[Congressional Record Volume 151, Number 153 (Thursday, November 17, 2005)]
[Senate]
[Pages S13162-S13183]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. BYRD (for himself and Mr. Rockefeller):
S. 2028. A bill to provide for the reinstatement of a license for a
certain Federal Energy Regulatory Commission project; to the Committee
on Energy and Natural Resources.
Mr. BYRD. Mr. President, I ask unanimous consent that the text of my
bill to reinstate a hydroelectric license for a Federal Energy
Regulatory Commission project in Grafton, WV, be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 2028
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. REINSTATEMENT OF LICENSE FOR FEDERAL ENERGY
REGULATORY COMMISSION PROJECT.
(a) In General.--Notwithstanding the time period specified
in section 13 of the Federal Power Act (16 U.S.C. 806) that
would otherwise apply to project numbered 7307 of the Federal
Energy Regulatory Commission, the Commission shall, on the
request of the licensee for the project, in accordance with
that section (including the good faith, due diligence, and
public interest requirements of that section and procedures
established under that section), extend the time required for
commencement of construction of the project until December
31, 2007.
(b) Applicability.--Subsection (a) shall apply to the
project on the expiration of any extension, issued by the
Commission under section 13 of the Federal Power Act (16
U.S.C. 806), of the time required for commencement of
construction of the project.
(c) Reinstatement of Expired License.--If a license of the
Commission for the project expires before the date of
enactment of this Act, the Commission shall--
(1) reinstate the license effective as of the date of the
expiration of the license; and
(2) extend the time required for commencement of
construction of the project until December 31, 2007.
______
By Mr. BIDEN:
S. 2030. A bill to bring the FBI to full strength to carry out its
mission; to the Committee on the Judiciary.
Mr. BIDEN. Mr. President, I rise today to introduce the Full Strength
Bureau Initiative Act of 2005. This is a piece of legislation that I
think is critically important to our national security. Over the past
four years, we
[[Page S13163]]
have had numerous debates here in the Senate about what we need to do
to protect ourselves from international terrorists. While I have
disagreed with many of the specific decisions this Congress and
President Bush have made, I do agree that we face a grave threat from
radical fundamental terrorists. And, it should be a primary focus of
our national security efforts. However, it simply makes no sense for us
to spend all of our time worrying about terrorism if we turn a blind
eye to traditional crime and the threat that it poses to our citizens.
We simply have to be able to do both, and the legislation that I am
introducing today will help do that.
Part of the response to address this threat has been to shift the
primary function of the Federal Bureau of Investigation from
investigating and capturing criminals to the prevention of terror
attacks. I don't disagree that this is an appropriate shift in
priorities, but, we haven't made the investments necessary for the FBI
to shift priorities and meet its commitment to combat traditional
crime. To address this concern, I am introducing legislation that will
authorize funding for the FBI to hire an additional 1,000 agents. These
agents will replace the ones that have been reassigned to
counterterrorism cases and will help keep our communities safe. The
cost--$160 million per year--is minimal when compared to the benefits
it will provide. Its passage will help ensure that the FBI has the
resources to achieve its counterterrorism priorities without neglecting
its traditional crime fighting functions.
A 2004 Government Accountability Office found that the number of
overall agents at the FBI has increased by only seven percent since
2001. During the same time, the overall percentage of agents dedicated
to counterterrorism by twenty five percent--with 678 agents being
permanently shifted from drug, white collar, and violent crime cases to
counter-terror activities. In addition, we know that many agents are
working on counterterrorism cases even if they have not been
``officially'' dedicated to that effort in a process know within the
FBI as ``overburning.''
Ultimately, the GAO concluded, as it often does, that the impact on
traditional crime was statistically inconclusive; however the report
demonstrated many concerns. First, the report found that the FBI
referred 236 counterterrorism matters to U.S. Attorneys for prosecution
in fiscal year 2001, which ended three weeks after September 11. Two
years later, in fiscal year 2003, the FBI referred 1,821
counterterrorism cases to U.S. Attorneys for prosecution--this is a 671
percent increase. During the same period of time, referrals for drug,
whitecollar, and violent crime matters all declined by 39 percent, 23
percent, and 10 percent respectively. This statistically demonstrates
that the reprogramming effort--while critical--has had an impact on the
FBI's traditional crime fighting efforts.
In addition to investigating Federal crimes, the FBI also provides
critical assistance to State and local law enforcement. Quite simply,
the FBI has technical expertise and resources that are not available to
many State and local agencies--especially smaller jurisdictions. These
local agencies rely on the FBI to assist them on technical matters, and
as the FBI continues to divert resources from criminal cases, a gap in
overall law enforcement capabilities is developing. In order to
preserve public safety and national security this is a gap that must be
filled.
Unfortunately, local budget woes are making it impossible for local
agencies to fill the slack. A recent survey indicated that 23 of 44
police agencies are facing an officer shortfall. The USA Today and the
New York Times have reported officer shortages in New York, Cleveland,
Los Angeles, Houston and others. In addition, I recently attended a
Judiciary Committee hearing in Philadelphia and we heard testimony from
the Philadelphia Chief of Police that he had lost 2,000 officers in
recent years, and the Pittsburgh police chief reported that she had
lost nearly \1/4\ of her officers and had to suspend her community
policing programs and other crime prevention programs due to budget
cuts.
In addition to local budget woes, the U.S. Congress continues to
slash Federal assistance for State and local law enforcement. In this
year's Commerce, Justice, State appropriations bill, the Congress cut
roughly $300 million from the Justice Assistance Grant and completely
eliminated the COPS hiring program. Any local sheriff or police chief
will tell you how important this funding assistance is to their
efforts, and the investments that we made in them over the past ten
years helped drive down crime rates from all-time highs to the lowest
levels in a generation. In addition, the COPS program has been
statistically proven to reduce crime by the Government Accountability
Office, and the Justice Assistance Grants are the primary grant
programs used by local agencies to combat illegal drug use in their
communities. I voted for this spending bill because it provided
critical funding for the FBI and the Drug Enforcement Agency, but I
remain very critical of the cuts to state and local law enforcement
assistance and hope that the President and the Republican-led Congress
will change course.
Unfortunately, these cuts and the FBI reprogramming of agents from
crime to counter-terror cases is creating a perfect storm that I'm
afraid will contribute to rising crime rates in the future. The good
news is that the 2004 Uniform Crime Reports show that crime rates
remain at historic lows. But, many criminologists have pointed out that
many crime indicators should caution against complacency. Last year,
there were over 16,000 murders throughout the United States, and police
chiefs and sheriffs are reporting worrying signs of local youth
violence. Indeed, a 2005 report by the FBI on youth gangs shows that
gang activity is on the rise. Rather than pull-back, we need to re-
double our effort to ensure that crime rates don't rise in the future
and to push them even lower. I've often said that the safety of
Nation's citizens should be the top priority of our Federal
Government--this applies to combating international terrorists and
traditional crime.
We spent a bulk of the nineties creating a Federal, State, and local
partnership that helped make our Nation safer than it has been in a
generation. This partnership is breaking down because the President and
many in Congress feel that local crime is not a national priority. I
couldn't disagree more. The safety of the American people is the most
important priority that we have. It doesn't matter whether the threat
comes from international terrorists, drug traffickers, or from the thug
down the street. In my opinion, it is a terrible mistake to use the
successes of the past ten years and the new focus on terrorism as an
excuse to abandon our critical anti-crime responsibilities. We can--and
we must do both. The American people are counting on us, and the
legislation that I am introducing today will help ensure that we meet
our commitment to the American people to make sure that they are safe
from crime and terrorism.
______
By Mr. Durbin (for himself, Mr. Specter, Mr. DeWine, Mr. Leahy,
Mr. Kennedy, Mrs. Feinstein, Mr. Feingold, Mr. Harkin, Mr.
Akaka, Mr. Lautenberg, Ms. Cantwell, Mr. Pryor, and Mr. Kerry):
S. 2039. A bill to provide for loan repayment for prosecutors and
public defenders; to the Committee on the Judiciary.
Mr. DURBIN. Mr. President, I rise today to introduce the Prosecutors
and Defenders Incentive Act of 2005. I am honored to have the support
and cosponsorship of Senator DeWine with whom I have enjoyed working on
similar measures in previous Congresses. I am further pleased that
Senators Specter, Leahy, Kennedy, Feingold, Feinstein, Akaka, Cantwell,
Harkin, Lautenberg, Pryor, and Kerry have also agreed to join me as
original cosponsors of this legislation. Our bill is designed to
encourage the best and the brightest law school graduates to enter
public service as criminal prosecutors and public defenders by making a
student loan repayment program available to them.
I am pleased that this legislation enjoys bipartisan support. I am
anxious to work closely with Chairman Specter and Ranking Member Leahy
to advance it through the Judiciary Committee and secure its enactment
by the full Senate.
[[Page S13164]]
Our proposed loan repayment program is supported by the American Bar
Association, the National District Attorneys Association, the National
Association of Prosecutor Coordinators, the National Legal Aid and
Defender Association, and the American Council of Chief Defenders.
We can--and should--do more to help prosecutor and public defender
offices compete with the higher salaries available in the private
sector. In many instances, despite high aspirations and strong
motivation to work in the public sector, many graduates find it
economically impossible to pursue that career path due to the
overwhelming burden of debt. The availability of student loan repayment
can be a powerful incentive for attracting some of our most talented
new lawyers to public service employment.
Many of today's law graduates are finishing law school owing
staggering amounts of student loan debt. According to the American Bar
Association, the median total cumulative educational debt for law
school graduates in the class of 2004 was $97,763 for private schools
and $66,810 for public schools. Educational loan debts represent a
serious financial obligation which must be repaid. A default on any
loan triggers serious consequences. Moreover, the looming obligation
can impact career choices for many new graduates.
Many budding prosecutors and public defenders face a disheartening
dilemma. On the one hand, they have a deep commitment to pursuing a
career in public service. On the other hand, they need a level of
income to meet the demands of exorbitant educational loan liabilities.
This wrenching choice has not only personal impact but adverse
implications for the legal profession and its commitment to ensuring
access to justice for all citizens. And from an employer's perspective,
comparatively low salaries and high debt make it extremely difficult to
recruit and retain attorneys in prosecutor and public defender offices.
The results of a special study, ``Lifting the Burden: Law Student
Debt as a Barrier to Public Service,'' published in August 2003 by the
American Bar Association, reflects eight key findings, which I will
describe in more specificity in my remarks.
First, law school tuition levels have skyrocketed. Second, the vast
majority of law students borrow funds to finance their legal education.
Third, law students are borrowing increasingly larger sums to finance
their legal education. Fourth, public service salaries have not kept
pace with rising law school debt burdens or private sector salaries.
Fifth, high student debt bars many law graduates from pursuing public
service careers. Sixth, many law graduates who take public service
legal jobs must leave after they gain 2 to 3 years of experience.
Seventh, public service employers report serious difficulty recruiting
and retaining lawyers. And eighth, the legal profession and society pay
a severe price when law graduates are shut out from pursuing public
service legal careers due to high educational debt burden.
On the matter of skyrocketing tuition levels, since the early 1970s,
there have been steep and persistent hikes in the costs of legal
education and in the tuition rates law schools charge. Researchers
found that tuition increased about 340 percent from 1985 to 2002 for
private law school students and out-of-state students at public law
schools. In state students at public law schools saw their tuition jump
about 500 percent. During the period 1992-2002, the cost of living in
the United States rose 28 percent while the cost of tuition for public
law schools rose 134 percent for residents and 100 percent for
nonresidents, and private law school tuition increased 76 percent.
In 1975, when private law school tuition averaged $2,525 and public
law school tuition for in state residents was $700, the need to borrow
to finance a legal education was not as prevalent or necessary. In
1990, when tuition was $11,680 for private institutions and $3,012 for
public law schools, it was at least manageable. In 2002, the median law
school annual tuitions were $24,920 for private law schools, $18,131
for nonresident students at public law schools, and $9,252 for resident
students at public law schools.
A computation of the tuition rates of the 186 ABA-accredited law
schools for 2004 reflects that charges for State residents at public
law schools average $10,820 per year. For nonresidents attending public
law schools, the average tuition amounts to $20,176 per year. Students
attending private law schools pay an average of $25,603 per year.
Additional amounts for food, lodging, books, fees and personal
expenses increase the costs for 3 years to more than $60,000 in almost
all cases and well over $100,000 in many instances.
The vast majority of law students must borrow funds to finance their
legal education. In 2002, almost 87 percent of law students borrowed to
finance their legal education. That level remained consistent in 2004.
Many of these students also carried unpaid debt from their
undergraduate studies.
Law students are borrowing increasingly larger sums to finance their
legal education. As tuition and other expenses of attending law school
rose, more and more students found they needed to borrow to pay for law
school. During the 1990s, the average amount students borrowed more
than doubled. Today, the amount borrowed by many students exceeds
$80,000.
Public service salaries have not kept pace with rising law school
debt burdens or private sector salaries. Entry-level salaries for
government or other public service position, have always been
significantly lower than those in private practice.
Over the years since the mid-1970s, the median starting salaries in
private practice have risen at a much faster pace than entry-level
public service salaries. Between 1985 and 2002, the median starting
salaries at private law firms rose by about 280 percent. Government
lawyers, such as prosecutors and public defenders, saw their salaries
increase by just 70 percent.
According to the 2004 Public Sector and Public Interest Attorney
Salary Report, published in August 2004 by the National Association for
Law Placement, Inc., the median entry-level salary for public defenders
is $39,000; with 11 to 15 years of experience, the median is $65,000.
The salary progression for State and local prosecuting attorneys is
similar, starting at about $40,000 and progressing to $68,000-69,000
for those with 11 to 15 years of experience.
In August 2004, NALP also released the results of its tenth annual
comprehensive survey of associate compensation in private sector law
firms. According to the 2004 Associate Salary Survey Report, based on
salary information as of April 1, 2004 provided by 599 offices, the
median salary for first-year associates ranged from $65,000 in firms of
2 to 25 attorneys to $120,000 in firms of 500 attorneys or more, with a
first-year median for all participating firms of $95,000. These figures
evidence the stark reality of compensation differentials for those
graduates electing to devote their skills to public service jobs as
prosecutors and defenders.
High student debt bars many law graduates from pursuing public
service careers. As law school tuition and student debt have sharply
escalated, fewer and fewer law school graduates can afford to take the
comparatively low-paying public service positions that are available in
government agencies or with prosecutor, public defender, or legal
services offices.
A national study of law school debt conducted by Equal Justice Works,
the Partnership for Public Service, and the National Association for
Law Placement found that law student debt prevented two-thirds of law
student respondents from considering a public service career.
The report was based on a spring 2002 survey of graduating law
students. Survey respondents included 1,622 students from 117 law
schools representing 40 States, the District of Columbia, and Canada.
Among the findings reported were the following: Overall, 66 percent of
respondents stated that law school debt kept them from considering a
public interest or government job. The percentage is higher among those
who ultimately accepted jobs in small or large private firms, with 83
percent and 78 percent, respectively, stating that debt prevented them
from seeking work with public interest organizations or the Federal
Government.
Seventy-three percent of students who had not yet accepted a job when
surveyed also indicated that they were disinclined to seek a public
interest or government position due to heavy debt load. Providing
$6,000 a year in available loan repayment assistance would
[[Page S13165]]
result in increased interest in a post graduate Federal Government job
for 83 percent of student respondents.
Despite their high debt burden, some law graduates initially accept
public service jobs. However, the magnitude of debt precipitates high
turnover because many of these cannot repay loan obligations on a
median starting salary of $36,000 and pay all their other remaining
living expenses with the remaining $1,100 per month. Some who begin
careers in public service, and who would like to remain, leave after a
few years when they find their debts are too severely constraining on
their hopes for making ends meet, much less raising children or saving
for retirement.
Many public service employers report having a difficult time
attracting the best qualified law graduates. Public service employers,
such as prosecutor or public defender offices, have vacancies they
cannot fill because new law graduates cannot afford to work for them.
Alternatively, those who do hire law graduates find that, because of
educational debt payments, those whom they do hire leave just at the
point when they have acquired the experience to provide the most
valuable services.
The legal profession and society pay a severe price when law
graduates are shut out from pursuing public service legal careers due
to high educational debt burden. Lawyers with dreams of serving their
communities as prosecutors or public defenders are unable to use their
skills to do so. And when governments cannot hire new lawyers or keep
experienced ones, the ability to protect the public safety is
challenged. The inability of poor and moderate-income persons to obtain
legal assistance can result in dire consequences to those individuals
and the communities in which they live.
Our bill, the Prosecutors and Defenders Incentive Act, is designed to
help remedy some of these problems. Enacting this measure will help
make legal careers in public service as prosecutors and public
defenders in the criminal justice system more financially viable and
attractive to law school graduates who have incurred significant
financial obligations in acquiring their education.
Our proposal would establish, within the Department of Justice, a
program of student loan repayment for borrowers who agree to remain
employed for at least 3 years as public attorneys who are either State
or local criminal prosecutors or State, local, or Federal public
defenders in criminal cases. It would allow eligible attorneys to
receive student loan debt repayments of up to $10,000 per year, with a
maximum aggregate over time of $60,000.
Repayment benefits for such public attorneys would be made available
on a first-come, first-served basis and subject to the availability of
appropriations. Priority would be given to borrowers who received
repayment benefits for the preceding fiscal year and have completed
less than 3 years of the first required service period. Borrowers could
enter into an additional agreement, after the required 3-year period,
for a successive period of service which may be less than 3 years. It
would cover student loans made, insured, or guaranteed under the Higher
Education Act of 1965, including consolidation loans. Furthermore, it
would extend to Federal public defenders the existing Perkins loan
forgiveness program available for Federal prosecutors.
Our bill is modeled on the program for Federal executive branch
employees which has been enjoying growing success. Federal law permits
Federal executive branch agencies to repay their employees' student
loans, up to $10,000 in a year, and up to a lifetime maximum of
$60,000. In exchange, the employee must agree to remain with the agency
for at least 3 years.
During fiscal year 2004, 28 executive branch agencies provided 2,945
Federal employees with more than $16.4 million in student loan
repayments, as reported by the Office of Personnel Management in April
2005. This marked a 42-percent increase in the number of beneficiaries
and a 79-percent increase in benefits over fiscal year 2003.
It is noteworthy that across the Federal Government in 2004, agencies
used the loan repayment program most often to recruit and retain
attorneys. In fiscal year 2004, 473 Federal lawyers received loan
repayments, representing 16.1 percent of all employees who received the
benefit.
The Securities and Exchange Commission provided the benefit to 239
lawyers, and the Justice Department distributed program benefits to 118
of its attorneys. According to the Office of Personnel Management's
report, the Nuclear Regulatory Commission reported that the program has
been of tremendous benefit in recruiting and retaining attorneys in its
Honors Law Graduate Program. NRC commented that law school debt is
continuing to rise--to more than $100,000 in some cases--and a gap
exists between Federal and private law firm salaries. As a result, some
quality candidates may rule out a career as an attorney in the Federal
Government. NRC believes the Federal student loan repayment program
helps the Commission overcome these obstacles.
