[Congressional Record Volume 151, Number 27 (Wednesday, March 9, 2005)]
[Senate]
[Pages S2392-S2394]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Ms. COLLINS (for herself and Mr. Feingold):
  S. 577. A bill to promote health care coverage for individuals 
participating in legal recreational activities or legal transportation 
activities; to the Committee on Health, Education, Labor, and Pensions.
  Ms. COLLINS. Mr. President, I am pleased to join with my colleague 
from Wisconsin, Senator Feingold, in introducing legislation to 
prohibit health insurers from denying benefits to plan participants if 
they are injured while engaging in legal recreational activities like 
skiing, snowmobiling, or horseback riding.
  Among the many rules that were issued at the end of the Clinton 
Administration was one that was intended to ensure non-discrimination 
in health coverage in the group market. This rule was issued jointly on 
January 8, 2001, by the Department of Labor, the Internal Revenue 
Service and the Health Care Financing Administration--now the Centers 
for Medicare and Medicaid Services--in accordance with the Health 
Insurance Portability and Accountability Act (HIPAA) of 1996.
  While I was pleased that the rule prohibits health plans and issuers 
from denying coverage to individuals who engage in certain types of 
recreational activities, such as skiing, horseback riding, snowmobiling 
or motorcycling, I am extremely concerned that it would allow insurers 
to deny health benefits for an otherwise covered injury that results 
from participation in these activities.
  The rule states that: ``While a person cannot be excluded from a plan 
for engaging in certain recreational activities, benefits for a 
particular injury can, in some cases, be excluded based on the source 
of the injury.'' A plan could, for example, include a general exclusion 
for injuries sustained while

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doing a specified list of recreational activities, even though 
treatment for those injuries--a broken arm for instance--would have 
been covered under the plan if the individual had tripped and fallen.
  Because of this loophole, an individual who was injured while skiing 
or running could be denied health care coverage, while someone who is 
injured while drinking and driving a car would be protected.

