Congressional Record, Volume 153 Issue 6 (Thursday, January 11, 2007)

[Congressional Record Volume 153, Number 6 (Thursday, January 11, 2007)]
[Senate]
[Pages S446-S464]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mrs. FEINSTEIN (for herself, Mr. Graham, Mr. Biden, and Mr.
Alexander):
S. 256. A bill to harmonize rate setting standards for copyright
licenses under section 112 and 114 of title 17, United States Code, and
for other purposes; to the Committee on the Judiciary.
Mrs. FEINSTEIN. Mr. President, today I am pleased to introduce the
Platform Equality and Remedies for Rights-holders in Music Act along
with Senators Graham, Biden, and Alexander.
The need to protect creative works has been an important principle
recognized in our country since the time when our Constitution was
first drafted.
However, the founding fathers could not have predicted the path
innovation would eventually lead us down, nor the amazing new
technologies that we now take for granted.
While many of us still enjoy traditional radio, this too is rapidly
changing.
Recently, radio stations have begun advertising for a national
campaign to switch to High Definition, or HD, radio. This new platform
is changing the way music is transmitted and, according to its
promoters, ``radio has never sounded better.''
In addition, we can now have music radio programs provided not just
in our cars, or on traditional home stereos, but radio programs have
expanded to be available through Internet, cable, and satellite music
stations.
And radio services are looking to use the new digital transmissions
and new technologies to change how music is delivered so that the
audience can not only listen but also record, manipulate, collect and
create individual music play lists.
Thus, what was once a passive listening experience has turned into a
forum where consumers can create their own personalized music
libraries.
As the modes of distribution change and the technologies change, so
must our laws change.
The government granted a compulsory license for radio-like services
by Internet, cable, and satellite providers in order to encourage
competition and the creation of new products.
However, as new innovations alter these services from a performance
to a distribution, the law must respond.
In addition, as the changing technology evolves the distinctions
between the services become less and less, and the differences in how
they are treated under the statutory license make less and less sense.

[[Page S447]]

Therefore, I am introducing a bill that will begin to fix the
inequities currently in the statute and open the door to further debate
about additional issues that need to be addressed.
First, the bill I am introducing today, the PERFORM Act, would create
rate parity. All companies covered by the government license created in
section 114 of title 17 would be required to pay a ``fair market
value'' for use of music libraries rather than having different rate
standards apply based on what medium is being used to transmit the
music.
The bill would also establish content protection. All companies would
be required to use reasonably available, technologically feasible, and
economically reasonable means to prevent music theft. In addition, a
company may not provide a recording device to a customer that would
allow him or her to create their own personalized music library that
can be manipulated and maintained without paying a reproduction
royalty.
This does not mean such devices cannot be made or distributed. It
simply means that the business must negotiate the payment for the music
outside of the statutory license.
The bill also contains language to make sure that consumers' current
recording habits are not inhibited. Therefore, any recording the
consumer chooses to do manually will still be allowed.
In addition, if the device allows the consumer to manipulate music by
program, channel, or time period that would still be permitted under
the statutory license.
For example, if a listener chooses to automatically record a news
station every morning at 9:00 a.m.; a jazz station every afternoon at
2:00 p.m., a blues station every Friday at 3:00 p.m., and a talk radio
show every Saturday at 4:00 p.m., that would be allowable. In addition,
that listener could then use their recording device to move these
programs so that each program of the same genre would be back to back.
What a listener cannot do is set a recording device to find all the
Frank Sinatra songs being played on the radio-service and only record
those songs. By making these distinctions this bill supports new
business models and technologies without harming the songwriters and
performers in the process.
Unfortunately, this bill was unable to move last Congress primarily
because of misinformation about what the bill does and does not do.
However, there were also some questions that were raised, not about
problems with the bill, but about ways to expand its reach. For
example, currently the bill does not apply to traditional radio
distributed by the broadcasters. This legislation only covers
businesses that are under the section 114 license: Internet, cable, and
satellite. Yet, some of my Republican colleagues argued that the bill
should apply the same recording limitations to over-the-air
broadcasters as are applied to Internet, cable, and satellite. While
this change has not been made in the version of the bill I am
introducing today, I believe it is an issue we should look at in the
110th Congress.
Also, the bill as introduced does not address the other conditions
applied to Internet, cable, and satellite services in order for them to
get the benefit of the statutory license. The one that I am most
concerned with is interactivity.
I think there is real confusion about what is and what is not allowed
under the current statute: how much personalization and customization
may these new services offer?
Currently, licensing rates are higher for interactive services.
However, there are clear disagreements as to what constitutes an
``interactive'' service. I tried to have the parties meet to negotiate
a solution to this issue so that we could include new language in this
bill; however, the parties were so far apart that a solution could not
be reached.
Despite this, I still believe this is an important issue that must be
addressed. As introduced, the bill calls for the Copyright Office to
make recommendations to Congress, but I am hopeful that through the
process of moving this bill through the Senate we can develop a
solution sooner rather than rely on a study.
Finally, some have raised concerns that applying content protection
to all providers is unfair. They argue that if there is no connection
between the distributor of the music and the technology provider that
allows for copying and manipulating of performances then they should
not be required to protect the music that they broadcast. In general, I
do not agree. We know that there are websites out there now that
provide so-called stream-ripping services that allow an individual to
steal music off an Internet webcast.
It is not enough to turn a blind eye to this type of piracy and do
nothing simply because there is no formal connection between the
businesses. At the same time, I am sympathetic to the concerns that if
the type of technology a company uses is inadequate or ineffective,
through no fault of their own, they should not be saddled with huge
mandatory penalties.
I am interested in looking at this issue more closely to see if there
is some way to address this concern and find a compromise solution.
To be clear, I see this as the beginning of the process. I think this
legislation is a good step forward in addressing a real problem that is
occurring in the music industry. Changes or additions may be necessary
as the bill moves forward, but I believe to wait and do nothing does a
disservice to all involved.
Music is an invaluable part of all of our lives. The new technologies
and changing delivery systems provide exciting new options for all
consumers. As we continue to move forward into new frontiers we must
ensure that our laws can stand the test of time.
I look forward to working with my colleagues to pass this
legislation.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 256

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 ``Platform Equality and
Remedies for Rights Holders in Music Act of 2007'' or the
``Perform Act of 2007''.

SEC. 2. RATE SETTING STANDARDS.

(a) Section 112 Licenses.--Section 112(e)(4) of title 17,
United States Code, is amended in the third sentence by
striking ``fees that would have been negotiated in the
marketplace between a willing buyer and a willing seller''
and inserting ``the fair market value of the rights licensed
under this subsection''.
(b) Section 114 Licenses.--Section 114(f) of title 17,
United States Code, is amended--
(1) by striking paragraph (1);
(2) by redesignating paragraphs (2), (3), (4), and (5) as
paragraphs (1), (2), (3), and (4), respectively; and
(3) in paragraph (1) (as redesignated under this
subsection)--
(A) in subparagraph (A), by striking all after
``Proceedings'' and inserting ``under chapter 8 shall
determine reasonable rates and terms of royalty payments for
transmissions during 5-year periods beginning on January 1 of
the second year following the year in which the proceedings
are to be commenced, except where a different transitional
period is provided under section 6(b)(3) of the Copyright
Royalty and Distribution Reform Act of 2004, or such other
period as the parties may agree.'';
(B) in subparagraph (B)--
(i) in the first sentence, by striking ``affected by this
paragraph'' and inserting ``under this section'';
(ii) in the second sentence, by striking ``eligible
nonsubscription transmission''; and
(iii) in the third sentence--

(I) by striking ``eligible nonsubscription services and new
subscription''; and
(II) by striking ``rates and terms that would have been
negotiated in the marketplace between a willing buyer and a
willing seller'' and inserting ``the fair market value of the
rights licensed under this section'';

(iv) in the fourth sentence, by striking ``base its'' and
inserting ``base their'';
(v) in clause (i), by striking ``and'' after the semicolon;
(vi) in clause (ii), by striking the period and inserting
``; and'';
(vii) by inserting after clause (ii) the following:
``(iii) the degree to which reasonable recording affects
the potential market for sound recordings, and the additional
fees that are required to be paid by services for
compensation.''; and
(viii) in the matter following clause (ii), by striking
``described in subparagraph (A)''; and
(C) by striking subparagraph (C) and inserting the
following:
``(C) The procedures under subparagraphs (A) and (B) shall
also be initiated pursuant to a petition filed by any
copyright owners of sound recordings or any transmitting
entity indicating that a new type of service on which sound
recordings are performed is or is

[[Page S448]]

about to become operational, for the purpose of determining
reasonable terms and rates of royalty payments with respect
to such new type of service for the period beginning with the
inception of such new type of service and ending on the date
on which the royalty rates and terms for preexisting
subscription digital audio transmission services, eligible
nonsubscription services, or new subscription services, as
the case may be, most recently determined under subparagraph
(A) or (B) and chapter 8 expire, or such other period as the
parties may agree.''.
(c) Content Protection.--Section 114(d)(2) of title 17,
United States Code, is amended--
(1) in subparagraph (A)--
(A) in clause (ii), by striking ``and'' after the
semicolon;
(B) in clause (iii), by adding ``and'' after the semicolon;
and
(C) by adding after clause (iii) the following:
``(iv) the transmitting entity takes no affirmative steps
to authorize, enable, cause or induce the making of a copy or
phonorecord by or for the transmission recipient and uses
technology that is reasonably available, technologically
feasible, and economically reasonable to prevent the making
of copies or phonorecords embodying the transmission in whole
or in part, except for reasonable recording as defined in
this subsection;'';
(2) in subparagraph (C)--
(A) by striking clause (vi); and
(B) by redesignating clauses (vii) through (ix) as clauses
(vi) through (viii), respectively; and
(3) by adding at the end the following:

``For purposes of subparagraph (A)(iv), the mere offering of
a transmission and accompanying metadata does not in itself
authorize, enable, cause, or induce the making of a
phonorecord. Nothing shall preclude or prevent a performing
rights society or a mechanical rights organization, or any
entity owned in whole or in part by, or acting on behalf of,
such organizations or entities, from monitoring public
performances or other uses of copyrighted works contained in
such transmissions. Any such organization or entity shall be
granted a license on either a gratuitous basis or for a de
minimus fee to cover only the reasonable costs to the
licensor of providing the license, and on reasonable,
nondiscriminatory terms, to access and retransmit as
necessary any content contained in such transmissions
protected by content protection or similar technologies, if
such licenses are for purposes of carrying out the activities
of such organizations or entities in monitoring the public
performance or other uses of copyrighted works, and such
organizations or entities employ reasonable methods to
protect any such content accessed from further
distribution.''.
(d) Definition.--Section 114(j) of title 17, United States
Code, is amended--
(1) by redesignating paragraphs (10) through (15) as
paragraphs (11) through (16), respectively; and
(2) by inserting after paragraph (9) the following:
``(10)(A) A `reasonable recording' means the making of a
phonorecord embodying all or part of a performance licensed
under this section for private, noncommercial use where
technological measures used by the transmitting entity, and
which are incorporated into a recording device--
``(i) permit automated recording or playback based on
specific programs, time periods, or channels as selected by
or for the user;
``(ii) do not permit automated recording or playback based
on specific sound recordings, albums, or artists;
``(iii) do not permit the separation of component segments
of the copyrighted material contained in the transmission
program which results in the playback of a manipulated
sequence; and
``(iv) do not permit the redistribution, retransmission or
other exporting of a phonorecord embodying all or part of a
performance licensed under this section from the device by
digital outputs or removable media, unless the destination
device is part of a secure in-home network that also complies
with each of the requirements prescribed in this paragraph.
``(B) Nothing in this paragraph shall prevent a consumer
from engaging in non-automated manual recording and playback
in a manner that is not an infringement of copyright.''.
(e) Technical and Conforming Amendments.--
(1) Section 114.--Section 114(f) of title 17, United States
Code (as amended by subsection (b) of this section), is
further amended--
(A) in paragraph (1)(B), in the first sentence, by striking
``paragraph (3)'' and inserting ``paragraph (2)''; and
(B) in paragraph (4)(C), by striking ``under paragraph
(4)'' and inserting ``under paragraph (3)''.
(2) Section 804.--Section 804(b)(3)(C) of title 17, United
States Code, is amended--
(A) in clause (i), by striking ``and 114(f)(2)(C)''; and
(B) in clause (iv), by striking ``or 114(f)(2)(C), as the
case may be''.

SEC. 3. REGISTER OF COPYRIGHTS MEETING AND REPORT.

(a) Meeting.--Not later than 90 days after the date of
enactment of this Act, the Register of Copyrights shall
convene a meeting among affected parties to discuss whether
to recommend creating a new category of limited interactive
services, including an appropriate premium rate for such
services, within the statutory license contained in section
114 of title 17, United States Code.
(b) Report.--Not later than 90 days after the convening of
the meeting under subsection (a), the Register of Copyrights
shall submit a report on the discussions at that meeting to
the Committee on the Judiciary of the Senate and the
Committee on the Judiciary of the House of Representatives.
______

By Mr. AKAKA (for himself, Mr. Inouye, Mr. Byrd, Mr. Reid, Mr.
Stevens, Mr. Kennedy, Mr. Cochran, Mr. Biden, Mrs. Clinton, Mr.
Domenici, Mr. Dorgan, Mr. Kerry, Mr. Leahy, Mr. Lieberman, Mrs.
Lincoln, Mr. Lott, Ms. Murkowski, Mr. Nelson of Nebraska, Mr.
Reed, Mr. Rockefeller, Mr. Specter, and Mrs. Dole):
S. 259. A bill to authorize the establishment of the Henry Kuualoha
Giugni Kupuna Memorial Archives at the University of Hawaii; to the
Committee on Health, Education, Labor, and Pensions.
Mr. AKAKA. Mr. President, I am introducing with my dear friend, the
senior Senator from Hawaii, Dan Inouye, and several of our colleagues
from both sides of the aisle, a bill paying tribute to one of this
body's most loyal servants. The Henry Kuualoha Giugni Kupuna Memorial
Archives bill honors Henry K. Giugni, our former Sergeant-at-Arms of
the U.S. Senate, through the establishment of cultural and historical
digital archives. Mr. Giugni would have turned 82 today, if he were
still alive. These archives will enable the sharing and perpetuation of
the culture, collective memory, and history of peoples Mr. Giugni so
dearly loved.
As many of my colleagues are aware, Henry was a man full of life and
loyalty who served our country with distinction. He enlisted in the
U.S. Army at the age of 16 after the attack on Pearl Harbor. During
World War II he served in combat at the battle of Guadalcanal.
Following World War II, he continued to serve the State of Hawaii and
our Nation by working as a police officer and firefighter. After nearly
a decade of service with Senator Inouye in the Hawaii territorial
legislature, he came to Washington, DC, as the senior Senator's senior
executive assistant and then chief of staff for more than 20 years. Mr.
Giugni was appointed in 1987 to serve as Sergeant-at-Arms of our
revered body--a position that each of my colleagues and I know as
crucial to the running of the Senate.
Henry also sought to tear down barriers in society. In 1965 it was
Mr. Giugni who represented Senator Inouye's office, and thus the people
of Hawaii, in the famous 1965 Selma to Montgomery civil rights march
led by Dr. Martin Luther King, Jr. As Senator Inouye's chief of staff,
Mr. Giugni served as a vital link between the Senator's office and
minority groups. He was the first person of color and the first Native
Hawaiian to be appointed Senate Sergeant-at-Arms. In this influential
position, he sought out capable minorities and women for promotion to
ensure that our workforce reflects America. He appointed the first
minority, an African-American, to lead the Service Department, and was
the first to assign women to the Capitol Police plainclothes unit.
Because of his concern about people with disabilities, Mr. Giugni
enacted a major expansion of the Special Services Office, which now
conducts tours of the U.S. Capitol for the blind, deaf, and wheelchair-
bound, and publishes Senate maps and documents in Braille.
Further in his capacity as Sergeant-at-Arms, Henry was the chief law
enforcement officer of the U.S. Senate and an able manager of a
majority of the Senate's support services. He oversaw a budget of
nearly $120 million and approximately 2,000 employees. As Sergeant-at-
Arms, Mr. Giugni presided over the inauguration of President George
H.W. Bush, and escorted numerous dignitaries on their visits to the
U.S. Capitol, including Nelson Mandela, Margaret Thatcher, and Vaclav
Havel.
Establishing the Henry Kuualoha Giugni Memorial Archives would be a
poignant and appropriate way to honor our loyal friend, colleague, and
fellow American, as well as his dear wife Lani, who recently followed
him to the great beyond. Henry lived a life full of rich experiences,
and along the way he accumulated a wealth of wisdom. His memory and
spirit live on, but it is essential we perpetuate his wisdom and

[[Page S449]]

experiences, and those of others like him, so what was learned and
accomplished will not be lost to future generations. This is the
primary impetus behind creating these archives. There is a dearth of
physical archives, museums, or libraries devoted to preserving and
perpetuating the history, culture, achievements and collective
narratives of indigenous peoples. As one generation passes, a wealth of
traditional knowledge could be lost forever. Establishing these
archives to perpetuate the traditional knowledge of indigenous peoples
such as Henry will ensure that future generations have access to that
widsom and, in a sense, will be able to learn from the original sources
themselves.

