[Congressional Record (Bound Edition), Volume 151 (2005), Part 11]
[Senate]
[Pages 15884-15901]
[From the U.S. Government Publishing Office, www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Ms. SNOWE:
  S. 1388. A bill to amend chapter 6 of title 5, United States Code 
(commonly known as the Regulatory Flexibility Act), to ensure complete 
analysis of potential impacts on small entities of rules, and for other 
purposes; to the Committee on Homeland Security and Governmental 
Affairs.
  Ms. SNOWE. Mr. President, as Chair of the Senate Committee on Small 
Business and Entrepreneurship, I have fought to ensure that small 
businesses across the country are treated fairly by Federal Government 
regulations. Unfortunately, in far too many cases, Federal agencies 
promulgate regulations without adequately addressing the economic 
impacts on small businesses.
  The Regulatory Flexibility Act, RFA, was enacted in 1980 and requires 
Federal Government agencies to propose rules that keep the regulatory 
burden at a minimum on small businesses. The RFA requires agencies to 
analyze the economic impact of proposed regulations when there is 
likely to be a significant economic impact on a substantial number of 
small entities.
  In 1996, I was pleased to support, along with all of my colleagues, 
the Small Business Regulatory Enforcement Fairness Act, SBREFA, which 
amended the RFA. The intent of SBREFA was to further curtail the impact 
of burdensome or duplicative regulations on small businesses, by 
clarifying key RFA requirements. In September we will celebrate the 
25th Anniversary of the RFA--a law that is largely working as Congress 
intended.
  Unfortunately, there remain a number of loopholes in the RFA that 
undermine its effectiveness in reducing these regulatory burdens. To 
close these loopholes, today I introduce the Regulatory Flexibility 
Reform Act of 2005, RFRA. This bill would ensure that Federal agencies 
conduct a complete analysis of the impacts of Federal regulations, 
thereby providing small businesses, which represent more than 99 
percent of all firms in America and provide up to 75 percent of new 
jobs each year, with much needed regulatory relief.
  Under my legislation agencies must consider the indirect effects of 
an ``economic impact.'' Rules with indirect effects are currently 
exempt from RFA coverage according to well-established case law. This 
has serious consequences for small businesses. It means a Federal 
agency can avoid the various analyses required under the RFA by either 
requiring the States to regulate small entities or regulating an 
industry so rigorously that it has a negative trickle down impact on 
other industries.
  For example, rules can regulate a handful of large manufacturers in 
the same industry. Yet, a foreseeable, indirect effect of these rules--
not presently considered under RFA analyses--is that small distributors 
would no longer have the right to sell the product produced by the 
larger manufacturers. In one case 100,000 small distributors were 
prevented from distributing their products.
  This indirect economic effect had a significant impact on a 
substantial number of small businesses because their ability to compete 
in the marketplace--and create jobs--has and will continue to be 
harmed.
  In addition, this large loophole amounts to an ``unfunded mandate'' 
because many States do not have a requirement to conduct an RFA-type 
analysis of regulations. And even when there is such a statute on the 
books, those States frequently do not have the resources to conduct the 
analysis themselves. Worse still, for States with no requirement to 
conduct RFA-type analyses, the impact of the Federal regulation upon 
small businesses is never properly assessed either at the Federal or 
State level.
  This situation demands reform.
  Second, my legislation requires Federal agencies to consider comments 
provided by the Small Business Administration's Office of Advocacy. The 
SBA's Office of Advocacy does not receive the public attention it 
deserves. It should. In case after case it has been the last, best hope 
for small businesses faced with burdensome, duplicative and nonsensical 
Federal regulations.
  The Office of Advocacy serves two critical roles: No. 1, it 
represents small business' interests before the Federal government in 
regulatory matters, and No. 2, it conducts valuable research to further 
our understanding of the importance of small businesses and their job 
creating potential in our economy.
  My legislation would also amend the RFA to include a provision for 
agencies to specifically respond to comments filed by the Chief Counsel 
for Advocacy. Codifying this necessary change would ensure that 
agencies give the proper deference to the Office of Advocacy, and 
hence, to the comments and concerns of small businesses. This is a 
straightforward and simple reform that could have major benefits.
  Finally, the RFRA would clarify the circumstances for a periodic 
review of Federal rules. If there is a significant impact on a 
substantial number of small entities, a review would be required. It 
would also clarify the requirement that agencies review all 10-year-old 
rules to avoid confusion over which rules to review. In addition, 
agencies would be required to review rules every 10 years and not just 
the first 10 years. That's because rules can have unintended and 
negative consequences in our changing global, information-age economy.
  This legislation is absolutely necessary. I urge my colleagues to 
support my bill so we can ensure that our Nation's small businesses and 
their employees are provided with much needed regulatory relief.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1388

       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 ``Regulatory 
     Flexibility Reform Act of 2005''.
       (b) Table of Contents.--The table of contents of this Act 
     is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Findings.
Sec. 3. Clarification and expansion of rules covered by the Regulatory 
              Flexibility Act.
Sec. 4. Requirements providing for more detailed analyses.
Sec. 5. Periodic review of rules.
Sec. 6. Clerical amendments.

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) A vibrant and growing small business sector is critical 
     to creating jobs in a dynamic economy.
       (2) Regulations designed for application to large-scale 
     entities have been applied uniformly to small businesses and 
     other small entities, even though the problems sought to be 
     solved by such regulations are not always caused by these 
     small businesses and other small entities.
       (3) Uniform Federal regulatory and reporting requirements 
     in many instances have imposed on small businesses and other 
     small entities unnecessary and disproportionately burdensome 
     demands, including legal, accounting, and consulting costs.
       (4) Since 1980, Federal agencies have been required to 
     recognize and take account of the differences in the scale 
     and resources of regulated entities, but have failed to do 
     so.
       (5) Alternative regulatory approaches that do not conflict 
     with the stated objectives of the statutes the regulations 
     seek to implement may be available and may minimize

[[Page 15885]]

     the significant economic impact of regulations on small 
     businesses and other small entities.
       (6) Federal agencies have failed to analyze and uncover 
     less-costly alternative regulatory approaches, despite the 
     fact that the chapter 6 of title 5, United States Code 
     (commonly known as the Regulatory Flexibility Act), requires 
     them to do so.
       (7) Federal agencies continue to interpret chapter 6 of 
     title 5, United States Code, in a manner that permits them to 
     avoid their analytical responsibilities.
       (8) The existing oversight of the compliance of Federal 
     agencies with the analytical requirements to assess 
     regulatory impacts on small businesses and other small 
     entities and obtain input from the Chief Counsel for Advocacy 
     has not sufficiently modified the Federal agency regulatory 
     culture.
       (9) Significant changes are needed in the methods by which 
     Federal agencies develop and analyze regulations, receive 
     input from affected entities, and develop regulatory 
     alternatives that will lessen the burden or maximize the 
     benefits of final rules to small businesses and other small 
     entities.
       (10) It is the intention of Congress to amend chapter 6 of 
     title 5, United States Code, to ensure that all impacts, 
     including foreseeable indirect effects, of proposed and final 
     rules are considered by agencies during the rulemaking 
     process and that the agencies assess a full range of 
     alternatives that will limit adverse economic consequences or 
     enhance economic benefits.
       (11) Federal agencies should be capable of assessing the 
     impact of proposed and final rules without delaying the 
     regulatory process or impinging on the ability of Federal 
     agencies to fulfill their statutory mandates.

     SEC. 3. CLARIFICATION AND EXPANSION OF RULES COVERED BY THE 
                   REGULATORY FLEXIBILITY ACT.

       Section 601 of title 5, United States Code, is amended by 
     adding at the end the following:
       ``(9) Economic impact.--The term `economic impact' means, 
     with respect to a proposed or final rule--
       ``(A) any direct economic effect on small entities of such 
     rule; and
       ``(B) any indirect economic effect on small entities which 
     is reasonably foreseeable and results from such rule (without 
     regard to whether small entities will be directly regulated 
     by the rule).''.

     SEC. 4. REQUIREMENTS PROVIDING FOR MORE DETAILED ANALYSES.

       (a) Initial Regulatory Flexibility Analysis.--Section 603 
     of title 5, United States Code, is amended--
       (1) by striking subsection (b) and inserting the following:
       ``(b) Each initial regulatory flexibility analysis required 
     under this section shall contain a detailed statement--
       ``(1) describing the reasons why action by the agency is 
     being considered;
       ``(2) describing the objectives of, and legal basis for, 
     the proposed rule;
       ``(3) estimating the number and type of small entities to 
     which the proposed rule will apply;
       ``(4) describing the projected reporting, recordkeeping, 
     and other compliance requirements of the proposed rule, 
     including an estimate of the classes of small entities which 
     will be subject to the requirement and the type of 
     professional skills necessary for preparation of the report 
     and record;
       ``(5) describing all relevant Federal rules which may 
     duplicate, overlap, or conflict with the proposed rule, or 
     the reasons why such a description could not be provided; and
       ``(6) estimating the additional cumulative economic impact 
     of the proposed rule on small entities beyond that already 
     imposed on the class of small entities by the agency or why 
     such an estimate is not available.''; and
       (2) by adding at the end the following:
       ``(d) An agency shall notify the Chief Counsel for Advocacy 
     of the Small Business Administration of any draft rules that 
     may have a significant economic impact on a substantial 
     number of small entities either--
       ``(1) when the agency submits a draft rule to the Office of 
     Information and Regulatory Affairs at the Office of 
     Management and Budget under Executive Order 12866, if that 
     order requires such submission; or
       ``(2) if no submission to the Office of Information and 
     Regulatory Affairs is so required, at a reasonable time prior 
     to publication of the rule by the agency.''.
       (b) Final Regulatory Flexibility Analysis.--
       (1) In general.--Section 604(a) of title 5, United States 
     Code, is amended--
       (A) in paragraph (1), by striking ``succinct'';
       (B) in paragraph (2), by striking ``summary'' each place it 
     appears and inserting ``statement'';
       (C) in paragraph (3), by--
       (i) striking ``an explanation'' and inserting ``a detailed 
     explanation''; and
       (ii) inserting ``detailed'' before ``description'';
       (D) in paragraph (4), by inserting ``detailed'' before 
     ``description''; and
       (E) in paragraph (5), by inserting ``detailed'' before 
     ``description''.
       (2) Inclusion of response to comments on certification of 
     proposed rule.--Section 604(a)(2) of title 5, United States 
     Code, is amended by inserting ``(or certification of the 
     proposed rule under section 605(b))'' after ``initial 
     regulatory flexibility analysis''.
       (3) Inclusion of response to comments filed by chief 
     counsel for advocacy.--Section 604(a) of title 5, United 
     States Code, is amended by redesignating paragraphs (3), (4), 
     and (5) as paragraphs (4), (5), and (6), respectively, and 
     inserting after paragraph (2) the following:
       ``(3) the agency's response to any comments filed by the 
     Chief Counsel for Advocacy of the Small Business 
     Administration in response to the proposed rule, and a 
     detailed statement of any changes made to the proposed rule 
     in the final rule as a result of such comments;''.
       (4) Publication of analysis on web site, etc.--Section 
     604(b) of title 5, United States Code, is amended to read as 
     follows:
       ``(b) The agency shall make copies of the final regulatory 
     flexibility analysis available to the public, including 
     placement of the entire analysis on the agency's Web site, 
     and shall publish in the Federal Register the final 
     regulatory flexibility analysis, or a summary thereof that 
     includes the telephone number, mailing address, and link to 
     the Web site where the complete analysis may be obtained.''.
       (c) Cross-References to Other Analyses.--Section 605(a) of 
     title 5, United States Code, is amended to read as follows:
       ``(a) A Federal agency shall be treated as satisfying any 
     requirement regarding the content of an agenda or regulatory 
     flexibility analysis under section 602, 603, or 604, if such 
     agency provides in such agenda or analysis a cross-reference 
     to the specific portion of another agenda or analysis that is 
     required by any other law and which satisfies such 
     requirement.''.
       (d) Certifications.--The second sentence of section 605(b) 
     of title 5, United States Code, is amended--
       (1) by inserting ``detailed'' before ``statement''; and
       (2) by inserting ``and legal'' after ``factual''.
       (e) Quantification Requirements.--Section 607 of title 5, 
     United States Code, is amended to read as follows:

     ``Sec. 607. Quantification requirements

       ``In complying with sections 603 and 604, an agency shall 
     provide--
       ``(1) a quantifiable or numerical description of the 
     effects of the proposed or final rule and alternatives to the 
     proposed or final rule; or
       ``(2) a more general descriptive statement and a detailed 
     statement explaining why quantification is not practicable or 
     reliable.''.