  This clearly is contrary to Congressional intent. One of the purposes 
of HIPAA was to prohibit plans and issuers from establishing 
eligibility rules for health coverage based on certain health-related 
factors, including evidence of insurability. To underscore that point, 
the conference report language stated that ``the inclusion of evidence 
of insurability in the definition of health status is intended to 
ensure, among other things, that individuals are not excluded from 
health care coverage due to their participation in activities such as 
motorcycling, snowmobiling, all-terrain vehicle riding, horseback 
riding, skiing and other similar activities.'' The conference report 
also states that ``this provision is meant to prohibit insurers or 
employers from excluding employees in a group from coverage or charging 
them higher premiums based on their health status and other related 
factors that could lead to higher health costs.''
  Millions of Americans participate in these legal and common 
recreational activities which, if practiced with appropriate 
precautions, do not significantly increase the likelihood of serious 
injury. Moreover, in enacting HIPAA, Congress simply did not intend 
that people would be allowed to purchase health insurance only to find 
out, after the fact, that they have no coverage for an injury resulting 
from a common recreational activity. If this rule is allowed to stand, 
millions of Americans will be forced to forgo recreational activities 
that they currently enjoy lest they have an accident and find out that 
they are not covered for needed care resulting from that accident.
  The legislation that we are introducing today will clarify that 
individuals participating in activities routinely enjoyed by millions 
of Americans cannot be denied access to health care coverage or health 
benefits as a result of their activities. The bill should not be 
controversial. In fact, it passed the Senate by unanimous consent last 
November. Unfortunately, however, the House did not have time to act 
before the end of the Congress.
  I am therefore hopeful that we will be able to move quickly on this 
legislation this year, and I urge all of my colleagues to join us as 
cosponsors.
  Mr. LAUTENBERG. Mr. President, we have the benefit of many resources 
that provide us with a wealth of information: our dedicated staffs, the 
agencies of the Federal Government, and the many interested citizens 
and groups who follow issues.
  We rely every day on the information we get from all these sources. 
But we also rely on plain old common sense. I rise today to introduce a 
bill that is based on common sense.
  The premise is this: if we think somebody is a terrorist or has ties 
to terrorism, and that person purchases a deadly weapon, we need to 
know about it and keep track of it.
  The bill I am introducing is called the ``Terrorist Apprehension 
Record Retention (TARR) Act.'' I am introducing it in response to a 
report that Senator Biden and I requested from the Government 
Accountability Office (GAO).
  The report examined the practices of the National Instant Criminal 
Background Checks system (NICS) in conducting background checks of 
people who are on the Federal terrorist watch list and who try to 
purchase firearms.
  The GAO found that from February 3 through June 30 of last year--a 
period of just five months--a total of 44 known or suspected terrorists 
attempted to purchase firearms. The GAO Report is available at http://
www.gao.gov/new.items/d05127.pdf.
  In 35 of these cases, the FBI authorized the transactions to proceed 
because its field agents were unable to find any disqualifying 
information, such as felony convictions or illegal immigrant status, 
within the federally prescribed three business days.
  FBI officials told GAO investigators that from June through October 
2004, the FBI's NICS handled an additional 14 transactions involving 
known or suspected terrorists. Of these 14 transactions, the FBI 
allowed 12 to proceed and denied 2 based on prohibiting information.
  These people who are on the terrorist watch list are not even allowed 
to board a commercial airliner. Yet most of them were allowed to 
purchase firearms.
  Some would say that defies common sense--but it gets worse.
  After most of the people with suspected terrorist connections were 
allowed to purchase these deadly weapons, the FBI was forced to destroy 
the records of the transactions within 24 hours after the FBI had 
approved the sale.
  These records were destroyed pursuant to the ``Tiahrt Amendment'' 
which was implemented last July.
  The GAO also found that Department of Justice procedures prohibit the 
NICS from sharing information about gun sales to suspected terrorists 
with counterterrorism officials.
  This restriction of information-sharing is based on the belief at DOJ 
that information gathered by NICS should not be used for law 
enforcement purposes or to fight the war against terror. This is 
despite the fact that FBI counterterrorism officials said that it would 
help them fight the war on terror if they were to routinely receive all 
available personal identifying information and other details from 
valid-match background checks of known or suspected terrorists.
  So, not only are people suspected of having links to terrorism 
allowed to purchase deadly weapons, but then we don't even tell our 
counterterrorism agents about it--and we destroy the records!
  This doesn't seem like common sense to me.
  In fact, it seems like a policy that not only allows terrorists to 
acquire weapons, but then helps them cover their tracks.
  In light of the findings in this report, Senators Corzine, Schumer, 
Clinton, Feinstein, Mikulski, Reed and Kennedy are joining me in 
introducing the TARR Act, which would do two very important things.
  First, the bill would require the Federal Government, specifically 
the NICS and FBI, to maintain for 10 years all records related to a 
NICS transaction involving a valid match to the VGTOF terrorist 
records--a suspected or known terrorist.
  It is outrageous that one unit of the FBI--NICS--has information that 
could help us win the war against terrorism, but that information is 
deleted.
  Second, the TARR Act would require all information related to the 
transactions involving a valid match to the VGTOF terrorist records 
must be shared with all appropriate Federal and State counterterrorism 
officials. Both FBI counterterrorism agents and State counterterrorism 
agencies should have access to this potentially valuable information. I 
encourage my colleagues to support this common sense legislation.
  I ask unanimous consent that the text of the bill be printed in the 
Record. I also ask unanimous consent that an article from the March 8, 
2005 edition of the New York Times be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 S. 578

       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 ``Terrorist Apprehension and 
     Record Retention Act of 2005'' or the ``TARR Act of 2005''.

     SEC. 2. IDENTIFICATION OF TERRORISTS.