The development of the Internet in managing knowledge in electronic
format has enabled the most pervasive storing and sharing of
information the world has ever seen. Electronic, digital archives would
facilitate the sharing, preservation and perpetuation of the unique
native culture, language, tradition and history. These archives will be
a source of enduring knowledge, accessible to all. It will help to
ensure that the children of today and tomorrow will not be deprived of
the rich culture, history and collective knowledge of indigenous
peoples. These archives will help to guarantee that the experiences,
wisdom and knowledge of kupuna, or elders such as Henry, will not be
lost to future generations.
The first section of the Henry Kuualoha Giugni Memorial Archives bill
authorizes a grant awarded to the University of Hawaii's Academy for
Creative Media for the establishment, maintenance and update of the
archives which are to be located at the University of Hawaii. These
funds would be used to enable a statewide archival effort which will
include the acquisition of a secure, web-accessible repository that
will house significant historical and cultural information. This
information may include oral histories, collective narratives,
photographs, video files, journals, creative works and documentation of
practices and customs such as traditional dance and traditional music
that were used to convey historical and cultural knowledge in the
absence of written language. The funds will enable this important
effort by assisting in the purchasing of equipment, hiring of
personnel, and establishment of space for the collection and transfer
of media, housing the archives, and creating this in-depth database.
The second section of this bill authorizes the use of these grant
funds for several different educational activities, many of which are
intended to magnify the resourcefulness of these archives and benefit
the student populations who will likely access the archives the most.
This includes the development of educational materials from the
archives that can be used in teaching indigenous students. Despite
their focus, these materials are meant to enhance the education of all
students, even students from non-native backgrounds. This also includes
developing outreach initiatives to introduce the archives to elementary
and secondary schools, and as enabling schools to access the archives
through the computer.
Grant funds would also be available to help make a college education
possible for students who otherwise could not independently afford such
an education through scholarship awards. Additionally, funds can be
used to address the problem of cultural incongruence in teaching, an
issue that impedes effective learning in our Nation's classrooms. Such
a lack of congruence exists in a wide range of situations, from rural
and underserved communities in remote areas to well-populated urban
centers, from my State of Hawaii to areas on the eastern seaboard. The
dynamic I am describing exists along lines of race and ethnicity,
socioeconomic strata, age, and many other vectors, which can muddy the
effective transmission of knowledge. Many of us, especially those from
rural, indigenous, or ethnic minority backgrounds, including Henry
Giugni, have experienced barriers to learning as we have worked our way
through the education system. This bill seeks to improve student
achievement by addressing cultural incongruence between teachers and
the student population. This will be accomplished by providing
professional development training to teachers, enabling them to better
communicate with their students.
Finally, as financial illiteracy is a growing problem, especially
among college age youth who are exposed to a variety of financial
products, funds can be used to increase the economic and financial
literacy of college students. This will be accomplished through the
propagation of proven best practices that have resulted in positive
behavioral change in regards to improved debt and credit management,
and economic decision making. Such activities can help to ensure that
students stay in school, graduate in a better financial position, and
remain disciplined in effectively managing their finances throughout
their working and retirement years.
Henry K. Giugni served among us with distinction and honor. I am very
grateful to have known him and his family. I encourage all of my
colleagues to perpetuate his memory by supporting the Henry Kuualoha
Giugni Memorial Archives bill. These archives are the most fitting way
we can honor and remember our friend and dear public servant, Henry
Kuualoha Giugni.
I ask unanimous consent that the text of the bill be printed in the
Record and that support letters from University of Hawaii President
David McClain and Academy for Creative Media Director Christopher Lee
also be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

S. 259

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

SECTION 1. HENRY KUUALOHA GIUGNI KUPUNA MEMORIAL ARCHIVES.

(a) Grants Authorized.--The Secretary of Education is
authorized to award a grant to the University of Hawaii
Academy for Creative Media for the establishment,
maintenance, and periodic modernization of the Henry Kuualoha
Giugni Kupuna Memorial Archives at the University of Hawaii.
(b) Use of Funds.--The Henry Kuualoha Giugni Kupuna
Memorial Archives shall use the grant funds received under
this section--
(1) to facilitate the acquisition of a secure web
accessible repository of Native Hawaiian historical data rich
in ethnic and cultural significance to our Nation for
preservation and access by future generations;
(2) to award scholarships to facilitate access to a college
education for students who can not independently afford such
education;
(3) to support programmatic efforts associated with the
web-based media projects of the archives;
(4) to create educational materials, from the contents of
the archives, that are applicable to a broad range of
indigenous students such as Native Hawaiians, Alaskan
Natives, and Native American Indians;
(5) to develop outreach initiatives that introduce the
archival collections to elementary schools and secondary
schools;
(6) to develop supplemental web-based resources that define
terms and cultural practices innate to Native Hawaiians;
(7) to rent, lease, purchase, maintain, or repair
educational facilities to house the archival collections;
(8) to rent, lease, purchase, maintain, or repair computer
equipment for use by elementary schools and secondary schools
in accessing the archival collections;
(9) to provide pre-service and in-service teacher training
to develop a core group of kindergarten through grade 12
teachers who are able to provide instruction in a way that is
culturally congruent with the learning modalities of the
kindergarten, elementary school, or secondary school students
the teachers are teaching, particularly indigenous students
such as Native Hawaiians, Alaskan Natives, and Native
American Indians, in order to--
(A) ameliorate the lack of cultural congruence between the
teachers and the students the teachers teach; and
(B) improve student achievement; and
(10) to increase the economic and financial literacy of
college students through the proliferation of proven best
practices used at other institutions of higher education that
result in positive behavioral change toward improved debt and
credit management and economic decision making.
(c) Authorization of Appropriations.--There is authorized
to be appropriated to carry out this section $5,000,000 for
fiscal year 2007, $10,000,000 for fiscal year 2008, and such
sums as may be necessary for each of the fiscal years 2009
through 2012.
____

University of Hawai`i,

Honolulu, HI, August 3, 2006.
Hon. Daniel K. Akaka,
U.S. Senator, State of Hawai`i, Hart Senate Office Building,
Washington DC.
Dear Senator Akaka: The University of Hawai`i is proud to
support the establishment of the Henry Kuualoha Giugni Kupuna
Memorial Archives as detailed in the Senate Bill reviewed
with your staff during my June 2006 visit to Washington, D.C.
As you know, Henry Giugni was a great friend of the
University of Hawai`i. We were honored to be

[[Page S450]]

able to award him an Honorary Doctorate in Humane Letters
from the University of Hawai`i in 2003.
Please add the University of Hawai`i to the growing list of
many friends and congressional co-sponsors who have joined
with you and Senator Inouye to pay appropriate tribute to a
great Hawaiian and a worthy advocate for minorities in
government--Henry Kuualoha Giugni. Thank you for this
opportunity to express our support for one who was so
important to our University `ohana.
With best wishes and Aloha,
David McClain,
President.
____

University of Hawai`i,

Academy for Creative Media,

Honolulu, HI, August 21, 2006.
Hon. Daniel K. Akaka,
U.S. Senator, State of Hawai`i, Hart Senate Office Building
Washington, DC.
Dear Senator Akaka: The Academy for Creative Media at the
University of Hawai`i at Manoa is proud to support, and
honored to be designated as the primary home for the
establishment of the Henry Kuualoha Giugni Kupuna Memorial
Archives.
As you know, there is an exciting visual history of Hawai`i
that has yet to be collected, documented and archived for the
benefit of historians, teachers, students, and all people who
embrace the Spirit of Aloha. This is a people's history and
archive that will tap deeply into the diversity and
multiculturalism of our state.
Unfortunately, much of this rich treasure of moving images
on film and video tape is deteriorating with age and cries
out to be permanently preserved in a digital archive where it
can be readily and interactively accessed by all.
The establishment of the Henry Kuualoha Giugni Kupuna
Memorial Archives will enable the creation of a plethora of
illustrated oral histories of our beloved elders, create
educational programs which can be used to bridge
intercultural gaps while embracing an ever wider
multicultural society, and empower new generations by
grounding them in the richness of values, as reflected by Mr.
Giugni, that has defined Hawai'i as the Aloha State.
The Academy for Creative Media stands ready to make this
Archive a primary educational center and resource, a living
tribute to Henry Kuualoha Giugni and the people of Hawai`i.
Sincerely,
Christopher Lee,
Director.

Mr. INOUYE. Mr. President, today I join my partner from Hawaii,
Senator Akaka, and other esteemed colleagues, in lending my support to
the Henry Kuualoha Giugni Kupuna Memorial Archives Bill. I offer my
support today, on this, the eleventh day of January, Henry's birthday,
to herald the significant role that the establishment of these archives
will play in shaping the future of a new generation of Americans, just
as Henry did during his remarkable tenure as the 30th Sergeant-at-Arms
of the United States Senate.
In addition to creating a digital archive and preserving the
traditions and culture of Native Hawaiians, this bill will support
initiatives critical to the development of Web-based media projects and
the creation of educational materials that will richly enhance the
educational experience for countless students.
It is my hope that the establishment of these archives will inspire
greater academic achievement of indigenous students by sharing with
them the stories and histories of accomplished individuals with
indigenous backgrounds, such as Henry.
______

By Mr. DOMENICI (for himself and Mr. Bingaman):
S. 260. A bill to establish the Fort Stanton-Snowy River Cave
National Conservation Area; to the Committee on Energy and Natural
Resources.
Mr. DOMENICI. Mr. President, I rise today to introduce legislation to
protect a natural wonder in my home State of New Mexico. A passage
within the Fort Stanton Cave contains what can only be described as a
magnificent white river of calcite. I am pleased to be joined in this
effort again this year by my colleague from New Mexico, Senator
Bingaman.
Many locals are familiar with the Fort Stanton Cave in Lincoln
County, NM. Exploration of the cave dates back to at least the 1850s,
when troops stationed in the area began visiting the network of
caverns. Exploration continued over the years and in 2001 BLM
volunteers discovered a two-mile long continuous calcite formation.
We have not found a formation of this size anywhere else in New
Mexico or perhaps even in the United States. Because of the beauty and
distinct appearance of this discovery, I continue to be excited about
the scientific and educational opportunities associated with the find.
This large, continuous stretch of calcite may yield valuable research
opportunities relating to hydrology, geology, and microbiology. In
fact, there may be no limits to what we can learn from this snow white
cave passage.
It is not often that we find something so striking and so
significant. I believe this find is worthy of study and our most
thoughtful management and conservation.
My legislation does the following: (1) creates a Fort Stanton-Snowy
River Cave Conservation Area to protect, secure and conserve the
natural and unique features of the Snowy River Cave; (2) instructs the
BLM to prepare a map and legal description of the Snowy River cave, and
to develop a comprehensive, long-term management plan for the cave
area; (3) authorizes the conservation of the unique features and
environs in the cave for scientific, educational and other public uses
deemed safe and appropriate under the management plan; (4) authorizes
the BLM to work with State and other institutions and to cooperate with
Lincoln County to address the historical involvement of the local
community; (5) protects the caves from mineral and mining leasing
operations.
As the people of my home State of New Mexico know, we have many
natural wonders, and I am proud to play a role in the protection of
this recent unique discovery. I hope my colleagues will join with me in
approving the Fort Stanton-Snowy River National Cave Conservation Area
Act.
I ask unanimous consent that text of the bill be printed in the
Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 260

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 ``Fort Stanton-Snowy River
Cave National Conservation Area Act''.

SEC. 2. DEFINITIONS.

In this Act:
(1) Conservation area.--The term ``Conservation Area''
means the Fort Stanton-Snowy River Cave National Conservation
Area established by section 3(a).
(2) Management plan.--The term ``management plan'' means
the management plan developed for the Conservation Area under
section 4(c).
(3) Secretary.--The term ``Secretary'' means the Secretary
of the Interior, acting through the Director of the Bureau of
Land Management.

SEC. 3. ESTABLISHMENT OF FORT STANTON-SNOWY RIVER CAVE
NATIONAL CONSERVATION AREA.

(a) Establishment; Purposes.--There is established the Fort
Stanton-Snowy River Cave National Conservation Area in
Lincoln County, New Mexico, to protect, conserve, and enhance
the unique and nationally important historic, cultural,
scientific, archaeological, natural, and educational
subterranean cave resources of the Fort Stanton-Snowy River
cave system.
(b) Area Included.--The Conservation Area shall include the
area within the boundaries depicted on the map entitled
``Fort Stanton-Snowy River Cave National Conservation Area''
and dated November 2005.
(c) Map and Legal Description.--
(1) In general.--As soon as practicable after the date of
enactment of this Act, the Secretary shall submit to Congress
a map and legal description of the Conservation Area.
(2) Effect.--The map and legal description of the
Conservation Area shall have the same force and effect as if
included in this Act, except that the Secretary may correct
any minor errors in the map and legal description.
(3) Public availability.--The map and legal description of
the Conservation Area shall be available for public
inspection in the appropriate offices of the Bureau of Land
Management.

SEC. 4. MANAGEMENT OF THE CONSERVATION AREA.

(a) Management.--
(1) In general.--The Secretary shall manage the
Conservation Area--
(A) in a manner that conserves, protects, and enhances the
resources and values of the Conservation Area, including the
resources and values described in section 3(a); and
(B) in accordance with--
(i) this Act;
(ii) the Federal Land Policy and Management Act of 1976 (43
U.S.C. 1701 et seq.); and
(iii) any other applicable laws.
(2) Uses.--The Secretary shall only allow uses of the
Conservation Area that are consistent with the protection of
the cave resources.
(3) Requirements.--In administering the Conservation Area,
the Secretary shall provide for--
(A) the conservation and protection of the natural and
unique features and environs for scientific, educational, and
other appropriate public uses of the Conservation Area;

[[Page S451]]

(B) public access, as appropriate, while providing for the
protection of the cave resources and for public safety;
(C) the continuation of other existing uses or other new
uses of the Conservation Area that do not impair the purposes
for which the Conservation Area is established;
(D) management of the surface area of the Conservation Area
in accordance with the Fort Stanton Area of Critical
Environmental Concern Final Activity Plan dated March, 2001,
or any amendments to the plan, consistent with this Act; and
(E) scientific investigation and research opportunities
within the Conservation Area, including through partnerships
with colleges, universities, schools, scientific
institutions, researchers, and scientists to conduct research
and provide educational and interpretive services within the
Conservation Area.
(b) Withdrawals.--Subject to valid existing rights, all
Federal surface and subsurface land within the Conservation
Area and all land and interests in the land that are acquired
by the United States after the date of enactment of this Act
for inclusion in the Conservation Area, are withdrawn from--
(1) all forms of entry, appropriation, or disposal under
the general land laws;
(2) location, entry, and patent under the mining laws; and
(3) operation under the mineral leasing and geothermal
leasing laws.
(c) Management Plan.--
(1) In general.--Not later than 2 years after the date of
enactment of this Act, the Secretary shall develop a
comprehensive plan for the long-term management of the
Conservation Area.
(2) Purposes.--The management plan shall--
(A) describe the appropriate uses and management of the
Conservation Area;
(B) incorporate, as appropriate, decisions contained in any
other management or activity plan for the land within or
adjacent to the Conservation Area;
(C) take into consideration any information developed in
studies of the land and resources within or adjacent to the
Conservation Area; and
(D) provide for a cooperative agreement with Lincoln
County, New Mexico, to address the historical involvement of
the local community in the interpretation and protection of
the resources of the Conservation Area.
(d) Activities Outside Conservation Area.--The
establishment of the Conservation Area shall not--
(1) create a protective perimeter or buffer zone around the
Conservation Area; or
(2) preclude uses or activities outside the Conservation
Area that are permitted under other applicable laws, even if
the uses or activities are prohibited within the Conservation
Area.
(e) Research and Interpretive Facilities.--
(1) In general.--The Secretary may establish facilities
for--
(A) the conduct of scientific research; and
(B) the interpretation of the historical, cultural,
scientific, archaeological, natural, and educational
resources of the Conservation Area.
(2) Cooperative agreements.--The Secretary may, in a manner
consistent with this Act, enter into cooperative agreements
with the State of New Mexico and other institutions and
organizations to carry out the purposes of this Act.
(f) Water Rights.--Nothing in this Act constitutes an
express or implied reservation of any water right.