     SEC. 5. PERIODIC REVIEW OF RULES.

       Section 610 of title 5, United States Code, is amended to 
     read as follows:

     ``Sec. 610. Periodic review of rules

       ``(a) Not later than 180 days after the enactment of the 
     Regulatory Flexibility Reform Act of 2005, each agency shall 
     publish in the Federal Register and place on its Web site a 
     plan for the periodic review of rules issued by the agency 
     that the head of the agency determines has a significant 
     economic impact on a substantial number of small entities. 
     Such determination shall be made without regard to whether 
     the agency performed an analysis under section 604. The 
     purpose of the review shall be to determine whether such 
     rules should be continued without change, or should be 
     amended or rescinded, consistent with the stated objectives 
     of applicable statutes, to minimize any significant adverse 
     economic impacts on a substantial number of small entities. 
     Such plan may be amended by the agency at any time by 
     publishing the revision in the Federal Register and 
     subsequently placing the amended plan on the agency's Web 
     site.
       ``(b) The plan shall provide for the review of all such 
     agency rules existing on the date of the enactment of the 
     Regulatory Flexibility Reform Act of 2005 within 10 years 
     after the date of publication of the plan in the Federal 
     Register and every 10 years thereafter and for review of 
     rules adopted after the date of enactment of the Regulatory 
     Flexibility Reform Act of 2005 within 10 years after the 
     publication of the final rule in the Federal Register and 
     every 10 years thereafter. If the head of the agency 
     determines that completion of the review of existing rules is 
     not feasible by the established date, the head of the agency 
     shall so certify in a statement published in the Federal 
     Register and may extend the review for not longer than 2 
     years after publication of notice of extension in the Federal 
     Register. Such certification and notice shall be sent to the 
     Chief Counsel for Advocacy and Congress.
       ``(c) Each agency shall annually submit a report regarding 
     the results of its review pursuant to such plan to Congress 
     and, in the case of agencies other than independent 
     regulatory agencies (as defined in section 3502(5) of title 
     44, United States Code), to the Administrator of the Office 
     of Information and Regulatory Affairs of the Office of 
     Management and Budget. Such report shall include the 
     identification of any rule with respect to which the head of 
     the agency made a determination of infeasibility under 
     paragraph (5) or (6) of subsection (d) and a detailed 
     explanation of the reasons for such determination.

[[Page 15886]]

       ``(d) In reviewing rules under such plan, the agency shall 
     consider--
       ``(1) the continued need for the rule;
       ``(2) the nature of complaints received by the agency from 
     small entities concerning the rule;
       ``(3) comments by the Regulatory Enforcement Ombudsman and 
     the Chief Counsel for Advocacy;
       ``(4) the complexity of the rule;
       ``(5) the extent to which the rule overlaps, duplicates, or 
     conflicts with other Federal rules and, unless the head of 
     the agency determines it to be infeasible, State and local 
     rules;
       ``(6) the contribution of the rule to the cumulative 
     economic impact of all Federal rules on the class of small 
     entities affected by the rule, unless the head of the agency 
     determines that such calculations cannot be made and reports 
     that determination in the annual report required under 
     subsection (c);
       ``(7) the length of time since the rule has been evaluated 
     or the degree to which technology, economic conditions, or 
     other factors have changed in the area affected by the rule; 
     and
       ``(8) the current impact of the rule, including--
       ``(A) the number of small entities to which the rule will 
     apply; and
       ``(B) the projected reporting, recordkeeping and other 
     compliance requirements of the proposed rule, including--
       ``(i) an estimate of the classes of small entities that 
     will be subject to the requirement; and
       ``(ii) the type of professional skills necessary for 
     preparation of the report or record.
       ``(e) The agency shall publish in the Federal Register and 
     on its Web site a list of rules to be reviewed pursuant to 
     such plan. Such publication shall include a brief description 
     of the rule, the reason why the agency determined that it has 
     a significant economic impact on a substantial number of 
     small entities (without regard to whether it had prepared a 
     final regulatory flexibility analysis for the rule), and 
     request comments from the public, the Chief Counsel for 
     Advocacy, and the Regulatory Enforcement Ombudsman concerning 
     the enforcement of the rule.''.

     SEC. 6. CLERICAL AMENDMENTS.

       (a) In General.--Section 601 of title 5, United States 
     Code, is amended--
       (1) in paragraph (1)--
       (A) by striking the semicolon at the end and inserting a 
     period; and
       (B) by striking ``(1) the term'' and inserting the 
     following:
       ``(1) Agency.--The term'';
       (2) in paragraph (2)--
       (A) by striking the semicolon at the end and inserting a 
     period; and
       (B) by striking ``(2) the term'' and inserting the 
     following:
       ``(2) Rule.--The term'';
       (3) in paragraph (3)--
       (A) by striking the semicolon at the end and inserting a 
     period; and
       (B) by striking ``(3) the term'' and inserting the 
     following:
       ``(3) Small business.--The term'';
       (4) in paragraph (4)--
       (A) by striking the semicolon at the end and inserting a 
     period; and
       (B) by striking ``(4) the term'' and inserting the 
     following:
       ``(4) Small organizations.--The term'';
       (5) in paragraph (5)--
       (A) by striking the semicolon at the end and inserting a 
     period; and
       (B) by striking ``(5) the term'' and inserting the 
     following:
       ``(5) Small governmental jurisdiction.--The term'';
       (6) in paragraph (6)--
       (A) by striking ``; and'' and inserting a period; and
       (B) by striking ``(6) the term'' and inserting the 
     following:
       ``(6) Small entity.--The term'';
       (7) in paragraph (7), by striking ``(7) the term'' and 
     inserting the following:
       ``(7) Collection of information.--The term''; and
       (8) in the matter preceding paragraph (1), by striking 
     ``chapter--'' and inserting ``chapter, the following 
     definitions apply:''.
       (b) Heading.--The heading of section 605 of title 5, United 
     States Code, is amended to read as follows:

     ``Sec. 605. Incorporations by reference and certifications''.

       (c) Table of Sections.--The table of sections for chapter 6 
     of title 5, United States Code, is amended--
       (1) by striking the item relating to section 605 and 
     inserting the following:

``605. Incorporations by reference and certifications.''; and

       (2) by striking the item relating to section 607 and 
     inserting the following:

``607. Quantification requirements.''.
                                 ______
                                 
      By Mr. SPECTER (for himself, Mrs. Feinstein, and Mr. Kyl):
  S. 1389. A bill to reauthorize and improve the USA PATRIOT Act; to 
the Committee on the Judiciary.
  Mr. SPECTER. Mr. President, I seek recognition to introduce, along 
with my colleagues Senator Feinstein and Senator Kyl, the USA PATRIOT 
Improvement and Reauthorization Act of 2005, a bipartisan bill to 
reauthorize provisions of the landmark anti- terrorism legislation we 
adopted in the wake of September 11, 2001. We continue to give tools to 
law enforcement to protect our security; and, at the same time, we make 
important improvements to the law to ensure greater protection of civil 
liberties and to require greater accountability through enhanced 
reporting and oversight.
  In recent months, the political rhetoric about the PATRIOT Act has 
reached a fever pitch. Not surprisingly, however, the reality fails to 
match the rhetoric. As the Washington Post has editorialized, 
``[a]lthough the PATRIOT Act has become a catch phrase for civil 
liberties anxieties, it in fact has little connection to the most 
serious infringements on civil liberties in the war on terrorism.'' At 
the same time, it would be unwise to credit the act with all of our 
hard-won successes in the effort to combat terror. As evidenced by the 
grisly attacks in London last week, no law or surveillance regime can 
prevent every terrorist attack.
  Nevertheless, as last week's attacks remind us, the danger of 
international terrorism remains real, and has not abated in the years 
since 9/11. So, we must remain vigilant, and we must be cautious not to 
recreate the legal circumstances that arguably contributed to 
significant intelligence failures before 9/11. Reauthorizing the 
PATRIOT Act, while incorporating improvements designed to safeguard our 
liberties and enhance oversight, is the right thing to do. To quote the 
Post again, ``there is little evidence of abuse--and considerable 
evidence that the law has facilitated needed cooperation. Based on 
what's known, it merits reauthorization with minor modifications.''
  The bill we introduce today is the result of careful consideration. 
We have listened both to the concerns of critics and the arguments of 
the administration. We have probed and prodded both for information. 
And, we have consulted with both sides of the political aisle to 
fashion language designed to maintain the Government's ability to 
effectively investigate--and hopefully preempt--terrorist attacks, 
while making changes to reassure the American people that the law will 
be used responsibly, consistent with the rights enshrined in our 
Constitution.
  Mr. President, I would like to focus on the changes we have made to 
those PATRIOT Act provisions that have generated the most controversy.
  The PATRIOT Act modified electronic surveillance authority under the 
Foreign Intelligence Surveillance Act of 1978, or FISA, to permit 
multipoint wiretaps of suspected terrorists or spies; but only upon a 
judicial finding of probable cause to believe the target is an agent of 
a foreign power and a further finding that the target's actions could 
thwart efforts to identify a single phone company or similar 
communications provider upon whom to serve the order. The principle 
behind this authority, which parallels similar authority in the 
criminal law, is that surveillance of a suspected terrorist or spy 
should be permitted to continue, uninterrupted, when the target changes 
phones. By definition, a multipoint wiretap order does not identify the 
specific phone to be tapped, because the order allows the Government to 
track the person not a single device. This was a change made necessary 
by the advent of cell phones, which are easily purchased and then 
discarded. After passage of the PATRIOT Act, however, this authority 
was further modified, so that a FISA surveillance order only had to 
specify the identity of the target ``if known.'' If the identity was 
unknown, the order had to include a ``description of the target,'' but 
there was no further requirement about how detailed the description of 
such ``John Doe'' targets had to be--raising concerns that the 
Government could conduct roving surveillance of a broadly described 
target. Our bill corrects this shortcoming and makes other improvements 
to the roving authority under FISA.

[[Page 15887]]

