'', dated August 2004.
(2) Certain land located in the Coconino National Forest--
(A) comprising approximately 1,500 acres as generally
depicted on the map entitled ``Yavapai Ranch Land Exchange,
Flagstaff Federal Lands Airport Parcel'', dated August 2004;
and
(B) comprising approximately 28.26 acres in two separate
parcels, as generally depicted on the map entitled ``Yavapai
Ranch Land Exchange, Flagstaff Federal Lands Wetzel School
and Mt. Elden Parcels'', dated August 2004.
(3) Certain land located in the Kaibab National Forest, and
referred to as the Williams Airport, Williams golf course,
Williams Sewer, Buckskinner Park, Williams Railroad, and Well
parcels number 2, 3, and 4, cumulatively comprising
approximately 950 acres, as generally depicted on the map
entitled ``Yavapai Ranch Land Exchange, Williams Federal
Lands'', dated August 2004.
(4) Certain land located in the Prescott National Forest,
comprising approximately 2,200 acres, as generally depicted
on the map entitled ``Yavapai Ranch Land Exchange, Camp Verde
Federal Land General Crook Parcel'', dated August 2004.
(5) Certain land located in the Kaibab National Forest,
comprising approximately 237.5 acres, as generally depicted
on the map entitled ``Yavapai Ranch Land Exchange, Younglife
Lost Canyon'', dated August 2004.
(6) Certain land located in the Prescott National Forest,
including the ``Friendly Pines'', ``Patterdale Pines'',
``Camp Pearlstein'', ``Pine Summit'', and ``Sky Y'' camps,
cumulatively comprising approximately 200 acres, as generally
depicted on the map entitled ``Yavapai Ranch Land Exchange,
Prescott Federal Lands, Summer Youth Camp Parcels'', dated
August 2004.
(b) Condition of Conveyance of Camp Verde Parcel.--(1) To
conserve water in the Verde Valley, Arizona, and to minimize
the adverse impacts from future development of the Camp Verde
General Crook parcel described in subsection (a)(4) on
current and future holders of water rights in existence of
the date of enactment of this Act and the Verde River and
National Forest System lands retained by the United States,
the United States shall limit in perpetuity the use of water
on the parcel by reserving conservation easements that--
(A) run with the land;
(B) prohibit golf course development on the parcel;
(C) require that any public park or greenbelt on the parcel
be watered with treated wastewater;
(D) limit total post-exchange water use on the parcel to
not more than 300 acre-feet of water per year;
(E) provide that any water supplied by municipalities or
private water companies shall count towards the post-exchange
water use limitation described in subparagraph (D); and
(F) except for water supplied to the parcel by municipal
water service providers or private water companies, require
that any water used for the parcel not be withdrawn from
wells perforated in the saturated Holocene alluvium of the
Verde River.
(2) If Yavapai Ranch conveys the Camp Verde parcel
described in subsection (a)(4), or any portion thereof, the
terms of conveyance shall include a recorded and binding
agreement of the quantity of water available for use on the
land conveyed, as determined by Yavapai Ranch, except that
total water use on the Camp Verde parcel may not exceed the
amount specified in paragraph (1)(D).
(3) The Secretary may enter into a memorandum of
understanding with the State or political subdivision of the
State to enforce the terms of the conservation easement.

SEC. 105. STATUS AND MANAGEMENT OF LAND AFTER EXCHANGE.

(a) In General.--Land acquired by the United States under
this title shall become part of the Prescott National Forest
and shall be administered by the Secretary in accordance with
this title and the laws applicable to the National Forest
System.
(b) Grazing.--Where grazing on non-Federal land acquired by
the Secretary under this title occurs prior to the date of
enactment of this Act, the Secretary may manage the land to
allow for continued grazing use, in accordance with the laws
generally applicable to domestic livestock grazing on
National Forest System land.
(c) Timber Harvesting.--(1) After completion of the land
exchange under this title, except as provided in paragraph
(2), commercial timber harvesting shall be prohibited on the
non-Federal land acquired by the United States.
(2) Timber harvesting may be conducted on the non-Federal
land acquired under this title if the Secretary determines
that such harvesting is necessary--
(A) to prevent or control fires, insects, and disease
through forest thinning or other forest management
techniques;
(B) to protect or enhance grassland habitat, watershed
values, native plants and wildlife species; or
(C) to improve forest health.

SEC. 106. MISCELLANEOUS PROVISIONS.

(a) Revocation of Orders.--Any public orders withdrawing
any of the Federal land

[[Page S490]]

from appropriation or disposal under the public land laws are
revoked to the extent necessary to permit disposal of the
Federal land.
(b) Withdrawal of Federal Land.--Subject to valid existing
rights, the Federal land is withdrawn from all forms of entry
and appropriation under the public land laws; location,
entry, and patent under the mining laws; and operation of the
mineral leasing and geothermal leasing laws, until the date
on which the land exchange is completed.
(c) Completion of Exchange.--It is the intent of Congress
that the land exchange authorized and directed under this
title be completed not later than 18 months after the date of
enactment of this Act.

SEC. 107. CONVEYANCE OF ADDITIONAL LAND.

(a) In General.--The Secretary shall convey to a person
that represents the majority of landowners with encroachments
on the lot by quitclaim deed the parcel of land described in
subsection (b).
(b) Description of Land.--The parcel of land referred to in
subsection (a) is lot 8 in section 11, T. 21 N., R. 7 E.,
Gila and Salt River Base and Meridian, Coconino County,
Arizona.
(c) Amount of Consideration.--In exchange for the land
described in subsection (b), the person acquiring the land
shall pay to the Secretary consideration in the amount of--
(1) $2500; plus
(2) any costs of re-monumenting the boundary of land.
(d) Timing.--(1) Not later than 90 days after the date on
which the Secretary receives a power of attorney executed by
the person acquiring the land, the Secretary shall convey to
the person the land described in subsection (b).
(2) If, by the date that is 270 days after the date of
enactment of this Act, the Secretary does not receive the
power of attorney described in paragraph (1)--
(A) the authority provided under this section shall
terminate; and
(B) any conveyance of the land shall be made under Public
Law 97-465 (16 U.S.C. 521c et seq.).

TITLE II--VERDE RIVER BASIN PARTNERSHIP

SEC. 201. PURPOSE.

The purpose of this title is to authorize assistance for a
collaborative and science-based water resource planning and
management partnership for the Verde River Basin in the State
of Arizona, consisting of members that represent--
(1) Federal, State, and local agencies; and
(2) economic, environmental, and community water interests
in the Verde River Basin.

SEC. 202. DEFINITIONS.

In this title:
(1) Director.--The term ``Director'' means the Director of
the Arizona Department of Water Resources.
(2) Partnership.--The term ``Partnership'' means the Verde
River Basin Partnership.
(3) Plan.--The term ``plan'' means the plan for the Verde
River Basin required by section 204(a)(1).
(4) Secretary.--The term ``Secretary'' means the Secretary
of Agriculture.
(5) State.--The term ``State'' means the State of Arizona.
(6) Verde river basin.--The term ``Verde River Basin''
means the land area designated by the Arizona Department of
Water Resources as encompassing surface water and groundwater
resources, including drainage and recharge areas with a
hydrologic connection to the Verde River.
(7) Water budget.--The term ``water budget'' means the
accounting of--
(A) the quantities of water leaving the Verde River Basin--
(i) as discharge to the Verde River and tributaries;
(ii) as subsurface outflow;
(iii) as evapotranspiration by riparian vegetation;
(iv) as surface evaporation;
(v) for agricultural use; and
(vi) for human consumption; and
(B) the quantities of water replenishing the Verde River
Basin by precipitation, infiltration, and subsurface inflows.

SEC. 203. VERDE RIVER BASIN PARTNERSHIP.

(a) In General.--The Secretary may participate in the
establishment of a partnership, to be known as the ``Verde
River Basin Partnership'', made up of Federal, State, local
governments, and other entities with responsibilities and
expertise in water to coordinate and cooperate in the
identification and implementation of comprehensive science-
based policies, projects, and management activities relating
to the Verde River Basin.
(b) Authorization of Appropriations.--On establishment of
the Partnership, there are authorized to be appropriated to
the Secretary and the Secretary of the Interior such sums as
are necessary to carry out the activities of the Partnership
for each of fiscal years 2006 through 2010.

SEC. 204. VERDE RIVER BASIN STUDIES.

(a) Studies.--
(1) In general.--The Partnership shall prepare a plan for
conducting water resource studies in the Verde River Basin
that identifies--
(A) the primary study objectives to fulfill water resource
planning and management needs for the Verde River Basin; and
(B) the water resource studies, hydrologic models, surface
and groundwater monitoring networks, and other analytical
tools helpful in the identification of long-term water supply
management options within the Verde River Basin.
(2) Requirements.--At a minimum, the plan shall--
(A) include a list of specific studies and analyses that
are needed to support Partnership planning and management
decisions;
(B) identify any ongoing or completed water resource or
riparian studies that are relevant to water resource planning
and management for the Verde River Basin;
(C) describe the estimated cost and duration of the
proposed studies and analyses; and
(D) designate as a study priority the compilation of a
water budget analysis for the Verde Valley.
(b) Verde Valley Water Budget Analysis.--
(1) In general.--Subject to the availability of
appropriations, not later than 14 months after the date of
enactment of this Act, the Director of the U.S. Geological
Survey, in cooperation with the Director, shall prepare and
submit to the Partnership a report that provides a water
budget analysis of the portion of the Verde River Basin
within the Verde Valley.
(2) Components.--The report submitted under paragraph (1)
shall include--
(A) a summary of the information available on the
hydrologic flow regime for the portion of the Middle Verde
River from the Clarkdale streamgauging station to the city of
Camp Verde at United States Geological Survey Stream Gauge
09506000;
(B) with respect to the portion of the Middle Verde River
described in subparagraph (A), estimates of--
(i) the inflow and outflow of surface water and
groundwater;
(ii) annual consumptive water use; and
(iii) changes in groundwater storage; and
(C) an analysis of the potential long-term consequences of
various water use scenarios on groundwater levels and Verde
River flows.
(c) Preliminary Report and Recommendations.--.
(1) In general.--Not later than 16 months after the date of
enactment of this Act, using the information provided in the
report submitted under subsection (b) and any other relevant
information, the Partnership shall submit to the Secretary,
the Governor of Arizona, and representatives of the Verde
Valley communities, a preliminary report that sets forth the
findings and recommendations of the Partnership regarding the
long-term available water supply within the Verde Valley.
(2) Consideration of recommendations.--The Secretary may
take into account the recommendations included in the report
submitted under paragraph (1) with respect to decisions
affecting land under the jurisdiction of the Secretary,
including any future sales or exchanges of Federal land in
the Verde River Basin after the date of enactment of this
Act.
(3) Effect.--Any recommendations included in the report
submitted under paragraph (1) shall not affect the land
exchange process or the appraisals of the Federal land and
non-Federal land conducted under sections 103 and 104.

SEC. 205. VERDE RIVER BASIN PARTNERSHIP FINAL REPORT.

Not later than 4 years after the date of enactment of this
Act, the Partnership shall submit to the Secretary and the
Governor of Arizona a final report that--
(1) includes a summary of the results of any water resource
assessments conducted under this title in the Verde River
Basin;
(2) identifies any areas in the Verde River Basin that are
determined to have groundwater deficits or other current or
potential water supply problems;
(3) identifies long-term water supply management options
for communities and water resources within the Verde River
Basin; and
(4) identifies water resource analyses and monitoring
needed to support the implementation of management options.

SEC. 206. MEMORANDUM OF UNDERSTANDING.

The Secretary (acting through the Chief of the Forest
Service) and the Secretary of the Interior, shall enter into
a memorandum of understanding authorizing the United States
Geological Survey to access Forest Service land (including
stream gauges, weather stations, wells, or other points of
data collection on the Forest Service land) to carry out this
title.

SEC. 207. EFFECT.

Nothing in this title diminishes or expands State or local
jurisdiction, responsibilities, or rights with respect to
water resource management or control.