SEC. 5. AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated such sums as are
necessary to carry out this Act. To establish the Fort
Stanton-Snowy River Cave National Conservation Area.
______

By Ms. CANTWELL (for herself, Mr. English, Mr. Specter, Mr.
Durbin, Mr. Allard, Mr. Vitter, Mr. Levin, Ms. Collins, Mr.
Kyl, and Mrs. Feinstein):
S. 261. A bill to amend title 18, United States Code, to strengthen
prohibitions against animal fighting, and for other purposes; to the
Committee on the Judiciary.
Ms. CANTWELL. Mr. President, I rise today to join with my colleagues,
Senators Specter and Ensign, in reintroducing the Animal Fighting
Prohibition Enforcement Act of 2007. This legislation has won the
unanimous approval of the Senate several times, but unfortunately has
not yet reached the finish line. I look forward to working with my
colleagues to see this important bill finally become the law of the
land.
There is no doubt, animal fighting is terribly cruel. Dogs and
roosters are drugged to make them hyper-aggressive and forced to keep
fighting even after suffering severe injuries such as punctured eyes
and pierced lungs.
It's all done for ``entertainment'' and illegal gambling. Children
are sometimes brought to these spectacles, and the fights are
frequently accompanied by illegal drug trafficking and acts of human
violence. In 2006, nine murders related to animal fighting occurred
across the country.
Some dogfighters steal pets to use as bait for training their dogs,
while others allow trained fighting dogs to roam neighborhoods and
endanger the public.
The Animal Fighting Prohibition Enforcement Act will strengthen
current law by making the interstate transport of animals for the
purpose of fighting a felony and increase the punishment to three years
of jail time. This is necessary because the current misdemeanor penalty
has proven ineffective--considered a ``cost of doing business'' by
those in the animal fighting industry which continues unabated
nationwide. These enterprises depend on interstate commerce, as I
evidenced by the animal fighting magazines that advertise and promote
them.
Our bill also makes it a felony to move cockfighting implements in
interstate or foreign commerce. These are razor-sharp knives known as
``slashers'' and ice pick-like gaffs designed exclusively for
cockfights and attached to the birds' legs for fighting. Cockfighting
magazines I and websites contain hundreds of advertisements for mail-
order knives and gaffs, revealing a thriving interstate market for the
weapons used in cockfights.
This is long overdue legislation. Both the Senate and House approved
felony animal fighting provisions in their Farm Bills in 2001, but they
were stripped out in conference. The Senate included felony animal
fighting provisions in the 2003 Health Forest Bill, but they were again
dropped in conference. In September 2004, the Animal Fighting
Prohibition Enforcement Act was approved by the House Judiciary
Committee, but did not reach the floor. In April 2005, the Senate
passed a bill nearly identical to the one we are introducing today,
when it unanimously approved S. 382. In May 2006, the House Crime,
Terrorism and Homeland Security Subcommittee held a comprehensive
hearing on the House companion bill, H.R. 817, which garnered 324
cosponsors but was not considered on the House floor. The legislative
history of this animal fighting felony legislation shows it has broad
bipartisan support of more than half the Senate, and it has won
unanimous approval on the floor time and time again.
It's time to get this felony animal fighting language enacted. With
the bird flu threat looming, we can't afford to wait any longer. The
economic consequences are staggering--the World Bank projects worldwide
losses of $1.5 to $2 trillion. We must be able to say we did all we
could to prevent such a pandemic, and this is an obvious, easy and
necessary step.
Interstate and international transport of birds for cockfighting is
known to have contributed to the spread of avian influenza in Asia and
poses a threat to poultry and public health in the United States.
According to the World Health Organization and local news reports, at
least nine confirmed human fatalities from avian influenza in Thailand
and Vietnam may have been contracted through cockfighting activity
since the beginning of 2004. Several children are among those who are
reported to have died from avian influenza as a result of exposure
through cockfighting, including 4-year-old, 6-year-old, and 18-year-old
boys in Thailand and a 6-year-old girl in Vietnam.
There have been many news stories focusing on the connection between
bird flu and cockfighting. For example, an MSNBC report headlined,
``Cock-fights blamed for Thailand bird flu spread.'' A World Health
Organization Asia regional spokesperson interviewed recently on the CBS
Evening News described the risk of spreading disease through
cockfighting with infected animals as a ``total disaster waiting to
happen.''
Because human handling of fighting roosters is a regular occurrence,
the opportunity of disease transmission from fighting birds to people
is substantial. Fighting-bird handlers come into frequent, sustained
contact with their birds during training and during organized fights.
It is common practice for handlers to suck saliva and blood from
roosters' beaks to help clear their airways and enable them to keep
fighting.
Cockfighters frequently move birds across State and foreign borders,
bringing them to fight in different locations and risking the spread of
infectious diseases. Communications in national

[[Page S452]]

cockfighting magazines and websites have shown that U.S. cockfighters
regularly transport their birds to and from other parts of the world,
including Asia.
The U.S. Department of Agriculture (USDA), in endorsing the Animal
Fighting Prohibition Enforcement Act, noted that strengthening current
Federal law on the inhumane practice of animal fighting would enhance
the agency's ability to safeguard the health of U.S. poultry against
deadly diseases such as avian influenza and exotic Newcastle disease
(END). The USDA has stated that cockfighting was implicated in an
outbreak of END that spread through California and the Southwest in
2002 and 2003. That outbreak cost U.S. taxpayers nearly $200 million to
eradicate and cost the U.S. poultry industry many millions more in lost
export markets. The costs of an avian influenza outbreak in this
country could be much higher--with the Congressional Budget Office
estimating losses between 1.5 and 5 percent of GDP ($185 billion to
$618 billion).
The National Chicken Council, which represents 95 percent of all U.S.
poultry producers and processors, has also endorsed the Animal Fighting
Prohibition Enforcement Act, expressing concern that avian influenza
and other diseases can be spread by the movement of game birds and that
the commercial chicken industry remains under considerable threat
because it operates amidst a national network of game bird operations.
Avian influenza has not yet crossed the species barrier in this
country, as it has in Asia. But we must do all we can to minimize this
risk. Establishing a more meaningful deterrent to illegal interstate
and foreign movement of animals for fighting purposes is an obvious
step we can take to reduce this risk.
Besides those associated with the poultry industry, this legislation
has been endorsed by a number of other organization including the
Humane Society of the United States, the American Veterinary Medical
Association, the National Coalition Against Gambling Expansion, the
League of United Latin American Citizens, the National Sheriffs'
Association, and more than 400 individual sheriffs and police
departments covering every State in the country. Those law enforcement
agencies recognize that animal fighting often involves the movement of
animals across State and foreign borders, so they can't do the job on
their own. They need the Federal Government to do its part to help curb
this dangerous activity.
Our legislation does not expand the federal government's reach into a
new area, but simply aims to make current law more effective. It is
explicitly limited to interstate and foreign commerce, so it protects
States' rights in the two States where cockfighting is still allowed,
and it protects States' rights the other 48 States--and all 50, for
dogfighting--where weak Federal law is compromising their ability to
keep animal fighting outside their borders.
The bill we introduce today is identical to S. 382, which passed the
Senate unanimously in the last Congress, except for one change. The new
bill provides for up to three years' jail time, compared to two in S.
382, in order to bring this more in line with penalties for other
federal animal cruelty-related felonies. For example, in 1999, Congress
authorized imprisonment of up to 5 years for interstate commerce in
videos depicting animal cruelty, including animal fighting, P.L. 106-
152, and mandatory jail time of up to 10 years for willfully harming or
killing a federal police dog or horse (P.L. 106-254).
With every week, there are new reports of animal fighting busts, as
local and state law enforcement struggle to rein in this thriving
industry. In my own State of Washington, police arrested 5 people on
Christmas Day at a cockfight in Brewster, and about 50 people ran off,
according to recent news accounts. Three days later, six more were
arrested in Okanogan for promoting cockfighting. And nine people were
arrested in Tacoma last spring, where investigators seized
methamphetamines, marijuana, weapons, thousands of dollars, and
fighting roosters.
It's time for Congress to strengthen the federal law so that it can
provide as a meaningful deterrent against animal fighting. State and
local law enforcement will have a tough law on the books necessary to
help them crack down on this interstate industry. I thank my colleagues
for their support, and look forward to working with them to finally
enacting this common-sense measure into law.
______

By Mr. BINGAMAN (for himself, Mr. Smith, Mr. Reid, Mrs.
Feinstein, Mrs. Boxer, Mr. Baucus, Mrs. Murray, and Ms.
Cantwell)
S. 267. A bill to amend the Omnibus Crime Control and Safe Streets
Act of 1968 to clarify that territories and Indian tribes are eligible
to receive grants for confronting the use of methamphetamine; to the
Committee on the Judiciary.
Mr. BINGAMAN. Mr. President, I rise today to introduce the Native
American Methamphetamine Enforcement and Treatment Act of 2007.
Unfortunately, when Congress passed the Combat Methamphetamine
Epidemic Act, tribes were unintentionally left out as eligible
applicants in some of the newly-authorized grant programs. The bill I
am introducing today, along with Senators Smith, Reid, Baucus,
Feinstein, Boxer, Feingold, Cantwell, and Murray, would simply ensure
that tribes are able to apply for these funds and give Native American
communities the resources they need to fight scourge of methamphetamine
use.
The recently-enacted Combat Methamphetamine Epidemic Act of 2005
authorized new funding for three grant programs. The Act authorized $99
million in new funding for the COPS Hot Spots program, which helps
local law enforcement agencies obtain the tools they need to reduce the
production, distribution, and use of meth. Funding may also be used to
clean up meth labs, support health and environmental agencies, and to
purchase equipment and support systems.
The Act also authorized $20 million for a Drug-Endangered Children
grant program to provide comprehensive services to assist children who
live in a home in which meth has been used, manufactured, or sold.
Under this program, law enforcement agencies, prosecutors, child
protective services, social services, and health care services, work
together to ensure that these children get the help they need.
In addition, the Combat Meth Act authorized grants to be made to
address the use of meth among pregnant and parenting women offenders.
The Pregnant and Parenting Offenders program is aimed at facilitating
collaboration between the criminal justice, child welfare, and State
substance abuse systems in order to reduce the use of drugs by pregnant
women and those with dependent children.
Although Tribes are eligible applicants under the Pregnant and
Parenting Offenders program, they were not included as eligible
applicants under either the Hot Spots program or the Drug-Endangered
Children program. I see no reason why tribes should not be able to
access all of these funds.
Meth use has had a devastating impact in communities throughout the
country, and Indian Country is no exception. According to NCAI, Native
Americans have the highest meth abuse rate among any ethnic group and
70 percent of law enforcement rate meth as their greatest challenge--
indeed, a FBI survey found that an estimated 40 percent of violent
crime in Indian Country was related to meth use. And last year there
was an article in the Gallup Independent newspaper about a Navajo
grandmother, her daughter, and granddaughter, who were all arrested for
selling meth. There was also a one-year-old child in the home when
police executed the arrest warrant. It is absolutely disheartening to
hear about cases such as this, with three generations of a family
destroyed by meth.
I strongly believe that we need to do everything we can to assist
communities as they struggle to deal with the consequences of meth, and
ensuring that Native American communities are able to access these
funds is an important first step. I hope my colleagues will join me in
supporting this important measure.
______

By Ms. SNOWE (for herself, Mr. Lott, Mr. Isakson, Mr. Chambliss,
and Ms. Collins):

[[Page S453]]

S. 269. A bill to amend the Internal Revenue Code of 1986 to increase
and permanently extend the expensing of certain depreciable business
assets for small businesses; to the Committee on Finance.
______

By Ms. SNOWE (for herself and Mrs. Lincoln):
S. 270. A bill to permit startup partnerships and S corporations to
elect taxable years other than required years; to the Committee on
Finance.
______

By Ms. SNOWE (for herself, Mrs. Lincoln, Mrs. Hutchison, and Mr.
Kerry):
S. 271. A bill to amend the Internal Revenue Code of 1986 to provide
a shorter recovery period for the depreciation of certain improvements
to retail space; to the Committee on Finance.
Ms. SNOWE. Mr. President, I rise today to introduce a series of
proposals that, once enacted, will reduce not only the amount of taxes
that small businesses pay, but also the administrative burdens which
saddle small companies trying to comply with the tax laws. Small
businesses are the engine that drives our Nation's economy and I
believe these proposals strengthen their ability to lead the way. I am
pleased to be joined by colleagues from both sides of the aisle as we
work to move these important initiatives for small businesses from
legislation to law.
A top priority I hear from small businesses across Maine is the need
for tax relief. Despite the fact that small businesses are the real
job-creators for Maine's and our Nation's economy, the current tax
system is placing an entirely unreasonable burden on them when trying
to satisfy their tax obligations. The current tax code imposes a large,
and expensive, burden on all taxpayers in terms of satisfying their
reporting and record-keeping obligations. The problem, though, is that
small companies are disadvantaged most in terms of the money and time
spent in satisfying their tax obligation.
For example, according to the Small Business Administration's Office
of Advocacy, small businesses spend an astounding 8 billion hours each
year complying with government reports. They also spend more than 80
percent of this time on completing tax forms. What's even more
troubling is that companies that employ fewer than 20 employees spend
nearly $1,304 per employee in tax compliance costs; an amount that is
nearly 67 percent more than larger firms.
For that reason, I am introducing a package of proposals that will
provide not only targeted, affordable tax relief to small business
owners, but also simpler rules under the tax code. By simplifying the
tax code, small business owners will be able to satisfy their tax
obligation in a cheaper, more efficient manner, allowing them to be
able to devote more time and resources to their business.
I am introducing legislation today in response to the repeated
requests from small businesses in Maine and from across the nation to
allow them to expense more of their investments, like the purchase of
essential new equipment. My bill modifies the Internal Revenue Code by
doubling the amount a small business can expense from $100,000 to
$200,000, and make the provision permanent as President Bush proposed
this change in his fiscal year 2007 tax proposals. With small
businesses representing 99 percent of all employers, creating 75
percent new jobs and contributing 51 percent of private-sector output,
their size is the only `small' aspect about them.
By doubling and making permanent the current expensing limit and
indexing these amounts for inflation, this bill will achieve two
important objectives. First, qualifying businesses will be able to
write off more of the equipment purchases today, instead of waiting
five, seven or more years to recover their costs through depreciation.
That represents substantial savings both in dollars and in the time
small businesses would otherwise have to spend complying with complex
and confusing depreciation rules. Moreover, new equipment will
contribute to continued productivity growth in the business community,
which economic experts have repeatedly stressed is essential to the
long-term vitality of our economy.
Second, as a result of this bill, more businesses will qualify for
this benefit because the phase-out limit will be increased to $800,000
in new assets purchases. At the same time, small business capital
investment will be pumping more money into the economy. This is a win-
win for small business and the economy as a whole and I am please to
have Senators Lott, Isakson, Chambliss, and Collins join me as
cosponsors of this legislation.
Another proposal that I am introducing with Senator Lincoln, the
Small Business Tax Flexibility Act of 2007, will permit start-up small
business owners to use a taxable year other than the calendar year if
they generally earn fewer than $5 million during the tax year.
Specifically, the Small Business Tax Flexibility Act of 2007 will
permit more taxpayers to use the taxable year most suitable to their
business cycle. Until 1986, businesses could elect the taxable year-end
that made the most economic sense for the business. In 1986, Congress
passed legislation requiring partnerships and S corporations, many of
which are small businesses, to adopt a December 31 year-end. The tax
code does provide alternatives to the calendar year for small
businesses, but the compliance costs and administrative burdens
associated with these alternatives prove to be too high for most small
businesses to utilize.
Meanwhile, C corporations, as large corporations often are, receive
much more flexibility in their choice of taxable year. A C corporation
can adopt either a calendar year or any fiscal year for tax purposes,
as along as it keeps its books on that basis. This creates the unfair
result of allowing larger businesses with greater resources greater
flexibility in choosing a taxable year than smaller firms with fewer
resources. This simply does not make sense to me. My bill changes these
existing rules so that more small businesses will be able to use the
taxable year that best suits their business.
To provide relief and equity to our nation's 1.5 million retail
establishments, most of which have less than five employees, I am
introducing a bill with Senators Lincoln, Hutchison, and Kerry that
reduces from 39 to 15 years the depreciable life of improvements that
are made to retail stores that are owned by the retailer. Under current
law, only retailers that lease their property are allowed this
accelerated depreciation, which means it excludes retailers that also
own the property in which they operate. My bill simply seeks to provide
equal treatment to all retailers.
Specifically, this bill will simply conform the tax codes to the
realities that retailers on Main Street face. Studies conducted by the
Treasury Department, Congressional Research Service and private
economists have all found that the 39-year depreciation life for
buildings is too long and that the 39-year depreciation life for
building improvements is even worse. Retailers generally remodel their
stores every five to seven years to reflect changes in customer base
and compete with newer stores. Moreover, many improvements such as
interior partitions, ceiling tiles, restroom accessories, and paint,
may only last a few years before requiring replacement.
This package of proposals are a tremendous opportunity to help small
enterprises succeed by providing an incentive for reinvestment and
leaving them more of their earnings to do just that. I urge my
colleagues to join me in supporting these proposals.
I ask unanimous consent that the the text of these bills be printed
in the Record.
There being no objection, the texts of the bills were ordered to be
printed in the Record, as follows:

S. 269

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

SECTION 1. INCREASE AND PERMANENT EXTENSION FOR EXPENSING FOR
SMALL BUSINESS.