  First, the bill responds to concerns that so-called John Doe roving 
wiretaps could be used against someone described generically as a 
``Middle Eastern male'' or ``Hispanic female'' by requiring such orders 
to include ``sufficient information to describe a specific target with 
particularity.'' This makes it clear that, although such orders may 
``rove'' from one phone to another when the target changes devices, the 
Government cannot ``rove'' from one investigative target to another, 
seeking to identify the right person. Through this change, we avoid 
rewarding terrorists or spies who successfully conceal their 
identities, but we also protect innocent Americans from unwarranted 
surveillance.
  The bill further minimizes the chance that ``roving'' wiretaps could 
be used indiscriminately against multiple devices by requiring the 
Government to notify the court every time it begins surveillance of a 
new device. This notice must be made within 10 days of the initiation 
of surveillance, and must include a description of the new device, as 
well as the ``facts and circumstances'' indicating that each new phone 
or similar device is ``being used, or is about to be used,'' by the 
target. The notice must also update the techniques being used to 
minimize the interception and retention of unrelated communications. 
Finally, the bill adds new reporting requirements and extends the 
sunset date until December 31, 2009, allowing Congress to revisit the 
need for this surveillance tool.
  I would next like to turn to the bill's modification of section 215 
of the PATRIOT Act, perhaps the most controversial provision of the 
act, and one that is frequently misidentified as the ``library'' 
provision.
  Prior to the PATRIOT Act, FISA authorized the FBI to obtain orders 
for the production of certain types of business records, including 
those of hotels, car rental agencies and storage facilities, in limited 
circumstances. Under the pre-PATRIOT standard, however, the FBI could 
not even seek the records of someone observed in the presence of a 
suspected spy or terrorist, unless it had specific reasons to suspect 
the associate was himself a spy or terrorist. Strangely, this standard 
was significantly higher than the standard applicable to similar 
records requests in criminal cases. Accordingly, section 215 of the 
PATRIOT Act amended FISA to permit orders for any records or tangible 
things sought in connection with an authorized investigation to obtain 
foreign intelligence not concerning a U.S. person or to protect against 
international terrorism or clandestine intelligence activities.
  As enacted, however, section 215 did not require the FBI to establish 
the factual basis for the requested order. According to critics, 
section 215 rendered the FISA court little more than a rubber stamp for 
the Government's requests. Moreover, section 215 included no explicit 
right for recipients to confer with legal counsel. And, despite oft-
repeated comparisons to grand jury subpoenas, orders under section 215 
included no explicit right to judicial review akin to a motion to quash 
a subpoena. Indeed, in testimony before the Judiciary Committee earlier 
this year, Attorney General Gonzales conceded these shortcomings in the 
law, and expressed a new willingness to consider modifications of 
section 215.
  Our bill addresses these issues, and adds still more protections to 
ensure the provision is used responsibly. First, the bill eliminates 
the mere certification of relevance required by current law and 
enhances the factual showing that must be made by the Government to 
obtain records. It also requires the court to agree with the adequacy 
of the Government's factual showing, and adds several procedural 
protections including heightened approval requirements and increased 
reporting for orders seeking sensitive materials, like library or 
medical records. Specifically, the bill requires the Government to 
submit ``a statement of facts'' showing ``reasonable grounds to believe 
that the records or other things sought are relevant'' to an authorized 
investigation. The bill then addresses concerns about the FISA judge 
acting as a ``rubber stamp'' by requiring the court to find that the 
facts establish ``reasonable grounds to believe'' the items sought are 
relevant. The bill also adds an explicit right to consult counsel; 
provides for judicial review; requires approval of the FBI Director or 
Deputy Director for orders concerning library records and other 
sensitive materials; and adds annual reports to Congress regarding use 
of the provision to obtain library records, book sales records, 
firearms sales records, health information or tax information. This 
reporting feature is important because it enables the Congress to 
monitor the Justice Department's activities.
  In addition to the foregoing, the bill also requires an annual report 
on the number of times FISA orders for records and tangible things have 
been issued, modified, or denied. At our April 5 hearing, the Attorney 
General declassified the fact that, as of March 30, 2005, the FISA 
court had ``granted the department's request for a 215 order 35 
times.'' He further noted that section 215 had not been used to obtain 
library or bookstore records, medical records or gun sale records. 
According to the Attorney General, section 215 had been used only to 
obtain driver's license records, public accommodation records, 
apartment leasing records, credit card records and subscriber 
information, such as names and addresses for telephone numbers captured 
through court-authorized pen register devices. It is our hope that 
regular public reporting, together with enhanced congressional 
reporting, will bolster public confidence in the law without 
compromising sensitive investigations. Finally, as with the multipoint 
surveillance authority, we have extended the sunset date for section 
215 of the PATRIOT Act until December 31, 2009, so Congress must 
revisit the continuing need for this tool.
  Another PATRIOT Act provision that has inspired significant criticism 
is section 213 of the act, which authorized delayed notice or so-called 
sneak & peek search warrants. Unlike the other sections I have 
discussed, section 213 is not scheduled to sunset later this year. 
Nevertheless, in recognition of the concerns raised about this 
provision, we have made several changes to this authority as well.
  Prior to the PATRIOT Act, three Federal circuits had approved the 
practice of delayed notice search warrants. Supreme Court precedent 
also supported the legality of judicially authorized covert entries. 
Indeed, in Dalia v. United States, a 1979 case involving the analogous 
situation of a covert entry to install a listening device, the Supreme 
Court described as ``frivolous'' the argument that ``covert entries are 
unconstitutional for their lack of notice.'' Nevertheless, in the 1995 
case of Wilson v. Arkansas, which focused on whether officers must 
``knock and announce'' their presence before serving a warrant, the 
Court held that, ``in some circumstances an officer's unannounced entry 
into a home might be unreasonable under the Fourth Amendment.'' But, 
the Court did not address sneak and peek warrants directly, and it left 
``to the lower courts the task of determining the circumstances under 
which an unannounced entry is reasonable under the Fourth Amendment.''
  The PATRIOT Act sought to create a unified standard for delayed 
notice searches. Under the PATRIOT Act, notice of a search may be 
delayed if a court finds reasonable cause to believe immediate notice 
may have an adverse result, including: (A) endangering the life or 
physical safety of an individual; (B) flight from prosecution; (C) 
destruction of, or tampering with, evidence; (D) intimidation of 
potential witnesses; or (E) otherwise seriously jeopardizing an 
investigation or unduly delaying a trial. Notice must be provided 
within a ``reasonable period'' of time, which may be extended for good 
cause. As noted by critics, however, the period of delay could be 
indefinite. And, in at least six instances reported by the Department 
of Justice, courts have authorized unspecified periods of delay--such 
as delays until the conclusion of an investigation.
  Over the last 3 months, at the Judiciary Committee's request, the 
Department of Justice has furnished new information about its use of 
delayed notice search warrants. This data shows

[[Page 15888]]

that delayed notice warrants account for less than 0.2 percent of the 
warrants handled by Federal district courts. Moreover, delayed notice 
warrants based solely on seriously jeopardizing an investigation 
account for less than 1 in every 1,500 warrants--mitigating concerns 
that the ``catch-all'' provision is being overused. DOJ has also now 
supplied summaries of 15 cases--out of a total of 22 where the delay 
was based solely on the ``catch-all.'' In these cases, the delay was 
based on the substantial risk of comprising a title III wiretap or 
frustrating efforts to identify the full scope of a complex criminal 
enterprise. Accordingly, the draft bill does not eliminate seriously 
jeopardizing an investigation as a basis for delay. Instead, the bill 
enhances reporting requirements--including the addition of new public 
reporting requirements--to ensure that DOJ continues to use this 
authority responsibly. The bill also requires the court to set a ``date 
certain'' for notice to be provided, eliminating concerns about 
indefinite delays. The bill permits extensions of the delay period, but 
requires that extensions be granted only ``upon an updated showing of 
the need for further delay.'' Finally, the bill limits extensions to 90 
days each, which parallels the notice requirements for criminal 
wiretaps and ``bugs'' which are arguably more invasive that a one-time 
search, because they may require covert entries and they continue to 
collect personal data for extended periods of time.
  As these changes illustrate, while reauthorizing the PATRIOT Act, we 
have emphasized enhanced oversight through reporting. This bill adds 
reporting requirements to several PATRIOT provisions, including the 
aforementioned public reporting on delayed notice search warrants and 
FISA business records orders. The bill also adds public reporting on 
FISA pen registers and the emergency authorization of FISA electronic 
surveillance. Moreover, throughout FISA, the draft bill adds the Senate 
and House Judiciary Committees to reporting provisions currently 
limited to the Senate and House Intelligence Committees.
  In addition, we have made adjustments to other provisions of the 
PATRIOT Act. These include:
  Section 203, sharing criminal information with intelligence agencies: 
The bill requires notice to the authorizing court when foreign 
intelligence information gathered via a court-authorized criminal 
wiretap is disclosed to intelligence agencies.
  Section 207, Duration of FISA surveillance of non-U.S. persons: The 
bill extends surveillance periods for non-U.S. persons under FISA, 120 
days for original orders, and up to 1 year for extensions. Also, it 
extends the duration of FISA pen registers for non-U.S. persons, up to 
1 year.
  Section 212, emergency disclosure of electronic communications: The 
bill adds new reporting requirements to ensure the government is using 
this authority appropriately. The bill also makes technical corrections 
to harmonize the language permitting the emergency disclosure of 
contents and records.
  Section 505, national security letters: The bill incorporates 
legislation introduced by Senator Cornyn to address a 2004 Federal 
district court decision holding a national security letter, or NSL, 
served on an Internet service provider unconstitutional. This 
legislation permits disclosure to legal counsel; allows court 
challenges; and permits judicial enforcement of NSLs.
  Sunsets: As I have noted, the bill retains sunsets for PATRIOT 
sections 206, multi-point wiretaps, and 215, FISA orders for business 
records and tangible things. The bill also extends the sunset date for 
the ``Lone Wolf'' provision added to FISA by last year's Intelligence 
Reform and Terrorism Prevention Act until December 31, 2009.
  Taken together, these changes provide important checks on the 
governmental authorities contained in the PATRIOT Act. At the same 
time, these amendments honor President Bush's call for Congress to 
reauthorize the act without weakening the tools used to combat 
terrorism. I am pleased to be joined by Senators Feinstein and Kyl in 
introducing this measure, and I look forward to securing the support of 
other Judiciary Committee members as we move to consider this bill.
  Mr. President, I would ask that the Washington Post editorial 
mentioned in my remarks, as well as three letters from the Department 
of Justice on the use of delayed notice warrants, be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Washington Post, June 13, 2005]

                           Patriot Second Act

       Congress passed the USA Patriot Act in haste after the 
     Sept. 11, 2001, attacks. Critics predicted that the act would 
     deal a blow to liberty, while proponents insisted it was 
     essential to the fight against al Qaeda. A wise compromise 
     gave the administration new powers but had them expire at the 
     end of 2005, giving Congress a chance to take a second look. 
     Consequently, various congressional committees are 
     considering whether the Patriot Act should be reauthorized, 
     rolled back or expanded--and whether this time it should be 
     made permanent, as the administration wishes, or renewed only 
     temporarily.
       Although the Patriot Act has become a catch phrase for 
     civil liberties anxieties, it in fact has little connection 
     to the most serious infringements on civil liberties in the 
     war on terrorism. It has nothing to do with the detention of 
     Americans as enemy combatants, the abuse of prisoners 
     captured abroad or the roundup of foreigners for minor 
     immigration violations. The law's key sections were designed 
     to expand investigative powers in national security cases and 
     permit more information-sharing between intelligence and law 
     enforcement agencies. These have sparked controversy more 
     because of abuses they might permit than because of anything 
     that is known to have happened. Indeed, there is little 
     evidence of abuse--and considerable evidence that the law has 
     facilitated needed cooperation. Based on what's known, it 
     merits reauthorization with minor modifications.
       But first more ought to be known. Far from regularly 
     releasing information about its use of the law, the 
     administration has generally hidden even basic information--
     only to release it when politically convenient. Neither in 
     the Patriot Act nor in the surveillance statute it amended 
     did Congress require the sort of routine public reporting 
     that would offer Americans a useful ongoing sense of the law 
     in operation. And while the administration has, in recent 
     months, released a good deal of information to support its 
     request for reauthorization, the public still lacks a full 
     picture. Before reauthorizing the Patriot Act, Congress needs 
     to demand and release sufficient information. And in revising 
     the law, Congress should make it more transparent, so the 
     public is not at the mercy of the administration's sense of 
     openness.
       Nor should reauthorization be permanent. Knowing it had to 
     return to Congress for reauthorization was one of the few 
     incentives for the administration to release information; 
     it's useful to maintain that incentive. And it's not overly 
     burdensome to ask the executive branch to periodically 
     justify its need for such powerful investigative tools.
       Finally, the Senate intelligence committee has included as 
     part of its reauthorization package a broad authority for the 
     FBI to collect information from businesses in intelligence 
     matters using an administrative subpoena the FBI can issue on 
     its own. This should not become law. Administrative subpoenas 
     make sense in regulatory matters have made their way into 
     certain criminal and security investigations. But the Justice 
     Department already can get the records it needs using the 
     traditional, wide-ranging investigative powers of the grand 
     jury or another provision of the Patriot Act. Administrative 
     subpoenas are more secretive than grand jury subpoenas, and 
     they involve less scrutiny from prosecutors; they strip away 
     a layer of oversight. The administration may well make a 
     persuasive case for Patriot Act renewal, with increased 
     oversight. But this particular power should not be granted.
                                  ____

                                            Department of Justice,


                                Office of Legislative Affairs,

                                     Washington, DC, Apr. 4, 2005.
     Hon. Arlen Specter,
     Chairman, Committee on the Judiciary,
     U.S. Senate, Washington, DC.
       Dear Mr. Chairman: We have indicated in some of our 
     responses to questions for the record, including those 
     recently submitted on April 1, 2005, that we would supplement 
     our responses to some questions. This letter is intended to 
     supplement previous information we have provided regarding 
     the usage of section 213 of the USA PATRIOT Act (``the 
     Act''), relating to delayed-notice search warrants. We 
     believe the information contained herein completely answers 
     all the Committee's questions submitted to date regarding 
     section 213 and we look forward to working with you on this 
     and other issues related to the reauthorization of the USA 
     PATRIOT Act.
       As you know, the Department of Justice believes very 
     strongly that section 213 is an