       (a) In General.--Section 922(t) of title 18, United States 
     Code, is amended by inserting after paragraph (6) the 
     following:
       ``(7) If the national criminal background check system 
     indicates that a person attempting to purchase a firearm or 
     applying for a State permit to possess, acquire, or carry a 
     firearm is identified as a known or suspected member of a 
     terrorist organization in records maintained by the 
     Department of Justice or the Department of Homeland Security, 
     including the Violent Gang and Terrorist Organization File, 
     or records maintained by the Intelligence Community, 
     including records maintained under section 343 of the 
     Intelligence Authorization Act for Fiscal Year 2003 (50 
     U.S.C. 404n-2)--
       ``(A) all information related to the prospective 
     transaction shall automatically and immediately be 
     transmitted to the appropriate

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     Federal and State counterterrorism officials, including the 
     Federal Bureau of Investigation;
       ``(B) the Federal Bureau of Investigation shall coordinate 
     the response to such an event; and
       ``(C) all records generated in the course of the check of 
     the national criminal background check system, including the 
     ATF Form 4473, that are obtained by Federal and State 
     officials shall be retained for a minimum of 10 years.''.
       (b) Conforming Amendments.--
       (1) Title 18.--Section 922(t)(2)(C) of title 18, United 
     States Code, is amended by inserting after ``transfer'' the 
     following: ``, except as provided in paragraph (7)''.
       (2) Other law.--Section 617(a)(2) of the Departments of 
     Commerce, Justice, and State, the Judiciary, and Related 
     Agencies Appropriations Act, 2004 (118 Stat. 95) is amended 
     by inserting after ``or State Law'' the following: ``, except 
     for information required to be maintained by section 
     922(t)(7) of title 18, United States Code''.

                [From the New York Times, March 8, 2005]

             Terror Suspects Buying Firearms, Report Finds

                          (By Eric Lichtblau)