I recently received a compelling letter from Jennifer Walsh, the
assistant appellate defender for the State of Illinois. Her experiences
portray in testamentary terms the real dilemmas encountered by perhaps
thousands of attorneys desiring public service careers despite
exorbitant student loan obligations.
To simply paraphrase Ms. Walsh's sentiments would diminish their
impact, so I would like to quote some excerpts from her letter: ``I
love being a public servant. . . . Helping those who cannot afford to
help themselves isn't charity and it isn't socially progressive. It is
justice and it has made me a better person. . . . However, the one
problem that I have consistently had since becoming a public defender
is getting my student loans paid. I have a debt burden over $110,000. .
. . My student loan payments will soon exceed $950 a month. This
represents about one-third of my monthly take-home pay. I cannot help
pay the mortgage on my house. I cannot save for my two children's
futures. During a financial crisis, my husband knows that he cannot
look to me to help the family finances. . . . I am now faced with a
Hobson's choice--do I fulfill the needs of my indigent clients or my
struggling family? I absolutely, positively don't want to leave. But my
responsibilities to my family and my student loan creditors make
staying in the public sector feel selfish and irresponsible. Imagine
that--working for the public good seems selfish and irresponsible
because I cannot do what I love and, at the same time, repay what I
owe.''
I appreciate Ms. Walsh's willingness to share her perspectives with
me. By enacting and funding this legislation, we can take a meaningful
step toward alleviating some of the financial burden for attorneys such
as Ms. Walsh who choose careers as criminal prosecutors and public
defenders.
I know there are many other law graduates who, like Jennifer Walsh,
want to apply their legal training and develop their skills in the
public sector, but are deterred by the weight of student loan
obligations. Passage of our legislation will help them make their
careers dreams a reality. I urge its swift adoption.
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. 2039
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 ``Prosecutors and Defenders
Incentive Act of 2005''.
SEC. 2. LOAN REPAYMENT FOR PROSECUTORS AND DEFENDERS.
Title I of the Omnibus Crime Control and Safe Streets Act
of 1968 (42 U.S.C. 3711 et seq.) is amended by adding at the
end the following:
``PART HH--LOAN REPAYMENT FOR PROSECUTORS AND PUBLIC DEFENDERS
``SEC. 2901. GRANT AUTHORIZATION.
``(a) Purpose.--The purpose of this section is to encourage
qualified individuals to enter and continue employment as
prosecutors and public defenders.
``(b) Definitions.--In this section:
``(1) Prosecutor.--The term `prosecutor' means a full-time
employee of a State or local agency who--
``(A) is continually licensed to practice law; and
``(B) prosecutes criminal cases at the State or local
level.
``(2) Public defender.--The term `public defender' means an
attorney who--
``(A) is continually licensed to practice law; and
[[Page S13166]]
``(B) is--
``(i) a full-time employee of a State or local agency or a
nonprofit organization operating under a contract with a
State or unit of local government, that provides legal
representation to indigent persons in criminal cases; or
``(ii) employed as a full-time Federal defender attorney in
a defender organization established pursuant to subsection
(g) of section 3006A of title 18, United States Code, that
provides legal representation to indigent persons in criminal
cases.
``(3) Student loan.--The term `student loan' means--
``(A) a loan made, insured, or guaranteed under part B of
title IV of the Higher Education Act of 1965(20 U.S.C. 1071
et seq.);
``(B) a loan made under part D or E of title IV of the
Higher Education Act of 1965(20 U.S.C. 1087a et seq. and
1087aa et seq.); and
``(C) a loan made under section 428C or 455(g) of the
Higher Education Act of 1965(20 U.S.C. 1078-3 and 1087e(g))
to the extent that such loan was used to repay a Federal
Direct Stafford Loan, a Federal Direct Unsubsidized Stafford
Loan, or a loan made under section 428 or 428H of such Act.
``(c) Program Authorized.--The Attorney General shall
establish a program by which the Department of Justice shall
assume the obligation to repay a student loan, by direct
payments on behalf of a borrower to the holder of such loan,
in accordance with subsection (d), for any borrower who--
``(1) is employed as a prosecutor or public defender; and
``(2) is not in default on a loan for which the borrower
seeks forgiveness.
``(d) Terms of Agreement.--
``(1) In general.--To be eligible to receive repayment
benefits under subsection (c), a borrower shall enter into a
written agreement that specifies that--
``(A) the borrower will remain employed as a prosecutor or
public defender for a required period of service of not less
than 3 years, unless involuntarily separated from that
employment;
``(B) if the borrower is involuntarily separated from
employment on account of misconduct, or voluntarily separates
from employment, before the end of the period specified in
the agreement, the borrower will repay the Attorney General
the amount of any benefits received by such employee under
this section;
``(C) if the borrower is required to repay an amount to the
Attorney General under subparagraph (B) and fails to repay
such amount, a sum equal to that amount shall be recoverable
by the Federal Government from the employee (or such
employee's estate, if applicable) by such methods as are
provided by law for the recovery of amounts owed to the
Federal Government;
``(D) the Attorney General may waive, in whole or in part,
a right of recovery under this subsection if it is shown that
recovery would be against equity and good conscience or
against the public interest; and
``(E) the Attorney General shall make student loan payments
under this section for the period of the agreement, subject
to the availability of appropriations.
``(2) Repayments.--
``(A) In general.--Any amount repaid by, or recovered from,
an individual or the estate of an individual under this
subsection shall be credited to the appropriation account
from which the amount involved was originally paid.
``(B) Merger.--Any amount credited under subparagraph (A)
shall be merged with other sums in such account and shall be
available for the same purposes and period, and subject to
the same limitations, if any, as the sums with which the
amount was merged.
``(3) Limitations.--
``(A) Student loan payment amount.--Student loan repayments
made by the Attorney General under this section shall be made
subject to such terms, limitations, or conditions as may be
mutually agreed upon by the borrower and the Attorney General
in an agreement under paragraph (1), except that the amount
paid by the Attorney General under this section shall not
exceed--
``(i) $10,000 for any borrower in any calendar year; or
``(ii) an aggregate total of $60,000 in the case of any
borrower.
``(B) Beginning of payments.--Nothing in this section shall
authorize the Attorney General to pay any amount to reimburse
a borrower for any repayments made by such borrower prior to
the date on which the Attorney General entered into an
agreement with the borrower under this subsection.
``(e) Additional Agreements.--
``(1) In general.--On completion of the required period of
service under an agreement under subsection (d), the borrower
and the Attorney General may, subject to paragraph (2), enter
into an additional agreement in accordance with subsection
(d).
``(2) Term.--An agreement entered into under paragraph (1)
may require the borrower to remain employed as a prosecutor
or public defender for less than 3 years.
``(f) Award Basis; Priority.--
``(1) Award basis.--Subject to paragraph (2), the Attorney
General shall provide repayment benefits under this section
on a first-come, first-served basis, and subject to the
availability of appropriations.
``(2) Priority.--The Attorney General shall give priority
in providing repayment benefits under this section in any
fiscal year to a borrower who--
``(A) received repayment benefits under this section during
the preceding fiscal year; and
``(B) has completed less than 3 years of the first required
period of service specified for the borrower in an agreement
entered into under subsection (d).
``(g) Regulations.--The Attorney General is authorized to
issue such regulations as may be necessary to carry out the
provisions of this section.
``(h) Authorization of Appropriations.--There are
authorized to be appropriated to carry out this section
$25,000,000 for fiscal year 2006 and such sums as may be
necessary for each succeeding fiscal year.''.
______
By Mr. AKAKA (for himself, Mr. Lautenberg, and Mr. Carper):
S. 2040. A bill to amend the Homeland Security Act of 2002 (6 U.S.C.
101 et seq.) to ensure that the Department of Homeland Security is led
by qualified, experienced personnel; to the Committee on Homeland
Security and Governmental Affairs.
Mr. AKAKA. Mr. President, I rise today to introduce legislation that
will help ensure our homeland security is in the hands of the best and
the brightest leaders. The Department of Homeland Security Qualified
Leaders Act will establish minimum qualification standards for most
Senate-confirmed positions in the Department of Homeland Security, DHS.
I am joined by Senators Lautenberg and Carper in introducing this bill,
and I thank them for their support.
Hurricane Katrina and the resignation of Under Secretary Michael
Brown have raised concerns regarding the experience and qualifications
of political appointees in the Federal Government. Mr. Brown had
minimal emergency management experience prior to joining the Federal
Emergency Management Agency, FEMA. Despite Mr. Brown's 3 years as a
senior official at FEMA, the agency faltered during Hurricane Katrina
under his leadership.
While not all of the Government's failures to prepare for and respond
to Hurricane Katrina can be placed at Mr. Brown's doorstep, leadership
matters. At a recent Homeland Security and Governmental Affairs
Committee hearing on the Coast Guard's response to Hurricane Katrina,
Cpt Bruce C. Jones, the commanding officer of Coast Guard Air Station
New Orleans, testified, ``What counts most in a crisis, is not the
plan, it's leadership. Not processes, but people. And not
organizational charts, but organizational culture.''
According to Captain Jones, one of the reasons the Coast Guard was
able to respond immediately and perform efficiently during Hurricane
Katrina is because the leaders of the Eighth District and Sector New
Orleans were able to make quick, sound decisions while following a
predetermined plan. Quick thinking and good judgement cannot be written
into a plan.
In addition, DHS, with its multitude of management challenges,
requires leaders with strong management experience. Over the past few
years, the DHS Inspector General and the Government Accountability
Office have cited DHS for poor contract management, ineffective
financial systems, and major human capital challenges. Moreover, DHS is
in the process of implementing its Second Stage Review, an attempt to
better organize the Department to meet its many missions. As Secretary
Michael Chertoff overhauls the Department to create what will hopefully
be a structure that serve DHS well for years to come, he needs senior
officials who have experience running large organizations--people who
know which systems and chains of command work and which do not. Good
managers are needed across the Federal Government, but nowhere are they
more needed than in an infant agency.
Comptroller General David Walker said in a September 21, 2005,
interview with Federal Times that ``for certain positions, given the
nature of the position, there should be statutory qualification
requirements for any nominee.'' I agree.
For these reasons, we must ensure that the right people are leading
DHS. Our bill delineates requirements for Senate-confirmed positions
based on their compensation under the Executive Schedule. The most
senior officials, those in Executive Level II and III, will be required
to possess at least 5 years of management experience, 5 years of
experience in a field relevant to the position for which the individual
[[Page S13167]]
is nominated, such as customs intelligence, or cybersecurity, and a
demonstrated ability to manage a substantial staff and budget. These
requirements will apply to the following positions: the Under Secretary
of Science and Technology; the Under Secretary of Preparedness; the
Director of FEMA; and the Under Secretary of Management. The Secretary
and Deputy Secretary of Homeland Security are exempt from this bill.
Executive Level IV positions will be required to possess significant
management experience, at least 5 years of experience in a field
relevant to the position for which the individual is nominated, and a
demonstrated ability to manage a substantial staff and budget. These
position include the Assistant Secretary for Immigration and Customs
Enforcement; the Assistant Secretary for Customs and Border Patrol; the
Assistant Secretary for Border and Transportation Security Policy; the
Assistant Secretary for Plans, Programs, and Budgets; the Director of
the Office State and Local Government Coordination and Preparedness;
the Director of U.S. Citizenship and Immigration Services; the
Inspector General; the Chief Financial Officer; the U.S. Fire
Administrator; and the General Counsel. The bill exempts the commandant
of the Coast Guard from this section since requirements for selection
of the commandant already exist in law.
I believe that any program or agency will succeed or fail based on
leadership. This is especially true at Federal agencies, which need
senior leaders with management skills and subject matter expertise. Our
bill is a step in the right direction, and I urge my colleagues to join
us in passing this important legislation.
I ask unanimous consent that the text of the bill be printed in the
Record following my statement.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 2040
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 ``Department of Homeland
Security Qualified Leaders Act of 2005''.
SEC. 2. FINDINGS.
Congress finds that--
(1) the Department of Homeland Security, a large
organization comprised of 180,000 employees and 22 legacy
agencies, has a complex mission of securing the homeland from
man-made and natural disasters;
(2) the Department and the agencies within require strong
leadership from proven managers with significant experience
in their respective fields; and
(3) the majority of positions requiring Senate confirmation
at the Department do not have minimum qualifications.
SEC. 3. QUALIFICATIONS OF CERTAIN SENIOR OFFICERS.
(a) In General.--The Homeland Security Act of 2002 (6
U.S.C. 101 et seq.) is amended by inserting after section 103
the following:
``SEC. 104. QUALIFICATIONS OF CERTAIN SENIOR OFFICERS.
``(a) Executive Schedule Level II or III Positions.--
``(1) Positions.--This subsection shall apply to any
position in the Department that--
``(A) requires appointment by the President, by and with
the advice and consent of the Senate; and
``(B) is at level II or III of the Executive Schedule under
section 5313 or 5314 of title 5, United States Code,
(including any position for which the rate of pay is
determined by reference to level II or III of the Executive
Schedule).
``(2) Additional qualifications.--In addition to any other
qualification applicable to a position described under
paragraph (1), any individual appointed to such a position
shall possess--
``(A) at least 5 years of executive leadership and
management experience in the public or private sector;
``(B) at least 5 years of significant experience in a field
relevant to the position for which the individual is
nominated; and
``(C) a demonstrated ability to manage a substantial staff
and budget.
``(b) Executive Schedule Level IV Positions.--
``(1) Positions.--This subsection shall apply to any
position in the Department that--
``(A) requires appointment by the President, by and with
the advice and consent of the Senate; and
``(B) is at level IV of the Executive Schedule under
section 5315 of title 5, United States Code, (including any
position for which the rate of pay is determined by reference
to level IV of the Executive Schedule).
``(2) Additional qualifications.--In addition to any other
qualification applicable to a position described under
paragraph (1), any individual appointed to such a position
shall possess--
``(A) significant executive leadership and management
experience in the public or private sector;
``(B) at least 5 years of significant experience in a field
relevant to the position for which the individual is
nominated; and
``(C) a demonstrated ability to manage a substantial staff
and budget.
``(c) Exceptions.--This section shall not apply to the
position of--
``(1) the Secretary;
``(2) the Deputy Secretary of Homeland Security; or
``(3) the Commandant of the Coast Guard.
``(d) Rule of Construction.--Nothing in this section shall
be construed to lessen any qualification otherwise required
of any position.
``(e) Sense of Congress.--It is the sense of Congress that
individuals nominated by the President for the positions of
Secretary and Deputy Secretary of Homeland Security should
possess significant management experience and expertise in a
relevant field because of the significant level of
responsibility entrusted to these individuals.''.
(b) Technical and Conforming Amendment.--The table of
contents in section 1 of the Homeland Security Act of 2002 (6
U.S.C. 101) is amended by inserting after the item relating
to section 103 the following:
``Sec. 104. Qualifications of certain senior officers.''.
______
By Mr. REID:
S. 2041. A bill to provide for the conveyance of a United States Fish
and Wildlife Service administrative site to the city of Las Vegas,
Nevada; to the Committee on Environment and Public Works.
Mr. REID. Mr. President, I rise today to introduce the Ed Fountain
Park Expansion Act. This legislation would transfer approximately eight
acres of Federal land to the city of Las Vegas to allow for the
expansion of one of the city's most popular parks.
Ed Fountain Park is one of the best known and well-used parks in the
city of Las Vegas. Located in a mature part of the city, adjacent to
the city's oldest golf course, Ed Fountain Park has provided
recreational opportunities for generations of local residents. For many
years it has been home to Pop Warner football practices, youth soccer
games, and family picnics and reunions. On any given day or night, a
multitude of activities are taking place at the park, many of which are
associated with the numerous nonprofit organizations that utilize the
park's resources.
The city of Las Vegas contacted my office several months ago to
express their desire to expand Ed Fountain Park by acquiring land
adjacent to the park that served as the site of the local
administrative offices for the Bureau of Land Management, BLM, and U.S.
Fish and Wildlife Service. The property was vacated by both Federal
land management agencies several years ago after they relocated to a
larger, multi-jurisdictional facility in the northwest part of the Las
Vegas Valley.
The property to be acquired by the city is technically classified as
part of the Desert National Wildlife Refuge Complex and is currently
under the jurisdiction of the Fish and Wildlife Service. The parcel in
question, however, is many miles away the actual wildlife refuge and
sits as a vacant urban lot. The former administrative offices that were
housed on the land were placed there many decades ago when this area
was considered to be in the outskirts of town. Now, after years of
unprecedented growth, this land is surrounded by well-established
neighborhoods. The site also contains a single empty historical
structure that would be part of the conveyance.
Were the property under the jurisdiction of the BLM, as is usually
the case in the Las Vegas Valley, the property could have been
transferred administratively under the authority of the Recreation and
Public Purposes Act. But because it is the property of the Fish and
Wildlife Service, legislation is needed to transfer ownership of the
property from the Fish and Wildlife Service to the city.
This legislation provides the city with maximum flexibility to use
the parcel to expand Ed Fountain Park, to build new athletic fields, to
develop a community center, or any combination of these uses. All of
these potential uses are in the public interest and provide important
justification for conveying the land to the city at no cost.
I look forward to working with the distinguished chairman and ranking
[[Page S13168]]
member of the Environment and Public Works Committee to move this
legislation forward in a timely manner.
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. 2041
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 ``Ed Fountain Park Expansion
Act ''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Administrative site.--The term ``administrative site''
means the parcel of real property identified as ``Lands to be
Conveyed to the City of Las Vegas; approximately, 7.89
acres'' on the map entitled ``Ed Fountain Park Expansion''
and dated November 1, 2005.
(2) City.--The term ``City'' means the city of Las Vegas,
Nevada.
(3) Secretary.--The term ``Secretary'' means the Secretary
of the Interior, acting through the Director of the United
States Fish and Wildlife Service.
SEC. 3. CONVEYANCE OF UNITED STATES FISH AND WILDLIFE SERVICE
ADMINISTRATIVE SITE, LAS VEGAS, NEVADA.
(a) In General.--The Secretary shall convey to the City,
without consideration, all right, title, and interest of the
United States in and to the administrative site for use by
the City--
(1) as a park; or
(2) for any other recreation or nonprofit-related purpose.
(b) Administrative Expenses.--As a condition of the
conveyance under subsection (a), the Secretary shall require
that the City pay the administrative costs of the conveyance,
including survey costs and any other costs associated with
the conveyance.
(c) Reversionary Interest.--
(1) In general.--If the Secretary determines that the City
is not using the administrative site for a purpose described
in paragraph (1) or (2) of subsection (a), all right, title,
and interest of the City in and to the administrative site
(including any improvements to the administrative site) shall
revert, at the option of the Secretary, to the United States.
(2) Hearing.--Any determination of the Secretary with
respect to a reversion under paragraph (1) shall be made--
(A) on the record; and
(B) after an opportunity for a hearing.