[[Page 15889]]

     invaluable tool in the war on terror and our efforts to 
     combat serious criminal conduct. In passing the USA PATRIOT 
     Act, Congress recognized that delayed-notice search warrants 
     are a vital aspect of the Department's strategy of 
     prevention; detecting and incapacitating terrorists, drug 
     dealers and other criminals before they can harm our nation. 
     Codified at 18 U.S.C. Sec. 3103a, section 213 of the Act 
     created an explicit statutory authority for investigators and 
     prosecutors to ask a court for permission to delay 
     temporarily notice that a search warrant was executed. While 
     not scheduled to sunset on December 31, 2005, section 213 has 
     been the subject of criticism and various legislative 
     proposals. For the following reasons, the Department does not 
     believe any modifications to section 213 are required.
       To begin with, delayed-notice search warrants have been 
     used by law enforcement officers for decades. Such warrants 
     were not created by the USA PATRIOT Act. Rather, the Act 
     simply codified a common-law practice recognized by courts 
     across the country. Section 213 simply created a uniform 
     nationwide standard for the issuance of those warrants, thus 
     ensuring that delayed-notice search warrants are evaluated 
     under the same criteria across the nation. Like any other 
     search warrant, a delayed-notice search warrant is issued by 
     a federal judge only upon a showing that there is probable 
     cause to believe that the property to be searched for or 
     seized constitutes evidence of a criminal offense. A delayed-
     notice warrant differs from an ordinary search warrant only 
     in that the judge specifically authorizes the law enforcement 
     officers executing the warrant to wait for a limited period 
     of time before notifying the subject of the search that a 
     search was executed.
       In addition, investigators and prosecutors seeking a 
     judge's approval to delay notification must show that, if 
     notification were made contemporaneous to the search, there 
     is reasonable cause to believe one of the following might 
     occur: (1) notification would endanger the life or physical 
     safety of an individual; (2) notification would cause flight 
     from prosecution; (3) notification would result in 
     destruction of, or tampering with, evidence; (4) notification 
     would result in intimidation of potential witnesses; or (5) 
     notification would cause serious jeopardy to an investigation 
     or unduly delay a trial.
       To be clear, it is only in these five tailored 
     circumstances that the Department may request judicial 
     approval to delay notification, and a federal judge must 
     agree with the Department's evaluation before approving any 
     delay.
       Delayed-notice search warrants provide a crucial option to 
     law enforcement. If immediate notification were required 
     regardless of the circumstances, law enforcement officials 
     would be too often forced into making a ``Hobson's choice'': 
     delaying the urgent need to conduct a search and/or seizure 
     or conducting the search and prematurely notifying the target 
     of the existence of law enforcement interest in his or her 
     illegal conduct and undermine the equally pressing need to 
     keep the ongoing investigation confidential.
       A prime example in which a delayed-notice search warrant 
     was executed is Operation Candy Box. This operation was a 
     complex multi-year, multi-country, multi-agency investigative 
     effort by the Organized Crime Drug Enforcement Task Force, 
     involving the illegal trafficking and distribution of both 
     MDMA (also known as Ecstasy) and BC bud (a potent and 
     expensive strain of marijuana). The delayed-notice search 
     warrant used in the investigation was obtained on the grounds 
     that notice would cause serious jeopardy to the investigation 
     (see 18 V.S.C. Sec. 2705(a)(2) (E)).
       In 2004, investigators learned that an automobile loaded 
     with a large quantity of Ecstasy would be crossing the U.S.-
     Canadian border en route to Florida. On March 5, 2004, after 
     the suspect vehicle crossed into the United States near 
     Buffalo, Drug Enforcement Administration (DEA) Special Agents 
     followed the vehic1e until the driver stopped at a 
     restaurant. One agent then used a duplicate key to enter the 
     vehicle and drive away while other agents spread broken glass 
     in the parking space to create the impression that the 
     vehicle had been stolen. The ruse worked, and the drug 
     traffickers were not tipped off that the DEA had seized their 
     drugs. A subsequent search of the vehicle revealed a hidden 
     compartment containing 30,000 MDMA tablets and ten pounds of 
     BC bud Operation Candy Box was able to continue because 
     agents were able to delay notification of the search for more 
     than three weeks.
       On March 31, 2004, in a two-nation crackdown the Department 
     notified the owner of the car of the seizure and likewise 
     arrested more than 130 individuals. Ultimately, Operation 
     Candy Box resulted in approximately 212 arrests and the 
     seizure of $8,995,811 in U.S. currency, 1,546 pounds of MDMA 
     powder, 409,300 MDMA tablets, 1,976 pounds of marijuana, 6.5 
     pounds of methamphetamine, jewelry valued at $174,000,38 
     vehicles, and 62 weapons. By any measure, Operation Candy Box 
     seriously disrupted the Ecstasy market in the United States 
     and made MDMA pills less potent, more expensive and harder to 
     find. There has been a sustained nationwide eight percent per 
     pill price increase since the culmination of Operation Candy 
     Box; a permanent decrease of average purity per pill to the 
     lowest levels since 1996; and currency seizures have denied 
     traffickers access to critical resources--preventing the 
     distribution of between 17 and 34 million additional Ecstasy 
     pills to our Nation's children.
       Had Operation Candy Box agents, however, been required to 
     provide immediate notification of the search of the car and 
     seizure of the drugs, they would have prematurely revealed 
     the existence of and thus seriously jeopardized the ultimate 
     success of this massive long-term investigation. The dilemma 
     faced by investigators in the absence of delayed notification 
     is even more acute in terrorism investigations where the 
     slightest indication of governmental interest can lead a 
     loosely connected cell to dissolve. Fortunately though, 
     because delayed-notice search warrants are available, 
     investigators do not have to choose between pursuing 
     terrorists or criminals and protecting the public--we can do 
     both.
       It is important to stress that in all circumstances the 
     subject of a criminal search warrant is informed of the 
     search. It is simply false to suggest, as some have, that 
     delayed-notice search warrants allow the government to search 
     an individual's ``houses, papers, and effects'' without 
     notifying them of the search. In every case where the 
     government executes a criminal search warrant, including 
     those issued pursuant to section 213, the subject of the 
     search is told of the search. With respect to delayed-notice 
     search warrants, such notice is simply delayed for a 
     reasonable period of time--a time period defined by a Federal 
     judge.
       Delayed-notice search warrants are constitutional and do 
     not violate the Fourth Amendment. The U.S. Supreme Court 
     expressly held in Dalia v. United States that the Fourth 
     Amendment does not require law enforcement to give immediate 
     notice of the execution of a search warrant. Since Dalia, 
     three Federal courts of appeals have considered the 
     constitutionality of delayed-notice search warrants, and all 
     three have upheld their constitutionality. To our knowledge, 
     no court has ever held otherwise. In short, long before the 
     enactment of the USA PATRIOT Act, it was clear that delayed 
     notification was appropriate in certain circumstances; that 
     remains true today. The USA PATRIOT Act simply resolved the 
     mix of inconsistent rules, practices and court decisions 
     varying from circuit to circuit. Therefore, section 213 had 
     the beneficial impact of mandating uniform and equitable 
     application of the authority across the Nation.
       The Committee has requested detailed information regarding 
     how often section 213 has been used. Let us assure you that 
     the use of a delayed-notice search warrant is the exception, 
     not the rule. Law enforcement agents and investigators 
     provide immediate notice of a search warrant's execution in 
     the vast majority of cases. According to Administrative 
     Office of the U.S. Courts (AOUSC), during a 12-month period 
     ending September 30, 2003, U.S. District Courts handled 
     32,539 search warrants. By contrast, in one 14-month period--
     between April 2003 and July 2004--the Department used the 
     section 213 authority only 61 times according to a Department 
     survey. Even when compared to the AOUSC data for a shorter 
     period of time, the 61 uses of section 213 sti1l only 
     accounts for less than 0.2% of the total search warrants 
     handled by the courts. Indeed, since the USA PATRIOT Act was 
     enacted on October 26, 2001, through January 31, 2005--a 
     period of more than 3 years--the Department has uti1ized a 
     delayed-notice search warrant only 155 times.
       We have been working with United States Attorneys across 
     the country to refine our data and develop a more complete 
     picture of the usage of the section 213 authority. We have 
     manually surveyed each of the 94 United States Attorneys' 
     Offices for this information which, we understand, is not in 
     a database. We are pleased to report our additional findings 
     below.
       In September 2003, the Department made public the fact that 
     we had exercised the authority contained in section 213 to 
     delay notification 47 times between October 2001, and Apri1 
     1, 2003. Our most recent survey, which covers the time frame 
     between April 1, 2003, and January 31, 2005, indicates we 
     have delayed notification of searches in an additional 108 
     instances. Since April 1, 2003, no request for a delayed-
     notice search warrant has been denied. It is possible to 
     misconstrue this information as evidence that courts are 
     merely functioning as a ``rubber stamp'' for the Department's 
     requests. In reality, however, it is an indication that the 
     Department takes the authority codified by the USA PATRIOT 
     Act very seriously. We judiciously seek court approval only 
     in those rare circumstances--those that fit the narrowly 
     tailored statute--when it is absolutely necessary and 
     justified. As explained above, the Department estimates that 
     it seeks to delay notice of fewer than 1 in 500 search 
     warrants issued nationwide. To further buttress this point, 
     the 108 instances of section 213 usage between April 1, 2003, 
     and January 31, 2005, occurred in 40 different offices. And 
     of those 40 offices, 17 used section 213 only once. Looking 
     at it from another perspective over a longer time frame, 48 
     U.S. Attorneys' Offices--or slightly more than half--have 
     never

[[Page 15890]]