(a) In General.--Paragraph (1) of section 179(b) of the
Internal Revenue Code of 1986 (relating to dollar limitation)
is amended by striking ``$25,000 ($100,000 in the case of
taxable years beginning after 2002 and before 2010)'' and
inserting ``$200,000''.
(b) Increase in Qualifying Investment at Which Phaseout
Begins.--Paragraph (2) of section 179(b) of such Code
(relating to reduction in limitation) is amended by striking
``$200,000 ($400,000 in the case of taxable years beginning
after 2002 and before 2010)'' and inserting ``$800,000''.
(c) Inflation Adjustments.--Section 179(b)(5)(A) of such
Code (relating to inflation adjustments) is amended--

[[Page S454]]

(1) in the matter preceding clause (i)--
(A) by striking ``after 2003 and before 2010'' and
inserting ``after 2007'', and
(B) by striking ``the $100,000 and $400,000 amounts'' and
inserting ``the $200,000 and $800,000 amounts'', and
(2) in clause (ii), by striking ``calendar year 2002'' and
inserting ``calendar year 2006''.
(d) Revocation of Election.--Section 179(c)(2) of such Code
(relating to election irrevocable) is amended to read as
follows:
``(2) Revocability of election.--Any election made under
this section, and any specification contained in any such
election, may be revoked by the taxpayer with respect to any
property, and such revocation, once made, shall be
irrevocable.''.
(e) Off-the-Shelf Computer Software.--Section
179(d)(1)(A)(ii) of such Code (relating to section 179
property) is amended by striking ``and before 2010''.
(f) Effective Date.--The amendments made by this section
shall apply to taxable years beginning after December 31,
2006.
____

S. 270

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 ``Small Business Tax
Flexibility Act of 2007''.

SEC. 2. QUALIFIED SMALL BUSINESSES ELECTION OF TAXABLE YEAR
ENDING IN A MONTH FROM APRIL TO NOVEMBER.

(a) In General.--Part I of subchapter E of chapter 1 of the
Internal Revenue Code of 1986 (relating to accounting
periods) is amended by inserting after section 444 the
following new section:

``SEC. 444A. QUALIFIED SMALL BUSINESSES ELECTION OF TAXABLE
YEAR ENDING IN A MONTH FROM APRIL TO NOVEMBER.

``(a) General Rule.--A qualified small business may elect
to have a taxable year, other than the required taxable year,
which ends on the last day of any of the months of April
through November (or at the end of an equivalent annual
period (varying from 52 to 53 weeks)).
``(b) Years for Which Election Effective.--An election
under subsection (a)--
``(1) shall be made not later than the due date (including
extensions thereof) for filing the return of tax for the
first taxable year of the qualified small business, and
``(2) shall be effective for such first taxable year or
period and for all succeeding taxable years of such qualified
small business until such election is terminated under
subsection (c).
``(c) Termination.--
``(1) In general.--An election under subsection (a) shall
be terminated on the earliest of--
``(A) the first day of the taxable year following the
taxable year for which the entity fails to meet the gross
receipts test,
``(B) the date on which the entity fails to qualify as an S
corporation, or
``(C) the date on which the entity terminates.
``(2) Gross receipts test.--For purposes of paragraph (1),
an entity fails to meet the gross receipts test if the entity
fails to meet the gross receipts test of section 448(c).
``(3) Effect of termination.--An entity with respect to
which an election is terminated under this subsection shall
determine its taxable year for subsequent taxable years under
any other method that would be permitted under subtitle A.
``(4) Income inclusion and deduction rules for period after
termination.--If the termination of an election under
paragraph (1)(A) results in a short taxable year--
``(A) items relating to net profits for the period
beginning on the day after its last fiscal year-end and
ending on the day before the beginning of the taxable year
determined under paragraph (3) shall be includible in income
ratably over the 4 taxable years following the year of
termination, or (if fewer) the number of taxable years equal
to the fiscal years for which the election under this section
was in effect, and
``(B) items relating to net losses for such period shall be
deductible in the first taxable year after the taxable year
with respect to which the election terminated.
``(d) Definitions.--For purposes of this section--
``(1) Qualified small business.--The term `qualified small
business' means an entity--
``(A)(i) for which an election under section 1362(a) is in
effect for the first taxable year or period of such entity
and for all subsequent years, or
``(ii) which is treated as a partnership for the first
taxable year or period of such entity for Federal income tax
purposes,
``(B) which conducts an active trade or business or which
would qualify for an election to amortize start-up
expenditures under section 195, and
``(C) which is a start-up business.
``(2) Start-up business.--For purposes of paragraph (1)(C),
an entity shall be treated as a start-up business so long as
not more than 75 percent of the entity is owned by any person
or persons who previously conducted a similar trade or
business at any time within the 1-year period ending on the
date on which such entity is formed. For purposes of the
preceding sentence, a person and any other person bearing a
relationship to such person specified in section 267(b) or
707(b)(1) shall be treated as one person, and sections 267(b)
and 707(b)(1) shall be applied as if section 267(c)(4)
provided that the family of an individual consists of the
individual's spouse and the individual's children under the
age of 21.
``(3) Required taxable year.--The term `required taxable
year' has the meaning given to such term by section 444(e).
``(e) Tiered Structures.--The Secretary shall prescribe
rules similar to the rules of section 444(d)(3) to eliminate
abuse of this section through the use of tiered
structures.''.
(b) Conforming Amendment.--Section 444(a)(1) of the
Internal Revenue Code of 1986 is amended by striking
``section,'' and inserting ``section and section 444A''.
(c) Clerical Amendment.--The table of sections for part I
of subchapter E of chapter 1 of the Internal Revenue Code of
1986 is amended by inserting after the item relating to
section 444 the following new item:

``Sec. 444A. Qualified small businesses election of taxable year ending
in a month from April to November.''.

(d) Effective Date.--The amendments made by this section
shall apply to taxable years beginning after December 31,
2006.

S. 271

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

SECTION 1. RECOVERY PERIOD FOR DEPRECIATION OF CERTAIN
IMPROVEMENTS TO RETAIL SPACE.

(a) 15-Year Recovery Period.--Subparagraph (E) of section
168(e)(3) of the Internal Revenue Code of 1986 (relating to
15-year property) is amended by striking ``and'' at the end
of clause (vii), by striking the period at the end of clause
(viii) and inserting ``, and'', and by adding at the end the
following new clause:
``(ix) any qualified retail improvement property.''.
(b) Qualified Retail Improvement Property.--Subsection (e)
of section 168 of the Internal Revenue Code of 1986 is
amended by adding at the end the following new paragraph:
``(8) Qualified retail improvement property.--
``(A) In general.--The term `qualified retail improvement
property' means any improvement to an interior portion of a
building which is nonresidential real property if--
``(i) such portion is open to the general public and is
used in the trade or business of selling tangible personal
property or services to the general public; and
``(ii) such improvement is placed in service more than 3
years after the date the building was first placed in
service.
``(B) Certain improvements not included.--Such term shall
not include any improvement for which the expenditure is
attributable to--
``(i) the enlargement of the building,
``(ii) any elevator or escalator, or
``(iii) the internal structural framework of the
building.''.
(c) Requirement to Use Straight Line Method.--Paragraph (3)
of section 168(b) of the Internal Revenue Code of 1986 is
amended by adding at the end the following new subparagraph:
``(I) Qualified retail improvement property described in
subsection (e)(8).''.
(d) Alternative System.--The table contained in section
168(g)(3)(B) of the Internal Revenue Code of 1986 is amended
by inserting after the item relating to subparagraph
(E)(viii) the following new item:

``(E)(ix).....................................................39''.....

(e) Effective Date.--The amendments made by this section
shall apply to qualified retail improvement property placed
in service after the date of the enactment of this Act.
______

By Mr. COLEMAN:
S. 272. A bill to amend Public Law 87-383 to reauthorize
appropriations to promote the conservation of migratory waterfowl and
to offset or prevent the serious loss of important wetland and other
waterfowl habitat essential to the preservation of migratory waterfowl,
and for other purposes; to the Committee on Environment and Public
Works.
Mr. COLEMAN. Mr. President, I ask unanimous consent that the text of
the bill I introduce today--to amend Public Law 87-383 to reauthorize
appropriations to promote the conservation of migratory waterfowl and
to offset or prevent the serious loss of important wetland and other
waterfowl habitat essential to preservation of migratory waterfowl, and
for other purposes--be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 272

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

SECTION 1. AUTHORIZATION OF FUNDS FOR CONSERVATION OF
MIGRATORY WATERFOWL AND HABITAT.

The first section of Public Law 87-383 (16 U.S.C. 715k-3)
is amended--
(1) by striking ``That in'' and inserting the following:

``SECTION 1. AUTHORIZATION OF FUNDS FOR CONSERVATION OF
MIGRATORY WATERFOWL HABITAT.

``(a) In General.--In'';

[[Page S455]]

(2) by striking ``for the period'' and all that follows
through the end of the sentence and inserting ``$400,000,000
for the period of fiscal years 2008 through 2017.''; and
(3) by adding at the end the following:
``(b) Advance to Migratory Bird Conservation Fund.--Funds
appropriated pursuant to this Act shall be treated as an
advance, without interest, to the Migratory Bird Conservation
Fund.
``(c) Repayment to Treasury.--
``(1) In general.--Effective beginning July 1, 2008, funds
appropriated pursuant to this Act shall be repaid to the
Treasury out of the Migratory Bird Conservation Fund.
``(2) Amounts.--Repayment under this subsection shall be
made in annual amounts that are equal to the funds accruing
annually to the Migratory Bird Conservation Fund that are
attributable to the portion of the price of migratory bird
hunting stamps sold that year that is in excess of $15 per
stamp.''.

SEC. 2. SENSE OF CONGRESS REGARDING THE USE OF CERTAIN FUNDS.

It is the sense of Congress that--
(1) the funds provided pursuant to the amendments made by
this Act--
(A) should be used for preserving and increasing waterfowl
populations in accordance with the goals and objectives of
the North American Waterfowl Management Plan; and
(B) to that end, should be used to supplement and not
replace current conservation funding, including funding for
other Federal and State habitat conservation programs; and
(2) this Act and the amendments made by this Act should be
implemented in a manner that helps private landowners achieve
long-term land use objectives in a manner that enhances the
conservation of wetland and wildlife habitat.
______

By Mr. SPECTER:
S. 273. A bill to amend part D of title XVIII of the Social Security
Act to authorize the Secretary of Health and Human Services to
negotiate for lower prices for Medicare prescription drugs; to the
Committee on Finance.
Mr. SPECTER. Mr. President, I have sought recognition today to
introduce the Prescription Drug and Health Improvement Act of 2007 to
reduce the high prices of prescription drugs for Medicare
beneficiaries. I introduced a similar version of this bill in the 108th
and the 109th Congress, S. 2766 and S. 813, respectively.
Americans, specifically senior citizens, pay the highest prices in
the world for brand-name prescription drugs. With 46.6 million
uninsured Americans and many more senior citizens without an adequate
prescription drug benefit, filling a doctor's prescription is
unaffordable for many people in this country. The United States has the
greatest health care system in the world; however, too many seniors are
forced to make difficult choices between life-sustaining prescription
drugs and daily necessities.
The Centers for Medicare and Medicaid Services report that in 2005,
per capita spending on prescription drugs rose approximately 7 percent,
with a similar rate of growth expected for this year. Much of the
increase in drug spending is due to higher utilization and the shift
from older, lower cost drugs to newer, higher cost drugs. However,
rapidly increasing drug prices are a critical component.
High drug prices, combined with the surging older population, are
also taking a toll on State budgets and private sector health insurance
benefits. Medicaid spending on prescription drugs rose by 7.5 percent
between 2004 and 2005. Until lower priced drugs are available,
pressures will continue to squeeze public programs at both the State
and Federal level.
To address these problems, my legislation would reduce the high
prices of prescription drugs to seniors by repealing the prohibition
against interference by the Secretary of Health and Human Services
(HHS) with negotiations between drug manufacturers, pharmacies, and
prescription drug plan sponsors and instead authorize the Secretary to
negotiate contracts with manufacturers of covered prescription drugs.
It will allow the Secretary to use Medicare's large beneficiary
population to leverage bargaining power to obtain lower prescription
drug prices for Medicare beneficiaries.
Price negotiations between the Secretary of HHS and prescription drug
manufacturers would be analogous to the ability of the Secretary of
Veterans Affairs to negotiate prescription drug prices with
manufacturers. This bargaining power enables veterans to receive
prescription drugs at a significant cost savings. According to the
National Association of Chain Drug Stores, the average ``cash cost'' of
a prescription in 2005 was $51.89. The average cost in the Veterans
Affairs (VA) health care system in fiscal year 2006 was $28.61.
In the 108th Congress, in my capacity as chairman of the Veterans'
Affairs Committee, I introduced the Veterans Prescription Drugs
Assistance Act, S. 1153, which was reported out of committee, but was
not considered before the full Senate. In the 109th Congress, I again
introduced the Veterans Prescription Drugs Assistance Act, S. 614,
which was not reported out of committee.
This legislation will broaden the ability of veterans to access the
Veterans Affairs' Prescription Drug Program. Under my bill, all
Medicare-eligible veterans will be able to purchase medications at a
tremendous price reduction through the Veterans Affairs' Prescription
Drug Program. In many cases, this will save veterans who are Medicare
beneficiaries up to 50 percent on the cost of prescribed medications, a
significant savings for veterans. Similar savings may be available to
America's seniors from the savings achieved using the HHS bargaining
power, like the Veterans Affairs bargaining power for the benefit of
veterans. These savings may provide America's seniors with fiscal
relief from the increasing costs of prescription drugs.
I believe this bill can provide desperately needed access to
inexpensive, effective prescription drugs for America's seniors. The
time has come for concerted action in this arena. I urge my colleagues
to move this legislation forward promptly.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 273

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 ``Prescription Drug and Health
Improvement Act of 2007''.

SEC. 2. NEGOTIATING FAIR PRICES FOR MEDICARE PRESCRIPTION
DRUGS.