______
By Mr. CHAMBLISS (for himself and Mr. Harkin):
S. 2042. A bill to amend the Federal Insecticide, Fungicide, and
Rodenticide Act to implement pesticide-related obligations of the
United States under the international conventions or protocols known as
the PIC Convention, the POPs Convention, and the LRTAP POPs Protocol;
to the Committee on Agriculture, Nutrition, and Forestry.
Mr. CHAMBLISS. Mr. President, today, Senator Harkin and I are
introducing the POPs, LRTAP POPs and PIC Implementation Act of 2005.
This bill would amend the Federal Insecticide, Fungicide and
Rodenticide Act (FIFRA) to implement the United States' pesticide-
related obligations under the Stockholm Convention on Persistent
Organic Pollutants (POPs Convention), the Aarhus Protocol on Persistent
Organic Pollutants to the Geneva Convention on Long Range Transboundary
Air Pollution (LRTAP POPs Protocol) and the Rotterdam Convention on the
Prior Informed Consent Procedure for Certain Hazardous Chemicals and
Pesticides in International Trade (PIC Convention).
POPs are certain chemicals that are toxic, persist in the environment
for an extended period of time and can bioaccumulate in the human food
chain. POPs have been linked to adverse health effects on humans and
animals. Due to their persistent characteristics and ability to
circulate globally, POPs that are released in one part of the world can
travel to neighboring regions and negatively affect environments where
they are not produced or used.
The United States has taken a leading role in reducing and
eliminating the use POPs. For example, in the late 1970s, the United
States prohibited the manufacture of new PCBs and severely restricted
the use of remaining stocks. And over the past 35 years, the United
States has had a strong regulatory process that restricted the
production and use of dangerous pesticides. Even prior to signing the
POPs Convention, the United States prohibited the sale of all the POPs
pesticides initially targeted by the convention.
In 2001, President George W. Bush signed the POPs Convention. Its
ultimate goal is the safe management of hazardous chemicals. Over time,
the convention will help bring an end to the production and use of
dangerous pollutants around the world and to positively affect the U.S.
environment and public health.
Specifically, the convention requires all signatory nations to stop
the production and use of 12 listed POPs, including DDT, PCBs and
dioxins. Parties to the convention also agree to control sources of
POPs by-products to reduce releases and provide for the safe handling
and disposal of POPs in an environmentally sound manner. The convention
includes a science-based procedure to allow other POPs to be added and
provides technical and financial assistance to help developing
countries manage and control POPs.
In 1998, the United States and members of the United Nations Economic
Commission for Europe (UN-ECE) negotiated a regional protocol on POPs
under the auspices of the Convention on Long Range Transboundary Air
Pollution (LRTAP). Informally, the agreement is called the LRTAP POPs
Protocol. The goal of the protocol is to eliminate production and
reduce emissions of POPs in North America and Europe.
The LRTAP POPs Protocol was the basis for the POPs Convention. The
two agreements are similar in purpose, except that the LRTAP treaty is
regional and it does not include trade restrictions or the technical
and financial assistance available to developing nations under the POPs
Convention. Also, the LRTAP POPs Protocol includes four additional
chemicals to the 12 listed in the POPs Convention.
In 1998, the PIC Convention established an information-sharing
process to promote cooperative efforts among the parties to the
convention regarding trade in chemicals. The process is designed to
help nations decide whether to allow a chemical to be imported.
Basically, the PIC Convention provides for prior notification to
potential importing countries by nations exporting chemicals that have
been banned or severely restricted in the exporting country. Countries
exporting the chemicals listed in the convention must generally ensure
that the importing country has consented to import the chemical.
The bill we are introducing today would prohibit the sale,
distribution, use, production or disposal of any listed POPs pesticides
or LRTAP POPs pesticide. It would establish notice and reporting
procedures to ensure the American public is aware of potential actions
and decisions made by the parties to the conventions. The bill also
would add new export reporting and labeling requirements to ensure
compliance with U.S. obligations under the PIC Convention.
In order for the United States to become a party to the conventions,
the Senate must ratify the POPs and PIC Conventions. Congress also must
pass implementing legislation. This bill does not include a
ratification resolution and it does not amend the Toxic Substances
Control Act.
At this time, the United States is not a party to the conventions and
does not have a seat at the negotiating table. This weak position
hampers the ability of our technical experts and negotiators to protect
our leadership role in international pesticide policy and regulation.
Our observer-only status also limits our ability to participate in the
critical decisions that affect U.S. businesses and economic interests
and our environment and public health. The delay in ratifying the
conventions serves to marginalize us.
The U.S. delegation was unable to fully participate in the first
meeting of parties to the POPs Convention held in May 2005 in Punta del
Este, Uruguay. The next meeting of the parties to the POPs Convention
is May 2006. I urge my colleagues to ratify the conventions and pass
implementing legislation so that the United States can reclaim its
rightful place as a world leader in the safe management of hazardous
chemicals.
I look forward to working with my colleagues on the Senate Foreign
Relations Committee and the Environment and Public Works Committee on
this matter.
Mr. HARKIN. Mr. President, today I am pleased to join with Chairman
Chambliss in introducing legislation to implement the Stockholm
Convention on Persistent Organic Pollutants, the
[[Page S13169]]
LRTAP POPs Protocol, and the Rotterdam PIC Protocol. These three
agreements provide an international framework for controlling and
eliminating the use of chemicals that have the greatest potential for
long-term environmental damage. These persistent organic pollutants, or
POPs, are chemicals that do not easily break down in the environment.
As a result, they tend to move across international boundaries and bio-
accumulate--in other words, they travel up the food chain. This
legislation modifies existing U.S. law under the Federal Insecticide,
Fungicide and Rodenticide Act, FIFRA, to bring us into compliance with
these agreements with regard to chemicals used in agriculture.
Implementation of the agreements will also require modification of the
Toxic Substances Control Act, TSCA.
These conventions and protocols have already entered into force. But
at this point, though the United States is a signatory to all of them,
we have not ratified them. All of the chemicals that are listed in the
agreement are already banned or tightly controlled under U.S. law, but
the Stockholm Convention's Review Committee just met in Geneva and
further meetings are planned, and decisions are being made without our
delegation able to fully participate as a party to the agreement. The
United States needs to ratify the convention in order to have a voice
in this process.
Our goal in writing this legislation is narrow. It has not been our
intention to open up FIFRA as part of this process, but only to craft
those changes compelled by our international commitments. That is not
to say that FIFRA is perfect or could not be improved and
strengthened--only that this is not the occasion to launch into
changing the domestic law beyond the narrow goal of compliance with
these agreements.
Some have urged that this measure provide for automatic processes
triggered by the decisions of the review committee overseeing the
Stockholm Convention. For instance, if the review committee lists a
chemical, they would have the United States automatically take steps to
regulate or ban the chemical domestically. I have sympathy with that
approach, and I would hope that our existing environmental laws would
be used to restrict the use of such a chemical before international
action, as they have with all the initial chemicals listed in the
Stockholm Convention.
But that is not what is called for in the Stockholm Convention. The
convention that this legislation will implement does not compel parties
to adopt new chemicals added to the convention in future years.
Instead, the parties are allowed to opt in to the convention's
restrictions. The legislation we are introducing today would allow for
any information or studies generated as part of the international
process to be used as part of a domestic regulatory action on the
chemical, but would not provide an automatic process that compelled the
Environmental Protection Agency, EPA, to take action. In essence, we
are allowing the EPA to move forward and take action on a chemical if
the case made in the international review for a ban is strong, and not
make EPA reinvent the wheel and generate new data to back up their
conclusions, while at the same time, not mandating EPA action to ban or
regulate a chemical. This legislation strikes a fair balance and one
that is consistent with the limited goal we have in this process to
bring FIFRA into compliance with our international obligations.
The most controversial aspects of this legislation are the provisions
that deal with the process by which new chemicals are brought under the
convention's control. It is critically important that the position of
the United States in the international regulation of chemicals take
into account the views of all parties--pesticide manufacturers,
farmers, environmental scientists, State regulators--everyone who has a
stake in the process.
Under the Stockholm Convention, the process of listing new POPs
chemicals follows a three-part process. The review committee determines
whether a chemical satisfies the agreed screening criteria in the
convention; if the criteria are satisfied, a risk profile is prepared;
if on the basis of the risk profile, it is determined that global
action is required, the committee or parties would consider listing the
chemical.
In each of these stages, the U.S. position should be informed by
formal notice and comment periods as provided in existing law. The
Federal notice and comment process is open, well developed, and well
understood by stakeholders in the process. If this process is optional,
there is the risk that the U.S. position could be formed without taking
into account important views. While nothing in this legislation
dictates that any particular position in this established process be
taken by the administration, there is a requirement that the
administration use this process to collect information to inform its
position in the international body regarding any particular chemical.
The administration's draft of this legislation gave the EPA
Administrator permission to initiate a notice and comment period but
did not require it. The argument for this position was a constitutional
claim that the executive's authority over negotiations with other
nations includes a right to rely on whatever information that the
president chooses to use. The ``remedy'' for negotiating a faulty
treaty, according to the letter received from the Department of
Justice, is for the Senate to refuse to consent to the treaty.
This position is not consistent with existing Federal law and is
impractical particularly in a process like this one, where the
negotiation in question would never be subject to ratification by the
Senate. My concern with this constitutional theory resulted in an
exchange of correspondence last year, when this bill was being drafted
by then-Chairman Cochran.
I wrote to then-Administrator Michael Leavitt at the EPA, asking for
a written explanation of the administration's position on this issue.
This resulted in two letters, one from Administrator Leavitt on behalf
of the EPA dated March 25, 2004, and one from Assistant Attorney
General William Moschella on behalf of the Department of Justice dated
March 25, 2004. Finally, I requested an analysis of the constitutional
issues raised by this provision from the American Law Division of the
Congressional Research Service and received a memorandum dated March
30, 2004. I will offer all of these letters and the CRS memorandum for
inclusion in the Record at the end of my statement.
Having reviewed all this material, I find that the administration's
position is not well supported, and I would urge the Senate to reject
any effort to include it in this legislation. The CRS memorandum on the
EPA draft summarizes the state of the law as follows:
Stated succinctly, the separation of powers doctrine ``implicit in
the Constitution and well established in case law, forbids Congress
from infringing upon the Executive Branch's ability to perform its
traditional functions.'' The Supreme Court has established that in
determining whether an act of Congress has violated the doctrine, ``the
proper inquiry focuses on the extent to which it prevents the Executive
Branch from accomplishing its constitutionally assigned functions.''
The memo goes on to state that it is ``difficult to see how a
mandatory notice and comment requirement would implicate this
traditional executive function.'' The memorandum concludes that ``it
does not appear that a mandatory notice and comment requirement would
present any substantive separation of powers concerns.'' Clearly, there
is no merit to the Justice Department's contention that mandatory
notice and comment would be an unconstitutional intrusion into the
President's exclusive prerogative over foreign policy. Clearly, future
steps taken domestically to carry out these international agreements
should be informed by the views of all stakeholders and build the
record through the notice and comment procedure for domestic
implementation of any international action. This legislation makes the
right choice by mandating notice and comment.
I appreciate the opportunity to work with Chairman Chambliss on this
legislation, and with our committee's previous chair, Senator Cochran,
whose staff worked tirelessly to develop this legislation. I am hopeful
that we can work together with the other body to reach agreement on
implementing legislation along the lines of this bill,
[[Page S13170]]
that will clear the way for ratification of the Stockholm Convention.
I ask unanimous consent to include in the Record a letter to
Administrator Michael Leavitt, his response from March 25, 2004, the
response to the same letter by William Moschella on behalf of the
Justice Department, and the memorandum of law from the Congressional
Research Service.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Committee on Agriculture,
Nutrition, and Forestry,
Washington, DC, February 12, 2004.
Hon. Michael Leavitt,
Administrator, Environmental Protection Administration,
Washington, DC.
Dear Administrator Leavitt: Thank you for your note asking
for my help in passing legislation to implement the Stockholm
Protocols. I certainly want to be helpful in that regard and
support moving implementing legislation quickly that will
enhance the ability of the Environmental Protection Agency to
eliminate the threat that persistent organic pollutants
(POPs) pose to our environment.
As we move forward on this legislation, I believe it is
important to regulate not only the so-called ``dirty dozen''
POPs that are explicitly controlled by the Stockholm
Protocols, but also to improve your agency's ability to
address these types of pollutants through the EPA's
regulatory system as expeditiously as possible, with
opportunities for public participation and comment. This
public participation and comment is particularly important to
inform the agency in its evaluation of potential new
pollutants brought before the review committee formed by this
legislation.
One version of proposed implementing legislation would
provide for mandatory notice and comment periods to allow
public input at each of the three stages of the review
committee process. The most recent draft of the legislation
put forward by the EPA, however, makes each of these notice
and comment periods fully subject to the agency's discretion.
It has also been asserted that if Congress required the
agency to provide a notice and comment period based on action
of the international body, it would unconstitutionally
impinge on our national sovereignty. This is a novel
constitutional analysis that I would like to understand
better before this legislation moves forward.
I request that, prior to our Committee taking up this
issue, you provide me with any legal analysis, legal
opinions, and citations to any legal authority supporting the
proposition that Congress cannot require the EPA to hold
notice and comment periods in response to the actions of an
international body. I know that you are as committed as I am
to move this legislation expeditiously, and I look forward to
receiving this information soon.
Again, I look forward to working with you on this matter
and want to help in any way I can to assist you in your work
of improving our nation's environment.
Sincerely,
Tom Harkin,
Ranking Democratic Member.
____
United States Environmental
Protection Agency,
Washington, DC, March 25, 2004.
Hon. Tom Harkin,
Ranking Member, Committee on Agriculture, Nutrition and
Forestry, U.S. Senate, Washington, DC.
Dear Senator Harkin: Thank you very much for your letter of
February 12, 2004. I appreciate your willingness to support
the legislative efforts of the Administration to allow the
United States to become a Party to the Stockholm Convention
on Persistent Organic Pollutants, the Rotterdam Convention on
the Prior Informed Consent Procedure for Certain Hazardous
Chemicals and Pesticides in International Trade and the
Protocol on Persistent Organic Pollutants to the 1979
Convention on Long-Range Transboundary Air Pollution.
In your letter, you noted a particular interest in the
discretionary notice and comment procedures contained within
the Administration's proposed legislation to implement the
FIFRA-related obligations of the three environmental treaties
referenced above. The Administration's proposal does not make
these notice and comment procedures mandatory, and you
requested additional information about the constitutional
concerns that underlie that decision. I asked my staff to
organize a meeting for the Department of Justice to discuss
its constitutional concerns with your legislative assistants
and to answer any questions. I understand that meeting
occurred on March 3, 2004.
As you know, the Stockholm Convention creates an
international ``Persistent Organic Pollutants Review
Committee'' to evaluate whether various substances should be
added or removed from the Convention's coverage. The United
States expects to play a strong role at the international
meetings of the Review Committee, and, as you note in your
letter, the United States could use the notice and comment
procedures under the proposed bill to ``allow public input at
each of the three stages of the review committee process.''
U.S. stakeholders will no doubt have a great deal of
expertise about proposed pollutants brought before the
international review committee, and the Administration
proposal specifically includes notice and comment procedures
to allow the Executive branch to take advantage of this
knowledge. The statutory notice and comment procedures are
precatory, however, because the Department of Justice has
advised the Administration that it has concluded that a
mandatory consultation requirement would raise constitutional
concerns with respect to the President's authority to conduct
negotiations with other nations. I have forwarded your letter
to the Department of Justice to respond to you more
specifically on this point.
I do, however, agree with the concern behind your letter
that ``public participation and notice and comment is
particularly important to inform the agency in its evaluation
of potential new pollutants brought before the review
committee.'' The constitutional concerns that are presented
by a mandatory requirement could be avoided by fully
authorizing the Executive Branch to gather information from
the public, but not requiring the Executive Branch to
exercise that authority. In order to ensure that the public
is well informed about events that are taking place
internationally, and to provide an opportunity for the
consideration of public comment in the event that the
Administration does not execute the discretionary notice and
comment procedures, my staff has included a new section in
the legislation that I transmitted to you on February 25.
In this section, there is a mandatory requirement that the
Administration publish a semiannual federal register notice
that provides a full description of the events occurring at
the international level and any domestic regulatory actions
that have been initiated. Because this requirement is based
on the calendar, relates to information that is publicly
available, and is not linked to decisions in the
international process, it does not raise the same
constitutional concerns. This new provision also obligates
the Environmental Protection Agency to consider comments
received as a result of these semiannual federal register
notices. I will be interested in your reaction to this
proposal, which I believe addresses our respective concerns.
I appreciate the reiteration of your commitment to passing
this legislation and to completing the necessary steps for
the United States to deposit its instrument of consent to
join these three very important multilateral environmental
treaties. I look forward to working with you. If you have any
further questions or concerns, please contact me or your
staff may contact Peter Pagano in EPA's Office of
Congressional and Intergovernmental Relations, at (202) 564-
3678.
Sincerely,
Michael O. Leavitt.
____
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, March 25, 2004.
Hon. Tom Harkin,
Ranking Member, Committee on Agriculture, Nutrition, and
Forestry, U.S. Senate, Washington, DC.
Dear Senator Harkin: The EPA has forwarded to the
Department of Justice your letter dated February 12, 2004,
regarding legislation proposed by the Administration to
implement the Stockholm Convention on Persistent Organic
Pollutants, the Rotterdam Convention on the Prior Informed
Consent Procedure for Certain Hazardous Chemicals and
Pesticides in International Trade, and the Protocol on
Persistent Organic Pollutants to the 1979 Convention on Long-
Range Transboundary Air Pollution.
Specifically, you are interested in the discretionary
notice and comment procedures contained within the
Administration's proposed legislation to implement the FIFRA-
related obligations of the three environmental treaties
referenced above. At the request of the Department of
Justice, the Administration's proposal does not make these
consultations mandatory, and you requested additional
information about the constitutional concerns underlying that
decision.
The Stockholm Convention creates an international
``Persistent Organic Pollutants Review Committee'' to
evaluate whether various substances should be added to, or
removed from, the Convention's coverage. Also, as you note in
your letter, the notice and comment procedures under the
proposed bill would ``allow public input at each of the three
stages of the review committee process.'' The statutory
notice and comment procedures are precatory, however, because
a mandatory consultation requirement would raise
constitutional concerns.
The Executive branch has sole authority over the United
States' negotiations with other nations. See, e.g., Letter to
Edmond Charles Genet, from Thomas Jefferson, Secretary of
State (1793), reprinted in 9 The Writings of Thomas Jefferson
256 (Andrew A. Lipscomb ed., 1903) (``[T]he President of the
United States. . . being the only channel of communication
between this country and foreign nations, it is from him
alone that foreign nations or their agents are to learn what
is or has been the will of the nation.''). The Supreme Court
has long concurred in this understanding of the President's
power, noting that this exclusive authority extends
throughout the entire ``field of negotiation.'' See United
States v. Curtiss-Wright Corp., 299 U.S. 304,319 (1936) (``In
this vast external realm, with its important, complicated,
delicate, and manifold problems, the President
[[Page S13171]]
alone has the power to speak or listen as a representative of
the nation. He makes treaties with the advice and consent of
the Senate; but he alone negotiates. Into the field of
negotiation the Senate cannot intrude; and Congress itself is
powerless to invade it.''). See also New York Times Co. v.