     sought court permission to execute a delayed-notice search 
     warrant in their districts since passage of the USA PATRIOT 
     Act.
       To provide further detail for your consideration, of the 
     108 times authority to delay notice was sought between April 
     1, 2003, and January 31, 2005, in 92 instances ``seriously 
     jeopardizing an investigation'' (18 U.S.C. Sec. 2705(a)(2)(E) 
     was relied upon as a justification for the application. And 
     in at least 28 instances, jeopardizing the investigation was 
     the sole ground for seeking court approval to delay 
     notification, including Operation Candy Box described above. 
     It is important to note that under S. 1709, the ``SAFE Act,'' 
     which was introduced in the 108th Congress, this ground for 
     delaying notice would be eliminated. Other grounds for 
     seeking delayed-notice search warrants were relied on as 
     follows: 18 U.S.C. Sec. 2705(a)(2)(A) (danger to life or 
     physical safety of an individual) was cited 23 times; 18 
     U.S.C. Sec. 2705(a)(2)(B) (flight from prosecution) was cited 
     45 times; 18 U.S.C. Sec. 2705(a)(2)(C) (destruction or 
     tampering with evidence) was cited 61 times; and 18 U.S.C. 
     Sec. 2705(a)(2)(D) (intimidation of potential witnesses) was 
     cited 20 times. As is probably clear, in numerous 
     applications, U.S. Attorneys' Offices cited more than one 
     circumstance as justification for seeking court approval. The 
     bulk of uses have occurred in drug cases; but section 213 has 
     also been used in many cases including terrorism, identity 
     fraud, alien smuggling, explosives and firearms violations, 
     and the sale of protected wildlife.
       Members of the Senate Judiciary Committee have also been 
     concerned about delayed notification of seizures and have 
     requested more detailed explanation of the number of times 
     seizures have been made pursuant to delayed-notice warrants. 
     The Department is pleased to provide the following 
     information.
       Seizures can be made only after receiving approval of a 
     Federal judge that the government has probable cause to 
     believe the property or material to be seized constitutes 
     evidence of a criminal offense and that there is reasonable 
     necessity for the seizure. (See 18 U.S.C. Sec. 3103a(b)(2)). 
     According to the same survey of all U.S. Attorneys' Offices, 
     the Department has asked a court to find reasonable necessity 
     for a seizure in connection with delayed-notice searches 45 
     times between April 1, 2003, and January 31, 2005. In each 
     instance in which we have sought authorization from a court 
     during this same time frame, the court has granted the 
     request. Therefore, from the time of the passage of the USA 
     PATRIOT Act through January 31, 2005, the Department 
     exercised this authority 59 times. We previously, in May 
     2003, advised Congress that we had made 15 requests for 
     seizures, one of which was denied. In total, since the 
     passage of the USA PATRIOT Act, the Department has therefore 
     requested court approval to make a seizure and delay 
     notification 60 times. Most commonly, these requests related 
     to the seizure of illegal drugs. Such seizures were deemed 
     necessary to prevent these drugs from being distributed 
     because they are inherently dangerous to members of the 
     community. Other seizures have been authorized pursuant to 
     delayed-notice search warrants so that explosive material and 
     the operability of gun components could be tested, other 
     relevant evidence could be copied so that it would not be 
     lost if destroyed, and a GPS tracking device could be placed 
     on a vehicle. In short, the Department has sought seizure 
     authority only when reasonably necessary.
       The length of the delay in providing notice of the 
     execution of a warrant has a1so received significant 
     attention from Members of Congress. The range of delay must 
     be decided on a case-by-case basis and is always dictated by 
     the approving judge or magistrate. According to the survey of 
     the 94 U.S. Attorneys' Offices, between April 1, 2003 and 
     January 31, 2005, the shortest period of time for which the 
     government has requested delayed-notice of a search warrant 
     was 7 days. The longest such specific period was 180 days; 
     the longest unspecified period was until ``further order of 
     the court'' or until the end of the investigation. An 
     unspecified period of time for delay was granted for six 
     warrants (four of these were related to the same case). While 
     no court has ever rejected the government's request for a 
     delay, in a few cases courts have granted a shorter time 
     frame than the period originally requested. For example, in 
     one case, the U.S. Attorney for the District of Arizona 
     sought a delay of 30 days, and the court authorized a shorter 
     delay of 25 days.
       Of the 40 U.S. Attorneys' Offices that exercised the 
     authority to seek delayed-notice search warrants between 
     April 1, 2003, and January 31, 2005, just over half (22) of 
     the offices sought extensions of delays. Those 22 offices 
     together made approximately 98 appearances to seek additional 
     extensions. In certain cases, it was necessary for the 
     Offices to return to court on multiple occasions with respect 
     to the same warrant. One case bears note. The U.S. Attorney 
     in the Southern District of Illinois sought and received 
     approval to delay notification based on the fifth category of 
     adverse result--that immediate notification would seriously 
     jeopardize the investigation. The length of the delay granted 
     by the court was 7 days. However, the notification could not 
     be made within 7 days and the office was required to seek 31 
     extensions. So, each week for almost eight straight months, 
     the case agent was made to swear out an affidavit, and the 
     Assistant United States Attorney (AUSA) then had to reappear 
     before the judge or magistrate to renew the delay of notice.
       In the vast majority of instances reported by the U.S. 
     Attorneys' Offices, original delays were sought for between 
     30 to 90 days. It is not surprising that our U.S. Attorneys' 
     Offices are requesting up to 90-day delays. Ninety days is 
     the statutory allowance under Title III for notification of 
     interception of wire or electronic communications (see 18 
     U.S.C. 2518(8)(d). In only one instance did a U.S. Attorney's 
     Office seek a delay of a specified period of time longer than 
     90 days (180 days), and the court granted this request. In 
     another instance, an office sought a 90-day delay period, and 
     the court granted 180 days. In seven instances, the 
     Department sought delays that would last until the end of the 
     investigation. In only once instance was such a request 
     modified. In that matter, the court originally granted a 30-
     day delay. However, when notification could not be made 
     within 30 days, the U.S. Attorney's Office returned to the 
     judge for an extension, and the judge granted an extension 
     through the end of the investigation, for a total of 406 
     days. This is, according to our survey, the longest total 
     delay a court authorized. However, most extensions were 
     sought and granted for the same period as the original delay 
     requested.
       In one case, a court denied a U.S. Attorney's Office's 
     request for an extension of the delay in providing notice. 
     This matter involved three delayed-notice search warrants--
     all-stemming from the same investigation. The original period 
     of delay sought and granted was for 30 days on all three 
     warrants. The Office then sought 30-day extensions on all 
     three warrants out of concern that the multiple targets of 
     the investigation might flee to a foreign country if 
     notifie.d The court denied our request. The judge in the 
     matter reasoned that the need to delay notification warranted 
     only a 30-day stay of service, particularly in light of the 
     fact that one of the targets of the investigation was, by 
     this time, in Federal custody in California on an unrelated 
     matter. At some point after notification was made, however, 
     the other targets fled to Mexico.
       In sum, both before enactment of section 213 and after, 
     immediate notice that a search warrant had been executed has 
     been standard procedure. Delayed-notice search warrants have 
     been used for decades by law enforcement and, as demonstrated 
     by the numbers provided above, delayed-notice warrants are 
     used infrequently and scrupulously--only in appropriate 
     situations where immediate notice likely would harm 
     individuals or compromise investigations, and even then only 
     with a judge's express approval. The investigators and 
     prosecutors on the front lines of fighting crime and 
     terrorism should not be forced to choose between preventing 
     immediate harm--such as a terrorist attack or an influx of 
     illegal drugs--and completing a sensitive investigation that 
     might shut down an entire terror cell or drug trafficking 
     operation. Thanks to the long-standing availability of 
     delayed-notice warrants in these circumstances, they do not 
     have to make that choice. Section 213 enables us to better 
     protect the public from terrorists and criminals while 
     preserving Americans constitutional rights.
       As you may be aware, the Department published a detailed 
     report last year that includes numerous additional examples 
     of how delaying notification of search warrants in certain 
     circumstances resulted in beneficial results. We have 
     enclosed a copy for your convenience.
       If we can be of further assistance regarding this or any 
     other matter, please do not hesitate to contact this office.
     Sincerely,
                                             William E. Moschella,
     Assistant Attorney General.
                                  ____

                                            Department of Justice,


                                Office of Legislative Affairs,

                                      Washington, DC, May 3, 2005.
     Hon. Arlen Specter,
     Chairman, Committee on the Judiciary,
     U.S. Senate, Washington, DC.
       Dear Mr. Chairman: During the closed session of the Senate 
     Judiciary Committee on April 12, 2005, you requested 
     additional information regarding Section 213 of the USA 
     PATRIOT Act. Specifically, you inquired about examples of 
     where the ``seriously jeopardizing an investigation'' prong 
     was the sole ``adverse result'' used to request delayed 
     notice. In addition to Operation Candy Box, which was 
     detailed in our April 4, 2005, letter to the Committee, we 
     have described seven additional cases below. It is important 
     to note that the twenty-eight instances cited in our April 4 
     letter do not equate to twenty-eight investigations or cases. 
     For example, some of the cases that used delayed-notice 
     search warrants utilizing the ``seriously jeopardize'' prong 
     involved multiple search warrants.
       As we are sure you will agree, the following examples of 
     the use of delayed-notice search warrants illustrate not only 
     the appropriateness of the Department's use of this important 
     tool, but also its criticality to law enforcement 
     investigations.

[[Page 15891]]

       Example #1: Western District of Pennsylvania:
       The Justice Department obtained a delayed-notice search 
     warrant for a Federal Express package that contained 
     counterfeit credit cards. At the time of the search, it was 
     very important not to disclose the existence of a federal 
     investigation, as this would have revealed and endangered a 
     related Title III wiretap that was ongoing for major drug 
     trafficking activities. Originally, the Department was 
     granted a ten-day delay by the court; but the Department 
     sought and was granted eight extensions before notice could 
     be made.
       An Organized Crime Drug Enforcement Task Force 
     (``OCDETF''), which included agents from the Drug Enforcement 
     Administration (DEA), the Internal Revenue Service, and the 
     Pittsburgh Police Department, as well as from other state and 
     local law enforcement agencies, was engaged in a multi-year 
     investigation that culminated in the indictment of the 
     largest trafficking organization ever prosecuted in the 
     Western District of Pennsylvania. The organization was headed 
     by Oliver Beasley and Donald ``The Chief'' Lyles. A total of 
     fifty-one defendants were indicted on drug, money laundering 
     and firearms charges. Beasley and Lyles were charged with 
     operating a Continuing Criminal Enterprise as the leaders of 
     the organization. Both pleaded guilty and received very 
     lengthy sentences of imprisonment.
       The Beasley/Lyle organization was responsible for bringing 
     thousands of kilograms of cocaine and heroin into Western 
     Pennsylvania. Cooperation was obtained from selected 
     defendants and their cooperation was used to obtain 
     indictments against individuals in New York who supplied the 
     heroin and cocaine. Thousands of dollars in real estate, 
     automobiles, jewelry and cash have been forfeited.
       The case had a discernible and positive impact upon the 
     North Side of Pittsburgh, where the organization was based. 
     The DEA reported that the availability of heroin and cocaine 
     in this region decreased as the result of the successful 
     elimination of this major drug trafficking organization. In 
     addition, heroin overdose deaths in Allegheny County declined 
     from 138 in 2001 to 46 in 2003.
       While the drug investigation was ongoing, it became clear 
     that several leaders of the drug conspiracy had ties to an 
     ongoing credit card fraud operation. An investigation into 
     the credit card fraud was undertaken, and a search was made 
     of a Fed Ex package that contained fraudulent credit cards. 
     Had the search into the credit card fraud investigation 
     revealed the ongoing drug investigation prematurely, the drug 
     investigation could have been seriously jeopardized. The 
     credit card investigation ultimately resulted in several 
     cases including US v. Larry Goolsby, Sandra Young (Cr. No. 
     02-74); US v. Lasaun Beeman, Derinda Daniels, Anna Holland, 
     Darryl Livsey and Kevin Livsey (Cr. No. 03-43); US v. Gayle 
     Charles (Cr. No. 03-77); US v. Scott Zimmerman, Lloyd Foster 
     (Cr. No. 03-44). All of the defendants charged with credit 
     card fraud were convicted except one, Lloyd Foster, who was 
     acquitted at trial. These cases have now concluded.
       Example #2: Western District of Texas:
       The Justice Department executed three delayed notice 
     searches as part of an OCDETF investigation of a major drug 
     trafficking ring that operated in the Western and Northern 
     Districts of Texas. The investigation lasted a little over a 
     year and employed a wide variety of electronic surveillance 
     techniques such as tracking devices and wiretaps of cell 
     phones used by the leadership. The original delay approved by 
     the court in this case was for 60 days. The Department sought 
     two extensions, one for 60 days and one for 90 days both of 
     which were approved.
       During the wiretaps, three delayed-notice search warrants 
     were executed at the organization's stash houses. The search 
     warrants were based primarily on evidence developed as a 
     result of the wiretaps. Pursuant to section 213 of the USA 
     PATRIOT Act, the court allowed the investigating agency to 
     delay the notifications of these search warrants. Without the 
     ability to delay notification, the Department would have 
     faced two choices: (1) seize the drugs and be required to 
     notify the criminals of the existence of the wiretaps and 
     thereby end our ability to build a significant case on the 
     leadership or (2) not seize the drugs and allow the 
     organization to continue to sell them in the community as we 
     continued with the investigation. Because of the availability 
     of delayed-notice search warrants, the Department was not 
     forced to make this choice. Agents seized the drugs, 
     continued our investigation, and listened to incriminating 
     conversations as the dealers tried to figure out what had 
     happened to their drugs.
       On March 16, 2005, a grand jury returned an indictment 
     charging twenty-one individuals with conspiracy to 
     manufacture, distribute, and possess with intent to 
     distribute more than 50 grams of cocaine base. Nineteen of 
     the defendants, including all of the leadership, are in 
     custody. All of the search warrants have been unsealed, and 
     it is anticipated that the trial will be set sometime within 
     the next few months.
       Example #3: District of Connecticut:
       The Justice Department used section 213 of the USA PATRIOT 
     Act in three instances to avoid jeopardizing the integrity of 
     a pending federal investigation into a Connecticut drug 
     trafficking organization's distribution of cocaine base and 
     cocaine. The provision was used to place a global positioning 
     device on three vehicles.
       These applications were submitted in the case of United 
     States v. Julius Moorning, et al. That case was indicted at 
     the end of April 2004, and 48 of 49 individuals charged have 
     been arrested. As of this date, 38 of the defendants have 
     entered guilty pleas, and several more are being scheduled. 
     The trial of the remaining defendants is scheduled to begin 
     on July 15. All defendants with standing to challenge any of 
     the orders obtained have entered guilty pleas.
       The Justice Department believed that if the targets of the 
     investigation were notified of our use of the GPS devices and 
     our monitoring of them, the purpose of the use of this 
     investigative tool would be defeated, and the investigation 
     would be totally compromised. As it was, the principals in 
     the targeted drug-trafficking organization were highly 
     surveillance-conscious, and reacted noticeably to perceived 
     surveillance efforts by law enforcement. Had they received 
     palpable confirmation of the existence of an ongoing federal 
     criminal investigation, the Justice Department believed they 
     would have ceased their activities, or altered their methods 
     to an extent that would have required us to begin the 
     investigation anew.
       In each instance, the period of delay requested and granted 
     was 90 days, and no renewals of the delay orders were sought. 
     And, as required by law, the interested parties were made 
     aware of the intrusions resulting from the execution of the 
     warrants within the 90 day period authorized by the court.
       Example #4: Western District of Washington:
       During an investigation of a drug trafficking organization, 
     which was distributing cocaine and an unusually pure 
     methamphetamine known as ``ice,'' a 30-day delayed-notice 
     search warrant was sought in April 2004. As a result of 
     information obtained through a wiretap as well as a drug-
     sniffing dog, investigators believed that the leader of the 
     drug distribution organization was storing drugs and currency 
     in a storage locker in Everett, Washington. The warrant was 
     executed, and while no drugs or cash was found, an assault 
     rifle and ammunition were discovered. Delayed notice of the 
     search warrant's execution was necessary in order to protect 
     the integrity of other investigative techniques being used in 
     the case, such as a wiretap. The investigation ultimately led 
     to the indictment of twenty-seven individuals in the 
     methamphetamine conspiracy. Twenty-three individuals, 
     including the leader, have pled guilty, three are fugitives, 
     and one is awaiting trial.
       Example #5: Southern District of Illinois:
       The Justice Department used section 213 of the USA PATRIOT 
     Act in an investigation into a marijuana distribution 
     conspiracy in the Southern District of Illinois. In 
     particular, in November 2003, a vehicle was seized pursuant 
     to authority granted under the provision.
       During this investigation, a Title III wiretap was obtained 
     for the telephone of one of the leaders of the organization. 
     As a result of intercepted telephone calls and surveillance 
     conducted by DEA, it was learned that a load of marijuana was 
     being brought into Illinois from Texas. Agents were able to 
     identify the vehicle used to transport the marijuana. DEA 
     then located the vehicle at a motel in the Southern District 
     of Illinois and developed sufficient probable cause to apply 
     for a warrant to search the vehicle. It was believed, 
     however, that immediate notification of the search warrant 
     would disclose the existence of the investigation, resulting 
     in, among other things, phones being ``dumped'' and targets 
     ceasing their activities, thereby jeopardizing potential 
     success of the wiretaps and compromising the overall 
     investigation (as well as related investigations in other 
     districts). At the same time it was important, for the safety 
     of the community, to keep the marijuana from being 
     distributed.
       The court approved the Department's application for a 
     warrant to seize the vehicle and to delay notification of the 
     execution of the search warrant for a period of seven days, 
     unless extended by the Court. With this authority, the agents 
     seized the vehicle in question (making it appear that the 
     vehicle had been stolen) and then searched it following the 
     seizure. Approximately 96 kilograms of marijuana were 
     recovered in the search. Thirty one seven-day extensions to 
     delay notice were subsequently sought and granted due to the 
     ongoing investigation.
       As a result of this investigation, ten defendants were 
     ultimately charged in the Southern District of Illinois. 
     Seven of these defendants have pled guilty, and the remaining 
     three defendants are scheduled for jury trial beginning on 
     June 7, 2005.
       Example #6: Eastern District of Wisconsin:
       In a Wisconsin drug trafficking case, a delayed-notice 
     search warrant was issued under section 213 because immediate 
     notification would have seriously jeopardized the 
     investigation. In this case, the Department was in the final 
     stages of a two-year investigation, pre-takedown of several 
     individuals involved in the trafficking of cocaine. The 
     Department initially received a delayed-notice search warrant 
     for seven days, and