(a) Negotiating Fair Prices.--
(1) In general.--Section 1860D-11 of the Social Security
Act (42 U.S.C. 1395w-111) is amended by striking subsection
(i) (relating to noninterference) and by inserting the
following:
``(i) Authority To Negotiate Prices With Manufacturers.--In
order to ensure that beneficiaries enrolled under
prescription drug plans and MA-PD plans pay the lowest
possible price, the Secretary shall have authority similar to
that of other Federal entities that purchase prescription
drugs in bulk to negotiate contracts with manufacturers of
covered part D drugs, consistent with the requirements and in
furtherance of the goals of providing quality care and
containing costs under this part.''.
(2) Effective date.--The amendment made by paragraph (1)
shall take effect on the date of enactment of this Act.
(b) HHS Reports Comparing Negotiated Prescription Drug
Prices and Retail Prescription Drug Prices.--Beginning in
2008, the Secretary of Health and Human Services shall
regularly, but in no case less often than quarterly, submit
to Congress a report that compares the prices for covered
part D drugs (as defined in section 1860D-2(e) of the Social
Security Act (42 U.S.C. 1395w-102(e)) negotiated by the
Secretary pursuant to section 1860D-11(i) of such Act (42
U.S.C. 1395w-111(i)), as amended by subsection (a), with the
average price a retail pharmacy would charge an individual
who does not have health insurance coverage for purchasing
the same strength, quantity, and dosage form of such covered
part D drug.
______

By Mr. AKAKA (for himself, Ms. Collins, Mr. Grassley, Mr. Levin,
Mr. Lieberman, Mr. Leahy, Mr. Voinovich, Mr. Carper, Mr.
Durbin, Mr. Pryor, and Mr. Lautenberg):
S. 274. A bill to amend chapter 23 of title 5, United States Code, to
clarify the disclosures of information protected from prohibited
personnel practices, require a statement in nondisclosure policies,
forms, and agreements that such policies, forms, and agreements conform
with certain disclosure protections, provide certain authority for the
Special Counsel, and for other purposes; to the Committee on Homeland
Security and Governmental Affairs.
Mr. AKAKA. Mr. President, today I rise to reintroduce the Federal
Employee Protection of Disclosures Act, which will make much needed
changes to the Whistleblower Protection Act, WPA. I am pleased once
again to be

[[Page S456]]

joined in this effort by Senators Collins, Grassley, Levin, Lieberman,
Leahy, Voinovich, Carper, Durbin, Pryor, and Lautenberg.
Senator Levin and I first introduced this legislation in 2000. In the
House, Representatives Henry Waxman and Tom Davis, the chairman and
ranking member of the House Government Reform Committee, and
Representative Todd Platts, who has sponsored companion legislation
since 2003, have been working to enact strong whistleblower
protections.
Over the years, we've worked to educate our colleagues on the need to
strengthen the WPA and build consensus for the legislation. I'm
especially pleased that last year our bill passed the Senate by
unanimous consent as an amendment to the fiscal year 2007 Defense
Authorization Act. While the measure was removed with other non-defense
specific material in conference, I believe the Senate's action will
provide the momentum to make a real difference for Federal
whistleblowers in the 110th Congress.
We agree that to ensure the success of any government program there
must be appropriate checks in place to weed out mismanagement and
wasteful spending. A strong and vibrant WPA is a critical tool in
saving taxpayer money and ensuring an open government.
The Federal Employee Protection of Disclosures Act addresses many
court decisions that have eroded protections for Federal employees and
have ignored congressional intent. Our legislation ensures that Federal
whistleblowers are protected from retaliatory action when notifying the
public and government leaders of waste, fraud, and abuse. If we fail to
protect whistleblowers, then our efforts to improve government
management, protect the public, and secure the nation will also fail.
The legislation: clarifies congressional intent that Federal
employees are protected for any disclosure of waste, fraud, or abuse--
including those made as part of an employee's job duties; provides an
independent determination as to whether the loss or denial of a
security clearance is retaliation against a whistleblower; and suspends
the Federal Circuit Court of Appeals' sole jurisdiction over Federal
employee whistleblower cases for 5 years, which would ensure a fuller
review of a whistleblower's claim.
Given that the United States will be fighting the war on terror for
years to come and that funding such operations requires significant
resources, it is imperative that government funds are spent wisely.
That is why Federal employees must be confident that they can disclose
government waste, fraud, and abuse without fear of retaliation.
Restoring credibility to the WPA is no less than a necessity. I look
forward to working with my colleagues to pass this critical
legislation.
I ask unanimous consent that the text of the legislation be printed
in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 274

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

SECTION 1. PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION
BY FEDERAL EMPLOYEES.

(a) Short Title.--This Act may be cited as the ``Federal
Employee Protection of Disclosures Act''.
(b) Clarification of Disclosures Covered.--Section
2302(b)(8) of title 5, United States Code, is amended--
(1) in subparagraph (A)--
(A) by striking ``which the employee or applicant
reasonably believes evidences'' and inserting ``, without
restriction to time, place, form, motive, context, or prior
disclosure made to any person by an employee or applicant,
including a disclosure made in the ordinary course of an
employee's duties, that the employee or applicant reasonably
believes is evidence of''; and
(B) in clause (i), by striking ``a violation'' and
inserting ``any violation''; and
(2) in subparagraph (B)--
(A) by striking ``which the employee or applicant
reasonably believes evidences'' and inserting ``, without
restriction to time, place, form, motive, context, or prior
disclosure made to any person by an employee or applicant,
including a disclosure made in the ordinary course of an
employee's duties, of information that the employee or
applicant reasonably believes is evidence of''; and
(B) in clause (i), by striking ``a violation'' and
inserting ``any violation (other than a violation of this
section)''.
(c) Covered Disclosures.--Section 2302(a)(2) of title 5,
United States Code, is amended--
(1) in subparagraph (B)(ii), by striking ``and'' at the
end;
(2) in subparagraph (C)(iii), by striking the period at the
end and inserting ``; and''; and
(3) by adding at the end the following:
``(D) `disclosure' means a formal or informal communication
or transmission, but does not include a communication
concerning policy decisions that lawfully exercise
discretionary authority unless the employee providing the
disclosure reasonably believes that the disclosure
evidences--
``(i) any violation of any law, rule, or regulation; or
``(ii) gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to
public health or safety.''.
(d) Rebuttable Presumption.--Section 2302(b) of title 5,
United States Code, is amended by amending the matter
following paragraph (12) to read as follows:

``This subsection shall not be construed to authorize the
withholding of information from Congress or the taking of any
personnel action against an employee who discloses
information to Congress, except that an employee or applicant
may be disciplined for the disclosure of information
described in paragraph (8)(C)(i) to a Member or employee of
Congress who is not authorized to receive such information.
For purposes of paragraph (8), a determination as to whether
an employee or applicant reasonably believes that they have
disclosed information that evidences any violation of law,
rule, regulation, gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific
danger to public health or safety shall be made by
determining whether a disinterested observer with knowledge
of the essential facts known to and readily ascertainable by
the employee could reasonably conclude that the actions of
the Government evidence such violations, mismanagement,
waste, abuse, or danger.''.
(e) Nondisclosure Policies, Forms, and Agreements; Security
Clearances; and Retaliatory Investigations.--
(1) Personnel action.--Section 2302(a)(2)(A) of title 5,
United States Code, is amended--
(A) in clause (x), by striking ``and'' after the semicolon;
and
(B) by redesignating clause (xi) as clause (xiv) and
inserting after clause (x) the following:
``(xi) the implementation or enforcement of any
nondisclosure policy, form, or agreement;
``(xii) a suspension, revocation, or other determination
relating to a security clearance or any other access
determination by a covered agency;
``(xiii) an investigation, other than any ministerial or
nondiscretionary fact finding activities necessary for the
agency to perform its mission, of an employee or applicant
for employment because of any activity protected under this
section; and''
(2) Prohibited personnel practice.--Section 2302(b) of
title 5, United States Code, is amended--
(A) in paragraph (11), by striking ``or'' at the end;
(B) in paragraph (12), by striking the period and inserting
a semicolon; and
(C) by inserting after paragraph (12) the following:
``(13) implement or enforce any nondisclosure policy, form,
or agreement, if such policy, form, or agreement does not
contain the following statement: `These provisions are
consistent with and do not supersede, conflict with, or
otherwise alter the employee obligations, rights, or
liabilities created by Executive Order No. 12958; section
7211 of title 5, United States Code (governing disclosures to
Congress); section 1034 of title 10, United States Code
(governing disclosure to Congress by members of the
military); section 2302(b)(8) of title 5, United States Code
(governing disclosures of illegality, waste, fraud, abuse, or
public health or safety threats); the Intelligence Identities
Protection Act of 1982 (50 U.S.C. 421 et seq.) (governing
disclosures that could expose confidential Government
agents); and the statutes which protect against disclosures
that could compromise national security, including sections
641, 793, 794, 798, and 952 of title 18, United States Code,
and section 4(b) of the Subversive Activities Control Act of
1950 (50 U.S.C. 783(b)). The definitions, requirements,
obligations, rights, sanctions, and liabilities created by
such Executive order and such statutory provisions are
incorporated into this agreement and are controlling'; or
``(14) conduct, or cause to be conducted, an investigation,
other than any ministerial or nondiscretionary fact finding
activities necessary for the agency to perform its mission,
of an employee or applicant for employment because of any
activity protected under this section.''.
(3) Board and court review of actions relating to security
clearances.--
(A) In general.--Chapter 77 of title 5, United States Code,
is amended by inserting after section 7702 the following:

``Sec. 7702a. Actions relating to security clearances

``(a) In any appeal relating to the suspension, revocation,
or other determination relating to a security clearance or
access determination, the Merit Systems Protection Board or
any reviewing court--

[[Page S457]]

``(1) shall determine whether paragraph (8) or (9) of
section 2302(b) was violated;
``(2) may not order the President or the designee of the
President to restore a security clearance or otherwise
reverse a determination of clearance status or reverse an
access determination; and
``(3) subject to paragraph (2), may issue declaratory
relief and any other appropriate relief.
``(b)(1) If, in any final judgment, the Board or court
declares that any suspension, revocation, or other
determination with regard to a security clearance or access
determination was made in violation of paragraph (8) or (9)
of section 2302(b), the affected agency shall conduct a
review of that suspension, revocation, access determination,
or other determination, giving great weight to the Board or
court judgment.
``(2) Not later than 30 days after any Board or court
judgment declaring that a security clearance suspension,
revocation, access determination, or other determination was
made in violation of paragraph (8) or (9) of section 2302(b),
the affected agency shall issue an unclassified report to the
congressional committees of jurisdiction (with a classified
annex if necessary), detailing the circumstances of the
agency's security clearance suspension, revocation, other
determination, or access determination. A report under this
paragraph shall include any proposed agency action with
regard to the security clearance or access determination.
``(c) An allegation that a security clearance or access
determination was revoked or suspended in retaliation for a
protected disclosure shall receive expedited review by the
Office of Special Counsel, the Merit Systems Protection
Board, and any reviewing court.
``(d) For purposes of this section, corrective action may
not be ordered if the agency demonstrates by a preponderance
of the evidence that it would have taken the same personnel
action in the absence of such disclosure.''.
(B) Technical and conforming amendment.--The table of
sections for chapter 77 of title 5, United States Code, is
amended by inserting after the item relating to section 7702
the following:

``7702a. Actions relating to security clearances.''.

(f) Exclusion of Agencies by the President.--Section
2302(a)(2)(C) of title 5, United States Code, is amended by
striking clause (ii) and inserting the following:
``(ii)(I) the Federal Bureau of Investigation, the Central
Intelligence Agency, the Defense Intelligence Agency, the
National Imagery and Mapping Agency, the National Security
Agency; and
``(II) as determined by the President, any executive agency
or unit thereof the principal function of which is the
conduct of foreign intelligence or counterintelligence
activities, if the determination (as that determination
relates to a personnel action) is made before that personnel
action; or''.
(g) Attorney Fees.--Section 1204(m)(1) of title 5, United
States Code, is amended by striking ``agency involved'' and
inserting ``agency where the prevailing party is employed or
has applied for employment''.
(h) Disciplinary Action.--Section 1215(a)(3) of title 5,
United States Code, is amended to read as follows:
``(3)(A) A final order of the Board may impose--
``(i) disciplinary action consisting of removal, reduction
in grade, debarment from Federal employment for a period not
to exceed 5 years, suspension, or reprimand;
``(ii) an assessment of a civil penalty not to exceed
$1,000; or
``(iii) any combination of disciplinary actions described
under clause (i) and an assessment described under clause
(ii).
``(B) In any case in which the Board finds that an employee
has committed a prohibited personnel practice under paragraph
(8) or (9) of section 2302(b), the Board shall impose
disciplinary action if the Board finds that the activity
protected under paragraph (8) or (9) of section 2302(b) was a
significant motivating factor, even if other factors also
motivated the decision, for the employee's decision to take,
fail to take, or threaten to take or fail to take a personnel
action, unless that employee demonstrates, by preponderance
of evidence, that the employee would have taken, failed to
take, or threatened to take or fail to take the same
personnel action, in the absence of such protected
activity.''.
(i) Special Counsel Amicus Curiae Appearance.--Section 1212
of title 5, United States Code, is amended by adding at the
end the following:
``(h)(1) The Special Counsel is authorized to appear as
amicus curiae in any action brought in a court of the United
States related to any civil action brought in connection with
section 2302(b) (8) or (9), or subchapter III of chapter 73,
or as otherwise authorized by law. In any such action, the
Special Counsel is authorized to present the views of the
Special Counsel with respect to compliance with section
2302(b) (8) or (9) or subchapter III of chapter 73 and the
impact court decisions would have on the enforcement of such
provisions of law.
``(2) A court of the United States shall grant the
application of the Special Counsel to appear in any such
action for the purposes described in subsection (a).''.
(j) Judicial Review.--
(1) In general.--Section 7703(b)(1) of title 5, United
States Code, is amended to read as follows:
``(b)(1)(A) Except as provided in subparagraph (B) and
paragraph (2), a petition to review a final order or final
decision of the Board shall be filed in the United States
Court of Appeals for the Federal Circuit. Notwithstanding any
other provision of law, any petition for review must be filed
within 60 days after the date the petitioner received notice
of the final order or decision of the Board.
``(B) During the 5-year period beginning on the effective
date of the Federal Employee Protection of Disclosures Act, a
petition to review a final order or final decision of the
Board in a case alleging a violation of paragraph (8) or (9)
of section 2302(b) shall be filed in the United States Court
of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction as provided under subsection
(b)(2).''.
(2) Review obtained by office of personnel management.--
Section 7703(d) of title 5, United States Code, is amended to
read as follows:
``(d)(1) Except as provided under paragraph (2), this
paragraph shall apply to any review obtained by the Director
of the Office of Personnel Management. The Director of the
Office of Personnel Management may obtain review of any final
order or decision of the Board by filing, within 60 days
after the date the Director received notice of the final
order or decision of the Board, a petition for judicial
review in the United States Court of Appeals for the Federal
Circuit if the Director determines, in his discretion, that
the Board erred in interpreting a civil service law, rule, or
regulation affecting personnel management and that the
Board's decision will have a substantial impact on a civil
service law, rule, regulation, or policy directive. If the
Director did not intervene in a matter before the Board, the
Director may not petition for review of a Board decision
under this section unless the Director first petitions the
Board for a reconsideration of its decision, and such
petition is denied. In addition to the named respondent, the
Board and all other parties to the proceedings before the
Board shall have the right to appear in the proceeding before
the Court of Appeals. The granting of the petition for
judicial review shall be at the discretion of the Court of
Appeals.
``(2) During the 5-year period beginning on the effective
date of the Federal Employee Protection of Disclosures Act,
this paragraph shall apply to any review relating to
paragraph (8) or (9) of section 2302(b) obtained by the
Director of the Office of Personnel Management. The Director
of the Office of Personnel Management may obtain review of
any final order or decision of the Board by filing, within 60
days after the date the Director received notice of the final
order or decision of the Board, a petition for judicial
review in the United States Court of Appeals for the Federal
Circuit or any court of appeals of competent jurisdiction as
provided under subsection (b)(2) if the Director determines,
in his discretion, that the Board erred in interpreting
paragraph (8) or (9) of section 2302(b). If the Director did
not intervene in a matter before the Board, the Director may
not petition for review of a Board decision under this
section unless the Director first petitions the Board for a
reconsideration of its decision, and such petition is denied.
In addition to the named respondent, the Board and all other
parties to the proceedings before the Board shall have the
right to appear in the proceeding before the court of
appeals. The granting of the petition for judicial review
shall be at the discretion of the Court of Appeals.''.
(k) Nondisclosure Policies, Forms, and Agreements.--
(1) In general.--
(A) Requirement.--Each agreement in Standard Forms 312 and
4414 of the Government and any other nondisclosure policy,
form, or agreement of the Government shall contain the
following statement: ``These restrictions are consistent with
and do not supersede, conflict with, or otherwise alter the
employee obligations, rights, or liabilities created by
Executive Order No. 12958; section 7211 of title 5, United
States Code (governing disclosures to Congress); section 1034
of title 10, United States Code (governing disclosure to
Congress by members of the military); section 2302(b)(8) of
title 5, United States Code (governing disclosures of
illegality, waste, fraud, abuse or public health or safety
threats); the Intelligence Identities Protection Act of 1982
(50 U.S.C. 421 et seq.) (governing disclosures that could
expose confidential Government agents); and the statutes
which protect against disclosure that may compromise the
national security, including sections 641, 793, 794, 798, and
952 of title 18, United States Code, and section 4(b) of the
Subversive Activities Act of 1950 (50 U.S.C. 783(b)). The
definitions, requirements, obligations, rights, sanctions,
and liabilities created by such Executive order and such
statutory provisions are incorporated into this agreement and
are controlling.''.
(B) Enforceability.--Any nondisclosure policy, form, or
agreement described under subparagraph (A) that does not
contain the statement required under subparagraph (A) may not
be implemented or enforced to the extent such policy, form,
or agreement is inconsistent with that statement.
(2) Persons other than government employees.--
Notwithstanding paragraph (1), a nondisclosure policy, form,
or agreement that is to be executed by a person connected
with the conduct of an intelligence or intelligence-related
activity, other than an employee or officer of the United
States Government, may contain provisions appropriate to the
particular activity for which such document is to be used.
Such form or agreement