United States, 403 U.S. 713, 728 (1971) (Stewart, J.,
concurring) (``In the governmental structure created by our
Constitution, the Executive is endowed with enormous power in
the two related areas of national defense and international
relations.''); United States v. Louisiana, 363 U.S. 1, 35
(1960) (the President is ``the constitutional representative
of the United States in its dealings with foreign nations'');
Earth Island Inst. v. Christopher, 6 F.3d 648, 652-54 (9th
Cir. 1993); Sanchez-Espinoza v. Reagan, 770 F.2d 202, 210
(D.C. Cir. 1985) (Scalia, J.) (``[B]road leeway'' is
``traditionally accorded the Executive in matters of foreign
affairs.'').
Within this constitutional framework, statutes cannot
direct the President to vote a certain way in an
international forum, and they cannot require that the
President consult with specific private organizations as he
prepares to cast such a vote. Congress can certainly assist
the President in his intentional negotiations by providing
him with the authority to gather information from private
citizens, cf. New York Times Co., 403 U.S. at 729-30, but it
remains for the President to decide how much, if any,
additional information is needed and what should be done with
it. If a proposed treaty is ill-informed, then the
Constitution provides the remedy: the Senate may refuse to
concur in that document. Joseph Story, 3 Commentaries on the
Constitution of the United States Sec. 1507 (1833) (``The
President is the immediate author and finisher of all
treaties; and all the advantages, which can be derived from
talents, information, integrity, and deliberate investigation
on the one hand, and from secrecy and despatch on the other,
are thus combined in the system. But no treaty, so formed,
becomes binding upon the country, unless it receives the
deliberate assent of two thirds of the Senate.''). What
Congress may not do is direct, through legislation, how the
President exercises his exclusive power to negotiate.
The Administration's concerns over legislation that would
mandate consultation with Congress or with private parties in
connection with the conduct of international negotiations are
not new. Similar concerns were raised by the Department of
Justice under President Clinton, President George H. W. Bush,
and President Reagan. In each case, the Department objected
to legislative proposals that would have required that the
Executive branch consult in the context of international
negotiations. For example, during the Clinton administration,
the Department of Justice objected to legislative proposals
that would have directed the Executive branch to consult with
interested parties prior to negotiating trade agreements or
prior to taking a position before the World Trade
Organization. In 1991, the Department advised that the United
States Trade Representative could not be required to
periodically consult with interested parties on the progress
of international trade negotiations. During the Reagan
Administration, the Department wrote to Senator Lowell
Weicker explaining that a proposed consultation requirement
was objectionable because any provision that would require
that the Executive branch disclose information that might
interfere with the success of international negotiations
would be subject to a valid claim of executive privilege.
Presidents of both parties have also noted concerns about
appropriations legislation containing similar provisions,
and have stated that they would interpret such provisions
not to intrude into this exclusive constitutional power
over international negotiations. See Statement on Signing
the Foreign Operations, Export Financing, and Related
Programs Appropriations Act, 2001 36 Weekly Comp. Pres.
Doc. 2809-10 (Nov. 13, 2000) (Statement of President
Clinton) (``Certain provisions of the Act could interfere
with my sole constitutional authority in the area of
foreign affairs by directing or burdening my negotiations
with foreign governments and international organizations .
. . I will not interpret these provisions to limit my
ability to negotiate and enter into agreements with
foreign nations.''); Statement on Signing the Foreign
Operations, Export Financing, and Related Programs
Appropriations, 2002, 38 Weekly Comp. Pres. Doc. 49-50
(Jan. 10, 2002) (Statement of President Bush) (objecting
to . provision ``which purports to direct the Secretary of
State to consult certain international organizations in
determining the state of events abroad'' and noting this
and other provisions ``shall be construed consistent with
my constitutional authorities to conduct foreign affairs,
participate in international negotiations, and supervise
the Executive Branch'').
In the pending legislation, the Department concluded that a
mandatory requirement for ``public participation and
comment'' would raise similar constitutional concerns and
therefore recommended that more precatory language be used.
That said, the Department does not take issue with the
general belief that ``public participation and notice and
comment is particularly important to inform the
[Administration] in its evaluation of potential new
pollutants brought before the review committee.'' The
constitutional concerns that are presented by a mandatory
consultation requirement can be avoided by fully authorizing
the Executive Branch to gather information from the public,
but not requiring the Executive Branch to exercise that
authority. To ensure that the public is well informed about
events that are taking place internationally, and to provide
an opportunity for the consideration of public comment in the
event that the President chooses not to execute the
discretionary notice and comment procedures, the bill
requires that the Administration publish a semi-annual
Federal Register notice that provides a full description of
the events occurring at the international level and any
domestic regulatory actions that have been initiated. Because
this requirement based on the calendar, relates to
information that is publicly available, and is not linked to
decisions in the international process, this does not raise
the same constitutional concerns.
We trust this provides an answer to your inquiry. We would
welcome the opportunity to assist you with any future
inquiries you may have. The Office of Management and Budget
has advised that there is no objection to the submission of
this letter from the standpoint of the Administration's
program.
Sincerely,
William Moschella,
Assistant Attorney General.
____
Congressional Research Service,
Washington, DC, March 30, 2004.
Re: Validity of Provisions Mandating Notice and Comment
Proceedings in Response to the Decisions of Parties
Operating Pursuant to International Conventions and
Protocols.
Hon. Tom Harkin: Pursuant to your request, this memorandum
analyzes certain provisions of a draft bill forwarded by the
Administration that would amend the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA) to allow for the
implementation of the Stockholm Convention on Persistent
Organic Pollutants (POPs Convention), the Rotterdam
Convention on the Prior Informed Consent Procedure for
Certain Hazardous Chemicals and Pesticides in International
Trade (PIC Convention) and the Protocol on Persistent Organic
Pollutants to the Convention on Long-Range Transboundary Air
Pollution (LRTAP POPs Protocol). In pertinent part, the draft
bill would imbue the Administrator of the Environmental
Protection Agency (hereinafter referred to as
``Administrator'') with discretionary authority to publish
notices in the Federal Register and to provide an opportunity
for comment in response to certain actions taken by parties
to the POPs Convention and the LRTAP POPs Protocol.
The Administration has asserted that the notice and comment
provisions in its proposal are necessarily ``precatory'' in
nature, ``because a mandatory consultation requirement would
raise constitutional concerns.'' You have asked whether it
would be constitutionally problematic to make the notice and
comment provisions in the draft proposal mandatory, despite
the concerns raised by the Administration. A review of
relevant constitutional principles appears to indicate that
such a requirement would pass constitutional muster.
POPs Convention
The POPs Convention was signed by the United States on May
31, 2001, and requires nations to reduce or eliminate the
production and use of listed chemicals. The POPs Convention
allows new chemicals to be added to the list by amendment to
the relevant treaty annexes, and an amendment may be proposed
by any party to the Convention. Amendments may be adopted at
a meeting of the Conference of the Parties after the
circulation of such a proposal to all parties at least six
months in advance of the meeting. The POPs convention also
creates a Persistent Organic Pollutants Review Committee
(POPs Review Committee) that is to consist of government-
designated experts in chemical assessment or management. The
POPs Review Committee is charged generally with determining
whether a listing proposal submitted by a party meets
screening criteria established in the Convention, determining
whether global action is warranted regarding the proposal,
and recommending whether a proposed chemical should be
considered for listing by the Conference of the Parties.
LRTAP POPs Protocol
The 1998 Aarhus Protocol on Persistent Organic Pollutants
(hereinafter referred to as ``LRTAP POPs Protocol'') amended
the Convention on Long-Range Transboundary Air Pollution with
the objective of eliminating discharges, emissions and losses
of listed persistent organic pollutants during their
production, use and disposal. Any party may offer an
amendment to add a new chemical to the LRTAP POPs Protocol,
which may be adopted by consensus of the parties represented
at a session of the Executive Body
[[Page S13172]]
of the Convention. Prior to the addition of a chemical, the
LRTAP POPs Protocol requires the completion of a risk profile
on the chemical establishing that it meets selection criteria
specified under the protocol.
The Draft Proposal
The Administration's draft proposal, as supplied by your
office, provides for the implementation of the PIC and POPs
Conventions and the LRTAP POPs Protocol. To effectuate this
implementation, the proposal imbues the Administrator with
the discretionary authority to publish notices in the Federal
Register in response to actions taken to add chemicals to the
list of those covered under the POPs Convention and the LRTAP
POPs Protocol specifically.
As noted above, the POPs Convention establishes a POPs
Review Committee that is responsible for considering
proposals to add chemicals to those listed in the POPs
Convention and recommending to the Conference of the Parties
whether a proposed chemical should be considered for listing
by the Conference. In the event that the POPs Review
Committee does not forward a proposal, the Conference may
choose to consider the proposal on its own accord. Section
3(4) of the draft bill contains several provisions
authorizing the Administrator of the EPA to publish
notices in the Federal Register at certain stages of the
listing process and to provide an opportunity for comment
on a proposed listing. In particular, Section 3(4),
establishing a new 7 U.S.C. 136o(e)(3), authorizes the
publication of a notice and opportunity for comment after
a decision by the POPs Review Committee that a listing
proposal meets the screening criteria specified in the
POPs Convention or, alternatively, if the Conference of
the Parties decides that such a proposal should proceed.
Likewise, a new 7 U.S.C. 136o(e)(4) would authorize the
publication of notice and opportunity for comment upon a
determination by the POPs Review Committee that a proposed
listing warrants global action, or, alternatively, if the
Conference of the Parties decides that the proposal should
proceed. Finally, a new 7 U.S.C. 136o(e)(5) would authorize
the publication of notice and opportunity for comment after
the POPs Review Committee recommends that the Conference of
the Parties consider making a listing decision regarding the
chemical at issue.
Publication of notice and opportunity for comment would
also be authorized after a party to the LRTAP POPs Protocol
submits a risk profile in support of a proposal to add a
chemical to those already listed. Additional notice and
comment proceedings would be authorized in instances where
the Executive Body determines that further consideration of a
pesticide is warranted, as well as after the completion of a
technical review of a proposal to add a chemical to the LRTAP
POPs Protocol. It is interesting to note that while the draft
proposal makes the decision as to whether to engage at all in
notice and comment procedures discretionary, the
Administrator is required to provide detailed elements of
notice in the event that such procedures are offered.
analysis
You have specifically inquired as to whether it would
violate the doctrine of separation of powers to make the
aforementioned discretionary notice and comment procedures
mandatory, irrespective of the general concern voiced by the
Administration that ``a mandatory consultation requirement
would raise constitutional concerns.'' An examination of
applicable principles and precedent appears to indicate that
a mandatory notice and comment requirement would be
constitutionally permissible.
Stated succinctly, the separation of powers doctrine
``implicit in the Constitution and well established in case
law, forbids Congress from infringing upon the Executive
Branch's ability to perform its traditional functions.'' The
Supreme Court has established that in determining whether an
act of Congress has violated the doctrine, ``the proper
inquiry focuses on the extent to which it prevents the
Executive Branch from accomplishing its constitutionally
assigned functions.'' Furthermore, as was noted by the Court
of Appeals for the Ninth Circuit in Confederated Tribes of
Siletz Indians v. United States:
Although the Supreme Court has not announced a formal list
of elements to be considered when determining whether a
violation of the doctrine has taken place, it has
consistently looked to at least two factors: (1) the
governmental branch to which the function in question is
traditionally assigned, see Mistretta, 488 U.S. at 364, 109
S.Ct. at 65-51; Morrison v. Olson, 487 U.S. 654, 694-96, 108
S.Ct. 2597, 2620-22, 101 L.Ed. 2d 659 (1988); and (2) the
control of the function retained by the branch, see
Mistretta, 488 U.S. at 408-12, 109 S.Ct. at 673-75; Morrison,
487 U.S. at 692-96, 108 S.Ct. at 2619-22.
Applying these factors to the case at hand, it appears
unlikely that a reviewing court would hold that mandatory
notice and comment provisions would violate the doctrine. As
is indicated by the DOJ letter, it seems that any argument
that a mandatory requirement would offend the separation of
powers doctrine would hinge on the assertion that such a
requirement necessarily constitutes an intrusion into the
core power of the Executive Branch over external affairs.
Specifically, in United States v. Curtiss-Wright Corp., the
Supreme Court declared:
[n]ot only . . . is the federal power over external affairs
in origin and essential character different from that over
internal affairs, but participation in the exercise of the
power is significantly limited. In this vast external realm,
with its important, complicated, delicate and manifold
problems, the President alone has the power to speak or
listen as a representative of the nation. He makes treaties
with the advice and consent of the Senate; but he alone
negotiates. Into the field of negotiation the Senate cannot
intrude; and Congress itself is powerless to invade it. As
Marshall said in his great argument of March 7, 1800, in the
House of Representatives, `the President is the sole organ of
the nation in its external relations, and its sole
representative with foreign nations.'
However, it is difficult to see how a mandatory notice and
comment requirement would implicate this traditional
executive function. Specifically, while it is generally
conceded that there are some powers enjoyed by the President
alone regarding foreign affairs, it is likewise evident that
Congress possesses wide authority to promulgate policies
respecting foreign affairs. Congress has often exercised
this authority to determine policy objectives for the
United States in international negotiations and to require
subsequent legislative approval of international
agreements before they may enter into force for the United
States.
A mandatory notice and comment requirement would not appear
to be an attempt to control the substance of negotiations
between the United States and other parties to POPs
Convention or the LRTAP POPs Protocol. Instead, such a
requirement would simply establish that the Administrator
must publish notices in the Federal Register providing
information regarding chemicals that are being considered for
listing to either the Convention or the Protocol. A somewhat
analogous requirement in the international arena may be found
at 19 U.S.C. 3537, which requires the United States Trade
Representative to consult with the appropriate congressional
committees and to publish detailed notices in the Federal
Register whenever it is a party to any dispute settlement
proceedings under the WTO. Furthermore, it should be noted
that this notification provision could be likened to
reporting requirements that are often imposed by Congress. As
a general proposition, Congress is entitled to full access to
information that is in the possession of the Executive
Branch, subject to claims of executive privilege.
In addition to the general assertion that a mandatory
notice and comment requirement would intrude on the
President's power over the ``field of negotiation'' in
foreign affairs, the DOJ letter states that any potential
requirement that the Administrator consult with private
parties or give consideration to comments received therefrom
would also be constitutionally problematic. However, it is
likewise difficult to ascertain how such a provision would
necessarily impair the ability of the executive branch to
carry out its core functions in this context. There is no
indication that such a provision would be drafted so as to
require the disclosure of sensitive information, or to
require the inclusion of such individuals in the actual
negotiation process. Rather, the notice and comment
procedures at issue would appear to be tailored to ensure
that the public is kept informed regarding ongoing
proceedings in this context, and is further afforded the
opportunity to comment on proposals under consideration.
Accordingly, it appears that such a dynamic would not raise
concerns any more significant than existing consultation
requirements. Based on these factors, it does not appear that
a mandatory notice and comment requirement would present any
substantive separation of powers concerns.
T.J. Halstead,
Legislative Attorney,
American Law Division.
______
By Mr. DURBIN (for himself, Mr. Cochran, and Mr. Salazar):
S. 2043. A bill to amend the Robert T. Stafford Disaster Relief and
Emergency Assistance Act to provide grants for mass evacuation
exercises for urban and suburban areas and the execution of emergency
response plans, and for other purposes; to the Committee on Homeland
Security and Governmental Affairs.
Mr. DURBIN. 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. 2043
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 ``Mass Evacuation Exercise
Assistance Act of 2005''.
SEC. 2. MASS EVACUATION EXERCISES AND EXECUTION OF EMERGENCY
RESPONSE PLANS.
Section 201 of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act (42 U.S.C. 5131) is amended by
adding at the end the following:
``(e) Grants for Mass Evacuation Exercises for Urban and
Suburban Areas and the Execution of Emergency Response
Plans.--
``(1) In general.--The Secretary of Homeland Security shall
make grants to States or units of local governments nominated
by States to--
``(A) establish programs for the development of plans and
conduct of exercises for
[[Page S13173]]
the mass evacuation of persons in urban and suburban areas;
and
``(B) execute plans developed under subparagraph (A),
including the purchase and stockpiling of necessary supplies
for emergency routes and shelters.
``(2) Conditions.--As a condition for the receipt of
assistance under paragraph (1)(A), the Secretary of Homeland
Security may establish any guidelines and standards for the
programs that the Secretary determines to be appropriate.
``(3) Requirements.--To the maximum extent practicable, a
program assisted under paragraph (1)(A) shall incorporate the
coordinated use of public and private transportation
resources in the plans developed and the exercises carried
out under the program.
``(4) Participation of members of the armed forces.--
``(A) In general.--The Secretary of Defense may authorize
the participation of members of the Armed Forces and the use
of appropriate Department of Defense equipment and materials
in an exercise carried out under a program assisted under
this subsection.
``(B) Reimbursement for participation of guard.--In the
event members of the National Guard in State status
participate in an exercise carried out under a program
assisted under this subsection pursuant to an authorization
of the chief executive officer of a State, the Secretary of
Defense may, using amounts available to the Department of
Defense, reimburse the State for the costs to the State of
the participation of such members in such exercise.
``(5) Authorization of appropriations.--There is authorized
to be appropriated to carry out this subsection $250,000,000
for each of fiscal years 2006 through 2010.
``(f) Mass Evacuation Plans.--
``(1) Requirement.--Each State or unit of local government
receiving a grant under subsection (e)(1) shall, in
consultation with relevant local governments, develop and
maintain detailed and comprehensive mass evacuation plans for
each area in the jurisdiction of the State unit of local
government.
``(2) Plan development.--In developing the evacuation plans
required under paragraph (1), each State or unit of local
government shall, to the maximum extent practicable--
``(A) assist urban and suburban county and municipal
governments in establishing and maintaining mass evacuation
plans;
``(B) assist hospitals, nursing homes, other institutional
adult congregate living facilities, group homes, and other
health or residential care facilities that house individuals
with special needs in establishing and maintaining mass
evacuation plans; and
``(C) integrate the plans described in subparagraphs (A)
and (B) and coordinate evacuation efforts with the entities
described in subparagraphs (A) and (B).