[[Page 15892]]

     thereafter received three separate seven-day extensions. For 
     each request, the Department showed a particularized need 
     that providing notice that federal investigators had entered 
     the home being searched would compromise the informant and 
     the investigation.
       On February 14, 2004, the United States Attorney's Office 
     for the Eastern District of Wisconsin requested a search 
     warrant to look for evidence of assets, especially bank 
     accounts, at a suspect's residence as well as to attach an 
     electronic tracking device on a vehicle investigators 
     expected to find in the garage. The purpose of the device 
     would be to track the suspect and observe his meetings in the 
     final weeks before the takedown. The warrant also requested 
     delayed notice, based on the particularized showing that 
     providing notice that federal investigators had entered the 
     home would compromise an informant and the investigation. The 
     court issued the search warrant and granted the delayed 
     notification for a period of seven days. On February 15, 
     2004, authorized officers of the United States executed the 
     search warrant on the subject premises. However, agents were 
     unable to locate the vehicle to install the electronic 
     tracking device.
       Before the expiration of the initial delayed-notice period, 
     the Department sought an extension of the delay based on the 
     showing that notice would compromise the informant and the 
     investigation. The court granted a seven-day extension, but 
     investigators were still unable to locate the suspect's 
     vehicle during this time. During this period, however, five 
     suspects were charged with conspiring to possess more than 
     five kilograms of cocaine, and arrest warrants were issued 
     for each of the individuals.
       After the issuance of the arrest warrants, the Department 
     sought its third delay of notice to allow agents to endeavor 
     to install the electronic tracking device and to attempt to 
     locate the five suspects. Once again, the request was based 
     on the showing that notice would compromise the informant and 
     the investigation. The court granted another seven-day 
     extension, and agents were able to find a location where one 
     suspect appeared to be staying. After locating the suspect, 
     and before the expiration of the delayed-notice period, the 
     government requested a separate warrant for this location and 
     for other locations used by the conspirators. The Department 
     also requested its fourth and final delay in the notice 
     period to allow agents to execute the search warrants sought, 
     and to arrest the suspects. The court granted all requests 
     and the suspects were subsequently arrested. As required by 
     law, notice of the searches was given upon arrest.
       Example #7: Eastern District of Washington:
       In a drug trafficking and money laundering case in the 
     State of Washington, a delayed-notice search warrant was 
     issued under section 213 because immediate notification would 
     have seriously jeopardized the investigation. In this case, a 
     district judge had authorized the interception of wire and 
     electronic communications occurring over four cellular 
     telephones that were being used in furtherance of drug 
     trafficking and/or money laundering activities. On December 
     18, 2004, more than one month after the Drug Enforcement 
     Administration (DEA) began surveillance, DEA agents 
     administratively seized a black Ford Focus owned by one of 
     the suspects based on the determination that the vehicle 
     likely contained controlled substances.
       On December 21, 2004, the DEA requested a warrant to search 
     the seized vehicle for drugs, and the court issued the 
     warrant based on the DEA's articulation of probable cause. On 
     the same day, the search warrant was executed on the 
     suspect's vehicle, which was still in the DEA's possession 
     pursuant to the administrative seizure. During the search, 
     agents located approximately two kilograms of suspected 
     cocaine and three pounds of suspected methamphetamine. At the 
     time, the service copy of the search warrant was ``served'' 
     on the vehicle.
       Due to the nature of the investigation, which included the 
     orders authorizing the interception of wire and electronic 
     communications to and from a number of cellular telephones, 
     the DEA believed that both the continued administrative 
     seizure of the vehicle and notice of the execution of the 
     search warrant would greatly compromise the investigation. 
     Therefore, the DEA requested an order allowing them to remove 
     the served copy of the warrant from the vehicle, and delay 
     notice to the owner for sixty days in order to avoid 
     jeopardizing the ongoing criminal investigation. The court 
     granted the order, concluding that immediate notification 
     would compromise a major drug trafficking and money 
     laundering investigation.
       Approximately twenty-five individuals have been indicted as 
     a result of this investigation (eight of whom are still 
     fugitives), and trial is scheduled for this October.
       In closing, the Department of Justice believes it is 
     critical that law enforcement continue to have this vital 
     tool for those limited circumstances, such as those discussed 
     above, where a court finds good cause to permit the temporary 
     delay of notification of a search.
       We hope the information provided above is helpful. Should 
     you require any further information, please do not hesitate 
     to contact this office.
       Sincerely,
                                             William E. Moschella,
     Assistant Attorney General.
                                  ____

                                            Department of Justice,


                                Office of Legislative Affairs,

                                    Washington, DC, June 28, 2005.
     Hon. Arlen Specter,
     Chairman, Committee on the Judiciary,
     U.S. Senate, Washington, DC.
       Dear Mr. Chairman: This letter responds to your request for 
     more information regarding the use of section 213 of the USA 
     PATRIOT Act (``the Act''), which relates to delayed-notice 
     search warrants. The Department of Justice has provided the 
     Senate Judiciary Committee two letters detailing the specific 
     usage of delayed-notice search warrants. Those letters were 
     sent to the Committee on April 4, 2005, and May 3, 2005, 
     respectively. This letter is intended to supplement the 
     previous information we have already provided the Committee.
       As you know, the Department believes very strongly that 
     section 213 is an invaluable tool in the war on terror and 
     our efforts to combat serious criminal conduct. In passing 
     the USA PATRIOT Act, Congress recognized that delayed-notice 
     search warrants are a vital aspect of the Department's 
     strategy of prevention: detecting and incapacitating 
     terrorists, drug dealers and other criminals before they can 
     harm our nation. Codified at 18 U.S.C. Sec. 3103a, section 
     213 of the Act created an explicit statutory authority for 
     investigators and prosecutors to ask a court for permission 
     to delay notice temporarily that a search warrant was 
     executed.
       Delayed-notice search warrants have been used by law 
     enforcement officers for decades. Such warrants were not 
     created by the USA PATRIOT Act. Rather, the Act simply 
     codified a common-law practice recognized by courts across 
     the country. Section 213 simply established a uniform 
     nationwide standard for the issuance of those warrants, thus 
     ensuring that delayed-notice search warrants are evaluated 
     under the same criteria across the nation. Like any other 
     search warrant, a delayed-notice search warrant is issued by 
     a federal judge only upon a showing that there is probable 
     cause to believe that the property to be searched for or 
     seized constitutes evidence of a criminal offense. A delayed-
     notice warrant differs from an ordinary search warrant only 
     in that the judge specifically authorizes the law enforcement 
     officers executing the warrant to wait for a limited period 
     of time before notifying the subject of the search that a 
     search was executed.
       In addition, investigators and prosecutors seeking a 
     judge's approval to delay notification must show that, if 
     notification were made contemporaneous to the search, there 
     is reasonable cause to believe one of the following adverse 
     results might occur: (1) notification would endanger the life 
     or physical safety of an individual; (2) notification would 
     cause flight from prosecution; (3) notification would result 
     in destruction of, or tampering with, evidence; (4) 
     notification would result in intimidation of potential 
     witnesses; or (5) notification would cause serious jeopardy 
     to an investigation or unduly delay a trial.
       To be clear, it is only in these five tailored 
     circumstances that the Department may request judicial 
     approval to delay notification, and a federal judge must 
     agree with the Department's evaluation before approving any 
     delay.
       Delayed-notice search warrants provide a crucial option to 
     law enforcement. If immediate notification were required 
     regardless of the circumstances, law enforcement officials 
     would be too often forced into making a ``Hobson's choice'': 
     delaying the urgent need to conduct a search and/or seizure 
     or conducting the search and prematurely notifying the target 
     of the existence of law enforcement interest in his or her 
     illegal conduct and undermine the equally pressing need to 
     keep the ongoing investigation confidential.
       It is important to stress that in all circumstances the 
     subject of a criminal search warrant is informed of the 
     search. It is simply false to suggest, as some have, that 
     delayed-notice search warrants allow the government to search 
     an individual's ``houses, papers, and effects'' without 
     notifying them of the search. In every case where the 
     government executes a criminal search warrant, including 
     those issued pursuant to section 213, the subject of the 
     search is told of the search. With respect to delayed-notice 
     search warrants, such notice is simply delayed for a 
     reasonable period of time--a time period defined by a federal 
     judge.
       Delayed-notice search warrants are constitutional and do 
     not violate the Fourth Amendment. The U.S. Supreme Court 
     expressly held in Dalia v. United States that the Fourth 
     Amendment does not require law enforcement to give immediate 
     notice of the execution of a search warrant. Since Dalia, 
     three federal courts of appeals have considered the 
     constitutionality of delayed-notice search warrants, and all 
     three have upheld their constitutionality. To our knowledge, 
     no court has ever held otherwise. In short, long before the 
     enactment of the USA PATRIOT Act, it was clear that delayed 
     notification was appropriate in certain circumstances; that 
     remains true today. The