Mr. KYL. Mr. President, today, I am pleased to join with Senator
McCain to introduce the Northern Arizona Land Exchange and Verde River
Basin Partnership Act of 2005. This bill facilitates a large and
complex land exchange of over 50,000 acres of Federal and private land
in Arizona to consolidate the largest remaining checkerboard ownership
in the State. It also encourages the formation of a partnership between
Federal, State, and local stakeholders to facilitate sound water
resource planning and management in the Verde River Basin. This bill is
the product of two years of discussions and compromise between the
Arizona delegation, United States Forest Service,

[[Page S491]]

community groups, local officials, and other stakeholders. The bill
passed the Senate last session, but unfortunately was not enacted
before adjournment. I am introducing this legislation with the hope
that the Senate will act quickly to pass it early in this Congress.
The bill is divided into two titles. Title I provides the framework
for the land exchange between Yavapai Ranch Limited Partnership and the
United States Forest Service. Title II outlines the key aspects of the
Verde River Basin Partnership. The land exchange outlined in Title I is
a fair and equitable exchange that will yield many environmental
benefits to the citizens of Arizona. It will place approximately 35,000
acres of private land in federal ownership for public use. This acreage
is important ecologically because it contains such key features as old
growth ponderosa pine, and high quality grassland that serves as
excellent habitat for pronghorn antelope and is critical to the
preservation of the watershed. In addition, it consolidates under
Forest Service ownership a 110-square mile area in the Prescott
National Forest near the existing Juniper Mesa Wilderness, to preserve
the area in its natural state. Without this land exchange, these
private tracts would be open to future development. I am pleased that
this bill will preserve them for future generations.
The land exchange also significantly improves the management of the
Prescott National Forest. The existing checkboard ownership pattern
makes management and access difficult. By consolidating this land, the
exchange will enable the Forest Service will be able to effectively
apply forest restoration treatments to reduce the fire risk and improve
the overall health of the forest. I cannot emphasize enough how crucial
this is, given the history of devastating forest fires in the state.
In addition to protecting Arizona's natural resources, Title I of the
bill allows several Northern Arizona communities to accommodate future
growth and economic development, and to meet other municipal needs.
This exchange will allow the cities of Flagstaff and Williams to expand
their airports, meet their water-treatment needs, and develop town
parks and recreation areas. The town of Camp Verde will have an
opportunity to acquire land to build an emergency center and protect
its viewshed. Several youth organizations will be able to acquire land
for their camps.
This bill addresses one of the most crucial challenges facing
Arizona: sound management of water resources. I have heard from many
state and local officials, and the constituents affected by the land
exchange, that we needed to do more in this bill to address water
issues. I note in response that this bill has two key features: First,
it establishes a conservation easement on the Camp Verde General Crook
parcel, which limits water use after private acquisition to just 300
acre feet a year. This limitation was strengthened from the previous
versions of the bill which included a use restriction of 700 acre feet
a year. This provision sets an important precedent for responsible
water use in the Verde Valley and across the state. Second, and most
recently, Senator McCain and I added Title II to the bill. This title
facilitates and encourages the creation of the Verde River Basin
Partnership to examine water issues in the long term. Such a
collaborative, multi-stakeholder group would be authorized to receive
federal assistance to develop the scientific and technical data needed
to make sound water-management decisions.
Finally, this bill saves significant taxpayer dollars. It obviates
the administrative route for a land exchange; doing an exchange of this
size administratively would require considerable financial and
personnel resources from the Forest Service. The agency estimates that
using legislation instead will cost half as much as the administrative
alternative--resulting in potential savings to the taxpayers in excess
of $500,000.
This land exchange is a unique opportunity to protect Arizona's
natural resources, accommodate the state's tremendous growth, and plan
for the future. I intend to work with my colleagues to ensure that we
pass this important legislation this year.
______

By Mr. ROCKEFELLER:
S. 162. A bill to amend chapter 99 of the Internal Revenue code of
1986 to clarify that certain coal industry health benefits may not be
modified or terminated; to the Committee on Finance.
Mr. ROCKEFELLER. Mr. President, today I am introducing legislation to
make very clear that Congress fully protected the health insurance
benefits of miners and their families when we passed the Coal Act in
1992. This legislation is identical to S. 3004 which I introduced in
the 108th Congress. Unfortunately, it is necessary, because we have
recently seen bankruptcy courts disregard the Coal Act and absolve
companies of their obligations to provide health benefits for workers
and retirees. This is unacceptable. And the bill I am introducing today
reiterates that the bankruptcy code does not supersede the Coal Act.
Last fall, another company abandoned promises it made to workers and
retirees in West Virginia. Horizon Natural Resources sought and
received a court ruling that released it from its contracts with union
miners and allowed it to avoid honoring health care benefit obligations
for over 2,300 retired miners. This is a morally bankrupt corporate
strategy, and is inconsistent with the Coal Act passed by Congress in
1992.
The Coal Act was needed in 1992 to prevent some companies from
walking away from their clear contractual obligations and agreements
with their workers. One of the provisions of that bill was written
especially with the intent of not allowing companies to simply
reorganize as a way to get out of their obligations to their workers.
Unfortunately, too many companies are increasingly using bankruptcy
courts to achieve the same results.
It should not be necessary for me to introduce this bill today.
Congress has already spoken on this subject. The law is clear: Coal Act
retirees are entitled to full benefits provided under the statute. No
judge should rewrite the law to take those benefits away. However,
because judges are legislating from the bench, it will be helpful for
Congress to reiterate our intention to protect the health benefits of
coal miners and their families.
This issue is extremely important to all of those who are being
victimized by the bankruptcy courts. I hope that my colleagues will
join me in this effort to protect the miners, retired miners, and
families who are simply seeking the benefits they were promised in
exchange for years of hard work.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 162

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. PROTECTION OF COAL INDUSTRY HEALTH BENEFITS.

Section 9711(g) of the Internal Revenue Code of 1986
(relating to rules applicable to this part and part II) is
amended by adding at the end the following new paragraph:
``(3) Prohibition on termination and modification of
benefits.--Except as provided in subsection (d), the benefits
required to be provided by a last signatory operator under
this chapter may not be terminated or modified by any court
in a proceeding under title 11 of the United States Code or
by agreement at any time when such operator is participating
in such a proceeding.''.
______

By Mr. BENNETT:
S. 163. A bill to establish the National Mormon Pioneer Heritage Area
in the State of Utah, and for other purposes; to the Committee on
Energy and Natural Resources.
Mr. BENNETT. Mr. President, I rise today to re-introduce the National
Mormon Pioneer Heritage Area Act.
The story behind and about the Mormon pioneers' 1,400-mile trek from
Illinois to the Great Salt Lake Valley is one of the most compelling
and captivating in our Nation's history. This legislation would
designate as a National Heritage Area an area that spans some 250 miles
along Highway 89 and encompasses outstanding examples of historical,
cultural, and natural resources that demonstrate the colonization of
the western United States, and the experience and influence of the
Mormon pioneers in furthering that colonization.
The landscape, architecture, artisan skills, and events along Highway
89

[[Page S492]]

convey in a very real way the legacy of the Mormon pioneers'
achievements. The community of Panquitch for example, has an annual
Quilt Day celebration to commemorate the sacrifice and fortitude of its
pioneers whose efforts saved the community from starvation in 1864. The
celebration is in remembrance of the Quilt Walk, a walk in which a
group of men from Panquitch used quilts to form a path that would bear
their weight across the snow. This quilt walk enabled these men to
cross over the mountains to procure food for their community, which was
facing starvation as it experienced its first winter in Utah.
Another example of the tenacity of pioneers can be seen today at the
Hole-in-the-Rock. Here, in 1880, a group of 250 people, 80 wagons, and
1,000 head of cattle upon the Colorado River Gorge. Finding no pathways
down to the river, the pioneers decided to use a narrow crevice leading
down to the bottom of the gorge. To make the crevice big enough to
accommodate wagons, the pioneers spent 6 weeks enlarging the crevice by
hand, using hammers, chisels, and blasting powder. They then attached
large ropes to the wagons as they began their descent down the steep
incline. It is because of such tenacity and innovation on the part of
pioneers that the western United States was shaped the way it was and
much of that has contributed to the way of life and landscape still
found in the West today.
The National Mormon Pioneer Heritage Area will serve as a special
recognition of the people and places that have contributed greatly to
our Nation's development. It will allow for the conservation of
historical and cultural resources, the establishment of interpretive
exhibits, will increase public awareness of the surviving skills and
crafts of those living along Highway 89, and specifically allows for
the preservation of historic buildings. In light of the benefits
associated with preserving the rich heritage of the founding of many of
the communities along Highway 89, my legislation has broad support from
Sanpete, Sevier, Piute, Garfield, and Kane counties and is a locally
based, locally supported undertaking.
Since the introduction of this legislation in the 108th Congress, I
am pleased that the local counties, who have been unanimously
supportive of this legislation, have come together to outline in a
Memorandum of Understanding, with the local coordinating entity
identified in the legislation, the cooperative relationship the
coordinating entity enjoys with the elected officials of the local
counties.
This legislation passed the Senate both in the 107th and 108th
Congresses as part of packages agreed upon by the committee of
jurisdiction. Unfortunately, both times the packages were not able to
be considered by the other body prior to adjournment. I reintroduce
this bill today with the hope that during this session of Congress we
might achieve success in this body early enough to be considered by the
House.
______

By Mr. BENNETT:
S. 164. A bill to provide for the acquisition of certain property in
Washington County, Utah; to the Committee on Energy and Natural
Resources.
Mr. BENNETT. Mr. President, today I am re-introducing a bill which is
intended to bring to a close the Federal acquisition of an important
piece of privately held land, located within the federally designated
desert tortoise reserve in Washington County, UT.
As some of my colleagues are aware, this is not the first time
legislation has been introduced in an attempt to resolve this issue.
Most recently, on December 7, 2004, at the conclusion of the 108th
Congress, the Senate passed by unanimous consent an amendment in the
nature of a substitute to H.R. 620, which adopted as title XVI agreed
upon provisions of S. 1209. Unfortunately, the House of Representatives
adjourned sine die before it had time to act upon H.R. 620. The
legislation I am introducing today is virtually the same as the
language earlier adopted by the Senate, except for a technical
clarification regarding management of the acquired lands.
I want to personally express my appreciation to Chairman Domenici and
his staff for their leadership and assistance on this issue. I would
also like to thank the ranking minority member, Mr. Bingaman, the
Department of the Interior, and their respective staffs, for their
assistance and support of this measure.
Earlier in July of 2000, I introduced S. 2873, which was referred to
and reported favorably by the Senate Committee on Energy and Natural
Resources. In addition, similar legislation was twice approved by the
House of Representatives, both in the 106th and 107th Congresses. For
over a decade, the private property addressed by this bill has been
under Federal control and the Federal Government has enjoyed the
benefits of the private property without fulfilling its constitutional
obligation to compensate the landowner. The government's failure to
timely acquire the landowner's private property has forced the
landowner into bankruptcy. It is my hope that the time has come to
finally resolve this issue.
In March of 1991, the desert tortoise was listed as an endangered
species under the Endangered Species Act. Government and environmental
researchers determined that the land immediately north of St. George,
UT, was prime desert tortoise habitat. Consequently, in February 1996,
nearly 5 years after the listing, the United States Fish and Wildlife
Service, USFWS, issued Washington County a Section 10 permit under the
Endangered Species Act which paved the way for the adoption of a
habitat conservation plan, HCP, and an implementation agreement. Under
the Plan and Agreement, the Bureau of Land Management, BLM, committed
to acquire all private lands in the designated habitat area for the
formation of the Red Cliffs Reserve for the protection of the desert
tortoise.
One of the private land owners within the reserve is Environmental
Land Technology, Ltd., ELT, which began acquiring lands from the State
of Utah in 1981 for residential and recreational development several
years prior to the listing of the species. Moreover, in the years
preceding the listing of the desert tortoise and the adoption of the
habitat conservation plan, ELT completed appraisals, cost estimates,
engineering studies, site plans, surveys, utility layouts, and right-
of-way negotiations. ELT staked out golf courses, and obtained water
rights for the development of this land. Prior to the adoption of the
HCP, it was not clear which lands the Federal and local governments
would set aside for the desert tortoise, although it was assumed that
there were sufficient surrounding Federal lands to provide adequate
habitat. However, when the HCP was adopted in 1996, the decision was
made to include ELT's lands within the boundaries of the reserve
primarily because of the high concentrations of tortoises. The
tortoises on ELT land also appeared to be one of, if not the only
population without an upper respiratory disease that afflicted all of
the other populations. As a consequence of the inclusion of the ELT
lands, ELT's development efforts were halted.