[[Page S458]]

shall, at a minimum, require that the person will not
disclose any classified information received in the course of
such activity unless specifically authorized to do so by the
United States Government. Such nondisclosure forms shall also
make it clear that such forms do not bar disclosures to
Congress or to an authorized official of an executive agency
or the Department of Justice that are essential to reporting
a substantial violation of law.
(l) Clarification of Whistleblower Rights for Critical
Infrastructure Information.--Section 214(c) of the Homeland
Security Act of 2002 (6 U.S.C. 133(c)) is amended by adding
at the end the following: ``For purposes of this section a
permissible use of independently obtained information
includes the disclosure of such information under section
2302(b)(8) of title 5, United States Code.''.
(m) Advising Employees of Rights.--Section 2302(c) of title
5, United States Code, is amended by inserting ``, including
how to make a lawful disclosure of information that is
specifically required by law or Executive order to be kept
secret in the interest of national defense or the conduct of
foreign affairs to the Special Counsel, the Inspector General
of an agency, Congress, or other agency employee designated
to receive such disclosures'' after ``chapter 12 of this
title''.
(n) Scope of Due Process.--
(1) Special counsel.--Section 1214(b)(4)(B)(ii) of title 5,
United States Code, is amended by inserting ``, after a
finding that a protected disclosure was a contributing
factor,'' after ``ordered if''.
(2) Individual action.--Section 1221(e)(2) of title 5,
United States Code, is amended by inserting ``, after a
finding that a protected disclosure was a contributing
factor,'' after ``ordered if''.
(o) Effective Date.--This Act shall take effect 30 days
after the date of enactment of this Act.
______

By Mr. BINGAMAN (for himself and Mr. Domenici):
S. 275. A bill to establish the Prehistoric Trackways National
Monument in the State of New Mexico; to the Committee on Energy and
Natural Resources.
Mr. BINGAMAN. Mr. President, I'm pleased to reintroduce today with
Senator Domenici a bill we introduced last Congress. The Prehistoric
Trackways National Monument Establishment Act would protect a site of
worldwide scientific significance in the Robledo Mountains in my State.
The bill would create a national monument to preserve and allow for the
continuing scientific investigation of this remarkable
``megatracksite'' of 280,000,000 year-old fossils. The Energy Committee
held a hearing last year where the Bureau of Land Management testified
in support; in addition the bill has the support of the local
community. I appreciate Senator Domenici's support on this measure and
hope that with the progress we made last Congress we can look forward
to moving the bill quickly through the Senate this year.
The vast tidal mudflats that made up much of modern New Mexico 60
million years before the dinosaurs preserved the marks of some of the
earliest life on our planet to make its way out of the ocean. The
fossil record of this time is scattered throughout New Mexico but,
until this discovery, there were few places where the range of life and
their interactions with each other could be studied.
Las Cruces resident Jerry MacDonald first brought the find to light
in 1988 when he revealed that there was far more to be found in the
Robledos than the occasional fossil that local residents had been
seeing for years. The trackways he hauled out on his back, some over 20
feet long, showed that there was a great deal of useful information
buried in the rock there. These trackways help complete the puzzle of
how these ancient creatures lived in a way that we cannot understand
from only studying their fossilized bones.
Senator Domenici and Representative Skeen joined me in creating
legislation, passed in 1990, to protect the area and study its
scientific value. In 1994, scientists from the New Mexico Museum of
Natural History and Science, the University of Colorado, and the
Smithsonian Institution completed their study and documented the
significant scientific value of the find. Particularly owing to the
quality of the specimens and the wide range of animals that had left
their imprint there the study found that the site was of immense
scientific value. The study concluded, in part, ``[t]he diversity,
abundance and quality of the tracks in the Robledo Mountains is far
greater than at any other known tracksite or aggregation of tracksites.
Because of this, the Robledo tracks allow a wide range of scientific
problems regarding late Paleozoic tracks to be solved that could not be
solved before.'' This bill would take the next logical step to follow
up from these efforts and set in place permanent protections and allow
for scientific investigation of these remarkable resources.
In addition to permanently protecting the fossils for the scientific
community the bill would make it a priority that local residents get
the opportunity to see these unique specimens and participate in their
curation. This should provide a unique scientific and educational
opportunity to Las Cruces and the surrounding community.
I look forward to working with my colleagues to protect these
important resources and allow for their continuing contribution to our
understanding of life on the ancient earth.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 275

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 ``Prehistoric Trackways
National Monument Establishment Act''.

SEC. 2. DEFINITIONS.

In this Act:
(1) Monument.--The term ``Monument'' means the Prehistoric
Trackways National Monument established by section 4(a).
(2) Public land.--The term ``public land'' has the meaning
given the term ``public lands'' in section 103 of the Federal
Land Policy and Management Act of 1976 (43 U.S.C. 1702).
(3) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.

SEC. 3. FINDINGS.

Congress finds that--
(1) in 1987, a major deposit of Paleozoic Era fossilized
footprint megatrackways was discovered in the Robledo
Mountains in southern New Mexico;
(2) the trackways contain footprints of numerous
amphibians, reptiles, and insects (including previously
unknown species), plants, and petrified wood dating back
approximately 280,000,000 years, which collectively provide
new opportunities to understand animal behaviors and
environments from a time predating the dinosaurs;
(3) title III of Public Law 101-578 (104 Stat. 2860)--
(A) provided interim protection for the site at which the
trackways were discovered; and
(B) directed the Secretary of the Interior to--
(i) prepare a study assessing the significance of the site;
and
(ii) based on the study, provide recommendations for
protection of the paleontological resources at the site;
(4) the Bureau of Land Management completed the Paleozoic
Trackways Scientific Study Report in 1994, which
characterized the site as containing ``the most
scientifically significant Early Permian tracksites'' in the
world;
(5) despite the conclusion of the study and the
recommendations for protection, the site remains unprotected
and many irreplaceable trackways specimens have been lost to
vandalism or theft; and
(6) designation of the trackways site as a National
Monument would protect the unique fossil resources for
present and future generations while allowing for public
education and continued scientific research opportunities.

SEC. 4. ESTABLISHMENT.

(a) In General.--In order to conserve, protect, and enhance
the unique and nationally important paleontological,
scientific, educational, scenic, and recreational resources
and values of the public land described in subsection (b),
there is established the Prehistoric Trackways National
Monument in the State of New Mexico.
(b) Description of Land.--The Monument shall consist of
approximately 5,367 acres of public land in Dona Ana County,
New Mexico, as generally depicted on the map entitled
``Prehistoric Trackways National Monument'' and dated June 1,
2006.
(c) Map; Legal Description.--
(1) In general.--As soon as practicable after the date of
enactment of this Act, the Secretary shall prepare and submit
to Congress an official map and legal description of the
Monument.
(2) Corrections.--The map and legal description submitted
under paragraph (1) shall have the same force and effect as
if included in this Act, except that the Secretary may
correct any clerical or typographical errors in the legal
description and the map.
(3) Conflict between map and legal description.--In the
case of a conflict between the map and the legal description,
the map shall control.
(4) Availability of map and legal description.--Copies of
the map and legal description shall be on file and available
for public inspection in the appropriate offices of the
Bureau of Land Management.

[[Page S459]]

(d) Minor Boundary Adjustments.--If additional
paleontological resources are discovered on public land
adjacent to the Monument after the date of enactment of this
Act, the Secretary may make minor boundary adjustments to the
Monument to include the resources in the Monument.

SEC. 5. ADMINISTRATION.

(a) Management.--
(1) In general.--The Secretary shall manage the Monument--
(A) in a manner that conserves, protects, and enhances the
resources and values of the Monument, including the resources
and values described in section 4(a); and
(B) in accordance with--
(i) this Act;
(ii) the Federal Land Policy and Management Act of 1976 (43
U.S.C. 1701 et seq.); and
(iii) other applicable laws.
(2) National landscape conservation system.--The Monument
shall be managed as a component of the National Landscape
Conservation System.
(3) Protection of resources and values.--The Secretary
shall manage public land adjacent to the Monument in a manner
that is consistent with the protection of the resources and
values of the Monument.
(b) Management Plan.--
(1) In general.--Not later than 3 years after the date of
enactment of this Act, the Secretary shall develop a
comprehensive management plan for the long-term protection
and management of the Monument.
(2) Components.--The management plan under paragraph (1)--
(A) shall--
(i) describe the appropriate uses and management of the
Monument, consistent with the provisions of this Act; and
(ii) allow for continued scientific research at the
Monument during the development of the management plan; and
(B) may--
(i) incorporate any appropriate decisions contained in any
current management or activity plan for the land described in
section 4(b); and
(ii) use information developed in studies of any land
within or adjacent to the Monument that were conducted before
the date of enactment of this Act.
(c) Authorized Uses.--The Secretary shall only allow uses
of the Monument that the Secretary determines would further
the purposes for which the Monument has been established.
(d) Interpretation, Education, and Scientific Research.--
(1) In general.--The Secretary shall provide for public
interpretation of, and education and scientific research on,
the paleontological resources of the Monument, with priority
given to exhibiting and curating the resources in Dona Ana
County, New Mexico.
(2) Cooperative agreements.--The Secretary may enter into
cooperative agreements with appropriate public entities to
carry out paragraph (1).
(e) Special Management Areas.--
(1) In general.--The establishment of the Monument shall
not change the management status of any area within the
boundary of the Monument that is--
(A) designated as a wilderness study area and managed in
accordance with section 603(c) of the Federal Land Policy and
Management Act of 1976 (43 U.S.C. 1782(c)); or
(B) managed as an area of critical environment concern.
(2) Conflict of laws.--If there is a conflict between the
laws applicable to the areas described in paragraph (1) and
this Act, the more restrictive provision shall control.
(f) Motorized Vehicles.--
(1) In general.--Except as needed for administrative
purposes or to respond to an emergency, the use of motorized
vehicles in the Monument shall be allowed only on roads and
trails designated for use by motorized vehicles under the
management plan prepared under subsection (b).
(2) Permitted events.--The Secretary may issue permits for
special recreation events involving motorized vehicles within
the boundaries of the Monument, including the ``Chile
Challenge''--
(A) to the extent the events do not harm paleontological
resources; and
(B) subject to any terms and conditions that the Secretary
determines to be necessary.
(g) Withdrawals.--Subject to valid existing rights, any
Federal land within the Monument and any land or interest in
land that is acquired by the United States for inclusion in
the Monument after the date of enactment of this Act are
withdrawn from--
(1) entry, appropriation, or disposal under the public land
laws;
(2) location, entry, and patent under the mining laws; and
(3) operation of the mineral leasing laws, geothermal
leasing laws, and minerals materials laws.
(h) Grazing.--The Secretary may allow grazing to continue
in any area of the Monument in which grazing is allowed
before the date of enactment of this Act, subject to
applicable laws (including regulations).
(i) Hunting.--
(1) In general.--Nothing in this Act diminishes the
jurisdiction of the State of New Mexico with respect to fish
and wildlife management, including regulation of hunting on
public land within the Monument.
(2) Regulations.--The Secretary, after consultation with
the New Mexico Department of Game and Fish, may issue
regulations designating zones in which and establishing
periods during which hunting shall not be allowed for reasons
of public safety, administration, or public use and
enjoyment.
(j) Water Rights.--Nothing in this Act constitutes an
express or implied reservation by the United States of any
water or water rights with respect to the Monument.

SEC. 6. AUTHORIZATION OF APPROPRIATIONS.

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

Mr. DOMENICI. Mr. President, the fossilized trackways near Las
Cruces, New Mexico, in Dona Ana County came to my attention in the
early 1990's. During the 101st Congress, I cosponsored Senator
Bingaman's legislation that directed the Bureau of Land Management to
study and report on the significance of the prehistoric sites near the
Robledo Mountains.
I believe our Federal lands are truly national treasures, and I
understand the challenges we face in managing our public lands in a
responsible and environmentally sensitive manner. Local leaders,
special interest groups, multiple users, New Mexico State University,
and the Bureau of Land Management, BLM, have identified many land
issues in the Las Cruces area that need to be addressed. The trackways
are but one of these issues that can and should be addressed in the
context of a broader lands bill. I continue to believe that
introduction of comprehensive or omnibus legislation is a preferable
approach, rather than the introduction of individual bills to deal with
each separate issue.
The trackways are a remarkable resource that need and deserve
protection, and I support the intent of this bill. While I am very
supportive of the overall goal to protect these prehistoric trackway
sites, there are several particulars in this bill that I do not fully
embrace and on which I want to continue to work with Senator Bingaman,
such as ensuring that we authorize all uses in the area that are not
inconsistent with the purposes of the bill, and reworking the section
regarding BLM authority with respect to hunting activities. As we work
through the legislative process, I look forward to working with Senator
Bingaman to accomplish the objective of protecting the prehistoric
trackway sites, while at the same time addressing some of the broader
Federal land issues in Dona Ana County.
______

By Mrs. FEINSTEIN (for herself and Mr. Sessions):
S. 276. A bill to strengthen the consequences of the fraudulent use
of United States or foreign passports and for other purposes; to the
Committee on the Judiciary.
Mrs. FEINSTEIN. Mr. President, Senator Sessions and I are introducing
legislation today that will enhance our national security by expanding
and strengthening the current passport and visa fraud laws.
The Passport and Visa Security Act bill adds much needed law to
punish trafficking in passports and visas and clarifies the current
criminal law. It also punishes those who engage in schemes to defraud
immigrants based on changes in the immigration law.
This bill is an improved version of a bill Senator Sessions and I
introduced in the 109th Congress. We both have long been concerned
about the need to strengthen our national security by strengthening our
document fraud laws.
In fact, we introduced our passport fraud bill well before the
comprehensive immigration reform bill was passed in the Senate last
Spring.
For that reason, I was pleased that the comprehensive immigration
reform bill contained important document fraud provisions. This bill
builds on those provisions.
The evidence has shown repeatedly that false immigration documents
provide a gateway for organized crime and terrorism. The need to take
action against this crime is clear.
For too long, the Federal Government has moved too slowly--or not at
all--to enhance our border security. According to the 9/11 National
Commission Staff Report on Terrorist Travel, prior to September 11,
2001, no agency of the U.S. government thought of border security as a
tool in the counterterrorism arsenal.
Still today, over five years since the tragic attacks on September
11, the Federal Government has failed to devote sufficient time,
technology, personnel and resources to make border security a
cornerstone of our national security policy.