[[Page 15893]]

     USA PATRIOT Act simply resolved the mix of inconsistent 
     rules, practices and court decisions varying from circuit to 
     circuit. Therefore, section 213 had the beneficial impact of 
     mandating uniform and equitable application of the authority 
     across the nation.
       The Department has provided the Committee with detailed 
     information regarding how often section 213 has been used. 
     Let us assure you again that the use of a delayed-notice 
     search warrant is the exception, not the rule. Law 
     enforcement agents and investigators provide immediate notice 
     of a search warrant's execution in the vast majority of 
     cases. According to Administrative Office of the U.S. Courts 
     (AOUSC), during the 36-month period ending September 30, 
     2004, U.S. District Courts handled 95,925 search warrants. By 
     contrast, in the 39-month period between the passage of the 
     USA PATRIOT Act and January 31, 2005, the Department used the 
     section 213 authority only 153 times according to a 
     Department survey. Even when compared to the AOUSC data for a 
     shorter period of time, the 153 uses of section 213 still 
     only account for less than 0.2% of the total search warrants 
     handled by the courts.
       Specifically, you have inquired about examples of where the 
     ``seriously jeopardizing an investigation'' prong was the 
     sole ``adverse result'' used to request delayed notice. From 
     April 1, 2003, to January 31, 2005, the ``seriously 
     jeopardizing an investigation'' prong has been the sole 
     ground for requesting delayed notice in thirty-two instances. 
     Contrary to concerns expressed by some, this prong is not a 
     ``catch-all'' that is used in run-of-the-mill cases. The 
     Department estimates that fewer than one in 500 of the search 
     warrants that have been obtained since the passage of the 
     PATRIOT Act have been delayed-notice search warrants. In 
     other words, in over 499 of 500 cases, immediate notice was 
     provided. Moreover, fewer than one in three delayed-notice 
     search warrants obtained by the Department in the last two 
     years solely relied on the fact that immediate notification 
     would seriously jeopardize an investigation. Thus, fewer than 
     one in 1,500 search warrants relied solely on this prong, a 
     fact hardly consistent with the concern that the Department 
     will obtain a delayed-notice search warrant in the typical 
     case.
       Of those thirty-two instances, delayed-notice search 
     warrants were used in a total of twenty-two investigations. 
     The thirty-two instances do not equate to thirty-two 
     investigations or cases because some of the cases that used 
     delayed-notice search warrants utilizing the ``seriously 
     jeopardize'' prong involved multiple search warrants. The 
     Department of Justice has provided the Committee detailed 
     descriptions of eight of the twenty-two investigations where 
     the ``seriously jeopardizing an investigation'' prong was the 
     sole ``adverse result'' used to request delayed notice. The 
     descriptions already provided include Operation Candy Box, 
     which was detailed in our April 4, 2005, letter to the 
     Committee, and seven additional cases described in a May 3, 
     2005 letter to the Committee. This letter is intended to 
     supplement the previous information we have provided by 
     detailing the seven remaining investigations that have been 
     unsealed, and identifying the seven remaining investigations 
     that are currently sealed. Two of the seven investigations 
     that remain under seal are terrorism-related.
       As we are sure you will agree, the following examples of 
     the use of delayed-notice search warrants illustrate not only 
     the appropriateness of the Department's use of this vital 
     tool, but also its importance to law enforcement 
     investigations.
       Example #9: Southern District of Illinois:
       The United States Attorney's Office for the Southern 
     District of Illinois used a delayed-notice search warrant 
     pursuant to Title 18 U.S.C. Sec. 3103a in the investigation 
     of an OCDETF (Organized Crime Drug Enforcement Task Force) 
     case. Although the Southern District of Illinois handled the 
     investigation, the search warrant application was filed by 
     the United States Attorney's Office in the Eastern District 
     of Missouri because the apartment to be searched was located 
     there. The search warrant was sought because a Title III 
     wiretap revealed that the house to be searched was being used 
     as a safehouse for those trafficking in drugs, and it was 
     believed that the notification of the search warrant would 
     seriously jeopardize the ongoing investigation into the drug 
     organization and its numerous members and frustrate the 
     identification of additional sources of supply. The search 
     warrant was issued by a Magistrate Judge in the Eastern 
     District of Missouri on April 6, 2004, for a period of 7 
     days. No extensions were requested or authorized. The case 
     was indicted on November 18, 2004. One defendant has pled 
     guilty and thirteen defendants are awaiting trial.
       Example #10: Northern District of Georgia:
       The United States Attorney's Office for the Northern 
     District of Georgia used section 213 in a drug investigation 
     to delay notice of three search warrants in three locations. 
     A Title III wiretap had revealed that a drug dealer had three 
     stash locations, and the United States Attorney's Office 
     wanted to search those locations without tipping off the drug 
     dealers. A federal judge approved three delayed-notice search 
     warrants that yielded several kilos of cocaine, pounds of 
     ICE, a very pure form of methamphetamine, and firearms. The 
     agents were also able to photograph documentary evidence such 
     as ledgers. The use of the delayed-notice search warrant was 
     successful in cementing the case against the defendant, who 
     was indicted in April 2005.
       Example #11: Northern District of Georgia:
       The United States Attorney's Office for the Northern 
     District of Georgia also used section 213 in another drug 
     investigation. The DEA had obtained court approval to install 
     and monitor wiretaps of several cellular phones used by high-
     level members of a Mexican cocaine and methamphetamine 
     distribution cell operating in Atlanta. While monitoring the 
     phones, the targets' conversations showed that they were 
     delivering 100 kilograms of cocaine to a purchaser. 
     Surveillance identified one of the stash houses from which 
     the targets obtained 14 kilograms of the cocaine, and the 
     conversations indicated that more of the cocaine was located 
     in the stash house. At that time, however, the investigation 
     and interceptions on the cell phones had not identified the 
     highest-level members of the cell, so the agents were not in 
     a position to make arrests and take down the organization. 
     The agents therefore needed to seize the cocaine while trying 
     to minimize the chances that the seizure would cause the 
     targets to cease usage of their cellular phones. 
     Investigators decided it was appropriate to seek a delayed-
     notice warrant that would allow them access to the stash 
     house. A federal judge approved the warrant that resulted in 
     the seizure of 36 kilograms of cocaine, some 
     methamphetamines, and two weapons including a sawed-off 
     shotgun, without having to leave a copy of the warrant and 
     provide confirmation to the targets that they were being 
     watched by law enforcement. Since the subsequent arrests of 
     sixteen individuals for various drug-trafficking charges in 
     this investigation, two have pled guilty, three have been 
     sentenced, five are set for sentencing and six are currently 
     awaiting trial.
       Example #12: Western District of New York:
       Operation Trifecta was a Title III wiretap investigation 
     being conducted in the United States Attorney's Office for 
     the Southern District of New York, the Western District of 
     New York (WDNY OCDETF Operation Next of Kin) as well as in 
     U.S. Attorney's Offices in California, Ohio, and Arizona and 
     by law enforcement authorities in Mexico. As part of this 
     multi-district and international investigation, Title III 
     wiretap orders were obtained in each of the jurisdictions 
     involved in the investigation. In May 2003, information was 
     received as a result of a Title III interception order that 
     the targets of the investigation were arranging the 
     transportation of a vehicle (``load vehicle'') that was 
     believed to conceal a substantial quantity of cocaine by 
     transporting it on a car carrier. Once it was determined that 
     the car carrier would transport the load vehicle through the 
     Western District of New York, an application was made to 
     search the load vehicle. The magistrate judge that issued the 
     warrant also authorized delay in giving notice of the 
     execution of the search warrant pursuant to section 213 of 
     the USA PATRIOT Act.
       Once the car carrier transporting the load vehicle arrived 
     in the Western District of New York, a local Sheriff's 
     Department deputy executed a traffic stop. It was discovered 
     that the VIN plate on the dashboard of the load vehicle 
     appeared to have been tampered with or replaced. As a result 
     of the suspect VIN plate, the load vehicle was removed from 
     the car carrier, impounded and the car carrier was allowed to 
     proceed on its way. Thereafter, a delayed-notice search 
     warrant was executed on the load vehicle, resulting in 37 
     kilograms of cocaine being seized from it. After the seizure 
     of the load vehicle, conversations regarding efforts to re-
     obtain the load vehicle were intercepted between the subjects 
     of the investigation. These efforts continued until July 30, 
     2003, which was the takedown date for all aspects of the 
     investigation. Extensions of the order delaying notice were 
     obtained until the takedown date. Until they were arrested, 
     the subjects of the investigation were completely unaware as 
     to the actual reason why the load vehicle was seized, and 
     that the cocaine secreted in the load vehicle had been 
     located.
       Obviously, had the subjects of the investigation received 
     notice that a search warrant had been obtained for the load 
     vehicle, this investigation would have been seriously 
     compromised. Delayed notice allowed the investigating 
     agencies to make a significant seizure of cocaine while at 
     the same time allowing the investigation, which had national 
     and international ramifications, to continue to its 
     successful conclusion. Twenty defendants were charged in the 
     Western District of New York, and all have pled guilty.
       Example #13: Western District of New York:
       As a result of investigations in the Western District of 
     New York, the Eastern District of California, and Canada, 
     including wiretaps in all three locations, information was 
     obtained that several defendants were involved in smuggling 
     large quantities of ephedrine, a listed chemical, from Canada 
     into the United States. There were four delayed-notice search 
     warrants issued in the

[[Page 15894]]

     case, which were all justified by the ``seriously 
     jeopardizing an investigation'' prong only; two for premises 
     that were believed to be ``stash houses'' for ephedrine and 
     money; and two for packages sent through the U.S. and 
     Canadian mail which were believed to also contain contraband. 
     All delayed-notice search warrants were issued for 10 days on 
     the grounds that providing notice would adversely affect the 
     investigation of this multi-district case in that the 
     Canadian wiretaps were still up, and a series of arrests were 
     planned for the week following the search in a related drug 
     case in the Eastern District of California. The prosecution 
     in this case is currently pending.
       Example #14: Western District of New York:
       A delayed-notice search warrant was obtained for the 
     District of Maryland to open and photograph the contents of a 
     safe deposit box that the target, a Canadian citizen, was 
     allegedly using to store his proceeds of drug trafficking. 
     Following the sale of heroin by the target to undercover law 
     enforcement in Maryland, the target was followed back to the 
     U.S./Canada border and observed going to a bank in Niagara 
     Falls, New York before entering Canada. A search warrant was 
     obtained for the safe deposit box, and the money (identified 
     through prerecorded serial numbers) from the purchase of the 
     drugs was found in the box. The contents were photographed 
     but not seized. The notification was delayed until arrests 
     could be made in the case--a period of six months. This 
     target is currently a fugitive while other subjects of the 
     investigation were arrested in August 2003.
       Example #15: Western District of Michigan:
       The defendant in United States v. Eason was charged on 
     numerous drug-trafficking counts in indictments returned in 
     1995 and 1996, and was a fugitive until his arrest in July 
     2004. While the defendant was incarcerated and his case was 
     pending, information was discovered that the defendant was 
     corresponding with associates and family members through the 
     mail at the Kalamazoo County Jail in an attempt to intimidate 
     witnesses, obstruct justice or even contract for the murder 
     of a federal prosecutor. It was determined that the only way 
     to effectively obtain information about these threats was to 
     use a delayed-notice search warrant, which allowed agents to 
     copy the defendant's ingoing and outgoing mail and envelopes, 
     reseal the mail, and then forward the mail to the intended 
     recipient. The judge determined that notifying the defendant 
     of these actions would have seriously jeopardized the 
     investigation. Additional information concerning the 
     underlying threat investigation cannot be disclosed at this 
     time. The defendant was convicted on January 18, 2005 on 
     numerous drug-trafficking counts and faces a statutory range 
     of 20 years to life. His advisory United States Sentencing 
     Guideline range is life imprisonment.
       Example #16: District of Maryland--Sealed.
       Example #17: Northern District of Georgia--Sealed.
       Example #18: Southern District of Iowa--Sealed. Two 
     delayed-notice search warrants were issued in this 
     investigation.
       Example #19: Southern District of Ohio--Sealed.
       Example #20: Southern District of Ohio--Sealed.
       Example #21: Southern District of Texas--Sealed.
       Example #22: Western District of New York--Sealed.
       In sum, delayed-notice search warrants have been used for 
     decades by law enforcement and, as demonstrated by the 
     numbers and examples provided above, delayed-notice warrants 
     are used infrequently and scrupulously--only in appropriate 
     situations where immediate notice likely would harm 
     individuals or compromise investigations, and even then only 
     with a judge's express approval. The investigators and 
     prosecutors on the front lines of fighting crime and 
     terrorism should not be forced to choose between preventing 
     immediate harm--such as a terrorist attack or an influx of 
     illegal drugs--and completing a sensitive investigation that 
     might shut down an entire terror cell or drug trafficking 
     operation. Thanks to the long-standing availability of 
     delayed-notice warrants in these circumstances, they do not 
     have to make that choice. Section 213 enables us to better 
     protect the public from terrorists and criminals while 
     preserving Americans constitutional rights. The Department of 
     Justice believes it is critical that law enforcement continue 
     to have this vital tool for those limited circumstances, such 
     as those discussed above, where a court finds good cause to 
     permit the temporary delay of notification of a search.
       We hope the information provided above is helpful. Should 
     you require any further information, please do not hesitate 
     to contact this office.
           Sincerely,
                                             William E. Moschella,
                                       Assistant Attorney General.