``(3) Plan contents.--State, county, and municipal mass
evacuation plans shall, to the maximum extent practicable--
``(A) establish incident command and decisionmaking
processes;
``(B) identify primary and alternate escape routes;
``(C) establish procedures for converting 2-way traffic to
1-way evacuation routes, removing tollgates, ensuring the
free movement of emergency vehicles, and deploying traffic
management personnel and appropriate traffic signs;
``(D) maintain detailed inventories of drivers and public
and private vehicles, including buses, vans, and handicap-
accessible vehicles, that may be pressed into service;
``(E) maintain detailed inventories of emergency shelter
locations and develop the necessary agreements with
neighboring jurisdictions to operate or use the shelters in
the event of a mass evacuation;
``(F) establish procedures for informing the public of
evacuation procedures before and during an evacuation and
return procedures after an evacuation, including using
television, radio, print, and online media, land-based and
mobile phone technology, and vehicles equipped with public
address systems;
``(G) identify primary and alternate staging locations for
emergency responders;
``(H) identify gaps in the ability to respond to different
types of disasters, including the capacity to handle surges
in demand for hospital, emergency medical, coroner, morgue,
and mortuary services, quarantines, decontaminations, and
criminal investigations;
``(I) establish procedures to evacuate individuals with
special needs, including individuals who are low-income,
disabled, homeless, or elderly or who do not speak English;
``(J) establish procedures for evacuating animals that
assist the disabled;
``(K) establish procedures for protecting property,
preventing looting, and accounting for pets; and
``(L) ensure the participation of the private and nonprofit
sectors.
``(4) Updating of plans.--State, county, municipal, and
private plans under this subsection shall be updated on a
regular basis.
``(g) Additional Assistance to States.--The Secretary of
Homeland Security shall assist States and local governments
in developing and maintaining the plans described in
subsection (f) by--
``(1) establishing and maintaining comprehensive best
practices for evacuation planning, training, and execution;
``(2) developing assistance teams to travel to States and
assist local governments in planning, training, and
execution;
``(3) developing a training curriculum based on the best
practices established under paragraph (1);
``(4) providing the training curriculum developed under
paragraph (3) to State and local officials;
``(5) maintaining a list of qualified government agencies,
private sector consultants, and nonprofit organizations that
can assist local governments in setting up evacuation plans;
and
``(6) establishing and maintaining a comprehensive guide
for State and local governments regarding--
``(A) the types of Federal assistance that are available to
respond to emergencies; and
``(B) the steps necessary to apply for that assistance.
``(h) Report To Congress.--Not later than 1 year after the
date of enactment of this subsection, the Comptroller General
of the United States shall conduct a study detailing--
``(1) any Federal laws that pose an obstacle to effective
evacuation planning;
``(2) any State or local laws that pose an obstacle to
effective evacuation planning; and
``(3) the political and economic pressures that discourage
governors, county executives, mayors, and other officials
from--
``(A) ordering an evacuation; or
``(B) conducting exercises for the mass evacuation of
people.''.
______
By Mr. DeWINE:
S. 2046. A bill to establish a National Methamphetamine Information
Clearinghouse to promote sharing information regarding successful law
enforcement, treatment, environmental, social services, and other
programs related to the production, use, or effects of methamphetamine
and grants available for such programs, and for the other purposes; to
the Committee on the Judiciary.
Mr. DeWINE. Mr. President, today I am introducing a bill that would
create a National Methamphetamine Information Clearinghouse (NMIC).
This web-based source of information would promote sharing of ``best
practices'' regarding law enforcement, treatment, environmental, social
services, and other programs to combat the production, use, and effects
of methamphetamine.
The purpose of the NMIC is to make a one-stop shop, where all the
``best practices'' in the fight against meth can be found--information
from law enforcement, treatment-based organizations, social services
and environmental agencies. It will be a website providing information
that agencies and organizations submit, describing what has worked in
their local communities. The people who have had success with
addressing meth and meth-related issues will be providing this
information. Additionally, there will be information and links
regarding available grants for establishing and maintaining anti-meth
programs.
The NMIC will serve two distinct populations--law enforcement and the
broader community. The NMIC will contain a restricted access section
where law enforcement will be able to post their successful strategies,
training techniques, and conference notes so that other law enforcement
will be able to get ideas and incorporate them in their own
jurisdictions. The unrestricted portion of the website will include
resources for other agencies and the public at large. For example,
child protection agencies might post techniques on dealing with meth
orphans, community health centers might post treatment options that
provided them with some success, and environmental groups might post
tips on cleaning up the toxic waste.
So, a landlord or hotel owner whose property was used as a meth lab
and who wants to be able to rent out the property again, or the mother
who wants to figure out if her child is a meth addict--and what to do
if she is they would all be able to find useful information on the
site.
One of our challenges in the fight against meth is finding those who
need assistance and connecting them with those who can help--and that
is exactly what this clearinghouse can do. Many people and
organizations that have had some success in controlling meth are more
than willing to share the techniques they found that work, if only they
knew who needed the information. And, there are those who are just
starting to attack the meth problem in their communities and need
guidance as to how to make that start an effective one. The NMIC can
help bring those groups of people together and enhance everyone's
ability to fight the plague of meth.
NMIC will be housed under the auspices of the Department of Justice
and
[[Page S13174]]
will be governed by an Advisory Council comprised of 10 members from a
variety of agencies and organizations. It is this Council who will
monitor the submissions to the Clearinghouse and make sure that the
information found on the site is accurate, up-to-date, and useful.
The bill I am introducing today provides the basic outline of this
idea, and over the next two months, I will be working closely with law
enforcement and community groups to modify and improve the
Clearinghouse before we move forward with this legislation next year. I
look forward to that process and encourage all of my colleagues to join
me in this effort to combat the meth problem.
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. 2046
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 Methamphetamine
Information Clearinghouse Act of 2005''.
SEC. 2. DEFINITIONS.
In this Act--
(1) the term ``Council'' means the National Methamphetamine
Advisory Council established under section 3(b)(1);
(2) the term ``drug endangered children'' means children
whose physical, mental, or emotional health are at risk
because of the production, use, or effects of methamphetamine
by another person;
(3) the term ``National Methamphetamine Information
Clearinghouse'' or ``NMIC'' means the information
clearinghouse established under section 3(a); and
(4) the term ``qualified entity'' means a State or local
government, school board, or public health, law enforcement,
nonprofit, or other nongovernmental organization providing
services related to methamphetamines.
SEC. 3. ESTABLISHMENT OF CLEARINGHOUSE AND ADVISORY COUNCIL.
(a) Clearinghouse.--There is established, under the
supervision of the Attorney General of the United States, an
information clearinghouse to be know as the National
Methamphetamine Information Clearinghouse.
(b) Advisory Council.--
(1) In general.--There is established an advisory council
to be known as the National Methamphetamine Advisory Council.
(2) Membership.--The Council shall consist of 10 members
appointed by the Attorney General--
(A) not fewer than 3 of whom shall be representatives of
law enforcement agencies;
(B) not fewer than 4 of whom shall be representatives of
nongovernmental and nonprofit organizations providing
services related to methamphetamines; and
(C) 1 of whom shall be a representative of the Department
of Health and Human Services.
(3) Period of appointment; vacancies.--Members shall be
appointed for 3 years. Any vacancy in the Council shall not
affect its powers, but shall be filled in the same manner as
the original appointment.
SEC. 4. NMIC REQUIREMENTS AND REVIEW.
(a) In General.--The NMIC shall promote sharing information
regarding successful law enforcement, treatment,
environmental, social services, and other programs related to
the production, use, or effects of methamphetamine and grants
available for such programs.
(b) Components.--The NMIC shall include--
(1) a toll-free number; and
(2) a website that--
(A) provides information on the short-term and long-term
effects of methamphetamine use;
(B) provides information regarding methamphetamine
treatment programs and programs for drug endangered children,
including descriptions of successful programs and contact
information for such programs;
(C) provides information regarding grants for
methamphetamine-related programs, including contact
information and links to websites;
(D) allows a qualified entity to submit items to be posted
on the website regarding successful public or private
programs or other useful information related the production,
use, or effects of methamphetamine;
(E) includes a restricted section that may only be accessed
by a law enforcement organization that contain successful
strategies, training techniques, and other information that
the Council determines helpful to law enforcement agency
efforts to combat the production, use or effects of
methamphetamine;
(F) allows public access to all information not in a
restricted section; and
(G) contains any additional information the Council
determines may be useful in combating the production, use, or
effects of methamphetamine.
(c) Review of Posted Information.--
(1) In general.--Not later than 30 days after the date of
submission of an item by a qualified entity, the Council
shall review an item submitted for posting on the website
described in subsection (b)(2)--
(A) to evaluate and determine whether the item, as
submitted or as modified, meets the requirements for posting;
and
(B) in consultation with the Attorney General, to determine
whether the item should be posted in a restricted section of
the website.
(2) Determination.--Not later than 45 days after the date
of submission of an item, the Council shall--
(A) post the item on the website described in subsection
(b)(2); or
(B) notify the qualified entity that submitted the item
regarding the reason such item shall not be posted and
modifications, if any, that the qualified entity may make to
allow the item to be posted.
SEC. 5. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated--
(1) for fiscal year 2006--
(A) $1,000,000 to establish the NMIC and Council; and
(B) such sums as are necessary for the operation of the
NMIC and Council; and
(2) for each of fiscal years 2007 through 2010, such sums
as are necessary for the operation of the NMIC and Council.
______
By Mr. OBAMA (for himself and Mrs. Clinton):
S. 2047. A bill to promote healthy communities; to the Committee on
Health, Education, Labor, and Pensions.
Mr. OBAMA. Mr. President, today, I am introducing the Healthy
Communities Act of 2005, and I am pleased to have the support of my
good friend and colleague Senator Hillary Rodham Clinton.
Over the last few decades, our medical researchers and scientists
have developed increasingly sophisticated and high tech methods to
diagnose and treat disease. Yet, this approach has caused us to lose
sight of the need for preventing diseases on the front-end, with
greater investment in basic public health interventions that too often
get short shrift.
Today, I would like to bring it back to the basics and talk about
environmental quality. The air we breathe, the food we eat, the houses
in which we live, and the parks in which our children play--all of
these factors contribute to our health. Environmental health, as
defined by the World Health Organization, includes both the direct,
damaging effects of chemicals, radiation, and some biological agents,
and the effects on health and well-being of the broad physical,
psychological, social, and aesthetic environment. The legislation that
I have introduced draws attention to that aspect of the environment
that is the physical environment--the toxicants and pollutants that we
may not notice, but are present in our everyday surroundings and taking
a toll on our health.
My home State of Illinois faces a number of environmental challenges,
including high levels of lead poisoning. It is estimated that over
400,000 children in this country suffer from elevated blood lead
levels. Chicago has the unfortunate distinction of ranking number 1 for
children with elevated blood lead levels. 6,691 children have elevated
blood lead levels, which is 50 percent higher than the number of
children in the second ranked city of Philadelphia. Elevated blood
levels are known to cause behavioral and learning problems, slowed
growth, impaired hearing and damage to the kidneys, brain and bone
marrow. Adults are not exempt from lead toxicity--poisoned adults
suffer pregnancy difficulties, high blood pressure, digestive problems,
nerve disorders, memory and concentration problems, and muscle and
joint pain. Lead poisoning is completely preventable, and although our
agencies have made good progress, we can and must do more to address
this issue.
Obviously lead is only one of many toxicants and pollutants with
which we must contend. Different areas of the U.S. face unique
challenges--States like California are grappling with the repercussions
of air pollution, while Massachusetts and others in the Northeast are
challenged with high levels of mercury in the water. As much as we know
about these hazards, the effects of many chemicals are unknown.
Less than half of the chemicals produced in this country in
quantities greater than 10,000 pounds have been tested for their
potential human toxicity, with less than 10 percent studied to assess
effects on development. This lack of knowledge has serious health
repercussions--in children, environmental toxins are estimated to cause
[[Page S13175]]
up to 35 percent of asthma cases, up to 10 percent of cancer cases, and
up to 20 percent of neurobehavioral disorders. Overall, an estimated 25
percent of preventable illnesses worldwide can be attributed to poor
environmental quality. Diseases such as cancer, heart disease, asthma,
birth defects, infertility, and obesity are all caused or exacerbated
by toxicants or pollutants in the environment.
Minority Americans are significantly more likely to be affected than
other Americans. Some studies have found that 3 of every 5 African- and
Latino Americans live in communities with one or more toxic waste
sites. Communities with existing incinerators, and those that are
proposed for placement of new incinerators, have substantially higher
numbers of minority residents. Minority Americans are already plagued
with higher rates of death and disease, and fewer health resources in
their neighborhoods. As we focus our efforts on environmental health,
we must be cognizant that some groups are disproportionately affected
by federal policies and decision-making, and deserve careful attention.
The Healthy Communities Act of 2005 addresses environmental health
concerns in a comprehensive fashion, building upon many of the
successful federal initiatives and filling in gaps in other critical
areas. The bill establishes an independent advisory committee to
provide recommendations across all relevant Federal agencies. It asks
the CDC and the EPA to assess and report the environmental public
health of the nation, and each State. The Health Action Zone Program
will provide intense Federal attention and resources to clean up and
address the health needs of the nation's most blighted communities.
Environmental research is expanded, including biomonitoring and health
tracking initiatives. Finally, the Act promotes environmental health
workforce programs at the CDC and the NIH.
The Healthy Communities Act of 2005 will increase national attention
on the importance of the environment, and its relationship to good
health. As we work to make our future stronger for our communities, let
us look to our past. In the National Environmental Policy Act (NEPA) of
1969, Congress wrote that it is the continuing responsibility of the
Federal Government to assure that all Americans live in ``safe,
healthful and aesthetically and culturally pleasing surroundings.''
Almost forty years later, our responsibility to the American people
continues. I encourage all of my colleagues to join me and support
passage of this bill.
______
By Mr. OBAMA:
S. 2048. A bill to direct the Consumer Product Safety Commission to
classify certain children's products containing lead to be banned
hazardous substances; to the Committee on Commerce, Science, and
Transportation.
Mr. OBAMA. Mr. President, I rise today to introduce the Lead Free
Toys Act of 2005, which directs the Consumer Product Safety Commission
to intensify efforts to reduce lead exposure for children.
The unfortunate reality for many children--particularly in low-income
and minority households--is the continued presence of high blood lead
levels. Over 400,000 children in this country have elevated blood lead
levels, with my own hometown of Chicago having the largest
concentration of these children.
Lead is a highly toxic substance that can produce a range of health
problems in young children, including IQ deficiencies, reading and
learning disabilities, impaired hearing, reduced attention spans,
hyperactivity, and damage to the kidneys, brain and bone marrow. Even
low levels of blood lead in pregnant women, infants and children can
lead to impaired cognitive abilities, fetal organ development and
behavioral problems.
We know that lead poisoning is completely preventable. As the Nation
has increased efforts to reduce environmental lead exposure, the number
of children with high blood levels has steadily dropped. Restricting
lead in gasoline and paint represent two major accomplishments in this
regard. But much work remains to be done.
Earlier today I introduced the Healthy Communities Act of 2005, to
strengthen Federal, State and local efforts to address environmental
health issues in communities already affected by lead and other toxins.
However, we need to take greater proactive steps to prevent
contamination, and the Lead Free Toys Act of 2005 will help us do just
that.
Disturbingly, lead is present in a number of toys and other
frequently used objects by young children. According to research
conducted by the National Center for Environmental Health, about half
of tested lunch boxes have unsafe levels of lead. The highly popular
Angela Anaconda lunch box was found to have 56,400 parts per million of
lead, which is more than 90 times the 600 parts per million legal limit
for lead in paint for children's products. Other lunch boxes showed
levels of lead between two and twenty-five times the legal limit for
lead paint in children's products. In most cases, the highest lead
levels were found in the lining of lunch boxes, where lead could come
into direct contact with food.
This problem is not limited to lunchboxes. One study found that 60
percent of more than 400 pieces of costume jewelry purchased at major
department stories contain dangerous amounts of lead. From September
2003 through July 2004, there were 3 recalls of nearly 150 million
pieces of toy jewelry because of toxic levels of lead.
This past August the Centers for Disease Control updated their
``Preventing Lead Poisoning in Young Children'' statement calling for
the elimination of all nonessential uses of lead in children's
products. Specifically, the CDC urged a more systematic approach to
identifying lead-contaminated items and prohibiting their sale before
children are exposed, rather than usual recall efforts after exposure
has occurred.
The Consumer Product Safety Commission leads our national efforts to
safeguard our children from potentially dangerous objects. However, the
Commission has dragged its feet in aggressively addressing the problem
of lead in toys. The Lead Free Toys Act, introduced by my colleague
Congressman Henry Waxman earlier this year, requires the Consumer
Product Safety Commission to prescribe regulations classifying any
children's product containing lead as a banned hazardous substance
under the Hazardous Substances Act. It defines ``children's product
containing lead'' as any consumer product marketed or used by children
under age 6 that contains more than trace amounts of lead as determined
by the Commission and prescribed by regulations. The Act also requires
the Commission to issue standards for reduction in lead in electronic
devices.
It's a national disgrace that toys that could pose a serious and
significant danger to children are readily available in our department
stores and markets. The Lead Free Toys Act of 2005 will help us keep
our children safe and healthy, and contribute to national efforts to
reduce lead exposure. I ask each of my colleagues to help support this
Act.
______
By Mr. DOMENICI (for himself, Mr. Dorgan, and Mr. Talent):
S. 2049. A bill to improve the security of the United States borders
and for other purposes; to the Committee on the Judiciary.
Mr. DOMENICI. Mr. President, I rise today with my friend from North
Dakota, Senator Dorgan, and my friend from Missouri, Senator Talent, to
introduce a bill of critical importance to the security of our borders:
the Border Modernization and Security Act of 2005.
Securing our borders is the first necessary step towards immigration
reform, and I believe the legislation I am introducing makes an
enormous leap in the right direction.
Our bill builds upon legislation we introduced in the last Congress
to improve our port of entry infrastructure as well as a lot of good
ideas proposed by other Senators in this Congress, and adds some
provisions that I think are important to a comprehensive border
security and immigration reform effort.
The Border Modernization and Security Act increases the number of
Customs and Border Protection (CBP) officers and Immigration and
Customs Enforcement (ICE) agents each by 1000 for each of fiscal years
2007 through 2011. These personnel are necessary to improve our
enforcement at ports of entry and within the United States, and
increasing the number of these employees goes hand in hand with our
recent efforts to increase the number of
[[Page S13176]]
border patrol agents who are enforcing the law along our international
borders. Along this same line, the bill allows the Department of
Homeland Security (DHS) to support its border and immigration forces
with National Guard personnel and volunteer retired law enforcement
officers, provides for an increase in the number of DHS alien and
immigration investigative personnel, and increases the number of Deputy
Marshals to investigate criminal immigration matters.
Increasing the number of DHS employees alone will not solve our
border problems. Unauthorized aliens also cause a significant burden on
our courts. For example, for the 12-month period ending September 30,
2004, 364 felony cases per judge were filed in the New Mexico District.
It is apparent how burdensome this number is for my border State's
court when you consider that the national average of felony cases filed
per judge is 88. To help with these high caseload levels, our bill
increases the number of DHS immigration attorneys, federal defenders,
Office of Immigration Litigation attorneys, assistant US Attorneys, and
immigration judges.
Increased personnel is only one aspect of our effort to secure the
border. Any border security effort must provide DHS personnel with
necessary technologies and assets. To that end, our bill authorizes
funds for the Department to acquire new technologies, construct roads,
fences, and barriers, purchase air assets, vehicles, and other
equipment, maintain temporary and permanent border checkpoints, and
construct the appropriate facilities to support the increased number of
DHS personnel being hired. Such assets are invaluable tools for our CBP
and ICE employees, and we must make sure those men and women have what
they need. We also provide for up to 15,000 new detention beds for
unauthorized aliens in our bill.