With assurances from the Federal Government that the acquisition of
the ELT development lands was a high priority, the owner negotiated
with, and entered into, an assembled land exchange agreement with the
BLM in anticipation of intrastate land exchanges. The private land
owner then began a costly process of identifying comparable Federal
lands within the State that would be suitable for an exchange for his
lands in Washington County. Over the last 7 years, BLM and the private
land owners, including ELT, have completed several exchanges, and the
Federal Government has acquired, through those exchanges or direct
purchases, nearly all of the private property located within the
reserve, except for approximately 1,516 acres of the ELT development
land. However, with the unforeseen creation of the Grand Staircase-
Escalante National Monument in September 1996, and the subsequent land
exchanges between the State of Utah and the Federal Government to
consolidate Federal lands within that monument, there are no longer
sufficient comparable Federal lands within Utah to complete the
originally contemplated intrastate exchanges for the remainder of the
ELT land.
Faced with this problem, and in light of the high priority the
Department of the Interior has placed on acquiring

[[Page S493]]

these lands, BLM officials recommended that the ELT lands be acquired
by direct purchase. During the FY 2000 budget process, BLM proposed
that $30 million be set aside to begin acquiring the remaining lands in
Washington County. Unfortunately, because this project involves
endangered species habitat and the USFWS is responsible for
administering activities under the Endangered Species Act, the Office
of Management and Budget shifted the $30 million from the BLM budget
request to the USFWS's Cooperative Endangered Species Conservation Fund
budget request. Ultimately, however, none of those funds was made
available for BLM acquisitions within the Federal section of the
reserve. Instead, the funds in that account were made available on a
matching basis for the use of individual States to acquire wildlife
habitat. The result of this bureaucratic fumbling has resulted in
extreme financial hardship for ELT.
The lands within the Red Cliffs Reserve are ELT's only asset. The
establishment of the Washington County HCP has effectively taken this
property and prevented ELT from developing or otherwise disposing of
the property. ELT has been brought to the brink of financial ruin as it
has exhausted its resources in an effort to hold the property while
awaiting the compensation to which it is entitled. ELT has had to sell
its remaining assets, and the private land owner has also had to sell
his personal assets, including his home, to simply hold the property.
This has become a financial crisis for the landowner. It is simply
wrong for the Federal Government to expect the landowner to continue to
bear the cost of the government's efforts to provide habitat for an
endangered species. That is the responsibility of the Federal
Government. Moreover, while the landowner is bearing these costs, he
continues to pay taxes on the property. This situation is made more
egregious by the failure of the Department of the Interior to request
any acquisition funding for FY 2004 or FY 2005, even though this
acquisition has been designated a high priority by the agency. Over the
past several years, ELT has pursued all possible avenues to complete
the acquisition of these lands. The private land owner has spent
millions of dollars pursuing both intrastate and interstate land
exchanges and has worked cooperatively with the Department of the
Interior. Unfortunately, all of these efforts have thus far been
fruitless.

The bill that I am introducing today will finally bring this
acquisition to a close. In my view, a legislative taking should be an
action of last resort. But, if ever a case warranted legislative
condemnation, this is it. This bill will transfer to the Federal
Government all right, title, and interest in the ELT development
property within the Red Cliffs Reserve, including an additional 34
acres of landlocked real property owned by ELT adjacent to the land
within the reserve. Subject to existing law, the Uniform Appraisal
Standards for Federal Land Acquisitions and the Uniform Standards and
Practices for Appraisal Professionals, USPAP, a United States Court of
competent jurisdiction shall determine the value for the land.
The bill includes language to allow, as part of the legislative
taking, for the landowner to recover reasonable costs, interest, and
damages, if any, as determined by the court. It is important to
understand that, while Federal acquisitions should be completed on the
basis of fair market value, when the Federal Government makes the
commitment to acquire private land, the landowner should not have to be
driven into financial ruin while waiting upon the Federal Government to
discharge its obligation. While the Federal Government has never
disputed its obligation to acquire the property, it has had the benefit
of the private land for all these years without having to pay for it.
The private landowner should not have to bear the costs of this Federal
foot-dragging.
This legislation is consistent with the high priority the Department
of the Interior has repeatedly placed on this land acquisition, and is
a necessary final step towards an equitable resolution. The time for
pursuing other options has long since expired and it is unfortunate
that it requires legislative action. Without commenting on the
Endangered Species Act itself, it would seem that if it is the
government's objective to provide habitat for the benefit of an
endangered species, then the government ought to bear the costs, rather
than forcing them upon the landowner. It is also time to address this
issue so that the Federal agencies may be single-minded in their
efforts to recover the desert tortoise which remains the aim of the
creation of the reserve. This legislation simply codifies the status
quo by enabling the private land owner to obtain the compensation to
which he is constitutionally entitled. It is time to right this wrong
and get on with the efforts to recover the species and I encourage my
colleagues to again support the immediate enactment of this important
legislation.
______

By Mr. COLEMAN:
S. 165. A bill for the relief of Tchisou Tho; to the Committee on the
Judiciary.
Mr. COLEMAN. Mr. President, today I am introducing a private relief
bill for an outstanding young man from my State of Minnesota, Tchisou
Tho.
This legislation would allow Tchisou, a Hmong immigrant, to stay in
this country by adjusting his status to permanent resident. Not only
would this allow him to stay in the country he has lived in since he
was 5 years old, but it will make him eligible for in-State tuition at
the University of Minnesota.
Tchisou's family came to the United States 14 years ago on a
visitor's visa from France after fleeing Communist rule in Laos in
1975. He was 5 years old at the time. They moved to Minnesota in 1993
to find work and to give their children an opportunity to receive a
quality education.
Tchisou was an all-American high school kid. He watched movies, hung
out at the mall with his friends and attended prom. He was an honor
roll student, active in his community, church, and school. Tchisou was
going to be the first member of his family to graduate from high
school, and he was getting ready to begin his freshman year on a
scholarship to the University of Minnesota.
But in May 2003, just as Tchisou was getting ready to graduate from
high school, his family met with immigration officials to request
changes to their immigration status. Instead, they received a
deportation order.
Tchisou's parents acknowledged that they had broken the law by
overstaying their visas, and agreed to leave the country. But we all
wanted Tchisou to have the chance to graduate with his high school
class. Legislation I introduced last year allowed Tchisou to stay. And
thanks to the compassion of the immigration authorities, Tchisou's
family was allowed to remain in the country just long enough to see
their son walk in his high school graduation ceremony. Shortly
thereafter, Tchisou's parents and brothers and sisters returned to
France as they promised, where they live today.
Still focused on his educational goals and now living with his
married sister in St. Paul, Tchisou enrolled at the University of
Minnesota as an international student. However, he was required to pay
out-of-State tuition and unfortunately had to drop out after one
semester when he ran out of money.
Determined to finish college, Tchisou is currently driving a forklift
at the loading docks of a home improvement store, to save money for
college while his immigration status is being sorted out. He was
recently named employee of the month. Tchisou hopes to re-enroll at the
University of Minnesota.
I acknowledge that Tchisou's parents broke the law. They overstayed
their visas to remain in this country, which they should not have done.
And they have since been deported. But I think it would be unfair to
punish Tchisou for the actions of his parents. This private relief bill
would allow Tchisou the chance to live the American dream.
With the help of my good friend and colleague, the senior Senator
from Georgia, Chairman Chambliss, we were able to pass this legislation
last year. I hope the Senate will be able to act on this important
legislation early this year so that Tchisou may enroll at the
University of Minnesota, graduate, and be an asset to our community.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

[[Page S494]]

S. 165

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. PERMANENT RESIDENT STATUS FOR TCHISOU THO.

(a) In General.--Notwithstanding subsections (a) and (b) of
section 201 of the Immigration and Nationality Act (8 U.S.C.
1151), Tchisou Tho shall be eligible for the issuance of an
immigrant visa or for adjustment of status to that of an
alien lawfully admitted for permanent residence upon filing
an application for issuance of an immigrant visa under
section 204 of that Act (8 U.S.C. 1154) or for adjustment of
status to lawful permanent resident.
(b) Adjustment of Status.--If Tchisou Tho enters the United
States before the filing deadline specified in subsection
(c), Tchisou Tho shall be considered to have entered and
remained lawfully and shall be eligible for adjustment of
status under section 245 of the Immigration and Nationality
Act (8 U.S.C. 1255) as of the date of enactment of this Act.
(c) Deadline for Application and Payment of Fees.--
Subsections (a) and (b) shall apply only if the application
for issuance of an immigrant visa or the application for
adjustment of status are filed with appropriate fees within 2
years after the date of enactment of this Act.
(d) Reduction of Immigrant Visa Numbers.--Upon the granting
of an immigrant visa or permanent residence to Tchisou Tho,
the Secretary of State shall instruct the proper officer to
reduce by 1, during the current or next following fiscal
year, the total number of immigrant visas that are made
available to natives of the country of the aliens' birth
under section 203(a) of the Immigration and Nationality Act
(8 U.S.C. 1153(a)) or, if applicable, the total number of
immigrant visas that are made available to natives of the
country of the aliens' birth under section 202(e) of that Act
(8 U.S.C. 1152(e)).
______

By Mr. SMITH (for himself and Mr. Wyden):
S. 166. A bill to amend the Oregon Resource Conservation Act of 1996
to reauthorize the participation of the Bureau of Reclamation in the
Deschutes River Conservancy, and for other purposes; to the Committee
on Energy and Natural Resources.
Mr. SMITH. Mr. President, today I am introducing legislation,
cosponsored by my colleague from Oregon, to reauthorize participation
by the Bureau of Reclamation in the Deschutes River Conservancy for an
additional 10 years.
The Deschutes River Conservancy, formerly know as the Deschutes
Resources Conservancy, was originally authorized in 1996 as a pilot
project. It was so successful it was reauthorized in the 106th
Congress. The Conservancy is designed to achieve local consensus for
on-the-ground projects to improve ecosystem health in the Deschutes
River Basin.
The Deschutes River is truly one of Oregon's greatest resources. It
drains Oregon's high desert along the eastern front of the Cascades,
eventually flowing into the Columbia River. It is the State's most
intensively used recreational river. It provides water to both
irrigation projects and to the city of Bend, which is one of Oregon's
fastest growing cities. The Deschutes Basin also contains hundreds of
thousands of acres of productive forest and rangelands, serves the
treaty fishing and water rights of the Confederated Tribes of Warm
Springs, and has Oregon's largest non-Federal hydroelectric project.
By all accounts, the Deschutes River Conservancy has been a huge
success. It has brought together diverse interests within the Basin,
including irrigators, tribes, ranchers, environmentalists, an investor-
owned utility, local businesses, as well as local elected officials and
representatives of State and Federal agencies. Together, the
Conservancy board members have been able to develop project criteria
and identify a number of water quality, water quantity, fish passage
and habitat improvement projects that could be funded. Over the years,
projects have been selected by consensus, and there must be a fifty-
fifty cost share from non-Federal sources.
Over the past 8 years, they have been very successful at finding
cooperative, market-based solutions to enhance the ecosystem in the
basin. The Conservancy has used this approach to restore over ninety
cubic-feet-per-second of streamflow in the Deschutes Basin. In
addition, by planting over 100,000 trees, installing miles of riparian
fencing, removing berms and reconstructing stream beds, the Conservancy
has helped improve fish habitat and water quality along one hundred
miles of the Deschutes River and its tributaries.
The existing authorization provides for up to two million dollars
each year for projects. This bill would continue that annual
authorization ceiling for 10 years. Funds are provided through the
Bureau of Reclamation, the group's lead Federal agency.
The Deschutes River Conservancy enjoys widespread support in Oregon.
It has very committed board members who represent diverse interests in
the Basin. The high caliber of their work, and their pragmatic approach
to ecosystem restoration have been recognized by others outside the
region.
I am convinced that Federal participation in this project needs to
continue. This organization has helped to avoid the conflicts over
water that we have seen in too many watersheds in the western United
States. I urge my colleagues to continue support for this project. Not
only is it important to central Oregon, but the Deschutes River
Conservancy can serve as a national model for cooperative watershed
restoration at the local level.
______