[[Page S460]]

Last year, Congress passed a law to build a border fence. I believe
this law was an important first step, but a fence alone cannot
sufficiently protect our vulnerable borders.
In fact, as the 9/11 Commission report demonstrates, individuals with
fraudulent documents can pose a far greater threat to our national
security than those traveling with no documents at all.
Fraudulent documents give criminals free reign to create a new
identity and to plan and carry out attacks in the United States.
We know, for example, that at least two of the 9/11 hijackers used
passports that were altered when they entered this country and as many
as 15 of the 19 hijackers could have been intercepted by border
officials, based in part on their travel documents.
The 9/11 Commission Report detailed the way the terrorist operatives
carefully selected the documents they used for travel--most often
relying on fraudulent ones.
The terrorists altered passports by substituting photographs, adding
false visas, bleaching stamps, and by substituting pages.
The terrorists devoted extensive resources to acquiring and
manipulating passports--all to avoid detection of their nefarious
activities and objectives.
Today, over five years later, Interpol reports that they have records
of more than 12 million stolen and lost travel documents from 113
different countries. These are only the ones we know about.
Interpol estimates that 30 to 40 million travel documents have been
stolen worldwide.
We know that over the past few years, passport and visa forgery has
become even easier thanks to home computers, digital photography,
scanners and color laser printing.
News articles document that passport and visa fraud has become so
lucrative that gangs are offering franchises in the multimillion-dollar
scam to forgers.
Unfortunately, it's not only foreign passports that can be forged.
Forged and fraudulent United States passports can be the most dangerous
when in the wrong hands.
With a U.S. passport, criminals can establish American citizenship
and have unlimited access to virtually every country in the world.
It's no surprise, then, that passport and visa fraud are often linked
to other, very serious crimes in the United States and abroad:
narcotics trafficking, organized crimes, money laundering, human
trafficking, and identity theft.
For example, this past December, the son of former Liberian President
Charles Taylor, Charles McArthur Emmanuel, who headed a violent
paramilitary unit in his father's government, was sentenced in Miami
for passport fraud.
A day later, a Federal grand jury indicted him on charges of torture
and conspiracy involving acts committed in Liberia in 2002.
Emmanuel, also known as Charles ``Chuckie'' Taylor and Roy Belfast
Jr., was on Interpol's Most Wanted list and the United Nations travel
watch list.
Nevertheless, he escaped detection by falsifying his passport
application, ultimately gaining easy entry and exit from the United
States while he perpetrated his crimes.
Despite evidence that these crimes are widespread and that millions
of travel documents are on the black market, in 2004, the State
Department's Diplomatic Security Service reports that it made about 500
arrests for passport fraud, with only 300 convictions.
For these reasons, Senator Sessions and I are introducing a bill
today to strengthen current passport and visa laws in a number of key
ways.
First, this bill adds two new laws with strong penalties to punish
those who traffic in fraudulent travel documents. The current law makes
no distinction between those caught with multiple false travel
documents--the very worst offenders who are often part of organized
crime rings--and those with only one false document. Our bill would
change that.
The bill also updates the current travel document fraud laws--using
plain language advocated for by the practitioners that passed the
Senate as part of the comprehensive immigration reform bill.
Thirdly, the bill adds provisions to the current passport and visa
fraud laws to ensure that conspiracies and attempts to commit these
crimes are investigated and prosecuted just as vigorously as the
completed crime.
Fourth--the bill makes explicit that there is extraterritorial
jurisdiction over these offenses, so that individuals who counterfeit
travel documents while abroad but are caught trying to enter the United
States are still subject to prosecution.
The bill also directs the U.S. Sentencing Guidelines Commissions to
reconsider the relatively low sentencing guidelines to reflect the
potential seriousness of these crimes.
Currently, offenders who engage in passport or visa fraud generally
serve less than a year imprisonment, providing little incentive for
U.S. Attorney's Offices to expend scarce resources in prosecuting these
crimes.
Finally, the bill creates a law to punish sham attorneys who cheat
immigrants out of thousands of dollars by preying on their fears that
they could be forced to leave the country. We know that when Congress
discusses changing the immigration law, scam artists target and exploit
these vulnerable populations. These crimes should not go unpunished.
This bill provides much needed reform. It strengthens the security of
documents used to illegally gain entry to this country and empowers the
agents and prosecutors who enforce our borders to take swift and strong
action against these criminals.
I ask my colleagues to join Senator Sessions and me in supporting
this legislation.
I ask unanimous consent that a bill summary and the text of this bill
be printed in the Record.
There being no objection, the materials were ordered to be printed in
the Record, as follows:

The Passport and Visa Security Act
of 2007

bill summary

Adds two new crimes to penalize the trafficking in 10 or
more passports or visas and creates a 20 year maximum penalty
for violating these provisions. Under current law, there is
no specific provision punishing the trafficking of multiple
fraudulent documents and each document must be prosecuted
individually.
Simplifies the language of the current passport and visa
fraud laws, specifically by changing the required criminal
intent from ``knowingly and wilfully'' to ``knowingly.'' The
maximum penalty for committing these crimes is amended from
10 years for a first or second offense and 15 years in the
case of any other offense to simply 15 years.
Creates a new crime that would penalize those who engage in
schemes to defraud aliens in connection with matters
authorized by or arising under Federal immigration laws.
Clarifies existing law that the maximum sentence for
passport fraud, when used to facilitate a drug trafficking
crime, is 20 years; and the maximum sentence for passport
fraud, when used to facilitate an act of international
terrorism is 25 years. (This change is technical, not
substantive, as these are the maximum penalties already in
the individual sections of the criminal code.)
Adds language to punish conspiracies and attempts to commit
passport fraud and other false document crimes.
Makes explicit that there is extraterritorial jurisdiction
over these offenses, so that the United States can prosecute
individuals who may have committed a passport fraud crime
while abroad (e.g., the law would reach someone who
manufactures fake passports in Cameroon and is arrested in
the United States).
Adds a definitional section to clarify the terms used in
these laws.
Directs the U.S. Sentencing Guidelines Commissions to
reconsider the current low sentencing guidelines to reflect
the potential seriousness of these crimes and the changes
made by this bill.
Creates a rebuttable presumption that a person who commits
one of these crimes, or who is found to be unlawfully in the
country after having already been ordered deported, is to be
detained pending trial.
Adds language directing the Attorney General to create
binding regulations to ensure that the prosecution of these
crimes is in keeping with current U.S. treaty obligations
relating to refugees (which states that refugees carrying
false passports should not be prosecuted) without creating a
private right of action to enforce this provision.
Clarifies that the Diplomatic Security Service (of the
State Department) has authority to investigate these new and
revised crimes (using the language found in the 109th
Congress Senate passed immigration bill, S. 2611). The
Diplomatic Security Service currently investigates passport
fraud, this section just clarifies their authority to do so.
Clarifies that the same statute of limitations (10 years)
applies to all of the offenses

[[Page S461]]

added or modified by this bill--again incorporating language
from the 109th Congress Senate passed immigration bill, S.
2611.
____

S. 276

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) Short Title.--This Act may be cited as the ``Passport
and Visa Security Act of 2007''.
(b) Table of Contents.--The table of contents for this Act
is as follows:

Sec. 1. Short title; table of contents.

TITLE I--REFORM OF PASSPORT FRAUD OFFENSES

Sec. 101. Trafficking in passports.
Sec. 102. False statement in an application for a passport.
Sec. 103. Forgery and unlawful production of a passport.
Sec. 104. Misuse of a passport.
Sec. 105. Schemes to defraud aliens.
Sec. 106. Immigration and visa fraud.
Sec. 107. Alternative imprisonment maximum for certain offenses.
Sec. 108. Attempts, conspiracies, jurisdiction, and definitions.
Sec. 109. Clerical amendment.

TITLE II--OTHER REFORMS

Sec. 201. Directive to the United States Sentencing Commission.
Sec. 202. Release and detention prior to disposition.
Sec. 203. Protection for legitimate refugees and asylum seekers.
Sec. 204. Diplomatic security service.
Sec. 205. Uniform statute of limitations for certain immigration,
passport, and naturalization offenses.

TITLE I--REFORM OF PASSPORT FRAUD OFFENSES

SEC. 101. TRAFFICKING IN PASSPORTS.

Section 1541 of title 18, United States Code, is amended to
read as follows:

``Sec. 1541. Trafficking in passports

``(a) Multiple Passports.--Any person who, during any
period of 3 years or less, knowingly--
``(1) and without lawful authority produces, issues, or
transfers 10 or more passports;
``(2) forges, counterfeits, alters, or falsely makes 10 or
more passports;
``(3) secures, possesses, uses, receives, buys, sells, or
distributes 10 or more passports, knowing the passports to be
forged, counterfeited, altered, falsely made, stolen,
procured by fraud, or produced or issued without lawful
authority; or
``(4) completes, mails, prepares, presents, signs, or
submits 10 or more applications for a United States passport,
knowing the applications to contain any false statement or
representation,
shall be fined under this title, imprisoned not more than 20
years, or both.
``(b) Passport Materials.--Any person who knowingly and
without lawful authority produces, buys, sells, possesses, or
uses any official material (or counterfeit of any official
material) used to make a passport, including any distinctive
paper, seal, hologram, image, text, symbol, stamp, engraving,
or plate, shall be fined under this title, imprisoned not
more than 20 years, or both.''.

SEC. 102. FALSE STATEMENT IN AN APPLICATION FOR A PASSPORT.

Section 1542 of title 18, United States Code, is amended to
read as follows:

``Sec. 1542. False statement in an application for a passport

``(a) In General.--Whoever knowingly makes any false
statement or representation in an application for a United
States passport, or mails, prepares, presents, or signs an
application for a United States passport knowing the
application to contain any false statement or representation,
shall be fined under this title, imprisoned not more than 15
years, or both.
``(b) Venue.--
``(1) In general.--An offense under subsection (a) may be
prosecuted in any district--
``(A) in which the false statement or representation was
made or the application for a United States passport was
prepared or signed; or
``(B) in which or to which the application was mailed or
presented.
``(2) Acts occurring outside the united states.--An offense
under subsection (a) involving an application for a United
States passport prepared and adjudicated outside the United
States may be prosecuted in the district in which the
resultant passport was or would have been produced.
``(c) Savings Clause.--Nothing in this section may be
construed to limit the venue otherwise available under
sections 3237 and 3238 of this title.''.

SEC. 103. FORGERY AND UNLAWFUL PRODUCTION OF A PASSPORT.

Section 1543 of title 18, United States Code, is amended to
read as follows:

``Sec. 1543. Forgery and unlawful production of a passport

``(a) Forgery.--Any person who knowingly--
``(1) forges, counterfeits, alters, or falsely makes any
passport; or
``(2) transfers any passport knowing it to be forged,
counterfeited, altered, falsely made, stolen, or to have been
produced or issued without lawful authority,

shall be fined under this title, imprisoned not more than 15
years, or both.
``(b) Unlawful Production.--Any person who knowingly and
without lawful authority--
``(1) produces, issues, authorizes, or verifies a passport
in violation of the laws, regulations, or rules governing the
issuance of the passport;
``(2) produces, issues, authorizes, or verifies a United
States passport for or to any person knowing or in reckless
disregard of the fact that such person is not entitled to
receive a passport; or
``(3) transfers or furnishes a passport to any person for
use by any person other than the person for whom the passport
was issued or designed,

shall be fined under this title, imprisoned not more than 15
years, or both.''.

SEC. 104. MISUSE OF A PASSPORT.

Section 1544 of title 18, United States Code, is amended to
read as follows:

``Sec. 1544. Misuse of a passport

``Any person who knowingly--
``(1) uses any passport issued or designed for the use of
another;
``(2) uses any passport in violation of the conditions or
restrictions therein contained, or in violation of the laws,
regulations, or rules governing the issuance and use of the
passport;
``(3) secures, possesses, uses, receives, buys, sells, or
distributes any passport knowing it to be forged,
counterfeited, altered, falsely made, procured by fraud, or
produced or issued without lawful authority; or
``(4) violates the terms and conditions of any safe conduct
duly obtained and issued under the authority of the United
States,

shall be fined under this title, imprisoned not more than 15
years, or both.''.

SEC. 105. SCHEMES TO DEFRAUD ALIENS.

Section 1545 of title 18, United States Code, is amended to
read as follows:

``Sec. 1545. Schemes to defraud aliens

``(a) In General.--Any person who knowingly executes a
scheme or artifice, in connection with any matter that is
authorized by or arises under Federal immigration laws or any
matter the offender claims or represents is authorized by or
arises under Federal immigration laws, to--
``(1) defraud any person; or
``(2) obtain or receive money or anything else of value
from any person by means of false or fraudulent pretenses,
representations, promises,

shall be fined under this title, imprisoned not more than 15
years, or both.
``(b) Misrepresentation.--Any person who knowingly and
falsely represents that such person is an attorney or an
accredited representative (as that term is defined in section
1292.1 of title 8, Code of Federal Regulations (or any
successor regulation to such section)) in any matter arising
under Federal immigration laws shall be fined under this
title, imprisoned not more than 15 years, or both.''.

SEC. 106. IMMIGRATION AND VISA FRAUD.

Section 1546 of title 18, United States Code, is amended to
read as follows:

``Sec. 1546. Immigration and visa fraud

``(a) In General.--Any person who knowingly--
``(1) uses any immigration document issued or designed for
the use of another;
``(2) forges, counterfeits, alters, or falsely makes any
immigration document;
``(3) completes, mails, prepares, presents, signs, or
submits any immigration document knowing it to contain any
materially false statement or representation;
``(4) secures, possesses, uses, transfers, receives, buys,
sells, or distributes any immigration document knowing it to
be forged, counterfeited, altered, falsely made, stolen,
procured by fraud, or produced or issued without lawful
authority;
``(5) adopts or uses a false or fictitious name to evade or
to attempt to evade the immigration laws; or
``(6) transfers or furnishes, without lawful authority, an
immigration document to another person for use by a person
other than the person for whom the passport was issued or
designed,

shall be fined under this title, imprisoned not more than 15
years, or both.
``(b) Trafficking.--Any person who, during any period of 3
years or less, knowingly--
``(1) and without lawful authority produces, issues, or
transfers 10 or more immigration documents;
``(2) forges, counterfeits, alters, or falsely makes 10 or
more immigration documents;
``(3) secures, possesses, uses, buys, sells, or distributes
10 or more immigration documents, knowing the immigration
documents to be forged, counterfeited, altered, stolen,
falsely made, procured by fraud, or produced or issued
without lawful authority; or
``(4) completes, mails, prepares, presents, signs, or
submits 10 or more immigration documents knowing the
documents to contain any materially false statement or
representation,

shall be fined under this title, imprisoned not more than 20
years, or both.
``(c) Immigration Document Materials.--Any person who
knowingly and without lawful authority produces, buys, sells,
possesses, or uses any official material (or counterfeit of
any official material) used to make immigration documents,
including any distinctive paper, seal, hologram, image, text,
symbol, stamp, engraving, or plate, shall be fined under this
title, imprisoned not more than 20 years, or both.
``(d) Employment Documents.--Whoever uses--

[[Page S462]]

``(1) an identification document, knowing (or having reason
to know) that the document was not issued lawfully for the
use of the possessor;
``(2) an identification document knowing (or having reason
to know) that the document is false; or
``(3) a false attestation,

for the purpose of satisfying a requirement of section
274A(b) of the Immigration and Nationality Act (8 U.S.C.
1324a(b)), shall be fined under this title, imprisoned not
more than 5 years, or both.''.

SEC. 107. ALTERNATIVE IMPRISONMENT MAXIMUM FOR CERTAIN
OFFENSES.

Section 1547 of title 18, United States Code, is amended--
(1) in the matter preceding paragraph (1), by striking
``(other than an offense under section 1545)'';
(2) in paragraph (1), by striking ``15'' and inserting
``20''; and
(3) in paragraph (2), by striking ``20'' and inserting
``25''.

SEC. 108. ATTEMPTS, CONSPIRACIES, JURISDICTION, AND
DEFINITIONS.

Chapter 75 of title 18, United States Code, is amended by
adding after section 1547 the following new sections:

``Sec. 1548. Attempts and conspiracies

``Any person who attempts or conspires to violate any
section of this chapter shall be punished in the same manner
as a person who completed a violation of that section.

``Sec. 1549. Additional jurisdiction

``(a) In General.--Any person who commits an offense under
this chapter within the special maritime and territorial
jurisdiction of the United States shall be punished as
provided under this chapter.
``(b) Extraterritorial Jurisdiction.--Any person who
commits an offense under this chapter outside the United
States shall be punished as provided under this chapter if--
``(1) the offense involves a United States passport or
immigration document (or any document purporting to be such a
document) or any matter, right, or benefit arising under or
authorized by Federal immigration laws;
``(2) the offense is in or affects foreign commerce;
``(3) the offense affects, jeopardizes, or poses a
significant risk to the lawful administration of Federal
immigration laws, or the national security of the United
States;
``(4) the offense is committed to facilitate an act of
international terrorism (as defined in section 2331) or a
drug trafficking crime (as defined in section 929(a)(2)) that
affects or would affect the national security of the United
States;
``(5) the offender is a national of the United States or an
alien lawfully admitted for permanent residence (as those
terms are defined in section 101(a) of the Immigration and
Nationality Act (8 U.S.C. 1101(a))); or
``(6) the offender is a stateless person whose habitual
residence is in the United States.