Another area Congress must address is our land port of entry
infrastructure. No American border has undergone a comprehensive
infrastructure overhaul since 1986, when Senator Dennis DeConcini of
Arizona and I put forth a $357 million effort to modernize the
southwest border. A great deal has changed in the past nineteen years.
More importantly, much has changed since September 11, 2001. Congress
has passed legislation to improve security at airports and seaports,
but we have not yet addressed the needs of our busiest ports, located
on the United States' northern and southwestern land borders. The
Border Modernization and Security Act would change that and would
prevent terrorists from exploiting weaknesses at our land ports.
My bill requires the General Service Administration (GSA) to identify
port of entry infrastructure and technology improvement projects that
would enhance homeland security. The GSA would work with the Department
of Homeland Security to prioritize and implement these projects based
on needs along the border. The Secretary of Homeland Security would
also have to prepare a Land Border Security Plan to assess the
vulnerabilities at each port of entry located on the northern border or
the southern border. This plan will require the cooperation of Federal,
State and local entities involved at our borders to ensure that
everyone who plays a role in border security is consulted about the
plan.
The Border Modernization and Security Act would also modernize
homeland security along the United States' borders by implementing
technology demonstration programs to test and evaluate new port of
entry and border security technologies. Because equipment and
technology alone will not solve the security problems on our border,
these test sites will also house facilities to provide the necessary
training to personnel who must implement and use these technologies
under realistic conditions.
We must also improve the enforcement of existing immigration laws.
Our bill authorizes funds for the Department of Homeland Security to
expand its Expedited Removal Procedures so DHS can expeditiously return
non-Mexican illegal aliens who have spent less than 14 days in the US
and who are apprehended within 100 miles of the international border to
the alien's country of origin. We also allow DHS to create an automated
biometric entry and exit data system at our land ports of entry so we
can more accurately keep track of who is entering and leaving the US.
In order for the Department to more easily identify and remove
unauthorized aliens who commit crimes under State law and are held in
State and local prisons, we authorize the expansion of DHS'
Institutional Removal Program. Because of the burden these aliens place
on our State and local prisons, DHS will be responsible for reimbursing
prisons that detain an alien after the alien has completed his prison
sentence in order to effectuate the alien's transfer to federal
custody.
Along the same line, the Border Modernization and Security Act
provides additional assistance to States that are impacted by
unauthorized aliens who commit crimes. I know first hand the impact
such aliens have on our State and local prisons from talking to
prosecutors and judges in New Mexico, so our bill reauthorizes the
State Criminal Alien Assistance Program to help our States with the
costs of incarcerating these aliens. Additionally, the bill allows for
the reimbursement of State and local costs of processing illegal aliens
through the criminal justice system and creates a new grant program for
State, local, and Indian tribe law enforcement agencies who incur costs
related to border security activities.
I believe that these measures are an important part of addressing
this nation's homeland security needs, and I am pleased to introduce
this bill today with Senators Dorgan and Talent.
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. 2049
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 ``Border Security and
Modernization Act of 2005''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Department.--Except as otherwise provided, the term
``Department'' means the Department of Homeland Security.
(2) Secretary.--Except as otherwise provided, the term
``Secretary'' means the Secretary of Homeland Security.
(3) State.--Except as otherwise provided, the term
``State'' has the meaning given that term in section
101(a)(36) of the Immigration and Nationality Act (8 U.S.C.
1101 (a)(36)).
SEC. 3. CONSTRUCTION.
Nothing in this Act may be construed to require law
enforcement personnel of a State or political subdivision of
a State to--
(1) report the identity of a victim of, or a witness to, a
criminal offense to the Secretary for immigration enforcement
purposes;
(2) arrest such victim or witness for a violation of the
immigration laws of the United States; or
(3) enforce the immigration laws of the United States.
TITLE I--BORDER PROTECTION
Subtitle A--Personnel and Training
SEC. 101. PERSONNEL OF THE DEPARTMENT OF HOMELAND SECURITY.
(a) In General.--
(1) Customs and border protection officers.--During each of
the fiscal years 2007 through 2011, the Secretary shall,
subject to the availability of appropriations for such
purpose, increase by not less than 1,000 the number of
positions for full-time active duty officers of the Bureau of
Customs and Border Protection of the Department for such
fiscal year.
(2) Immigration and customs enforcement inspectors.--
Section 5203 of the Intelligence Reform and Terrorism
Prevention Act of 2004 (Public Law 108-458; 118 Stat. 3734)
is amended by striking ``800'' and inserting ``1000''.
(3) Investigative personnel.--In addition to the positions
authorized under section 5203 of the Intelligence Reform and
Terrorism Prevention Act of 2004, as amended by paragraph
(2), during each of the fiscal years 2007 through 2011, the
Secretary shall, subject to the availability of
appropriations for such purpose, increase by not less than
100 the number of positions for investigative personnel
within the Department to investigate alien smuggling and
immigration status violations for such fiscal year.
(4) Legal personnel.--During each of the fiscal years 2007
through 2011, the Secretary shall, subject to the
availability of appropriations for such purpose, increase by
not less than 100 the number of positions for attorneys in
the Office of General Counsel of the Department who represent
the Department in immigration matters for such fiscal year.
(5) Waiver of fte limitation.--The Secretary is authorized
to waive any limitation on the number of full-time equivalent
personnel employed by the Department to fulfill
[[Page S13177]]
the requirements of paragraph (1) and the amendment made by
paragraph (2).
(b) Training.--The Secretary shall provide appropriate
training for the agents, officers, inspectors, and associated
support staff of the Department on an ongoing basis to
utilize new technologies and techniques and to ensure that
the proficiency levels of such personnel are acceptable to
protect the international borders of the United States.
(c) Authorization of Appropriations.--There are authorized
to be appropriated to the Secretary for each of fiscal years
2007 through 2011, such sums as may be necessary to carry out
this section.
SEC. 102. PERSONNEL OF THE DEPARTMENT OF JUSTICE AND OTHER
ATTORNEYS.
(a) Litigation Attorneys.--During each of the fiscal years
2007 through 2011, the Attorney General shall, subject to the
availability of appropriations for such purpose, increase by
not less than 50 the number of positions for attorneys in the
Office of Immigration Litigation of the Department of Justice
for such fiscal year.
(b) United States Attorneys.--During each of the fiscal
years 2007 through 2011, the Attorney General shall, subject
to the availability of appropriations for such purpose,
increase by not less than 50 the number of United States
Attorneys to litigate immigration cases in the Federal courts
for such fiscal year.
(c) United States Marshals.--During each of the fiscal
years 2007 through 2011, the Attorney General shall, subject
to the availability of appropriations for such purpose,
increase by not less than 50 the number of Deputy United
States Marshals to investigate criminal immigration matters.
(d) Immigration Judges.--During each of fiscal years 2007
through 2011, the Attorney General shall, subject to the
availability of appropriations for such purpose, increase by
not less than 100 the number of immigration judges for such
fiscal year.
(e) Defense Attorneys.--During each of the fiscal years
2007 through 2011, the Director of the Administrative Office
of the United States Courts shall, subject to the
availability of appropriations for such purpose, increase by
not less than 100 the number of attorneys in the Federal
Defenders Program for such fiscal year.
(f) Authorization of Appropriations.--There are authorized
to be appropriated to the Attorney General for each of fiscal
years 2007 through 2011 such sums as may be necessary to
carry out this section, including the hiring of necessary
support staff.
SEC. 103. USE OF THE NATIONAL GUARD FOR BORDER PROTECTION
ACTIVITIES.
(a) In General.--Section 112 of title 32, United States
Code, is amended--
(1) by striking ``drug interdiction and counter-drug
activities'' each place it appears and inserting ``drug
interdiction, counter drug, and border activities''; and
(2) in subparagraphs (A) and (B) of subsection (e)(1), by
striking ``drug interdiction or counter-drug activities''
each place it appears and inserting ``drug interdiction,
counter-drug, or border activities''.
(b) Definition of Drug Interdiction, Counter-Drug, and
Border Activities.--Subsection (h)(1) of such section is
amended to read as follows:
``(1) The term `drug interdiction, counter-drug, and border
activities', with respect to the National Guard of a State,
means the use of National Guard personnel in--
``(A) drug interdiction and counter-drug law enforcement
activities, including drug demand reduction activities
authorized by the law of the State and requested by the
Governor of the State; or
``(B) activities conducted in cooperation with personnel of
the Department of Homeland Security to secure the
international borders of the United States, including
constructing roads, fencing, and vehicle barriers, assisting
in search and rescue operations conducted by personnel of the
Department of Homeland Security, and monitoring international
borders, and excluding any law enforcement activities
conducted by personnel of the Department of Homeland
Security.''.
SEC. 104. DEPUTY BORDER PATROL AGENT PROGRAM.
(a) Authority to Establish.--The Secretary may establish a
Deputy Border Patrol Agent Program (in this section referred
to as the ``Program'') in the Office of Border Patrol.
(b) Purpose.--The purpose of the Program shall be to
establish a volunteer force of trained, retired law
enforcement officers to assist the Secretary in carrying out
the mission of the Department to achieve operational control
of the borders of the United States.
(c) Qualifications.--An individual may participate as a
volunteer in the Program only if such individual is a retired
law enforcement officer, who is or was previously licensed by
a Federal or State authority to enforce Federal, State, or
local penal offenses.
(d) Utilization of Volunteers.--The Secretary may utilize
an individual who participates as a volunteer in the Program
to provide such border security functions that the Secretary
determines are appropriate.
(e) Training and Other Requirements.--The Secretary may
require an individual who participates as a volunteer in the
Program to participate in such training, testing, and other
requirements that the Secretary determines are appropriate.
(f) Swearing In.--Upon completion of any training, testing,
or other procedures required by the Secretary, an individual
who participates in the Program shall be sworn in and
assigned to the Office of Border Patrol.
(g) Assignment of Volunteers.--The Secretary may assign
individuals participating in the Program to provide patrol
services at facilities and locations along the international
borders of the United States.
(h) Oversight of Agents.--The Secretary, acting through the
Commissioner of the Bureau of Customs and Border Protection
of the Department, shall have oversight of all individuals
participating in the Program. Such volunteers shall serve at
the pleasure of the Secretary, acting through the
Commissioner of the Bureau of Customs and Border Protection.
(i) Authorization of Appropriations.--There are authorized
to be appropriated $10,000,000 for each of the fiscal years
2007 through 2011 to carry out this section.
SEC. 105. DOCUMENT FRAUD DETECTION.
(a) Training.--The Secretary shall provide appropriate
officers of the Bureau of Customs and Border Protection of
the Department with training in identifying and detecting
fraudulent travel documents. Such training shall be developed
in consultation with the Forensic Document Laboratory of the
Bureau of Immigration and Customs Enforcement of such
Department.
(b) Forensic Document Laboratory.--The Secretary shall
provide all officers of the Bureau of Customs and Border
Protection with access to the Forensic Document Laboratory.
(c) Authorization of Appropriations.--There are authorized
to be appropriated $10,000,000 for each of the fiscal years
2007 through 2011 to carry out this section.
Subtitle B--Infrastructure
SEC. 111. MODERNIZATION OF BORDER INFRASTRUCTURE.
(a) Definitions.--In this section:
(1) Commissioner.--The term ``Commissioner'' means the
Commissioner of the Bureau of Customs and Border Protection
of the Department.
(2) Maquiladora.--The term ``maquiladora'' means an entity
located in Mexico that assembles and produces goods from
imported parts for export to the United States.
(3) Northern border.--The term ``northern border'' means
the international border between the United States and
Canada.
(4) Southern border.--The term ``southern border'' means
the international border between the United States and
Mexico.
(b) Border Technologies, Assets, and Construction.--
(1) Acquisition.--The Secretary shall procure technologies
necessary to support the mission of the Department to achieve
operational control of the international borders of the
United States. In determining what technologies to procure,
the Secretary shall consult with the Secretary of Defense and
the head of the National Laboratories and Technology Centers
of the Department of Energy.
(2) Construction of border control facilities.--The
Secretary shall construct roads, acquire vehicle barriers,
and construct fencing necessary to support such mission.
(3) Assets.--The Secretary shall acquire unmanned aerial
vehicles, police-type vehicles, helicopters, all terrain
vehicles, interoperable communications equipment, firearms,
sensors, cameras, lighting and such other equipment and
assets as may be necessary to support such mission.
(4) Facilities.--The Secretary shall construct such
facilities as may be necessary to support the number of
employees of the Department who are hired pursuant to any
provision of this Act or of subtitle B of title V of the
Intelligence Reform and Terrorism Prevention Act of 2004
(Public Law 108-458; 118 Stat. 3733).
(5) Checkpoints.--The Secretary may construct and maintain
temporary or permanent checkpoints on roadways located in
close proximity to the northern border or the southern border
to support such mission.
(c) Port of Entry Infrastructure Assessment Study.--
(1) Requirement to update.--In order to carry out the
mission of the Department to achieve operational control of
the international borders of the United States, not later
than January 31 of each year, the Administrator of General
Services shall update the Port of Entry Infrastructure
Assessment Study prepared by the United States Customs
Service, the Immigration and Naturalization Service, and the
General Services Administration in accordance with the matter
relating to the ports of entry infrastructure assessment that
is set out in the joint explanatory statement in the
conference report accompanying H.R. 2490 of the 106th
Congress, 1st session (House of Representatives Rep. No. 106-
319, page 67) and submit such updated study to Congress.
(2) Consultation.--In preparing the updated studies
required by paragraph (1), the Administrator of General
Services shall consult with the Director of the Office of
Management and Budget, the Secretary, and the Commissioner.
(3) Content.--Each updated study required by paragraph (1)
shall--
(A) identify port of entry infrastructure and technology
improvement projects that would enhance border security and
facilitate the flow of legitimate commerce if implemented;
(B) include the projects identified in the National Land
Border Security Plan required by subsection (d); and
[[Page S13178]]
(C) prioritize each project described in subparagraph (A)
or (B) based on the likelihood that the project will--
(i) fulfill immediate security requirements; and
(ii) facilitate trade across the borders of the United
States.
(4) Project implementation.--
(A) In general.--The Commissioner shall implement the
infrastructure and technology improvement projects described
in each updated study required by paragraph (1) in the order
of priority assigned to each project under paragraph (3)(C).
(B) Exception.--The Commissioner may diverge from the
priority order if the Commissioner determines that
significantly changed circumstances, such as immediate
security needs or changes in infrastructure in Mexico or
Canada, compellingly alter the need for a project in the
United States.
(d) National Land Border Security Plan.--
(1) Requirement for plan.--In order to carry out the
mission of the Department to achieve operational control of
the international borders of the United States, not later
than January 31 of each year, the Secretary shall prepare a
National Land Border Security Plan and submit such plan to
Congress.
(2) Consultation.--In preparing the plan required by
paragraph (1), the Secretary shall consult with the Under
Secretary for Information Analysis and Infrastructure
Protection and the Federal, State, and local law enforcement
agencies and private entities that are involved in
international trade across the northern border or the
southern border.
(3) Vulnerability assessment.--
(A) In general.--The plan required by paragraph (1) shall
include a vulnerability assessment of each port of entry
located on the northern border or the southern border.
(B) Port security coordinators.--The Secretary may
establish 1 or more port security coordinators at each port
of entry located on the northern border or the southern
border--
(i) to assist in conducting a vulnerability assessment at
such port; and
(ii) to provide other assistance with the preparation of
the plan required by paragraph (1).
(e) Expansion of Trade Security Programs.--
(1) Customs-trade partnership against terrorism.--
(A) In general.--Not later than 180 days after the date of
enactment of this Act, the Commissioner, in consultation with
the Secretary, shall develop a plan to expand the size and
scope (including personnel needs) of the Customs-Trade
Partnership Against Terrorism programs along the northern
border and southern border, including--
(i) the Business Anti-Smuggling Coalition;
(ii) the Carrier Initiative Program;
(iii) the Americas Counter Smuggling Initiative;
(iv) the Free and Secure Trade Initiative; and
(v) other Industry Partnership Programs administered by the
Commissioner.
(2) Maquiladora demonstration program.--Not later than 180
days after the date of enactment of this Act, the
Commissioner shall establish a demonstration program to
develop a cooperative trade security system with maquiladoras
to improve supply chain security.
(f) Port of Entry Technology Demonstration Program.--
(1) Establishment.--In order to carry out the mission of
the Department to achieve operational control of the
international borders of the United States, the Secretary
shall carry out a technology demonstration program to test
and evaluate new port of entry technologies, refine port of
entry technologies and operational concepts, and train
personnel under realistic conditions. The Commissioner of the
Bureau of Customs and Border Protection shall oversee the
program in consultation and cooperation with other divisions
of the Department.
(2) Technology and facilities.--
(A) Technology tested.--Under the demonstration program,
the Secretary shall test technologies that enhance port of
entry operations, including those related to inspections,
communications, port tracking, identification of persons and
cargo, sensory devices, personal detection, decision support,
and the detection and identification of weapons of mass
destruction.
(B) Facilities developed.--At a demonstration site selected
pursuant to paragraph (3)(B), the Secretary shall develop
facilities to provide appropriate training to law enforcement
personnel who have responsibility for border security,
including cross-training among agencies, advanced law
enforcement training, and equipment orientation.
(3) Demonstration sites.--
(A) Number.--The Secretary shall carry out the
demonstration program at not less than 3 sites and not more
than 5 sites.
(B) Selection criteria.--To ensure that at least 1 of the
facilities selected as a port of entry demonstration site for
the demonstration program has the most up-to-date design,
contains sufficient space to conduct the demonstration
program, has a traffic volume low enough to easily
incorporate new technologies without interrupting normal
processing activity, and can efficiently carry out
demonstration and port of entry operations, at least 1 port
of entry selected as a demonstration site shall--
(i) have been established not more than 15 years before the
date of enactment of this Act;
(ii) consist of not less than 65 acres, with the
possibility of expansion onto not less than 25 adjacent
acres; and
(iii) have serviced an average of not more than 50,000
vehicles per month in the 12 full months preceding the date
of enactment of this Act.
(4) Relationship with other agencies.--The Secretary shall
permit personnel from an appropriate Federal or State agency
to utilize a demonstration site described in paragraph (3) to
test technologies that enhance port of entry operations,
including those related to inspections, communications, port
tracking, identification of persons and cargo, sensory
devices, personal detection, decision support, and the
detection and identification of weapons of mass destruction.
(5) Report.--
(A) Requirement.--Not later than 1 year after the date of
enactment of this Act, and annually thereafter, the Secretary
shall submit to Congress a report on the activities carried
out at each demonstration site under the technology
demonstration program established under this subsection.
(B) Content.--Each report submitted pursuant to
subparagraph (A) shall include an assessment by the Secretary
of the feasibility of incorporating any demonstrated
technology for use throughout the Bureau of Customs and
Border Protection.