By Mr. HATCH (for himself, Mr. Leahy, Mr. Cornyn, and Mrs.
Feinstein):
S. 167. A bill to provide for the protection of intellectual property
rights, and for other purposes; to the Committee on the Judiciary.
Mr. HATCH. Mr. President, I rise today to introduce the Family
Entertainment and Copyright Act of 2005. This important legislation
consists of a package of smaller intellectual property bills that the
House and Senate have been working to enact since last Congress. This
legislation passed the Senate not once, but twice, during the waning
days of the last Congress. Unfortunately, though, it was doomed by a
non-germane amendment unrelated to intellectual property law. My hope
is that we can work together this Congress to avoid this type of
pitfall, and I commit to work with other members to do so.
Before beginning my substantive discussion of the bill, I would like
to thank my colleagues Senators Leahy, Cornyn, and Feinstein for their
ongoing efforts on this legislation. Just as it was last year, this
legislation is a group effort, and I want to take care to recognize the
contributions and their excellent work along with that of
Representatives Sensenbrenner, Smith, Berman, and Conyers in the House.
Before going into a title-by-title discussion of the bill, I would
like to express my particular support for the Family Movie Act, which
has been included in this legislation. Chairman Lamar Smith and I
worked on this bill last Congress. It's important legislation both to
parents who want the ability to use new technologies to help shield
their families from inappropriate content as well as the technology
companies, such as ClearPlay in my home State of Utah, that are working
to develop these technologies. The Family Movie Act will give parents
more say over what their children see, without limiting the creative
control of directors and movie studios.
Title I of this Act, the Artists' Rights and Theft Prevention Act of
2005, (the ART Act), contains a slightly modified version of S. 1932,
authored by Senators Cornyn and Feinstein in the 108th Congress. This
bill will close two significant gaps in our copyright laws that are
feeding some of the piracy now rampant on the Internet.
First, it criminalizes attempts to record movies off of theater
screens. These camcorded copies of new movies now appear on filesharing
networks almost contemporaneously with the theatrical release of a
film. Several States have already taken steps to criminalize this
activity, but providing a uniform Federal law--instead of a patchwork
of State criminal statutes--will assist law enforcement officials in
combating the theft and redistribution of valuable intellectual
property embodied in newly-released motion pictures.
Second, the bill will create a pre-registration system that will
permit criminal penalties and statutory-damage awards. This will also
provide a tool for law enforcement officials combating the growing
problem of music and movies being distributed on filesharing networks
and circulating on the Internet before they are even released.
Obviously, the increasingly frequent situation of copyrighted works

[[Page S495]]

being distributed illegally via the Internet before they are even made
available for sale to the public severely undercuts the ability of
copyright holders to receive fair and adequate compensation for their
works.
Title II of this Act, the Family Movie Act of 2005 (the FMA),
resolves some ongoing disputes about the legality of so-called ``jump-
and-skip'' technologies that companies like Clearplay in my home State
of Utah have developed to permit family-friendly viewing of films that
may contain objectionable content. The FMA creates a narrowly defined
safe-harbor clarifying that distributors of such technologies will not
face liability for copyright or trademark infringement, provided that
they comply with the requirements of the Act. I have been working with
my colleagues in the Senate and several leaders in the House--
including, most importantly Chairmen Smith and Sensenbrenner--for the
past couple of years to resolve this issue. The FMA will help to end
aggressive litigation threatening the viability of small companies like
Clearplay which are busy creating innovative technologies for consumers
that allow them to tailor their home viewing experience to their own
individual or family preferences.
The Family Movie Act creates a new exemption in section 110(11) of
the Copyright Act for skipping and muting audio and video content in
motion pictures during performances of an authorized copy of the motion
picture taking place in the course of a private viewing in a household.
The version passed last year by the House explicitly excluded from the
scope of the new copyright exemption so-called ``ad-skipping''
technologies that make changes, deletions, or additions to commercial
advertisements or to network or station promotional announcements that
would otherwise be displayed before, during, or after the performance
of the motion picture. This provision was included on the House floor
to address the concerns of some Members who were concerned that a court
might misread the new section 110(11) exemption to apply to ``ad-
skipping''' cases, such as in the recent litigation involving ReplayTV.
In the Senate, however, some expressed concern that the inclusion of
such explicit language could create unwanted inferences with respect to
the merits of the legal positions at the heart of recent ``ad-
skipping'' litigation. Those issues remain unsettled in the courts, and
it was never the intent of this legislation to resolve or affect those
issues in any way. Indeed, the Copyright Act contains literally scores
of similar exemptions, and none of those exemptions have been or should
be construed to imply anything about the legality of conduct falling
outside their scope. As a result, the Copyright Office has now
confirmed that such an explicit exclusion is unnecessary to achieve the
desired outcome, which is to avoid application of this new exemption in
potential future cases involving ad-skipping devices. In order to avoid
unnecessary controversy, the Senate bill omits the exclusionary
language with the understanding that doing so does not in any way
change the scope of the bill.
That this change in no way affects the scope of the exemption is
clear when considering that the new section 110(11) exemption protects
the ``making imperceptible . . . limited portions of audio or video
content of a motion picture. . . .'' An advertisement, under the
Copyright Act, is itself a ``motion picture,'' and thus a product or
service that enables the skipping of an entire advertisement, in any
media, would be beyond the scope of the exemption. Moreover, the phrase
``limited portions'' is intended to refer to portions that are both
quantitatively and qualitatively insubstantial in relation to the work
as a whole. Where any substantial part of a complete work, such as a
commercial advertisement, is made imperceptible, the new section
110(11) exemption would not apply. The limited scope of this exemption
does not, however, imply or show that such conduct or a technology that
enables such conduct would be infringing. This legislation does not in
any way deal with that issue. It means simply that such conduct and
products enabling such conduct are not immunized from liability by this
exemption.
This bill also differs from the version passed by the House last year
in that it adds two ``savings clauses.'' The copyright savings clause
makes clear that there should be no spillover effect from the passage
of this law: that is, nothing shall be construed to have any effect on
rights, defenses, or limitations on rights granted under title 17,
other than those explicitly provided for in the new section 110(11)
exemption. The trademark savings clause clarifies that no inference can
be drawn that a person or company who fails to qualify for the
exemption from trademark infringement found in this provision is
therefore liable for trademark infringement.
Title III of this Act, the National Film Preservation Act of 2004,
will reauthorize the National Film Preservation Board and the National
Film Preservation Foundation. These entities have worked successfully
to recognize and preserve historically or culturally significant
films--often by providing the grants and expertise that enable local
historical societies to protect and preserve historically significant
films for the local communities for which they are most important. This
fine work will ensure that the history of the 20th century will be
preserved and available to future generations.
As a conservative Senator from a socially conservative state, I
occasionally take a few swings at the movie industry for the quality
and content of the motion pictures they are currently creating, but I
will note for the record that I commend efforts to ensure that
important artistic, cultural, and historically significant films are
preserved for future generations. I commend my friend from Vermont for
his perseverance in reauthorizing Federal funds to continue this
important effort.
Title IV of this act, the ``Preservation of Orphan Works Act,'' also
ensures the preservation of valuable historic records by correcting a
technical error that unnecessarily narrows a limitation on the
copyright law applicable to librarians and archivists. This will
strengthen the ability of librarians and archivists to better meet the
needs of both researchers and ordinary individuals and will result in
greater accessibility of important works. I applaud my colleague in the
House--Representative Howard Berman of California--for his efforts on
this bill and am pleased to see it included in this Senate package.
Just to conclude, I will again thank Ranking Democratic Member Leahy,
Senator Cornyn, Chairmen Sensenbrenner and Smith, as well as Mr.
Conyers and Mr. Berman for their bicameral, bipartisan approach to
these bills and to intellectual property issues generally.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 167

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

TITLE I--ARTISTS' RIGHTS AND THEFT PREVENTION

SEC. 101. SHORT TITLE.

This title may be cited as the ``Artists' Rights and Theft
Prevention Act of 2005'' or the ``ART Act''.

SEC. 102. CRIMINAL PENALTIES FOR UNAUTHORIZED RECORDING OF
MOTION PICTURES IN A MOTION PICTURE EXHIBITION
FACILITY.

(a) In General.--Chapter 113 of title 18, United States
Code, is amended by adding after section 2319A the following
new section:

``Sec. 2319B. Unauthorized recording of Motion pictures in a
Motion picture exhibition facility

``(a) Offense.--Any person who, without the authorization
of the copyright owner, knowingly uses or attempts to use an
audiovisual recording device to transmit or make a copy of a
motion picture or other audiovisual work protected under
title 17, or any part thereof, from a performance of such
work in a motion picture exhibition facility, shall--
``(1) be imprisoned for not more than 3 years, fined under
this title, or both; or
``(2) if the offense is a second or subsequent offense, be
imprisoned for no more than 6 years, fined under this title,
or both.

The possession by a person of an audiovisual recording device
in a motion picture exhibition facility may be considered as
evidence in any proceeding to determine whether that person
committed an offense under this subsection, but shall not, by
itself, be sufficient

[[Page S496]]

to support a conviction of that person for such offense.
``(b) Forfeiture and Destruction.--When a person is
convicted of a violation of subsection (a), the court in its
judgment of conviction shall, in addition to any penalty
provided, order the forfeiture and destruction or other
disposition of all unauthorized copies of motion pictures or
other audiovisual works protected under title 17, or parts
thereof, and any audiovisual recording devices or other
equipment used in connection with the offense.
``(c) Authorized Activities.--This section does not prevent
any lawfully authorized investigative, protective, or
intelligence activity by an officer, agent, or employee of
the United States, a State, or a political subdivision of a
State, or by a person acting under a contract with the United
States, a State, or a political subdivision of a State.
``(d) Immunity for Theaters.--With reasonable cause, the
owner or lessee of a motion picture exhibition facility where
a motion picture or other audiovisual work is being
exhibited, the authorized agent or employee of such owner or
lessee, the licensor of the motion picture or other
audiovisual work being exhibited, or the agent or employee of
such licensor--
``(1) may detain, in a reasonable manner and for a
reasonable time, any person suspected of a violation of this
section with respect to that motion picture or audiovisual
work for the purpose of questioning or summoning a law
enforcement officer; and
``(2) shall not be held liable in any civil or criminal
action arising out of a detention under paragraph (1).
``(e) Victim Impact Statement.--
``(1) In general.--During the preparation of the
presentence report under rule 32(c) of the Federal Rules of
Criminal Procedure, victims of an offense under this section
shall be permitted to submit to the probation officer a
victim impact statement that identifies the victim of the
offense and the extent and scope of the injury and loss
suffered by the victim, including the estimated economic
impact of the offense on that victim.
``(2) Contents.--A victim impact statement submitted under
this subsection shall include--
``(A) producers and sellers of legitimate works affected by
conduct involved in the offense;
``(B) holders of intellectual property rights in the works
described in subparagraph (A); and
``(C) the legal representatives of such producers, sellers,
and holders.
``(f) State Law Not Preempted.--Nothing in this section may
be construed to annul or limit any rights or remedies under
the laws of any State.
``(g) Definitions.--In this section, the following
definitions shall apply:
``(1) Title 17 definitions.--The terms `audiovisual work',
`copy', `copyright owner', `motion picture', `motion picture
exhibition facility', and `transmit' have, respectively, the
meanings given those terms in section 101 of title 17.
``(2) Audiovisual recording device.--The term `audiovisual
recording device' means a digital or analog photographic or
video camera, or any other technology or device capable of
enabling the recording or transmission of a copyrighted
motion picture or other audiovisual work, or any part
thereof, regardless of whether audiovisual recording is the
sole or primary purpose of the device.''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 113 of title 18, United States Code, is
amended by inserting after the item relating to section 2319A
the following:

``2319B. Unauthorized recording of motion pictures in a motion picture
exhibition facility.''.

(c) Definition.--Section 101 of title 17, United States
Code, is amended by inserting after the definition of
``Motion pictures'' the following: ``The term ``motion
picture exhibition facility'' means a movie theater,
screening room, or other venue that is being used primarily
for the exhibition of a copyrighted motion picture, if such
exhibition is open to the public or is made to an assembled
group of viewers outside of a normal circle of a family and
its social acquaintances.''.