``Sec. 1550. Authorized law enforcement activities

``Nothing in this chapter shall prohibit any lawfully
authorized investigative, protective, or intelligence
activity of a law enforcement agency of the United States, a
State, or a political subdivision of a State, or an
intelligence agency of the United States, or any activity
authorized under title V of the Organized Crime Control Act
of 1970 (Public Law 91-452; 84 Stat. 933).

``Sec. 1551. Definitions

``As used in this chapter:
``(1) The term `application for a United States passport'
includes any document, photograph, or other piece of evidence
submitted in support of an application for a United States
passport.
``(2) The term `false statement or representation' includes
a personation or an omission.
``(3) The term `immigration document'--
``(A) means any application, petition, affidavit,
declaration, attestation, form, visa, identification card,
alien registration document, employment authorization
document, border crossing card, certificate, permit, order,
license, stamp, authorization, grant of authority, or other
official document, arising under or authorized by the
immigration laws of the United States; and
``(B) includes any document, photograph, or other piece of
evidence attached to or submitted in support of an
immigration document described in subparagraph (A).
``(4) The term `immigration laws' includes--
``(A) the laws described in section 101(a)(17) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(17));
``(B) the laws relating to the issuance and use of
passports; and
``(C) the regulations prescribed under the authority of any
law described in subparagraph (A) or (B).
``(5) A person does not exercise `lawful authority' if the
person abuses or improperly exercises lawful authority the
person otherwise holds.
``(6) The term `passport' means--
``(A) a travel document attesting to the identity and
nationality of the bearer that is issued under the authority
of the Secretary of State, a foreign government, or an
international organization; or
``(B) any instrument purporting to be a document described
in subparagraph (A).
``(7) The term `produce' means to make, prepare, assemble,
issue, print, authenticate, or alter.
``(8) The term `to present' means to offer or submit for
official processing, examination, or adjudication. Any such
presentation continues until the official processing,
examination, or adjudication is complete.
``(9) The `use' of a passport or an immigration document
referred to in section 1541(a), 1543(b), 1544, 1546(a), and
1546(b) of this chapter includes--
``(A) any officially authorized use;
``(B) use to travel;
``(C) use to demonstrate identity, residence, nationality,
citizenship, or immigration status;
``(D) use to seek or maintain employment; or
``(E) use in any matter within the jurisdiction of the
Federal government or of a State government.''.

SEC. 109. CLERICAL AMENDMENT.

The table of sections for chapter 75 of title 18, United
States Code, is amended to read as follows:

``Sec
``1541. Trafficking in passports.
``1542. False statement in an application for a passport.
``1543. Forgery and unlawful production of a passport.
``1544. Misuse of a passport.
``1545. Schemes to defraud aliens.
``1546. Immigration and visa fraud.
``1547. Alternative imprisonment maximum for certain offenses.
``1548. Attempts and conspiracies.
``1549. Additional jurisdiction.
``1550. Authorized law enforcement activities.
``1550. Definitions.''.

TITLE II--OTHER REFORMS

SEC. 201. DIRECTIVE TO THE UNITED STATES SENTENCING
COMMISSION.

(a) In General.--Pursuant to the authority under section
994 of title 28, United States Code, the United States
Sentencing Commission shall promulgate or amend the
sentencing guidelines, policy statements, and official
commentaries related to passport fraud offenses, including
the offenses described in chapter 75 of title 18, United
States Code, as amended by section 2, to reflect the serious
nature of such offenses.
(b) Report.--Not later than one year after the date of the
enactment of this Act, the United States Sentencing
Commission shall submit to the Committee on the Judiciary of
the Senate and the Committee on the Judiciary of the House of
Representatives a report on the implementation of this
section.

SEC. 202. RELEASE AND DETENTION PRIOR TO DISPOSITION.

(a) Detention.--Section 3142(e) of title 18, United States
Code, is amended to read as follows:
``(e) Detention.--(1) If, after a hearing pursuant to the
provisions of subsection (f) of this section, the judicial
officer finds that no condition or combination of conditions
will reasonably assure the appearance of the person as
required and the safety of any other person and the
community, such judicial officer shall order the detention of
the person before trial.
``(2) In a case described in subsection (f)(1) of this
section, a rebuttable presumption arises that no condition or
combination of conditions will reasonably assure the safety
of any other person and the community if such judicial
officer finds that--
``(A) the person has been convicted of a Federal offense
that is described in subsection (f)(1) of this section, or of
a State or local offense that would have been an offense
described in subsection (f)(1) of this section if a
circumstance giving rise to Federal jurisdiction had existed;
``(B) the offense described in subparagraph (A) of this
paragraph was committed while the person was on release
pending trial for a Federal, State, or local offense; and
``(C) a period of not more than five years has elapsed
since the date of conviction, or the release of the person
from imprisonment, for the offense described in subparagraph
(A) of this paragraph, whichever is later.
``(3) Subject to rebuttal by the person, it shall be
presumed that no condition or combination of conditions will
reasonably assure the appearance of the person as required
and the safety of the community if the judicial officer finds
that there is probable cause to believe that the person
committed an offense for which a maximum term of imprisonment
of ten years or more is prescribed in the Controlled
Substances Act (21 U.S.C. 801 et seq.), the Controlled
Substances Import and Export Act (21 U.S.C. 951 et seq.), or
chapter 705 of title 46, an offense under section 924(c),
956(a), or 2332b of this title, or an offense listed in
section 2332b(g)(5)(B) of this title for which a maximum term
of imprisonment of 10 years or more is prescribed, or an
offense involving a minor victim under section 1201, 1591,
2241, 2242, 2244(a)(1), 2245, 2251, 2251A, 2252(a)(1),
2252(a)(2), 2252(a)(3), 2252A(a)(1), 2252A(a)(2),
2252A(a)(3), 2252A(a)(4), 2260, 2421, 2422, 2423, or 2425 of
this title.
``(4) Subject to rebuttal by the person, it shall be
presumed that no condition or combination of conditions will
reasonably assure the appearance of the person as required if
the judicial officer finds that there is probable cause to
believe that the person--
``(A) is an alien; and
``(B)(i) has no lawful immigration status in the United
States;
``(ii) is the subject of a final order of removal; or
``(iii) has committed a felony offense under chapter 75 of
this title.''.
(b) Factors to Be Considered.--Section 3142(g)(3) of title
18, United States Code, is amended--

[[Page S463]]

(1) in subparagraph (A), by striking ``and'' at the end;
and
(2) by adding at the end the following new subparagraph:
``(C) the person's immigration status; and''.

SEC. 203. PROTECTION FOR LEGITIMATE REFUGEES AND ASYLUM
SEEKERS.

(a) Protection for Legitimate Refugees and Asylum
Seekers.--The Attorney General, in consultation with the
Secretary of Homeland Security, shall develop binding
prosecution guidelines for Federal prosecutors to ensure that
any prosecution of an alien seeking entry into the United
States by fraud is consistent with the United States treaty
obligations under Article 31(1) of the Convention Relating to
the Status of Refugees, done at Geneva July 28, 1951 (as made
applicable by the Protocol Relating to the Status of
Refugees, done at New York January 31, 1967 (19 UST 6223)).
(b) No Private Right of Action.--The guidelines required by
subsection (a), and any internal office procedures adopted
pursuant thereto, are intended solely for the guidance of
attorneys for the United States. This section, such
guidelines, and the process for determining such guidelines
are not intended to, do not, and may not be relied upon to
create any right or benefit, substantive or procedural,
enforceable at law by any party in any administrative, civil,
or criminal matter

SEC. 204. DIPLOMATIC SECURITY SERVICE.

Section 37(a)(1) of the State Department Basic Authorities
Act of 1956 (22 U.S.C. 2709(a)(1)) is amended to read as
follows:
``(1) conduct investigations concerning--
``(A) illegal passport or visa issuance or use;
``(B) identity theft or document fraud affecting or
relating to the programs, functions, and authorities of the
Department of State;
``(C) violations of chapter 77 of title 18, United States
Code; and
``(D) Federal offenses committed within the special
maritime and territorial jurisdiction defined in paragraph
(9) of section 7 of title 18, United States Code;''.

SEC. 205. UNIFORM STATUTE OF LIMITATIONS FOR CERTAIN
IMMIGRATION, PASSPORT, AND NATURALIZATION
OFFENSES.

(a) In General.--Section 3291 of title 18, United States
Code, is amended to read as follows:

``Sec. 3291. Immigration, passport, and naturalization
offenses

``No person shall be prosecuted, tried, or punished for a
violation of any section of chapters 69 (relating to
nationality and citizenship offenses) or 75 (relating to
passport and visa offenses) of this title, or for an attempt
or conspiracy to violate any such section, unless the
indictment is returned or the information is filed within ten
years after the commission of the offense.''.
(b) Clerical Amendment.--The table of sections for chapter
213 of title 18, United States Code, is amended by striking
the item relating to section 3291 and inserting the
following:

``3291. Immigration, passport, and naturalization offenses''.

Mr. SESSIONS. Mr. President, I want to thank my colleague Senator
Feinstein for her hard work on document security issues. She currently
serves as the Chair of the Judiciary Committee's Terrorism
Subcommittee, Senator Kyl is Ranking Member, and I am looking forward
to working with her on the document security that issues I am sure our
subcommittee will address this Congress.
This year will mark the 3rd year Senator Feinstein and I have worked
together on legislation aimed at making it easier to prosecute people
trying to enter the U.S. with fraudulent documents.
One of the most dangerous document security issues we face is how to
keep passports and visas out of the hands of the people we don't want
to have them.
As a 2004 U.S. News and World Report article rightly stated, ``When
it comes to terrorists' most valuable weapons, passports and visas
probably rank higher than bullets and bombs.'' A 2004 study done by the
Department of Homeland Security Office of Inspector General titled ``A
Review of the Use of Stolen Passports From Visa Waiver Countries to
Enter the United States,'' found that ``[there are] over 10 million
lost or stolen passports that might be in circulation.'' As background
for the report, the Forensics Documents Laboratory informed the Office
of the Inspector General that ``criminals consider a passport'' from a
Visa Waiver Country ``a very valuable commodity.''
To keep out terrorists and others we do not want to allow into the
United States, we must be able to identify and effectively prosecute
people who lie or give us fraudulent information to obtain a U.S. visa
or a passport.
Additionally, we must be able to identify and effectively prosecute
people trying to enter the U.S. with a passport or visa that belongs to
someone else.
Perhaps most importantly, we must effectively prosecute those
possessing multiple passports and visas they intend to distribute to
others. We must be able to take these ``career'' document traffickers,
those caught with more than 10 fraudulent passports or visas, off the
streets.
Under current law, violators are not being prosecuted effectively
because there is no statute that specifically makes trafficking in
multiple (10 or more) documents its own crime. This bill will add that
new crime--punishable by 20 years in jail--to the passport and visa
fraud sections of the criminal code.
In addition to creating a new crime to penalize trafficking in 10 or
more fraudulent immigration documents, 20 year maximum sentence, Title
I of the bill simplifies the language of several of the current
passport fraud provisions of the criminal code and changes the maximum
penalties for these offenses from 10 years for the first offense and 15
years for subsequent offenses, to simply 15 years for each offense.
The bill also includes a new protection for immigrants. Anyone who
engages in a scheme to defraud them in connection with matters under
Federal immigration law, or who pretends to be an immigration lawyer,
will be charged under a new crime that carries a maximum penalty of 15
years. Although this provision is not strictly related to passport
fraud, it will protect immigrants from sham attorneys and legal
``experts'' who cheat them out of their money by pretending to offer
them immigration benefits or legitimate documents.
Many of the bill's provisions simply clean up sections of the
criminal code. For example--one section modifies the alternative
sentencing penalties to make sure the penalties for severe passport
fraud offenses (such as those used to facilitate a drug trafficking
crime or an act of international terrorism) are consistent throughout
the code.
Other provisions codify common law principles needed for effective
prosecution of document fraud offenses. For example--one section makes
needed clarifications on venue. Currently, false statements or
documents are often included in the application which is mailed from
one location but processed in another location. This section makes
clear that the offense is perpetrated both at the location of the
mailing and at the location of the adjudication. If the application
containing false statements is prepared overseas, this section
clarifies that the offense is still punishable in the United States.
In March of 2004, Mark Zuckerman, Assistant U.S. Attorney for New
Hampshire, testified before the United States Sentencing Commission.
New Hampshire's National Passport Center processed 2 million of the 7
million passports issued in 2003. The National Passport Center also
receives nearly all of the applications for passport renewals filed
with the State Department. New Hampshire conducted a passport fraud
initiative in its U.S. Attorney's Office as part of its anti-terrorism
effort. Zuckerman's testimony provides some insight into the problems
that arose during the initiative.
Though the passport applications were processed in New Hampshire,
cases of passport fraud resulting from those applications were not
being handled in New Hampshire. Typically, they were sent back to the
district from which they were mailed. Once returned, they were often
declined for prosecution by their local U.S. Attorney's office.
One of the reasons frequently given by the regional U.S. Attorney's
Offices for declining passport fraud cases was: ``The sentencing
guidelines do not treat passport fraud as a serious offense for which a
period of incarceration is likely.''
I would reiterate what Mr. Zuckerman so astutely pointed out in his
testimony. Under the current Criminal Code, the most common forms of
passport fraud--unless they constitute terrorism or drug trafficking--
are just class C felonies. When the defendant has no criminal history,
the court is simply required to incarcerate the defendant for 0-6
months. This is the lowest and least consequential sentencing range
that can be assigned to any felony under the U.S.

[[Page S464]]

Code. (page 5 of Zuckerman's testimony)
The 9/11 Commission also recognized the lack of routine prosecutions
for passport fraud offenses. Page 386 of their report noted:

Fraudulent travel documents, for instance, are usually
returned to travelers who are denied entry without further
examination for terrorist trademarks, investigation into
their source, or legal process.

Importantly, the bill we are introducing today directs the Sentencing
Commission to reevaluate the current low sentencing guidelines for
passport and visa fraud offenses to reflect the potential seriousness
of these crimes and the changes made by our bill.
Additionally, we will require the Sentencing Commission to report
back to the Congress on the rationale behind their decision to change
(or not change) the sentencing guidelines as a result of this
direction.
Majority Leader Harry Reid has repeatedly stated that one of the
items at the top of the Democratic agenda early this Congress is the
implementation of the recommendations of the 9/11 Commission. In
addition to their comments on the lack of prosecutions, the 9/11
Commission had a lot more say about the use of fraudulent and altered
passports and visas in the Commission of the 9/11 terrorist attacks.

``[W]e endeavor to dispel the myth that their [the hijackers'] entry
into the United States was `clean and legal'. It was not. . . . two
[hijackers] carried passports manipulated in a fraudulent manner. It is
likely that several more hijackers carried passports with similar
fraudulent manipulation. Two hijackers lied on their visa
applications'' Preface, 9/11 Commission staff report.
``To avoid detection of their activities and objectives while
engaging in travel that necessitates using a passport, terrorists
devote extensive resources to acquiring and manipulating passports,
entry and exits stamps, and visas. The al Qaeda terrorist organization
was no exception. High-level members of Al Qaeda were expert document
forgers . . .'' Page 1. 9/11 Commission staff report.
``Travel history, however, is still recorded in passports with entry-
exit stamps called cachets, which al Qaeda has trained its operatives
to forge and use to conceal their terrorist activities''. Page 403, 9/
11 Commission report.
``[C]ertain al Qaeda members were charged with organizing passport
collection schemes to keep the pipelines of fraudulent documents
flowing.'' Page 186., ibid
``For terrorists, travel documents are as important as weapons. They
must travel clandestinely to meet, train, plan, case targets, and gain
access to attack . . . In their travels, terrorists use evasive
measures, such as altered and counterfeit passports and visas . . .''
Page 384. ibid.
I hope that Senator Reid plans to include the Feinstein/Sessions
Passport and Visa Fraud Bill in his 9/11 Commission Recommendations
Implementation Package.

____________________