(g) Border Patrol Technology Demonstration Program.--
(1) Establishment.--In order to carry out the mission of
the Department to achieve operational control of the
international borders of the United States, the Secretary
shall carry out a technology demonstration program to test
and evaluate new border security technologies and train
personnel under realistic conditions.
(2) Technology and facilities.--
(A) Technology tested.--Under the demonstration program,
the Secretary shall test technologies that enhance border
security, including those related to communications, sensory
devices, personal detection, and decision support.
(B) Facilities development.--At a site where border patrol
agents participate in law enforcement training, the Secretary
shall develop facilities to carry out the demonstration
program, including providing appropriate training to law
enforcement personnel who have responsibility for border
security, including cross-training among agencies, advanced
law enforcement training, and equipment orientation.
(3) Relationship with other agencies.--The Secretary shall
permit personnel from an appropriate Federal or State agency
to utilize the demonstration site described in this
subsection to test technologies that enhance border security,
including those related to communications, sensory devices,
personal detection, and decision support.
(4) Report.--
(A) Requirement.--Not later than 1 year after the date of
enactment of this Act, and annually thereafter, the Secretary
shall submit to Congress a report on the activities carried
out at the demonstration site under the technology
demonstration program established under this subsection.
(B) Content.--Each report submitted pursuant to
subparagraph (A) shall include an assessment by the Secretary
of the feasibility of incorporating any demonstrated
technology for use throughout the Department.
(h) International Agreements.--Funds authorized in this Act
may be used for the implementation of projects described in
the Declaration on Embracing Technology and Cooperation to
Promote the Secure and Efficient Flow of People and Commerce
across our Shared Border between the United States and
Mexico, agreed to March 22, 2002, Monterrey, Mexico (commonly
known as the Border Partnership Action Plan) or the Smart
Border Declaration between the United States and Canada,
agreed to December 12, 2001, Ottawa, Canada that are
consistent with the provisions of this Act.
(i) Authorization of Appropriations.--There are authorized
to be appropriated the following:
(1) For each of the fiscal years 2007 through 2011,
$1,000,000,000 to carry out subsection (b).
(2) For each of the fiscal years 2007 through 2011, such
sums as may be necessary to carry out paragraph (1) of
subsection (c).
(3) For each of the fiscal years 2007 through 2011,
$100,000,000 to carry out paragraph (4) of subsection (c).
(4) For each of the fiscal years 2007 through 2011, such
sums as may be necessary to carry out subsection (d).
(5)(A) For fiscal year 2007, $30,000,000 to carry out
paragraph (1) of subsection (e); and
(B) For each of the fiscal years 2008 through 2011, such
sums as may be necessary to carry out such paragraph.
(6)(A) For fiscal year 2007, $5,000,000 to carry out
paragraph (2) of subsection (e); and
(B) For each of the fiscal years 2008 through 2011, such
sums as may be necessary to carry out such paragraph.
(7)(A) For fiscal year 2007, $50,000,000 to carry out
subsection (f), and not more than $10,000,000 of such amount
may be expended for technology demonstration program
activities at any 1 port of entry demonstration site during
such fiscal year.
(B) For each of the fiscal years 2008 through 2011, such
sums as may be necessary to carry out subsection (f), and not
more
[[Page S13179]]
than $10,000,000 may be expended for technology demonstration
program activities at any 1 port of entry demonstration site
in any such fiscal year.
(8) For each of the fiscal years 2007 through 2011,
$10,000,000 to carry out subsection (g).
SEC. 112. DETENTION SPACE AND REMOVAL CAPACITY.
Section 5204(a) of the Intelligence Reform and Terrorism
Protection Act of 2004 (Public Law 108-458; 118 Stat. 3734)
is amended by striking ``8,000'' and inserting ``15,000''.
SEC. 113. INCREASE OF FEDERAL DETENTION SPACE AND THE
UTILIZATION OF FEDERAL FACILITIES IDENTIFIED
FOR CLOSURE.
(a) Construction or Acquisition of Detention Facilities.--
(1) In general.--The Secretary shall construct or acquire
additional detention facilities in the United States.
(2) Determination of location.--The location of any
detention facility built or acquired in accordance with this
subsection shall be determined by the Deputy Assistant
Director of the Office of Detention and Removal Operations
within the Bureau of Immigration and Customs Enforcement of
the Department.
(3) Use of federal facilities identified for closure.--In
acquiring detention facilities under this subsection, the
Secretary shall, to the maximum extent practical, request the
transfer of appropriate portions of military installations
approved for closure or realignment and any other Federal
facilities identified for closure.
(b) Authorization of Appropriations.--There are authorized
to be appropriated such sums as may be necessary to carry out
this section.
SEC. 114. ALTERNATIVES TO DETENTION.
The Secretary shall implement demonstration programs in
each State located along the international border between the
United States and Canada or along the international border
between the United States and Mexico to study the
effectiveness of alternatives to the detention of aliens,
including electronic monitoring devices and intensive
supervision programs, that ensure that alien's appearance at
court and compliance with removal orders.
Subtitle C--Grants for States
SEC. 121. BORDER LAW ENFORCEMENT GRANTS.
(a) Law Enforcement Agency Defined.--In this section, the
term ``law enforcement agency'' means a Tribal, State, or
local law enforcement agency.
(b) Authority to Award Grants.--The Secretary is authorized
to award grants to an eligible law enforcement agency to
provide assistance with costs associated with State border
security efforts, including efforts to combat criminal
activity that occurs in the jurisdiction of such agency by
virtue of such agency's proximity to an international border
of the United States.
(c) Criteria.--The Secretary shall award grants under
subsection (b) on a competitive basis, considering criteria
including--
(1) the law enforcement agency's distance from the
international border, with communities closer to the border
given priority because of their proximity;
(2) population, with smaller communities given priority;
(3) the criminal caseload of the law enforcement agency,
based upon the number of felony criminal cases filed per
judge in the United States district court located in the
district that the law enforcement agency has jurisdiction
over, with priority given to those with higher caseloads;
(4) the percentage of undocumented aliens residing in the
law enforcement agency's State compared to the total number
of such aliens residing in all States, based on the most
recent decennial census; and
(5) the percentage of undocumented alien apprehensions in
the law enforcement agency's State in that fiscal year
compared to the total of such apprehensions for all such
States for that fiscal year.
(d) Use of Funds.--Grants awarded under subsection (b)
shall be used to provide additional resources for a law
enforcement agency to address criminal activity occurring
near an international border of the United States,
including--
(1) law enforcement technologies;
(2) equipment such as police-type vehicles, all terrain
vehicles, firearms, sensors, cameras, and lighting; and
(3) such other resources as are available to assist the law
enforcement agency.
(e) Application.--The head of a law enforcement agency
seeking to apply for a grant under this section shall submit
an application to the Secretary at such time, in such manner,
and with such information as the Secretary may require.
(f) Authorization of Appropriations.--There are authorized
to be appropriated $500,000,000 for each of the fiscal years
2007 through 2011 to carry out this section.
TITLE II--IMMIGRATION PROVISIONS
SEC. 201. EXPEDITED REMOVAL BETWEEN PORTS OF ENTRY.
(a) In General.--Section 235 of the Immigration and
Nationality Act (8 U.S.C. 1225) is amended--
(1) in subsection (b)(1)(A)(i), by striking ``the officer''
and inserting ``a supervisory officer''; and
(2) in subsection (c), by adding at the end the following:
``(4) Expansion.--The Secretary of Homeland Security shall
make the expedited removal procedures under this subsection
available in all border patrol sectors on the southern border
of the United States as soon as operationally possible.
``(5) Training.--The Secretary of Homeland Security shall
provide employees of the Department of Homeland Security with
comprehensive training on the procedures authorized under
this subsection.''.
(b) Authorization of Appropriations.--There are authorized
to be appropriated $20,000,000 for each of fiscal years 2007
through 2011 to carry out the amendments made by this
section.
SEC. 202. CANCELLATION OF VISAS.
Section 222(g) of the Immigration and Nationality Act (8
U.S.C. 1202(g)) is amended--
(1) in paragraph (1), by inserting ``and any other
nonimmigrant visa issued by the United States that is in the
possession of the alien'' after ``such visa''; and
(2) in paragraph (2)(A), by striking ``(other than the visa
described in paragraph (1)) issued in a consular office
located in the country of the aliens nationality'' and
inserting ``(other than a visa described in paragraph (1))
issued in a consular office located in the country of the
aliens nationality or foreign residence''.
SEC. 203. BIOMETRIC ENTRY-EXIT SYSTEM.
(a) Grounds of Inadmissibility.--Section 212 of the
Immigration and Nationality Act (8 U.S.C. 1182) is amended--
(1) in subsection (a)(7), by adding at the end the
following:
``(C) Withholders of biometric data.--Any alien who fails
to comply with a lawful request for biometric data is
inadmissible.''; and
(2) in subsection (d), by inserting after paragraph (1) the
following:
``(2) The Secretary of Homeland Security may waive the
application of subparagraph (C) of subsection (a)(7) for an
individual alien or a class of aliens, at the discretion of
the Secretary.''.
(b) Collection of Biometric Data From Aliens Departing the
United States.--Section 215 of the Immigration and
Nationality Act (8 U.S.C. 1185) is amended--
(1) by redesignating subsection (c) as subsection (g); and
(2) by inserting after subsection (b) the following:
``(c) The Secretary of Homeland Security is authorized to
require aliens departing the United States to provide
biometric data and other information relating to their
immigration status.''.
(c) Inspection of Applicants for Admission.--Section 235(d)
of the Immigration and Nationality Act (8 U.S.C. 1185(d)) is
amended by adding at the end the following:
``(5) Authority to collect biometric data.--In conducting
inspections under subsection (b), immigration officers are
authorized to collect biometric data from--
``(A) any applicant for admission or alien seeking to
transit through the United States; or
``(B) any lawful permanent resident who is--
``(i) entering the United States; and
``(ii) not regarded as seeking an admission into the United
States pursuant to section 101(a)(13)(C).''.
(d) Collection of Biometric Data From Alien Crewman.--
Section 252 of the Immigration and Nationality Act (8 U.S.C.
1282) is amended by inserting ``Immigration officers are
authorized to collect biometric data from any alien crewman
seeking permission to land temporarily in the United
States.'' after ``this title''.
(e) Implementation.--Section 7208 of the 9/11 Commission
Implementation Act of 2004 (8 U.S.C. 1365b) is amended in
subsection (l)--
(1) by striking ``There are authorized'' and inserting the
following:
``(1) In general.--There are authorized''; and
(2) by adding at the end the following:
``(2) Implementation at all land border ports of entry.--
There are authorized to be appropriated such sums as may be
necessary for each of fiscal years 2008, 2009, and 2010 to
implement the automated biometric entry and exit data system
at all land border ports of entry.''.
SEC. 204. REIMBURSEMENT FOR STATES.
(a) Incarceration Costs.--Section 241(i)(5) of the
Immigration and Nationality Act (8 U.S.C. 1231(i)(5)) is
amended to read as follows:
``(5) There are authorized to be appropriated to carry out
this subsection--
``(A) $750,000,000 for fiscal year 2007;
``(B) $850,000,000 for fiscal year 2008; and
``(C) $950,000,000 for each of the fiscal years 2009
through 2011.''.
(b) Reimbursement for Costs Associated With Processing
Criminal Illegal Aliens.--
(1) In general.--The Secretary shall reimburse States and
units of local government for costs associated with
processing illegal aliens through the criminal justice
system, including--
(A) indigent defense;
(B) criminal prosecution;
(C) autopsies;
(D) translators and interpreters; and
(E) courts costs.
(2) Authorization of appropriations.--There are authorized
to be appropriated $500,000,000 for each of the fiscal years
2007 through 2011 to carry out paragraph (1).
SEC. 205. COMPLETION OF BACKGROUND AND SECURITY CHECKS.
Section 103 of the Immigration and Nationality Act (8
U.S.C. 1103) is amended by adding at the end the following:
``(i) Notwithstanding any other provision of law, the
Secretary of Homeland Security,
[[Page S13180]]
the Attorney General, or any court may not--
``(1) grant or order the grant of adjustment of status to
that of an alien lawfully admitted for permanent residence;
``(2) grant or order the grant of any other status, relief,
protection from removal, or other benefit under the
immigration laws; or
``(3) issue any documentation evidencing or related to such
grant by the Attorney General, the Secretary, or any court,
until such background and security checks as the Secretary
may in his discretion require have been completed to the
satisfaction of the Secretary.''.
SEC. 206. RELEASE OF ALIENS FROM NONCONTIGUOUS COUNTRIES.
Section 236(a)(2) of the Immigration and Nationality Act (8
U.S.C. 1226(a)(2)) is amended to read as follows:
``(2) may release the alien on bond of not less than $5,000
with security approved by, and containing conditions
prescribed by, the Secretary of Homeland Security; but''.
SEC. 207. COUNTRIES THAT DO NOT ACCEPT RETURN OF NATIONALS.
Section 243(d) of the Immigration and Nationality Act (8
U.S.C. 1253(d)) is amended--
(1) by striking ``On being notified'' and inserting the
following:
``(1) In general.--Upon notification''; and
(2) by striking ``Attorney General'' each place it appears
and inserting ``Secretary of Homeland Security''; and
(3) by adding at the end the following:
``(2) Denial of admission.--The Secretary of Homeland
Security, after making a determination that the government of
a foreign country has denied or unreasonably delayed
accepting an alien who is a citizen, subject, national, or
resident of that country after the alien has been ordered
removed, and after consultation with the Secretary of State,
may deny admission to any citizen, subject, national or
resident of that country until the country accepts the alien
that was ordered removed.''.
TITLE III--PENALTIES
SEC. 301. INCREASED CRIMINAL PENALTIES FOR ALIEN SMUGGLING.
Section 274(a) of the Immigration and Nationality Act (8
U.S.C. 1324(a)) is amended--
(1) in paragraph (1)(B)--
(A) in clause (i), by striking ``10 years'' and inserting
``15 years'';
(B) in clause (ii), by striking ``5 years'' and inserting
``10 years''; and
(C) in clause (iii), by striking ``20 years'' and inserting
``40 years'';
(2) in paragraph (2)--
(A) in subparagraph (A), by striking ``one year, or both;
or'' and inserting ``3 years, or both'';
(B) in subparagraph (B)--
(i) in clause (i), by adding at the end the following: ``be
fined under title 18, United States Code, and imprisoned not
less than 5 years nor more than 25 years;'';
(ii) in clause (ii), by striking ``or'' at the end and
inserting the following: ``be fined under title 18, United
States Code, and imprisoned not less than 3 years nor more
than 20 years; or''; and
(iii) in clause (iii), by adding at the end the following:
``be fined under title 18, United States Code, and imprisoned
not more than 15 years; or''; and
(C) by striking the matter following clause (iii) and
inserting the following:
``(C) in the case of a third or subsequent offense
described in subparagraph (B) and for any other violation,
shall be fined under title 18, United States Code, and
imprisoned not less than 5 years nor more than 15 years.'';
(3) in paragraph (3)(A), by striking ``5 years'' and
inserting ``10 years''; and
(4) in paragraph (4), by striking ``10 years'' and
inserting ``20 years''.
SEC. 302. INCREASED CRIMINAL PENALTIES FOR DOCUMENT FRAUD.
Section 1546 of title 18, United States Code, is amended--
(1) in subsection (a)--
(A) by striking ``not more than 25 years'' and inserting
``not less than 25 years'';
(B) by inserting ``and if the terrorism offense resulted in
the death of any person, shall be punished by death or
imprisoned for life,'' after ``section 2331 of this
title)),'';
(C) by striking ``20 years'' and inserting ``imprisoned not
more than 40 years'';
(D) by striking ``10 years'' and inserting ``imprisoned not
more than 20 years''; and
(E) by striking ``15 years'' and inserting ``imprisoned not
more than 30 years''; and
(2) in subsection (b), by striking ``5 years'' and
inserting ``10 years''.
SEC. 303. INCREASED CRIMINAL PENALTIES FOR CERTAIN CRIMES.
(1) In general.--Title 18, United States Code, is amended
by inserting after chapter 51 the following:
``CHAPTER 52--ILLEGAL ALIENS
``SEC. 1131. ENHANCED PENALTIES FOR CERTAIN CRIMES COMMITTED
BY ILLEGAL ALIENS.
``(a) Any alien unlawfully present in the United States,
who commits, or conspires or attempts to commit, a crime of
violence or a drug trafficking offense (as defined in section
924), shall be fined under this title and sentenced to not
less than 5 years in prison.
``(b) If an alien who violates subsection (a) was
previously ordered removed under the Immigration and
Nationality Act (8 U.S.C. 1101 et seq.) on the grounds of
having committed a crime, the alien shall be sentenced to not
less than 15 years in prison.
``(c) A sentence of imprisonment imposed under this section
shall run consecutively to any other sentence of imprisonment
imposed for any other crime.''.
(2) Clerical amendment.--The table of chapters at the
beginning of part I of title 18, United States Code, is
amended by inserting after the item relating to chapter 51
the following:
52. Illegal aliens.................................................1131
SEC. 304. INCREASED CRIMINAL PENALTIES FOR CRIMINAL STREET
GANGS.
(a) Inadmissibility.--Section 212(a)(2) of the Immigration
and Nationality Act (8 U.S.C. 1182(a)(2)) is amended--
(1) by redesignating subparagraph (F) as subparagraph (J);
and
(2) by inserting after subparagraph (E) the following:
``(F) Aliens who are members of criminal street gangs.--Any
alien who is determined by a court to be a member of a
criminal street gang (as defined in section 521(a) of title
18, United States Code) is inadmissible.''.
(b) Deportability.--Section 237(a)(2) of the Immigration
and Nationality Act (8 U.S.C. 1227(a)(2)) is amended by
adding at the end the following:
``(F) Aliens who are members of criminal street gangs.--Any
alien who is determined by a court to be a member of a
criminal street gang (as defined in section 521(a) of title
18, United States Code) is deportable.''.
(c) Temporary Protected Status.--Section 244(c)(2)(B) of
the Immigration and Nationality Act (8 U.S.C. 1254a(c)(2)(B))
is amended--
(1) in clause (i), by striking ``or'' at the end;
(2) in clause (ii), by striking the period at the end and
inserting ``; or''; and
(3) by adding at the end the following:
``(iii) the alien is determined by a court to be a member
of a criminal street gang (as defined in section 521(a) of
title 18, United States Code).''.
TITLE IV--REMOVAL AND VIOLATION TRACKING
SEC. 401. INSTITUTIONAL REMOVAL PROGRAM.
(a) Institutional Removal Program.--
(1) Continuation.--The Secretary shall continue to operate
the Institutional Removal Program of the Department to--
(A) identify removable criminal aliens in Federal and State
correctional facilities;
(B) ensure that such aliens are not released into the
community; and
(C) remove such aliens from the United States after the
completion of their sentences.
(2) Expansion.--Not later than 5 years after the date of
the enactment of this Act, the Secretary shall expand the
Institutional Removal Program to every State.