SEC. 103. CRIMINAL INFRINGEMENT OF A WORK BEING PREPARED FOR
COMMERCIAL DISTRIBUTION.

(a) Prohibited Acts.--Section 506(a) of title 17, United
States Code, is amended to read as follows:
``(a) Criminal Infringement.--
``(1) In general.--Any person who willfully infringes a
copyright shall be punished as provided under section 2319 of
title 18, if the infringement was committed--
``(A) for purposes of commercial advantage or private
financial gain;
``(B) by the reproduction or distribution, including by
electronic means, during any 180-day period, of 1 or more
copies or phonorecords of 1 or more copyrighted works, which
have a total retail value of more than $1,000; or
``(C) by the distribution of a work being prepared for
commercial distribution, by making it available on a computer
network accessible to members of the public, if such person
knew or should have known that the work was intended for
commercial distribution.
``(2) Evidence.--For purposes of this subsection, evidence
of reproduction or distribution of a copyrighted work, by
itself, shall not be sufficient to establish willful
infringement of a copyright.
``(3) Definition.--In this subsection, the term `work being
prepared for commercial distribution' means--
``(A) a computer program, a musical work, a motion picture
or other audiovisual work, or a sound recording, if, at the
time of unauthorized distribution--
``(i) the copyright owner has a reasonable expectation of
commercial distribution; and
``(ii) the copies or phonorecords of the work have not been
commercially distributed; or
``(B) a motion picture, if, at the time of unauthorized
distribution, the motion picture--
``(i) has been made available for viewing in a motion
picture exhibition facility; and
``(ii) has not been made available in copies for sale to
the general public in the United States in a format intended
to permit viewing outside a motion picture exhibition
facility.''.
(b) Criminal Penalties.--Section 2319 of title 18, United
States Code, is amended--
(1) in subsection (a)--
(A) by striking ``Whoever'' and inserting ``Any person
who''; and
(B) by striking ``and (c) of this section'' and inserting
``, (c), and (d)'';
(2) in subsection (b), by striking ``section 506(a)(1)''
and inserting ``section 506(a)(1)(A)'';
(3) in subsection (c), by striking ``section 506(a)(2) of
title 17, United States Code'' and inserting ``section
506(a)(1)(B) of title 17'';
(4) by redesignating subsections (d) and (e) as subsections
(e) and (f), respectively;
(5) by adding after subsection (c) the following:
``(d) Any person who commits an offense under section
506(a)(1)(C) of title 17--
``(1) shall be imprisoned not more than 3 years, fined
under this title, or both;
``(2) shall be imprisoned not more than 5 years, fined
under this title, or both, if the offense was committed for
purposes of commercial advantage or private financial gain;
``(3) shall be imprisoned not more than 6 years, fined
under this title, or both, if the offense is a second or
subsequent offense; and
``(4) shall be imprisoned not more than 10 years, fined
under this title, or both, if the offense is a second or
subsequent offense under paragraph (2).''; and
(6) in subsection (f), as redesignated--
(A) in paragraph (1), by striking ``and'' at the end;
(B) in paragraph (2), by striking the period at the end and
inserting a semicolon; and
(C) by adding at the end the following:
``(3) the term `financial gain' has the meaning given the
term in section 101 of title 17; and
``(4) the term `work being prepared for commercial
distribution' has the meaning given the term in section
506(a) of title 17.''.

SEC. 104. CIVIL REMEDIES FOR INFRINGEMENT OF A WORK BEING
PREPARED FOR COMMERCIAL DISTRIBUTION.

(a) Preregistration.--Section 408 of title 17, United
States Code, is amended by adding at the end the following:
``(f) Preregistration of Works Being Prepared for
Commercial Distribution.--
``(1) Rulemaking.--Not later than 180 days after the date
of enactment of this subsection, the Register of Copyrights
shall issue regulations to establish procedures for
preregistration of a work that is being prepared for
commercial distribution and has not been published.
``(2) Class of works.--The regulations established under
paragraph (1) shall permit preregistration for any work that
is in a class of works that the Register determines has had a
history of infringement prior to authorized commercial
distribution.
``(3) Application for registration.--Not later than 3
months after the first publication of a work preregistered
under this subsection, the applicant shall submit to the
Copyright Office--
``(A) an application for registration of the work;
``(B) a deposit; and
``(C) the applicable fee.
``(4) Effect of untimely application.--An action under this
chapter for infringement of a work preregistered under this
subsection, in a case in which the infringement commenced no
later than 2 months after the first publication of the work,
shall be dismissed if the items described in paragraph (3)
are not submitted to the Copyright Office in proper form
within the earlier of--
``(A) 3 months after the first publication of the work; or
``(B) 1 month after the copyright owner has learned of the
infringement.''.
(b) Infringement Actions.--Section 411(a) of title 17,
United States Code, is amended by inserting ``preregistration
or'' after ``shall be instituted until''.
(c) Exclusion.--Section 412 of title 17, United States
Code, is amended by inserting after ``section 106A(a)'' the
following: ``, an action for infringement of the copyright of
a work that has been preregistered under section 408(f)
before the commencement of the infringement and that has an
effective date of registration not later than the earlier of
3 months after the first publication of the work or 1 month
after the copyright owner has learned of the infringement,''.

SEC. 105. FEDERAL SENTENCING GUIDELINES.

(a) Review and Amendment.--Not later than 180 days after
the date of enactment of this Act, the United States
Sentencing Commission, pursuant to its authority under
section 994 of title 28, United States Code, and

[[Page S497]]

in accordance with this section, shall review and, if
appropriate, amend the Federal sentencing guidelines and
policy statements applicable to persons convicted of
intellectual property rights crimes, including any offense
under--
(1) section 506, 1201, or 1202 of title 17, United States
Code; or
(2) section 2318, 2319, 2319A, 2319B, or 2320 of title 18,
United States Code.
(b) Authorization.--The United States Sentencing Commission
may amend the Federal sentencing guidelines in accordance
with the procedures set forth in section 21(a) of the
Sentencing Act of 1987 (28 U.S.C. 994 note) as though the
authority under that section had not expired.
(c) Responsibilities of United States Sentencing
Commission.--In carrying out this section, the United States
Sentencing Commission shall--
(1) take all appropriate measures to ensure that the
Federal sentencing guidelines and policy statements described
in subsection (a) are sufficiently stringent to deter, and
adequately reflect the nature of, intellectual property
rights crimes;
(2) determine whether to provide a sentencing enhancement
for those convicted of the offenses described in subsection
(a), if the conduct involves the display, performance,
publication, reproduction, or distribution of a copyrighted
work before it has been authorized by the copyright owner,
whether in the media format used by the infringing party or
in any other media format;
(3) determine whether the scope of ``uploading'' set forth
in application note 3 of section 2B5.3 of the Federal
sentencing guidelines is adequate to address the loss
attributable to people who, without authorization, broadly
distribute copyrighted works over the Internet; and
(4) determine whether the sentencing guidelines and policy
statements applicable to the offenses described in subsection
(a) adequately reflect any harm to victims from copyright
infringement if law enforcement authorities cannot determine
how many times copyrighted material has been reproduced or
distributed.

TITLE II--EXEMPTION FROM INFRINGEMENT FOR SKIPPING AUDIO AND VIDEO
CONTENT IN MOTION PICTURES

SEC. 201. SHORT TITLE.

This title may be cited as the ``Family Movie Act of
2005''.

SEC. 202. EXEMPTION FROM INFRINGEMENT FOR SKIPPING AUDIO AND
VIDEO CONTENT IN MOTION PICTURES.

(a) In General.--Section 110 of title 17, United States
Code, is amended--
(1) in paragraph (9), by striking ``and'' after the
semicolon at the end;
(2) in paragraph (10), by striking the period at the end
and inserting ``; and'';
(3) by inserting after paragraph (10) the following:
``(11) the making imperceptible, by or at the direction of
a member of a private household, of limited portions of audio
or video content of a motion picture, during a performance in
or transmitted to that household for private home viewing,
from an authorized copy of the motion picture, or the
creation or provision of a computer program or other
technology that enables such making imperceptible and that is
designed and marketed to be used, at the direction of a
member of a private household, for such making imperceptible,
if no fixed copy of the altered version of the motion picture
is created by such computer program or other technology.'';
and
(4) by adding at the end the following:
``For purposes of paragraph (11), the term `making
imperceptible' does not include the addition of audio or
video content that is performed or displayed over or in place
of existing content in a motion picture.
`` Nothing in paragraph (11) shall be construed to imply
further rights under section 106 of this title, or to have
any effect on defenses or limitations on rights granted under
any other section of this title or under any other paragraph
of this section.''.
(b) Exemption From Trademark Infringement.--Section 32 of
the Trademark Act of 1946 (15 U.S.C. 1114) is amended by
adding at the end the following:
``(3)(A) Any person who engages in the conduct described in
paragraph (11) of section 110 of title 17, United States
Code, and who complies with the requirements set forth in
that paragraph is not liable on account of such conduct for a
violation of any right under this Act. This subparagraph does
not preclude liability, nor shall it be construed to restrict
the defenses or limitations on rights granted under this Act,
of a person for conduct not described in paragraph (11) of
section 110 of title 17, United States Code, even if that
person also engages in conduct described in paragraph (11) of
section 110 of such title.
``(B) A manufacturer, licensee, or licensor of technology
that enables the making of limited portions of audio or video
content of a motion picture imperceptible as described in
subparagraph (A) is not liable on account of such manufacture
or license for a violation of any right under this Act, if
such manufacturer, licensee, or licensor ensures that the
technology provides a clear and conspicuous notice at the
beginning of each performance that the performance of the
motion picture is altered from the performance intended by
the director or copyright holder of the motion picture. The
limitations on liability in subparagraph (A) and this
subparagraph shall not apply to a manufacturer, licensee, or
licensor of technology that fails to comply with this
paragraph.
``(C) The requirement under subparagraph (B) to provide
notice shall apply only with respect to technology
manufactured after the end of the 180-day period beginning on
the date of the enactment of the Family Movie Act of 2005.
``(D) Any failure by a manufacturer, licensee, or licensor
of technology to qualify for the exemption under
subparagraphs (A) and (B) shall not be construed to create an
inference that any such party that engages in conduct
described in paragraph (11) of section 110 of title 17,
United States Code, is liable for trademark infringement by
reason of such conduct.''.
(c) Definition.--In this section, the term ``Trademark Act
of 1946'' means the Act entitled ``An Act to provide for the
registration and protection of trademarks used in commerce,
to carry out the provisions of certain international
conventions, and for other purposes'', approved July 5, 1946
(15 U.S.C. 1051 et seq.).

TITLE III--NATIONAL FILM PRESERVATION

Subtitle A--Reauthorization of the National Film Preservation Board

SEC. 301. SHORT TITLE.

This subtitle may be cited as the ``National Film
Preservation Act of 2005''.

SEC. 302. REAUTHORIZATION AND AMENDMENT.