       Washington, March 7.--Dozens of terror suspects on federal 
     watch lists were allowed to buy firearms legally in the 
     United States last year, according to a Congressional 
     investigation that points up major vulnerabilities in federal 
     gun laws.
       People suspected of being members of a terrorist group are 
     not automatically barred from legally buying a gun, and the 
     investigation, conducted by the Government Accountability 
     Office, indicated that people with clear links to terrorist 
     groups had regularly taken advantage of this gap.
       Since the Sept. 11 terrorist attacks, law enforcement 
     officials and gun control groups have voiced increasing 
     concern about the prospect of a terrorist walking into a gun 
     shop, legally buying an assault rifle or other type of weapon 
     and using it in an attack.
       The G.A.O. study offers the first full-scale examination of 
     the possible dangers posed by gaps in the law, Congressional 
     officials said, and it concludes that the Federal Bureau of 
     Investigation ``could better manage'' its gun-buying records 
     in matching them against lists of suspected terrorists.
       F.B.I. officials maintain that they are hamstrung by laws 
     and policies restricting the use of gun-buying records 
     because of concerns over the privacy rights of gun owners.
       At least 44 times from February 2004 to June, people whom 
     the F.B.I. regards as known or suspected members of terrorist 
     groups sought permission to buy or carry a gun, the 
     investigation found.
       In all but nine cases, the F.B.I. or state authorities who 
     handled the requests allowed the applications to proceed 
     because a check of the would-be buyer found no automatic 
     disqualification like being a felon, an illegal immigrant or 
     someone deemed ``mentally defective,'' the report found.
       In the four months after the formal study ended, the 
     authorities received an additional 14 gun applications from 
     terror suspects, and all but 2 of those were cleared to 
     proceed, the investigation found. In all, officials approved 
     47 of 58 gun applications from terror suspects over a nine-
     month period last year, it found.
       The gun buyers came up as positive matches on a classified 
     internal F.B.I. watch list that includes thousands of 
     terrorist suspects, many of whom are being monitored, trailed 
     or sought for questioning as part of terrorism investigations 
     into Islamic-based, militia-style and other groups, official 
     said. G.A.O. investigators were not given access to the 
     identities of the gun buyers because of those investigations.
       The report is to be released on Tuesday, and an advance 
     copy was provided to The New York Times.
       Senator Frank R. Lautenberg, Democrat of New Jersey, who 
     requested the study, plans to introduce legislation to 
     address the problem in part by requiring federal officials 
     to keep records of gun purchases by terror suspects for a 
     minimum of 10 years. Such records must now be destroyed 
     within 24 hours as a result of a change ordered by 
     Congress last year. Mr. Lautenberg maintains that the new 
     policy has hindered terrorism investigations by 
     eliminating the paper trail on gun purchases.
       ``Destroying these records in 24 hours is senseless and 
     will only help terrorists cover their tracks,'' Mr. 
     Lautenberg said Monday. ``It's an absurd policy.''
       He blamed what he called the Bush administration's 
     ``twisted allegiances'' to the National Rifle Association for 
     the situation.
       The N.R.A. and gun rights supporters in Congress have 
     fought--successfully, for the most part--to limit the use of 
     the F.B.I.'s national gun-buying database as a tool for law 
     enforcement investigators, saying the database would amount 
     to an illegal registry of gun owners nationwide.
       The legal debate over how gun records are used became 
     particularly contentious months after the Sept. 11 attacks, 
     when it was disclosed that the Justice Department and John 
     Ashcroft, then the attorney general, had blocked the F.B.I. 
     from using the gun-buying records to match against some 1,200 
     suspects who were detained as part of the Sept. 11 
     investigation. Mr. Ashcroft maintained that using the records 
     in a criminal investigation would violate the federal law 
     that created the system for instant background gun checks, 
     but Justice Department lawyers who reviewed the issue said 
     they saw no such prohibition.
       In response to the report, Mr. Lautenberg also plans to ask 
     Attorney General Alberto R. Gonzales to assess whether people 
     listed on the F.B.I.'s terror watch list should be 
     automatically barred from buying a gun. Such a policy would 
     require a change in federal law.
       F.B.I. officials acknowledge shortcomings in the current 
     approach to using gun-buying records in terror cases, but 
     they say they are somewhat constrained by gun laws as 
     established by Congress and interpreted by the Justice 
     Department.
       ``We're in a tough position,'' said an F.B.I. official who 
     spoke on condition of anonymity because the report has not 
     been formally released. ``Obviously, we want to keep guns out 
     of the hands of terrorists, but we also have to be mindful of 
     privacy and civil rights concerns, and we can't do anything 
     beyond what the law allows us to do.''
       After initial reluctance from Mr. Ashcroft over Second 
     Amendment concerns, the Justice Department changed its policy 
     in February 2004 to allow the F.B.I. to do more cross-
     checking between gun-buying records and terrorist 
     intelligence.
       Under the new policy, millions of gun applications are run 
     against the F.B.I.'s internal terrorist watch list, and if 
     there is a match, bureau field agents or other 
     counterterrorism personnel are to be contacted to determine 
     whether they have any information about the terror suspect.
       In some cases, the extra review allowed the F.B.I. to block 
     a gun purchase by a suspected terrorist that might otherwise 
     have proceeded because of a lag time in putting information 
     into the database, the accountability office's report said.
       In one instance last year, follow-up information provided 
     by F.B.I. field agents revealed that someone on a terror 
     watch list was deemed ``mentally defective,'' even though 
     that information had not yet made its way into the gun 
     database. In a second case, field agents disclosed that an 
     applicant was in the country illegally. Both applications 
     were denied.
       Even so, the report concluded that the Justice Department 
     should clarify what information could and could not be shared 
     between gun-buying administrators and terrorism 
     investigators. It also concluded that the F.B.I. should keep 
     closer track of the performance of state officials who handle 
     gun background checks in lieu of the F.B.I.
       ``Given that these background checks involve known or 
     suspected terrorists who could pose homeland security 
     risks,'' the report said, ``more frequent F.B.I. oversight or 
     centralized management would help ensure that suspected 
     terrorists who have disqualifying factors do not obtain 
     firearms in violation of the law.''
                                 ______