(3) State participation.--The appropriate officials of each
State in which the Secretary is operating the Institutional
Removal Program should--
(A) cooperate with Federal officials carrying out the
Institutional Removal Program;
(B) expeditiously and systematically identify criminal
aliens in the prison and jail populations of the State; and
(C) promptly convey the information described in
subparagraph (B) to the appropriate officials carrying out
the Institutional Removal Program.
(b) Report to Congress.--Not later than 2 years after of
the date of the enactment of this Act, the Secretary shall
submit a report to Congress on the participation of the
States in the Institutional Removal Program.
(c) Authorization of Appropriations.--There are authorized
to be appropriated $50,000,000 to carry out the expanded
Institutional Removal Program authorized under subsection
(a).
SEC. 402. AUTHORIZATION FOR DETENTION AFTER COMPLETION OF
STATE OR LOCAL PRISON SENTENCE.
(a) In General.--Law enforcement officers of a State or
political subdivision of a State are authorized to--
(1) hold an illegal alien for a period of up to 14 days
after the alien has completed the alien's State or local
prison sentence in order to effectuate the transfer of the
alien to Federal custody when the alien is removable or not
lawfully present in the United States; or
(2) issue a detainer that would allow aliens who have
served a State or local prison sentence to be detained by an
appropriate prison until personnel from the Bureau of
Immigration and Customs Enforcement can take the alien into
Federal custody.
(b) Reimbursement.--
(1) In general.--The Secretary shall reimburse a State or a
political subdivision of a State for all reasonable expenses
incurred by the State or the political subdivision for the
detention of an alien as described in subsection (a).
(2) Cost computation.--The amount of reimbursement provided
for costs incurred carrying out subsection (a) shall be
determined pursuant to a formula determined by the Secretary.
(c) Technology Usage.--Technology such as videoconferencing
shall be used to the maximum extent possible in order to make
the Institutional Removal Program available in remote
locations. Mobile access to Federal databases of aliens and
live scan technology shall be used to the maximum extent
practicable in order to make these resources available to
State and local law enforcement agencies in remote locations.
(d) Authorization of Appropriations.--There are authorized
to be appropriated such sums as may be necessary to reimburse
a
[[Page S13181]]
State or political subdivision of a State for the detention
of an illegal alien pursuant to subsection (b).
SEC. 403. USE OF THE NATIONAL CRIME INFORMATION CENTER
DATABASE TO TRACK VIOLATIONS OF IMMIGRATION
LAW.
(a) Provision of Information to the National Crime
Information Center.--
(1) In general.--Not later than 1 year after the date of
enactment of this Act, the Secretary shall provide the
National Crime Information Center of the Department of
Justice with such information as the Director may have
related to--
(A) any alien against whom a final order of removal has
been issued;
(B) any alien who is subject to a voluntary departure
agreement that has become invalid under section 240B(a)(2) of
the Immigration and Nationality Act (8 U.S.C. 1229c); and
(C) any alien whose visa has been revoked.
(2) Requirement to provide and use information.--The
information described in paragraph (1) shall be provided to
the National Crime Information Center, and the Center shall
enter the information into the Immigration Violators File of
the National Crime Information Center database if the name
and date of birth are available for the individual,
regardless of whether the alien received notice of a final
order of removal or the alien has already been removed.
(3) Removal of information.--Should an individual be
granted cancellation of removal under section 240A of the
Immigration and Nationality Act (8 U.S.C. 1229b), or granted
permission to legally enter the United States pursuant to the
Immigration and Nationality Act after a voluntary departure
under section 240B of the Immigration and Nationality Act (8
U.S.C. 1229c), information entered into the National Crime
Information Center in accordance with paragraph (1) of this
section shall be promptly removed.
(b) Inclusion of Information in the National Crime
Information Center Database.--Section 534(a) of title 28,
United States Code, is amended--
(1) in paragraph (3), by striking ``and'' at the end;
(2) by redesignating paragraph (4) as paragraph (5); and
(3) by inserting after paragraph (3) the following new
paragraph:
``(4) acquire, collect, classify, and preserve records of
violations of the immigration laws of the United States,
regardless of whether the alien has received notice of the
violation or the alien has already been removed; and''.
Mr. DORGAN. Mr. President, I am pleased to join Senator Domenici in
introducing the Border Security and Modernization Act of 2005.
Senator Domenici and I represent border States, but the bill we are
introducing today is not one of merely regional importance. Border
security is an issue that affects our country as a whole. We cannot
have homeland security without strong and effective border security.
The Administration has signaled that it wants to have a vigorous
debate on border security and immigration issue early next year. Our
bill does not attempt to change immigration law, but it squarely
addresses the border security issue.
I began working on border security long before the attacks of
September 11, 2001. The Northern border is over 4,000 miles long. In
the past, almost all of our resources in this country were targeted at
the Southern border. It used to be that we had ports of entry at the
Northern border where, at night, the only barrier was an orange rubber
cone in the middle of the road. The polite people crossing at night
actually stopped and removed the cone before they came across the
border. Those who were not so polite would run over it at 60 miles an
hour.
In 2001, before the September 11 attacks, I proposed something called
the Northern Border Initiative. That bill added hundreds of Customs
officers to the Northern border, and it became law. I also worked to
replace the orange cones with hardened gates. But we clearly have to do
much more.
The legislation we are introducing today, which Senator Domenici has
described in detail, would devote significant new resources to our
border security. Among other things, this legislation would authorize
the hiring of an additional 1,000 Customs and Border Protection
inspectors and Immigration and Customs Enforcement officers a year for
the next five years. It would authorize the Department of Homeland
Security to work with States to use National Guard and a volunteer
force of retired law enforcement officers as resources to help monitor
the borders. And it would have the Federal Government reimburse State
governments for the cost of detaining undocumented aliens while
decisions are made regarding possible deportation.
This bipartisan proposal is not about immigration. It's about border
security. We need to do a better job of securing our borders, and we
need to do so on an urgent basis. We hope our colleagues will join us,
on a bipartisan basis, in supporting this legislation.
______
By Ms. SNOWE (for herself and Ms. Cantwell):
S. 2050. A bill to establish a commission on inland waters policy; to
the Committee on Commerce, Science, and Transportation.
I rise today to introduce legislation that creates a national
commission on island waters policy to support the long-term
sustainability of our water resources. A 2001 National Academy of
Sciences report found that U.S. Federal policies and research lack the
coordination necessary to respond to increasing future demands. The
overarching goal of this legislation is to recommend actions that will
better coordinate and improve the Federal Government's water management
policies, similar to the U.S. Commission on Ocean Policy, PL 106-256.
My legislation is supported by the American Society of Limnology and
Oceanography, ASLO, and the Council of Scientific Society Presidents,
CSSP, representing 1.4 million scientists and science educators. I
especially want to thank Dr. Peter Jumars of the School of Marine
Sciences at University of Maine at Orono and Darling Marine Center and
immediate past president of ASLO, for all of his extensive knowledge
and assistance that helped craft the legislation.
The bill creates a commission to study the Nation's policies for
inland waters--a category that would include all lakes, streams,
rivers, groundwaters, estuaries, and fresh- and salt water wetlands.
The stewardship of these resources is essential to human health, the
ecosystem, the economy, agriculture, energy production, and the
transportation sector.
The National Academy of Sciences, NAS, issued a report in 2001
describing that water resources of the United States will be subjected
to more intense and a broader array of pressures in the 21st century.
It found that U.S. Federal policies and research lack the coordination
necessary to respond to increasing future demands. An inland waters
policy commission should be viewed as an attempt to make sure our
Nation's clean water laws are achieving what Congress mandated. Water
policies have been very contentious in many parts of the Nation and
have oftentimes pitted people and their livelihoods against
preservation concerns. Only by developing greater water research and
coordinating a comprehensive national policy will the conflict between
anthropogenic needs and water preservation be overcome.
Mr. Chairman, in April of this year, the GAO published a report with
findings that the administration is not addressing the study of water
resources, agriculture, energy, biological diversity and other areas in
relation to climate change as mandated under the Global Change Research
Act. None of those topics has been addressed in 21 studies that the
Bush administration plans to publish by September 2007, the GAO report
found, even though fairly robust climate models are now making
predictions about changes in rainfall globally and nationally as the
climate changes. Water policy currently has no intelligent mechanism
for using this information. The GAO report points out that a
comprehensive study of the Nation's water resources is needed.
The bill authorizes an appropriation of $8.5 million until expended.
By comparison, the U.S. Commission on Ocean Policy appropriation was
set at a total of up to $6 million for fiscal years 2001 and 2002.
I hope my colleagues will take a close look at this legislation and
see the great value in supporting the long-term sustainability of our
Nation's water resources.
I thank the Chair.
______
By Mr. AKAKA (for himself and Mr. Inouye):
S. 2051. A bill to extend eligibility for certain Federal benefits to
citizens of the Freely Associated States; to the Committee on Finance.
Mr. AKAKA. Mr. President, I rise today to introduce legislation with
my senior colleague from Hawaii, Senator Dan Inouye, to provide certain
Federal
[[Page S13182]]
public benefits for citizens of the Freely Associated State, FAS, who
are residing in the United States. The bill would provide eligibility
for nonemergency Medicaid, Food Stamps, Temporary Assistance to Needy
Families, TANF, and Supplemental Security Income, SSI, to FAS citizens
residing in the United States.
Citizens from the FAS are from the Republic of the Marshall Islands,
RMI, Federated States of Micronesia, FSM, and the Republic of Palau,
which are jurisdictions that have a unique political relationship with
the United States. The Compact of Free Association established these
nations as sovereign states responsible for their own foreign policies.
However, the FAS remain dependent upon the United States for military
protection and economic assistance.
Under the compact, the United States has the right to reject the
strategic use of, or military access to, the FAS by other countries,
which is often referred to as the ``right of strategic denial.'' In
addition, the U.S. may block FAS government policies that it deems
inconsistent with its duty to defend the FAS, which is referred to as
the ``defense veto.'' The compact also states that the United States
has exclusive military base rights in the FAS.
In exchange for these prerogatives, the United States is required to
support the FAS economically, with the goal of producing self-
sufficiency, and FAS citizens are allowed free entry into the United
States as nonimmigrants for the purposes of education, medical
treatment, and employment. Many FAS citizens reside in the State of
Hawaii. Since 1997, when Hawaii began reporting its impact costs, the
State has identified more than $140 million in costs associated with
FAS citizens. In 2002, the State of Hawaii expended more than $32
million in assistance to FAS citizens. P.L. 108-188, the Compact of
Free Association Amendments Act of 2003, provides $30 million in annual
funding for compact impact assistance to be shared between the State of
Hawaii, Guam, the Commonwealth of the Northern Mariana Islands, CNMI,
and American Samoa. While this funding is a positive step forward, it
does not begin to reimburse the affected jurisdictions for the costs
associated with FAS citizens.
This legislation would provide assistance to states and territories
that shoulder the majority of the costs associated with the compact.
The Federal Government must provide appropriate resources to help
States meet the needs of the FAS citizens--an obligation based on a
Federal commitment. It is unconscionable for a State or territory to
shoulder the entire financial burden of providing necessary
educational, medical, and social services to individuals who are
residing in that State or territory when the obligation is that of the
Federal Government. For that reason, we are seeking to provide
reimbursement of these costs. It is time for the Federal Government to
take up some of the financial responsibility that until now has been
carried by the State of Hawaii, CNMI, Guam, and American Samoa by
restoring public benefits to FAS citizens.
This bill would restore eligibility of FAS citizens for nonemergency
Medicaid. FAS citizens lost many of their public benefits as a result
of the Personal Responsibility and Work Opportunity, PRWORA, Act of
1996, including Medicaid coverage. FAS citizens were previously
eligible for Medicaid as aliens permanently residing under color of law
in the United States.
After the enactment of welfare reform, the State of Hawaii could no
longer claim Federal matching funds for services rendered to FAS
citizens. Yet the State of Hawaii, Guam, American Samoa, and the CNMI
have continued to meet the health care needs of FAS citizens. The State
of Hawaii has used its resources to provide Medicaid services to FAS
citizens.
In 2003 alone, the State spent approximately $9.77 million to provide
Medicaid services without receiving any federal matching funds. This
represents a dramatic increase from $6.75 million in State fiscal year
2002. Furthermore, the trend in the need for health care services among
FAS citizens continues to rise. During fiscal year 2004, the number of
individuals served in the State of Hawaii's Medicaid program grew from
3,291 to 4,818 people based on the average monthly enrollment. This is
an increase of 46 percent.
This bill would also provide eligibility for FAS citizens residing in
the United States to participate in the Temporary Assistance for Needy
Families and Supplemental Security Income programs. According to
Hawaii's attorney general, financial assistance in the form of the
Temporary Assistance to Other Needy Families, TAONF, Program, a State
program, provided $5.1 million to FAS citizens in State fiscal year
2003. This continues an upward trend from $4.5 million in State fiscal
year 2002. This total includes funds that go to the General Assistance
Program, which supports individuals and couples with little or no
income and who have a temporary, incapacitating medical condition; the
aged, blind, and disabled program for FAS citizens with little or no
income who are not eligible for federally-funded Supplemental Security
Income; and the State's TAONF Program that assists other needy families
who are not eligible for federal-funding under the Temporary Assistance
to Needy Families program. The financial assistance that the State of
Hawaii provides to FAS citizens in the form of TAONF is a great support
to those families attempting to achieve economic stability, but it has
a significant financial impact on the State's budget.
The bill would also provide eligibility for the Food Stamp Program.
Mr. President, the Food Stamp Program serves as the first line of
defense against hunger. It is the cornerstone of the Federal food
assistance program and provides crucial support to needy households and
those making the transition from welfare to work. We have partially
addressed the complicated issue of alien eligibility for public
benefits such as food stamps, but again, I must say it is just partial.
Not only should all legal immigrants receive these benefits, but so
should citizens of the FAS. Exclusion of FAS citizens from Federal,
State, or local public benefits or programs is an unintended and
misguided consequence of the welfare reform law. We allow certain legal
immigrants eligibility in the program. Yet FAS citizens, who are not
considered immigrants but who are required to up for the Selective
Service if they are residing in the United States are ineligible to
receiving food stamps. This bill corrects this inequity.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record. I also ask unanimous consent that a letter of
support I received last week from Director Lillian Koller of the State
of Hawaii, Department of Human Services be printed in the Record.
I look forward to working with my colleagues to enact this measure
which is of critical importance to my State of Hawaii, which has borne
the costs of these benefits for FAS citizens living in Hawaii for the
past 19 years.
There being no objection, the materials were ordered to be printed in
the Record, as follows:
S. 2051
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. EXCEPTION FOR CITIZENS OF FREELY ASSOCIATED
STATES.
(a) In General.--Section 402(a)(2) of the Personal
Responsibility and Work Opportunity Reconciliation Act of
1996 (8 U.S.C. 1612(a)(2)) is amended by adding at the end
the following:
``(M) Exception for citizens of freely associated states.--
With respect to eligibility for benefits for the specified
Federal programs described in paragraph (3), paragraph (1)
shall not apply to any individual who lawfully resides in the
United States (including territories and possessions of the
United States) in accordance with--
``(i) section 141 of the Compact of Free Association
between the Government of the United States and the
Government of the Federated States of Micronesia, approved by
Congress in the Compact of Free Association Amendments Act of
2003;
``(ii) section 141 of the Compact of Free Association
between the Government of the United States and the
Government of the Republic of the Marshall Islands, approved
by Congress in the Compact of Free Association Amendments Act
of 2003; or
``(iii) section 141 of the Compact of Free Association
between the Government of the United States and the
Government of Palau, approved by Congress in Public Law 99-
658 (100 Stat. 3672).''.
(b) Medicaid and TANF Exceptions.--Section 402(b)(2) of the
Personal Responsibility and Work Opportunity Reconciliation
Act of 1996 (8 U.S.C. 1612(b)(2)) is amended by adding at the
end the following:
[[Page S13183]]
``(G) Medicaid and tanf exceptions for citizens of freely
associated states.--With respect to eligibility for benefits
for the programs defined in subparagraphs (A) and (C) of
paragraph (3) (relating to temporary assistance for needy
families and medicaid), paragraph (1) shall not apply to any
individual who lawfully resides in the United States
(including territories and possessions of the United States)
in accordance with a Compact of Free Association referred to
in subsection (a)(2)(M).''.
(c) Qualified Alien.--Section 431(b) of the Personal
Responsibility and Work Opportunity Reconciliation Act of
1996 (8 U.S.C. 1641(b)) is amended--
(1) in paragraph (6), by striking ``or'' at the end;
(2) in paragraph (7), by striking the period at the end and
inserting ``; or''; and
(3) by adding at the end the following:
``(8) an individual who lawfully resides in the United
States (including territories and possessions of the United
States) in accordance with a Compact of Free Association
referred to in section 402(a)(2)(M).''.
(d) Conforming Amendment.--Section 1108 of the Social
Security Act (42 U.S.C. 1308) is amended--
(1) in subsection (f), in the matter preceding paragraph
(1), by striking ``subsection (g)'' and inserting
``subsections (g) and (h)''; and
(2) by adding at the end the following:
``(h) The limitations of subsections (f) and (g) shall not
apply with respect to medical assistance provided to an
individual described in section 431(b)(8) of the Personal
Responsibility and Work Opportunity Reconciliation Act of
1996.''.
(e) Effective Date.--The amendments made by this Act take
effect on the date of enactment of this Act and apply to
benefits and assistance provided on or after that date.
____
State of Hawaii,
Department of Human Services,
Honolulu, HI, November 9, 2005.
Sen. Daniel K. Akaka,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Dear Senator Akaka, I am writing in support of your
legislation to reinstate eligibility for Compact migrants
from the Freely Associated States for various Federal
programs, including Temporary Assistance for Needy Families
(TANF), Supplemental Security Income (SSI), Food Stamps, and
Medicaid. As you know, ``Compact migrants'' refers to those
who have relocated to Hawaii from the Republic of Palau, the
Federated States of Micronesia, and the Republic of the
Marshall Islands. As you know, a high percentage of the
Compact migrant population are poorly educated and live in
poverty, and are thus part of the additional demand on the
already strained social support systems of the State.
The Department of Human Services is the lead agency that
administers social safety net programs for individuals and
families in Hawaii. The amount of State resources that is
being expended to care for Compact migrants has been steadily
increasing as the number of migrants continues to grow. The
costs to the State cannot be measured in the numbers of
migrants alone. What is not reflected in the numbers of
migrants alone, is that many of these migrants come to Hawaii
with serious medical conditions that require costly intensive
and extensive services. In 2004, the Department of Human
Services alone spent over $26.6 million to provide services
to over 10,800 migrants in our financial assistance, medical
assistance, vocational rehabilitation, and youth services
programs.
Allowing Compact migrants to be served with Federal funds
under the TANF, SSI, Food Stamps, and Medicaid programs would
tremendously assist the State of Hawaii. I appreciate your
leadership in this area and look forward to continuing to
work with you on your legislative efforts to assist Compact
migrants in Hawaii.
Sincerely,
Lillian B. Koller, Esq.
Director.
____________________