(a) Duties of the Librarian of Congress.--Section 103 of
the National Film Preservation Act of 1996 (2 U.S.C. 179m) is
amended--
(1) in subsection (b)--
(A) by striking ``film copy'' each place that term appears
and inserting ``film or other approved copy'';
(B) by striking ``film copies'' each place that term
appears and inserting ``film or other approved copies''; and
(C) in the third sentence, by striking ``copyrighted'' and
inserting ``copyrighted, mass distributed, broadcast, or
published''; and
(2) by adding at the end the following:
``(c) Coordination of Program With Other Collection,
Preservation, and Accessibility Activities.--In carrying out
the comprehensive national film preservation program for
motion pictures established under the National Film
Preservation Act of 1992, the Librarian, in consultation with
the Board established pursuant to section 104, shall--
``(1) carry out activities to make films included in the
National Film registry more broadly accessible for research
and educational purposes, and to generate public awareness
and support of the Registry and the comprehensive national
film preservation program;
``(2) review the comprehensive national film preservation
plan, and amend it to the extent necessary to ensure that it
addresses technological advances in the preservation and
storage of, and access to film collections in multiple
formats; and
``(3) wherever possible, undertake expanded initiatives to
ensure the preservation of the moving image heritage of the
United States, including film, videotape, television, and
born digital moving image formats, by supporting the work of
the National Audio-Visual Conservation Center of the Library
of Congress, and other appropriate nonprofit archival and
preservation organizations.''.
(b) National Film Preservation Board.--Section 104 of the
National Film Preservation Act of 1996 (2 U.S.C. 179n) is
amended--
(1) in subsection (a)(1) by striking ``20'' and inserting
``22'';
(2) in subsection (a) (2) by striking ``three'' and
inserting ``5'';
(3) in subsection (d) by striking ``11'' and inserting
``12''; and
(4) by striking subsection (e) and inserting the following:
``(e) Reimbursement of Expenses.--Members of the Board
shall serve without pay, but may receive travel expenses,
including per diem in lieu of subsistence, in accordance with
sections 5702 and 5703 of title 5, United States Code.''.
(c) National Film Registry.--Section 106 of the National
Film Preservation Act of 1996 (2 U.S.C. 179p) is amended by
adding at the end the following:
``(e) National Audio-Visual Conservation Center.--The
Librarian shall utilize the National Audio-Visual
Conservation Center of the Library of Congress at Culpeper,
Virginia, to ensure that preserved films included in the
National Film Registry are stored in a proper manner, and
disseminated to researchers, scholars, and the public as may
be appropriate in accordance with--
``(1) title 17, United States Code; and
``(2) the terms of any agreements between the Librarian and
persons who hold copyrights to such audiovisual works.''.
(d) Use of Seal.--Section 107 (a) of the National Film
Preservation Act of 1996 (2 U.S.C. 179q(a)) is amended--
(1) in paragraph (1), by inserting ``in any format'' after
``or any copy''; and
(2) in paragraph (2), by striking ``or film copy'' and
inserting ``in any format''.
(e) Effective Date.--Section 113 of the National Film
Preservation Act of 1996 (2 U.S.C. 179w) is amended by
striking ``7'' and inserting ``12''.

Subtitle B--Reauthorization of the National Film Preservation
Foundation

SEC. 311. SHORT TITLE.

This subtitle may be cited as the ``National Film
Preservation Foundation Reauthorization Act of 2005''.

[[Page S498]]

SEC. 312. REAUTHORIZATION AND AMENDMENT.

(a) Board of Directors.--Section 151703 of title 36, United
States Code, is amended--
(1) in subsection (b)(2)(A), by striking ``nine'' and
inserting ``12''; and
(2) in subsection (b)(4), by striking the second sentence
and inserting ``There shall be no limit to the number of
terms to which any individual may be appointed.''.
(b) Powers.--Section 151705 of title 36, United States
Code, is amended in subsection (b) by striking ``District of
Columbia'' and inserting ``the jurisdiction in which the
principal office of the corporation is located''.
(c) Principal Office.--Section 151706 of title 36, United
States Code, is amended by inserting ``, or another place as
determined by the board of directors'' after ``District of
Columbia''.
(d) Authorization of Appropriations.--Section 151711 of
title 36, United States Code, is amended by striking
subsections (a) and (b) and inserting the following:
``(a) Authorization of Appropriations.--There are
authorized to be appropriated to the Library of Congress
amounts necessary to carry out this chapter, not to exceed
$530,000 for each of the fiscal years 2005 through 2009.
These amounts are to be made available to the corporation to
match any private contributions (whether in currency,
services, or property) made to the corporation by private
persons and State and local governments.
``(b) Limitation Related to Administrative Expenses.--
Amounts authorized under this section may not be used by the
corporation for management and general or fundraising
expenses as reported to the Internal Revenue Service as part
of an annual information return required under the Internal
Revenue Code of 1986.''.

TITLE IV--PRESERVATION OF ORPHAN WORKS

SEC. 401. SHORT TITLE.

This title may be cited as the ``Preservation of Orphan
Works Act''.

SEC. 402. REPRODUCTION OF COPYRIGHTED WORKS BY LIBRARIES AND
ARCHIVES.

Section 108(i) of title 17, United States Code, is amended
by striking ``(b) and (c)'' and inserting ``(b), (c), and
(h)''.

Mr. LEAHY. Mr. President, today I join my colleagues, Senators Hatch,
Feinstein, and Cornyn, introducing an important piece of bipartisan
intellectual property legislation. The provisions of the ``Family
Entertainment and Copyright Act of 2005'' are virtually identical to
those in the bill we passed in the waning days of the 108th Congress.
Unfortunately, that package of intellectual property bills was hijacked
in an effort to use it as a vehicle to pass unrelated legislation. The
effort failed, and in the end so did Congress: we were not able to send
to the President the most important package of intellectual property
legislation on last year's agenda. The legislation passed in the
Senate--several times in fact--but there was simply not enough time for
the House of Representatives to act.
I am pleased that we were able to salvage two components of last
year's bill. As Congress came to a close, the House passed the Senate
version of the CREATE Act, legislation I cosponsored with Senator
Hatch. The new law will continue to encourage collaborative research
partnerships between private industry and not-for-profits, such as
universities. We were also able to send to the President the Anti-
counterfeiting Amendments Act, a version of Senator Biden's legislation
that my friend from Delaware has championed for several years. Both
laws are important, but our task remains incomplete.
It is time to enact the remaining components of the Family
Entertainment and Copyright Act, to finish off the work of the 108th
Congress as we begin the 109th.
Title I of the bill contains the ``Artists'' Rights and Theft
Prevention Act,'' better known as the ART Act. This provision passed
the Senate as a standalone bill in June of 2004, and again as part of
the FECA bill at the end of the last Congress. The bill will make
important inroads in the fight against movie piracy by criminalizing
the use of camcorders to pilfer movies from the big screen. It will
also direct the Register of Copyrights to create a registry of pre-
release works in order to better address the problem of movie-theft
before these works are offered for legal distribution.
The next title of the bill is the Family Movie Act, which will
preserve the rights of families to watch motion pictures in the manner
they see fit. At the same time, the Act protects the rights of
directors and copyright holders to maintain the artistic vision and
integrity of their works. A version of this legislation passed the
other chamber in September of 2004, and it passed the Senate as part of
the FECA bill at the end of the 108th Congress.
Title III of the bill is the Film Preservation Act, legislation that
I sponsored in the last Congress. A version of this bill, too, was part
of the FECA bill that passed the Senate last Congress. The Film
Preservation Act will allow the Library of Congress to continue its
important work in preserving America's fading film treasures. The works
preserved by this important program include silent-era films, avant-
garde works, ethnic films, newsreels, and home movies that are in many
ways more illuminating on the question of who we are as a society than
the Hollywood sound features kept and preserved by major studios.
What's more, the bill will assist libraries, museums, and archives in
preserving films, and in making those works available to researchers
and the public.
Finally, the bill contains the Preservation of Orphan Works Act. This
provision corrects for a drafting error in the Sonny Bono Copyright
Term Extension Act. Correction of this error will allow libraries to
create copies of certain copyrighted works, such as films and musical
compositions that are in the last 20 years of their copyright term, are
no longer commercially exploited, and are not available at a reasonable
price. Again, this provision ensures that copies of culturally-
illuminating works are not lost to history.
Anytime we enact a package of legislation as large as the ``Family
Entertainment and Copyright Act,'' building consensus is difficult.
However, this is a chamber built on collegiality and compromise, and
while I may have crafted specific components of this package
differently, I believe that the final result we have achieved is one
worthy of enactment. The components of this package have already passed
the Senate at least once, and I have received assurances from the other
chamber that the bill will receive swift consideration once it is
approved in this body.
The legislative process is functioning well when we work with our
colleagues across the aisle, and it is at its best when we work on a
bipartisan basis with our friends in the other chamber. This bill has
benefited from both. The agenda of the 109th Congress promises many
issues that divide us, but this is not such a bill: It has garnered
broad consensus, and I hope that we can finally move to swiftly enact
it.
Mr. CORNYN. Mr. President, in the fall of 2003, I introduced S. 1932,
the Artists' Rights and Theft Prevention Act of 2003, along with my
friend from California, Senator Feinstein. As introduced, the ART Act
was a modest but necessary first step to combat the rampant piracy
plaguing the motion picture, recording and general content industries.
The Bill focuses on the most egregious form of copyright piracy
plaguing the entertainment industry today--the piracy of film, movies,
and other copyrighted materials before copyright owners have had the
opportunity to market fully their products.
Now, as part of a comprehensive package, ``the Family Entertainment
and Copyright Act of 2005,'' it is even more significant. This package
contains a number of targeted, important reforms that help strengthen
our intellectual property laws. I rise to express my strong support for
the bill and ask my colleagues to move it expeditiously.
Intellectual property laws and the American businesses that rely on
them deserve our strongest support. Our Nation was founded on a number
of important ideas. One central one was that the value created by the
work and sweat of a person should be recognized as that person's
property and should be protected. Protecting the creativity and capital
that American innovators invest to make our lives richer is the right
thing to do. Failure to do so not only would diminish the quality of
our individual lives, but our country would suffer too. Intellectual
property-related industries are a central driver of our Nation's
economy and a staple of our international trade.
The copyright-based industries alone accounted for more than 5
percent of the U.S. GDP or $535,100,000,000 in 2001 and almost 6
percent of U.S. employment, and led all major industry sectors in
foreign sales and exports in 2001, the last year for which we have
figures.
As the Justice Department recently has pointed out:

[[Page S499]]

Ideas and the people who generate them serve as critical
resources both in our daily lives and in the stability and
growth of America's economy. The creation of intellectual
property--from designs for new products to artistic
creations--unleashes our Nation's potential, brings ideas
from concept to commerce, and drives future economic and
productivity gains. In the increasingly knowledge-driven,
information age economy, intellectual property is the new
coin of the realm. . . . [Report of the DOJ Task Force on
Intellectual Property, p. 7.]

As the DOJ IP Task Force Report notes, America's economy relies more
and more on ideas we create, not things we make. We need to protect our
Nation's innovative and creative works with strong laws and enforcement
of those laws because doing so is vital to our national economic
security.
Having noted and quoted the DOJ Report, I want to pause to thank the
Justice Department and outgoing Attorney General John Ashcroft for
taking these issues seriously and for taking significant steps to
address them. The formation of the Intellectual Property Task Force
spotlighted these issues at the Justice Department and the work of the
Task Force, headed by David Israelite did a superb job in developing
comprehensive and serious steps better protecting our intellectual
property interests. The DOJ engaged in serious domestic and
international investigations and prosecutions against digital thieves
who have misused promising digital technology like the Internet to
further their attacks on American businesses. General Ashcroft and the
Justice Department, who deserve our gratitude for so many reasons,
certainly deserve it for their efforts on this area.
Having provided that foundation, let me discuss briefly some of the
important provisions contained in this legislative package.
We have purposefully compiled a package of legislation that strikes a
balance between innovation and copyright protection. One needn't be
sacrificed to encourage the other--rather they go hand-in-hand.
First, I would mention the Cornyn-Feinstein ``Artist's Rights and
Theft Prevention Act'' or the ART Act. Notably, it contains a provision
making it a felony to record a movie in a theater. One of the principal
ways that movie piracy happens is by thieves sitting in a movie
theater, or bribing a projectionist to help them, and recording movies
with small camcorders. These camcorded copies can then make their way
around the world on the internet and usually land on the streets of
cities around the world in pirated copies sold on the street, often the
day the movie opens in the U.S. or even before the movie opens in many
countries.
All it takes is a single or a small handful of camcorded copies
distributed worldwide to have a devastating effect on a movie's
profitability. Movies are generally an investment of tens or hundreds
of millions of dollars that rely on box office and home video and other
subsequent sales to recoup this investment. A camcorded copy released
early in any of these cycles can undermine the economics of this
business, and especially if they hit the streets or the internet while
the movie is still in theaters. This is theft, and it is theft that
supports organized crime groups, and perhaps, even terrorism. It
deserves to be stopped by the specter of a federal felony.
Its second key provision focuses on so-called ``pre-released'' works.
Because serious harm can be done to both the reputation of and market
for creative products if they are pirated before they actually come to
market, we have included reforms in the ART Act and this package that
make it easier for the Justice Department to prosecute those who steal
and distribute copies of copyrighted works on the internet before they
are released to the public by their owners or authorized distributors.
We make the prosecutor's job easier by allowing certain presumptions
with regard to the harm caused, including the dollar amount and number
of copies, necessary to allow the prosecutor to bring a felony action
where the works in question are being prepared for commercial release
but have not been released to the public legitimately. This is fair
because no one can legitimately believe that they are within their
rights copying and distributing works that are not yet available in the
marketplace. Again this is a common sense concept, which deserves the
support of the Congress.
Also, I would mention the Family Movie Act--another important
component of this package. This provision allows the use of certain,
specified technology to skip or mute content that may be objectionable
to certain viewers when watching a movie at home, so long as no fixed
copy of the edited work is made.
Very few would argue that many of the movies produced today contain
significant amounts of gratuitous sex, violence, foul language or other
potentially objectionable content. A number of innovative companies
have stepped forward to solve this problem by providing filters that
tag such scenes and allows consumers to tailor their viewing
experience.
This legislation is designed to solve an on-going controversy
surrounding the use of such technology. Specifically, there is
litigation pending over the issue of whether providing edited versions
of movies to consumers creates a ``derivative work'' that violates the
rights of those who created or own the copyrights and trademarks for
the original movies. The existence of this controversy arguably is
hampering the development of the technology that families may find
helpful in protecting children from potentially objectionable content.
Let me make clear that this bill is not designed to deal with ad-
skipping by consumers in the home. I know that there has been some
misinformation about this by groups who apparently oppose copyright
protections generally, but this bill has nothing to do with anything
other than using a certain kind of technology to modify the viewing
experience of a movie to skip over objectionable content.
Finally, the two remaining provisions--though relatively small--are
not insignificant. The Film Preservation Act, legislation that I
recognize is particularly important to Senator Leahy, and I thank him
for his efforts in promoting it, will reauthorize a Library of Congress
Program dedicated to saving rare and significant films. Additionally,
we make a small but necessary change to the Sonny Bono Copyright Term
Extension Act. Correction of this error will allow libraries to create
copies of certain copyrighted works, such as films and musical
compositions that are in the last 20 years of their copyright term, are
no longer commercially exploited, and are not available at a reasonable
price.
Before I relinquish my time, I do want to thank a number of people
who have worked tirelessly on behalf of this bill. Allow me to thank
David Jones and Tom Sydnor of the staff of Chairman Orrin Hatch, who is
not only our previous Judiciary Committee Chairman, but a leader on
copyright and intellectual property issues; Susan Davies and Dan Fine
of Senator Leahy's staff, who also has long been a leader on
intellectual property issues; and finally, David Hantman of Senator
Feinstein's staff, a Senator with whom I am happy to have teamed to
introduce the ART Act in the last Congress.
Having begun with the staff, who rarely get mentioned as much as they
deserve for the great work they do, let me also thank the Senators they
work for: Senators Hatch, Leahy, and Feinstein for their co-
sponsorship, as well as the Majority Leader, who has taken a personal
interest in this legislation and worked to make it happen.
Mr. CORNYN. Mr. President, would the Senator yield for a quick
question?
Mr. HATCH. I would be happy to yield for a question from the
distinguished Senator from Texas.
Mr. CORNYN. As the chairman knows, he and I and our other cosponsors
have worked throughout last Congress on the provisions of the Family
Entertainment and Copyright Act of 2005 that we have introduced today.
With respect to the Family Movie Act portion of the bill, I just wanted
to raise the point that there had been some concern over the potential
effect of the FMA on future cases involving ``ad skipping''
technologies and ask if you would have any objection to including in
the record the relevant portion of the floor discussion on that issue
from last Congress?
Mr. HATCH. I thank my friend, the Senator from Texas, for that
reminder. I would certainly have no objection to entering our previous
colloquy into the Record again and ask unanimous consent that it appear
after our remarks.

[[Page S500]]

Mr. HATCH. Mr. President, Section 102 of the ART Act establishes a
new provision of Title 18 entitled, ``Unauthorized Recording of Motion
Pictures in a Motion Picture Exhibition Facility.'' I ask Senator
Cornyn, what is the purpose of this provision?
Mr. CORNYN. Section 102 addresses a serious piracy issue facing the
movie business: the use of camcorders in a motion picture theater. Sad
to say, there are people who go to the movie theater, generally during
pre-opening ``screenings'' or during the first weekend of theatrical
release, and using sophisticated digital equipment, record the movie.
They're not trying to save $8.00 so they can see the movie again.
Instead, they sell the camcorded version to a local production factory
or to an overseas producer, where it is converted into DVDs or similar
products and sold on the street for a few dollars per copy. This misuse
of camcorders is a significant factor in the estimated $3.5 billion per
year of losses the movie industry suffers because of hard goods piracy.
Even worse, these camcorded versions are posted on the Internet through
``P2P'' networks such as KaZaA, Grokster and Morpheus--and made
available for millions to download. The goal of our bill is to provide
a potent weapon in the arsenal of prosecutors to stem the piracy of
commercially valuable motion pictures at its source.
Mr. HATCH. I have heard it said that this bill could be used against
a salesperson or a customer at stores such as Best Buy or Circuit City
if he or she were to point a video camera at a television screen
showing a movie. Is this cause for concern?
Mr. CORNYN. Absolutely not. The offense is only applicable to
transmitting or copying a movie in a motion picture exhibition
facility, which has to be a movie theater or similar venue ``that is
being used primarily for the exhibition of a copyrighted motion
picture.'' In the example of Best Buy--the store is being used
primarily to sell electronic equipment, not to exhibit motion pictures.
For the same reason, the statute would not cover a university student
who records a short segment of a film being shown in film class, as the
venue is being used primarily as a classroom, and not as a movie
theater.
Mr. HATCH. Does the Senator from California agree with your colleague
from Texas?
Mrs. FEINSTEIN. Absolutely on all points.
Mr. HATCH. I have also heard some say that this statute could be used
to prosecute someone for camcording a DVD at his home. Is this a fair
concern?
Mrs. FEINSTEIN. No, it is not. The definition of a motion picture
exhibition facility includes the concept that the exhibition has to be
``open to the public or is made to an assembled group of viewers
outside of a normal circle of a family and its social acquaintances.''
This definition makes clear that someone recording from a television in
his home does not meet that definition. It is important to emphasize
that the clause ``open to the public'' applies specifically to the
exhibition, not to the facility. An exhibition in a place open to the
public that is itself not made to the public is not the subject of this
bill.
Thus, for example, a university film lab may be ``open to the
public.'' However, a student who is watching a film in that lab for his
or her own study or research would not be engaging in an exhibition
that is ``open to the public.'' Thus, if that student copied an excerpt
from such an exhibition, he or she would not be subject to liability
under the bill.
Mr. HATCH. Do the users of hearing aids, cell phones or similar
devices have anything to fear from this statute?
Mrs. FEINSTEIN. Of course not. The statute covers only a person who
``knowingly uses or attempts to use an audiovisual recording device to
transmit or make a copy of a motion picture or other audiovisual work
protected under Title 17, or any part thereof. . . .'' In other words,
the defendant would have to be making, or attempting to make, a copy
that is itself an audiovisual work, or make, or attempt to make, a
transmission embodying an audiovisual work, as that term is defined in
Section 101 of Title 17. As such, the Act would not reach the conduct
of a person who uses a hearing aid, a still camera, or a picture phone
to capture an image or mere sound from the movie.
Mr. HATCH. It appears that there is no fair use exception to this
provision. Is that correct?
Mrs. FEINSTEIN. This is a criminal provision under Title 18, not a
copyright provision under Title 17. Accordingly, there is no fair use
exception included. However, Federal prosecutors should use their
discretion not to bring criminal prosecutions against activities within
movie theaters that would constitute fair use under the copyright laws.
The object of this legislation is to prevent the copying and
distribution of motion pictures in a manner that causes serious
commercial harm. This legislation is not intended to chill legitimate
free speech.
Mr. HATCH. Does the Senator from Texas agree?
Mr. CORNYN. Yes, on all points.
Mr. CORNYN. Mr. President, would the chairman yield for a question?
Mr. HATCH. I would be happy to yield for a question from the
distinguished Senator from Texas.
Mr. CORNYN. As the chairman knows, he and I and our other co-sponsors
have worked throughout this Congress on the provisions of the Family
Entertainment and Copyright Act of 2004 that we have introduced today.
I just want to confirm what I believe to be our mutual understanding
about the effect of certain provisions of the Family Movie Act. Title
II of the Family Entertainment and Copyright Act of 2004 that we
introduced today modifies slightly the Family Movie Act provisions of
H.R. 4077 as passed by the House of Representatives. That bill created
a new exemption in section 110(11) of the Copyright Act for skipping
and muting audio and video content in motion pictures during
performances that take place in the course of a private viewing in a
household from an authorized copy of the motion picture. The House-
passed version specifically excluded from the scope of the new
copyright exemption computer programs or technologies that make
changes, deletions, or additions to commercial advertisements or to
network or station promotional announcements that would otherwise be
displayed before, during, or after the performance of the motion
picture.
My understanding is that this provision reflected a ``belt and
suspenders'' approach that was adopted to quiet the concerns of some
Members in the House who were concerned that a court might misread the
statute to apply to ``ad-skipping'' cases. Some Senators, however,
expressed concern that the inclusion of such explicit language could
create unwanted inferences as to the ``ad-skipping'' issues at the
heart of the recent litigation. Those issues remain unsettled, and it
was never the intent of this legislation to resolve or affect those
issues. In the meantime, the Copyright Office has confirmed that such a
provision is unnecessary to achieve the intent of the bill, which is to
avoid application of this new exemption in potential future cases
involving ``ad-skipping'' devices; therefore, the Senate amendment we
offer removes the unnecessary exclusionary language.
Would the chairman confirm for the Senators present his understanding
of the intent and effect, or perhaps stated more appropriately, the
lack of any effect, of the Senate amendment on the scope of this bill?
Mr. HATCH. My cosponsor, Senator Cornyn, raises an important point.
While we removed the ``ad-skipping'' language from the statute to avoid
this unnecessary controversy, you are absolutely correct that this does
not in any way change the scope of the bill. The bill protects the
``making imperceptible . . . limited portions of audio or video content
of a motion picture . . .'' An advertisement, under the Copyright Act,
is itself a ``motion picture,'' and thus a product or service that
enables the skipping of an entire advertisement, in any media, would be
beyond the scope of the exemption. Moreover, the phrase ``limited
portions'' is intended to refer to portions that are both
quantitatively and qualitatively insubstantial in relation to the work
as a whole. Where any substantial part of a complete work, such as a
commercial advertisement, is made imperceptible, the new section
110(11) exemption would not apply.
The limited scope of this exemption does not, however, imply or show
that

[[Page S501]]

such a product would be infringing. This legislation does not in any
way deal with that issue. It means simply that such a product is not
immunized from liability by this exemption.
Mr. CORNYN. I thank the chairman. I am pleased that we share a common
understanding. If the chairman would yield for one more question about
the Family Movie Act?
Mr. HATCH. Certainly.
Mr. CORNYN. This bill also differs from the House-passed version
because it adds two ``savings clauses.'' As I understand it, the
``copyright'' savings clause makes clear that there should be no
``spillover effect'' from the passage of this law: that is, nothing
shall be construed to have any effect on rights, defenses, or
limitations on rights granted under title 17, other than those
explicitly provided for in the new section 110(11) exemption. The
second, relating to trademark, clarifies that no inference can be drawn
that a person or company who fails to qualify for the exemption from
trademark infringement found in this provision is therefore liable for
trademark infringement. Is that the chairman's understanding as well?
Mr. HATCH. Yes it is. Let me ask that a copy of the section-by-
section analysis of the Family Movie Act as amended by the Senate be
included in the Record. This section-by-section analysis contains a
more complete analysis of the bill as proposed today in the Senate,
including the limited changes made by the bill Senators Leahy, Cornyn,
Biden, and I offer today.
The analysis follows.

Section-by-Section Analysis of the Family Movie Act of 2004, Amended
and Passed by the Senate

overview

Title II of the Family Entertainment and Copyright Act of
2004 incorporates the House-passed provision of the Family
Movie Act of 2004, with limited changes as reflected in this
section-by-section analysis. As discussed herein, these
changes are not intended to and do not affect the scope,
effect or application of the bill.
The purpose of the Family Movie Act is to empower private
individuals to use technology to skip and mute material that
they find objectionable in movies, without impacting
established doctrines of copyright or trademark law or those
whose business models depend upon advertising. This amendment
to the law should be narrowly construed to effect its
intended purpose only. The sponsors of the legislation have
been careful to tailor narrowly the legislation to clearly
allow specific, consumer-directed activity and not to open or
decide collateral issues or to affect any other potential
or actual disputes in the law.
The bill as proposed in the Senate makes clear that, under
certain conditions, ``making imperceptible'' of limited
portions of audio or video content of a motion picture--that
is, skipping and muting limited portions of movies without
adding any content--as well as the creation or provision of a
computer program or other technology that enables such making
imperceptible, does not violate existing copyright or
trademark laws. That is true whether the movie is on
prerecorded media, like a DVD, or is transmitted to the home,
as through pay-per-view and ``video-on-demand'' services.
Subsection (a): Short Title
Subsection (a) sets forth the short title of the bill as
the Family Movie Act of 2004.
Subsection (b): Exemption from Copyright and Trademark
Infringement for Skipping of Audio or Video Content of
Motion Pictures
Subsection (b) is the Family Movie Act core provision and
creates a new exemption at section 110(11) of the Copyright
Act for the ``making imperceptible'' of limited portions of
audio or video content of a motion picture during a
performance in a private household. This new exemption sets
forth a number of conditions to ensure that it achieves its
intended effect while remaining carefully circumscribed and
avoiding any unintended consequences. The conditions that
allow an exemption, which are discussed in more detail below,
consist of the following:
The making imperceptible must be ``by or at the direction
of a member of a private household.'' This legislation
contemplates that any altered performances of the motion
picture would be made either directly by the viewer or at the
direction of a viewer where the viewer is exercising
substantial choice over the types of content they choose to
skip or mute.
The making imperceptible must occur ``during a performance
in or transmitted to the household for private home
viewing.'' Thus, this provision does not exempt an
unauthorized ``public performance'' of an altered version.
The making imperceptible must be ``from an authorized copy
of a motion picture.'' Thus, skipping and muting from an
unauthorized or ``bootleg'' copy of a motion picture would
not be exempt.
No ``fixed copy'' of the altered version of the motion
picture may be created by the computer program or other
technology that makes imperceptible portions of the audio or
video content of the motion picture. This provision makes
clear that services or technologies that make a fixed copy of
the altered version are not afforded the benefit of this
exemption.
The ``making imperceptible'' of limited portions of a
motion picture does not include the addition of audio or
video content over or in place of other content, such as
placing a modified image of a person, a product, or an
advertisement in place of another, or adding content of any
kind.
These limitations, and other operative provisions of this
new section 110(11) exemption, merit further elaboration as
to their purposes and effects.
The bill makes clear that the ``making imperceptible'' of
limited portions of audio or video content of a motion
picture must be done by or at the direction of a member of a
private household. While this limitation does not require
that the individual member of the private household exercise
ultimate decision-making over each and every scene or element
of dialog in the motion picture that is to be made
imperceptible, it does require that the making imperceptible
be made at the direction of that individual in response to
the individualized preferences expressed by that individual.
The test of ``at the direction of an individual'' would be
satisfied when an individual selects preferences from among
options that are offered by the technology.
An example is the C1earPlay model. C1earPlay provides so-
called `` filter files'' that allow a viewer to express his
or her preferences in a number of different categories,
including language, violence, drug content, sexual content,
and several others. The version of the movie that the viewer
sees depends upon the preferences expressed by that viewer.
Such a model would fall under the liability limitation of the
Family Movie Act.
This limitation, however, would not allow a program
distributor, such as a provider of video-on-demand services,
a cable or satellite channel, or a broadcaster, to make
imperceptible limited portions of a movie in order to provide
an altered version of that movie to all of its customers,
which could violate a number of the copyright owner's
exclusive rights, or to make a determination of scenes to be
skipped or dialog to be muted and to offer to its viewers no
more of a choice than to view an original or an altered
version of that film. Some element of individualized
preferences and control must be present such that the viewer
exercises substantial choice over the types of content they
choose to skip or mute.
It is also important to emphasize that the new section
110(11) exemption is targeted narrowly and specifically at
the act of ``making imperceptible'' limited portions of audio
or video content of a motion picture during a performance
that occurs in, or that is transmitted to, a private
household for private home viewing. This section would not
exempt from liability an otherwise infringing performance, or
a transmission of a performance, during which limited
portions of audio or video content of the motion picture are
made imperceptible. In other words, where a performance in a
household or a transmission of a performance to a household
is done lawfully, the making imperceptible limited portions
of audio or video content of the motion picture during that
performance, consistent with the requirements of this new
section, will not result in infringement liability.
Similarly, an infringing performance in a household, or an
infringing transmission of a performance to a household, are
not rendered non-infringing by section 110(11) by virtue of
the fact that limited portions of audio or video content of
the motion picture being performed are made imperceptible
during such performance or transmission in a manner
consistent with that section.
The bill also provides additional guidance, if not an exact
definition, of what the term ``making imperceptible'' means.
The bill provides specifically that the term ``making
imperceptible'' does not include the addition of audio or
video content that is performed or displayed over or in place
of existing content in a motion picture. This is intended to
make clear in the text of the statute what has been expressed
throughout the consideration of this legislation, which is
that the Family Movie Act does not enable the addition of
content of any kind, including the making imperceptible of
audio or video content by replacing it or by superimposing
other content over it. In other words, for purposes of
section 110(11), ``making imperceptible'' refers solely to
skipping scenes and portions of scenes or muting audio
content from the original, commercially available version of
the motion picture. No other modifications of the content are
addressed or immunized by this legislation.
The House sponsor of this legislation noted in his
explanation of his bill, and the Senate is also aware, that
some copy protection technologies rely on matter placed into
the audio or video signal. The phrase ``limited portions of
audio or video content of a motion picture'' means what it
would naturally seem to mean (i.e., the actual content of
the motion picture) and does not refer to any component of
a copy protection scheme or technology. This provision
does not allow the skipping of technologies or other copy-
protection-related matter for the purpose of defeating
copy protection. Rather, it is expected that skipping and
muting of content

[[Page S502]]

in the actual motion picture will be skipped or muted at
the direction of the viewer based on that viewer's desire
to avoid seeing or hearing the action or sound in the
motion picture. Skipping or muting done for the purpose of
or having the effect of avoiding copy protection
technologies would be an abuse of the safe harbor outlined
in this legislation and may violate section 1201 of title
17.
Violating the Digital Millennium Copyright Act, and
particularly its anti-circumvention provisions, is not
necessary to enable technology of the kind contemplated under
the Family Movie Act. Although the amendment to section 110
provides that it is not an infringement of copyright to
engage in the conduct that is the subject of the Family Movie
Act, the Act does not provide any exemption from the anti-
circumvention provisions of section 1201 of title 17, or from
any other provision of chapter 12 of title 17. It would not
be a defense to a claim of violation of section 1201 that the
circumvention is for the purpose of engaging in the conduct
covered by this new exemption in section 110(11), just as it
is not a defense under section 1201 that the circumvention is
for the purpose of engaging in any other non-infringing
conduct.
There are a number of companies currently providing the
type of products and services covered by this Act. The Family
Movie Act is intended to facilitate the offering of such
products and services, and it certainly creates no impediment
to the technology employed by those companies. Indeed, it is
important to underscore the fact that the support for such
technology and consumer offerings that is reflected in this
legislation is driven in some measure by the desire for
copyright law to be respected and to ensure that technology
is deployed in a way that supports the continued creation and
protection of entertainment and information products that
rely on copyright protection. This legislation reflects the
firm expectation that those rights and the interests of
viewers in their homes can work together in the context
defined in this bill. Any suggestion that support for the
exercise of viewer choice in modifying their viewing
experience of copyrighted works requires violation of either
the copyright in the work or of the copy protection schemes
that provide protection for such work should be rejected as
counter to legislative intent or technological necessity.
The House-passed bill included an explicit exclusion to the
new section 110(11) exemption in cases involving the making
imperceptible of commercial advertisements or network or
station promotional announcements. This provision was added
on the House floor to respond to concerns expressed by
Members during the House Judiciary Committee markup that the
bill might be read somehow to exempt from copyright
infringement liability devices that allow for skipping of
advertisements in the playback of recorded television (so
called ``ad-skipping'' devices). Such a reading is not
consistent with the language of the bill or its intent.
The phrase ``limited portions of audio or video content of
a motion picture'' applies only to the skipping and muting of
scenes or dialog that are part of the motion picture itself,
and not to the skipping of commercial advertisements, which
are themselves considered motions pictures under the
Copyright Act. It also should be noted that the phrase
``limited portions'' is intended to refer to portions that
are both quantitatively and qualitatively insubstantial in
relation to the work as a whole. Where any substantial part
of a complete work (including a commercial advertisement) is
made imperceptible, the section 110(11) exemption would not
apply.
The House-passed bill adopted a ``belt and suspenders''
approach to this question by adding exclusionary language in
the statute itself. Ultimately that provision raised concerns
in the Senate that such exclusionary language would result in
an inference that the bill somehow expresses an opinion, or
even decides, the unresolved legal questions underlying
recent litigation related to these so-called ``ad-skipping''
devices. In the meantime, the Copyright Office also made
clear that such exclusionary language is not necessary. In
other words, the exclusionary language created unnecessary
controversy without adding any needed clarity to the statute.
Thus, the Senate amendment omits the exclusionary language
while leaving the scope and application of the bill exactly
as it was when it passed the House. The legislation does not
provide a defense in cases involving so-called ``ad-
skipping'' devices, and it also does not affect the legal
issues underlying such litigation, one way or another.
Consistent with the intent of the legislation to fix a narrow
and specific copyright issue, this bill seeks very clearly to
avoid unnecessarily interfering with current business models,
especially with respect to advertising, promotional
announcements, and the like. Simply put, the bill as amended
in the Senate is narrowly targeted to the use of technologies
and services that filter out content in movies that a viewer
finds objectionable, and it in no way relates to or affects
the legality of so-called ``ad-skipping'' technologies.
There are a variety of services currently in litigation
that distribute actual copies of altered movies. This type of
activity is not covered by the section 110(11) exemption
created by the Family Movie Act. There is a basic distinction
between a viewer choosing to alter what is visible or audible
when viewing a film, the focus of this legislation, and a
separate entity choosing to create and distribute a single,
altered version to members of the public. The section 110(11)
exemption only applies to viewer directed changes to the
viewing experience, and not the making or distribution of
actual altered copies of the motion picture.
Related to this point, during consideration of this
legislation in the House there were conflicting expert
opinions on whether fixation is required to infringe the
derivative work right under the Copyright Act, as well as
whether evidence of Congressional intent in enacting the 1976
Copyright Act supports the notion that fixation should not be
a prerequisite for the preparation of an infringing
derivative work. This legislation should not be construed to
be predicated on or to take a position on whether fixation is
necessary to violate the derivative work right, or whether
the conduct that is immunized by this legislation would be
infringing in the absence of this legislation. Subsection (b)
also provides a savings clause to make clear that the newly-
created copyright exemption is not to be construed to have
any effect on rights, defenses, or limitations on rights
granted under title 17, other than those explicitly provided
for in the new section 110(11) exemption.
Subsection (c): Exemption from Trademark Infringement
Subsection (c) provides for a limited exemption from
trademark infringement for those engaged in the conduct
described in the new section 110(11) of the Copyright Act. In
short, this subsection makes clear that a person engaging in
the conduct described in section 110(11)--the ``making
imperceptible'' of portions of audio or video content of a
motion picture or the creation or provision of technology to
enable such making available--is not subject to trademark
infringement liability based on that conduct, provided that
person's conduct complies with the requirements of section
110(11). This section provides a similar exemption for a
manufacturer, licensee or licensor of technology that enables
such making imperceptible, but such manufacturer, licensee or
licensor is subject to the additional requirement that it
ensure that the technology provides a clear and conspicuous
notice at the beginning of each performance that the
performance of the motion picture is altered from the
performance intended by the director or the copyright holder.
Of course, nothing in this section would immunize someone
whose conduct, apart from the narrow conduct described by
110(11), rises to the level of a Lanham Act violation. For
example, someone who provides technology to enable the making
imperceptible limited portions of a motion picture consistent
with section 110(11) could not be held liable on account of
such conduct under the Trademark Act, but if in providing
such . . .

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