  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1389

       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 ``USA 
     PATRIOT Improvement and Reauthorization Act of 2005''.
       (b) Table of Contents.--The table of contents of this Act 
     is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Patriot section 203; notice to court of disclosure of foreign 
              intelligence information.
Sec. 3. Patriot section 206; additional requirements for multipoint 
              electronic surveillance under FISA.
Sec. 4. Patriot section 207; duration of FISA surveillance of non-
              United States persons.
Sec. 5. Patriot section 212; enhanced oversight of good-faith emergency 
              disclosures.
Sec. 6. Patriot section 213; limitations on delayed notice search 
              warrants.
Sec. 7. Patriot section 214; factual basis for pen register and trap 
              and trace authority under FISA.
Sec. 8. Patriot section 215; procedural protections for court orders to 
              produce records and other items in intelligence 
              investigations.
Sec. 9. Patriot section 505; procedural protections for national 
              security letters.
Sec. 10. Sunset provisions.
Sec. 11. Enhancement of sunshine provisions.

     SEC. 2. PATRIOT SECTION 203; NOTICE TO COURT OF DISCLOSURE OF 
                   FOREIGN INTELLIGENCE INFORMATION.

       Section 2517 of title 18, United States Code, is amended by 
     adding at the end the following:
       ``(9) Within a reasonable time after disclosure is made, 
     pursuant to paragraph (6), (7), or (8), of the contents of 
     any wire, oral, or electronic communication, an attorney for 
     the Government must file, under seal, a notice with the judge 
     that issued the order authorizing or approving the 
     interception of such wire, oral, or electronic communication, 
     stating that such contents or evidence was disclosed and the 
     departments, agencies, or entities to which the disclosure 
     was made.''.

     SEC. 3. PATRIOT SECTION 206; ADDITIONAL REQUIREMENTS FOR 
                   MULTIPOINT ELECTRONIC SURVEILLANCE UNDER FISA.

       (a) Particularity Requirement.--Section 105(c)(1)(A) of the 
     Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1805(c)(1)(A)) is amended by inserting before the semicolon 
     at the end the following: ``, and if the nature and location 
     of each of the facilities or places at which the surveillance 
     will be directed is not known, and if the identity of the 
     target is not known, the order shall include sufficient 
     information to describe a specific target with 
     particularity''.
       (b) Additional Directions.--Section 105(c) of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(c)) is 
     amended--
       (1) by striking ``An order approving an electronic 
     surveillance under this section shall--'';
       (2) in paragraph (1), by inserting before ``specify'' the 
     following: ``specifications.--An order approving an 
     electronic surveillance under this section shall'';
       (3) in paragraph (1)(F), by striking ``; and'' and 
     inserting a period;
       (4) in paragraph (2), by inserting before ``direct'' the 
     following: ``directions.--An order approving an electronic 
     surveillance under this section shall''; and
       (5) by adding at the end the following:
       ``(3) Special directions for certain orders.--An order 
     approving an electronic surveillance under this section in 
     circumstances where the nature and location of each of the 
     facilities or places at which the surveillance will be 
     directed is unknown shall direct the applicant to provide 
     notice to the court within 10 days after the date on which 
     surveillance begins to be directed at any new facility or 
     place of--
       ``(A) the nature and location of each facility or place at 
     which the electronic surveillance is directed;
       ``(B) the facts and circumstances relied upon by the 
     applicant to justify the applicant's belief that each 
     facility or place at which the electronic surveillance is 
     directed is being used, or is about to be used, by the target 
     of the surveillance; and
       ``(C) a statement of any proposed minimization procedures 
     that differ from those contained in the original application 
     or order, that may be necessitated by a change in the 
     facility or place at which the electronic surveillance is 
     directed.''.
       (c) Enhanced Oversight.--
       (1) Report to congress.--Section 108(a)(1) of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1808(a)(1)) 
     is amended by inserting ``, and the Committee on the 
     Judiciary of the House of Representatives and the Committee 
     on the Judiciary of the Senate,'' after ``Senate Select 
     Committee on Intelligence''.
       (2) Modification of semiannual report requirement on 
     activities under foreign intelligence surveillance act of 
     1978.--Paragraph (2) of section 108(a) of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1808(a)) is 
     amended to read as follows:

[[Page 15895]]

       ``(2) Each report under the first sentence of paragraph (1) 
     shall include a description of--
       ``(A) the total number of applications made for orders and 
     extensions of orders approving electronic surveillance under 
     this title where the nature and location of each facility or 
     place at which the electronic surveillance will be directed 
     is not known; and
       ``(B) each criminal case in which information acquired 
     under this Act has been authorized for use at trial during 
     the period covered by such report.''.

     SEC. 4. PATRIOT SECTION 207; DURATION OF FISA SURVEILLANCE OF 
                   NON-UNITED STATES PERSONS.

       (a) Electronic Surveillance Orders.--Section 105(e) of the 
     Foreign Intelligence Surveillance Act (50 U.S.C. 1805(e)) is 
     amended--
       (1) in paragraph (1)(B), by striking ``, as defined in 
     section 101(b)(1)(A)'' and inserting ``who is not a United 
     States person''; and
       (2) in paragraph (2)(B), by striking ``as defined in 
     section 101(b)(1)(A)'' and inserting ``who is not a United 
     States person''.
       (b) Physical Search Orders.--Section 304(d) of the Foreign 
     Intelligence Surveillance Act (50 U.S.C. 1824(d)) is 
     amended--
       (1) in paragraph (1)(B), striking ``as defined in section 
     101(b)(1)(A)'' and inserting ``who is not a United States 
     person''; and
       (2) in paragraph (2), striking ``as defined in section 
     101(b)(1)(A)'' and inserting ``who is not a United States 
     person''.
       (c) Pen Registers.--Section 402(e) of the Foreign 
     Intelligence Surveillance Act (50 U.S.C. 1842(e)) is amended 
     by--
       (1) inserting after ``90 days'' the first place it appears 
     the following: ``, except that in cases where the applicant 
     has certified that the information likely to be obtained is 
     foreign intelligence information not concerning a United 
     States person, an order issued under this section may be for 
     a period not to exceed 1 year''; and
       (2) by inserting after ``90 days'' the second place it 
     appears the following: ``, except that in cases where the 
     applicant has certified that the information likely to be 
     obtained is foreign intelligence information not concerning a 
     United States person, an extension of an order issued under 
     this section may be for a period not to exceed 1 year''.

     SEC. 5. PATRIOT SECTION 212; ENHANCED OVERSIGHT OF GOOD-FAITH 
                   EMERGENCY DISCLOSURES.

       (a) Enhanced Oversight.--Section 2702 of title 18, United 
     States Code, is amended by adding at the end the following:
       ``(d) Reporting of Emergency Disclosures.--On an annual 
     basis, the Attorney General shall submit to the Committee on 
     the Judiciary of the House of Representatives and the 
     Committee on the Judiciary of the Senate a report 
     containing--
       ``(1) the number of accounts from which the Department of 
     Justice has received voluntary disclosures under subsection 
     (b)(8); and
       ``(2) a summary of the basis for disclosure in those 
     instances where--
       ``(A) voluntary disclosures under subsection (b)(8) were 
     made to the Department of Justice; and
       ``(B) the investigation pertaining to those disclosures was 
     closed without the filing of criminal charges.''.
       (b) Technical Amendments To Conform Communications and 
     Customer Records Exceptions.--
       (1) Voluntary disclosures.--Section 2702 of title 18, 
     United States Code, is amended--
       (A) in subsection (b)(8)--
       (i) by striking ``Federal, State, or local''; and
       (ii) by inserting ``immediate'' before ``danger''; and
       (B) by striking subsection (c)(4) and inserting the 
     following:
       ``(4) to a governmental entity, if the provider, in good 
     faith, believes that an emergency involving immediate danger 
     of death or serious physical injury to any person requires 
     disclosure without delay of the information.''.
       (2) Definitions.--Section 2711 of title 18, United States 
     Code, is amended--
       (A) in paragraph (2), by striking ``and'' at the end;
       (B) in paragraph (3), by striking the period at the end and 
     inserting ``; and''; and
       (C) by adding at the end the following:
       ``(4) the term `governmental entity' means a department or 
     agency of the United States or any State or political 
     subdivision thereof.''.

     SEC. 6. PATRIOT SECTION 213; LIMITATIONS ON DELAYED NOTICE 
                   SEARCH WARRANTS.

       (a) Grounds for Delay.--Section 3103a(b)(1) of title 18, 
     United States Code, is amended by striking ``may have an 
     adverse result (as defined in section 2705);'' and inserting 
     ``may--
       ``(A) endanger the life or physical safety of an 
     individual;
       ``(B) result in flight from prosecution;
       ``(C) result in the destruction of or tampering with 
     evidence;
       ``(D) result in intimidation of potential witnesses; or
       ``(E) otherwise seriously jeopardize an investigation;''.
       (b) Limitation on Reasonable Period for Delay.--Section 
     3103a(b)(3) of title 18, United States Code, is amended by--
       (1) inserting ``on a date certain that is'' before ``within 
     a reasonable period of its execution''; and
       (2) after ``good cause shown'' inserting ``, subject to the 
     condition that extensions should only be granted upon an 
     updated showing of the need for further delay and that each 
     additional delay should be limited to periods of 90 days or 
     less, unless the facts of the case justify a longer period of 
     delay''.
       (c) Enhanced Oversight.--Section 3103a of title 18, United 
     States Code, is amended by adding at the end the following:
       ``(c) Reports.--
       ``(1) Report by judge.--Not later than 30 days after the 
     expiration of a warrant authorizing delayed notice (including 
     any extension thereof) entered under this section, or the 
     denial of such warrant (or request for extension), the 
     issuing or denying judge shall report to the Administrative 
     Office of the United States Courts--
       ``(A) the fact that a warrant was applied for;
       ``(B) the fact that the warrant or any extension thereof 
     was granted as applied for, was modified, or was denied;
       ``(C) the period of delay in the giving of notice 
     authorized by the warrant, and the number and duration of any 
     extensions; and
       ``(D) the offense specified in the warrant or application.
       ``(2) Report by administrative office of the united states 
     courts.--In April of each year, the Director of the 
     Administrative Office of the United States Courts shall 
     transmit to Congress a full and complete report--
       ``(A) concerning the number of applications for warrants 
     and extensions of warrants authorizing delayed notice 
     pursuant to this section, and the number of warrants and 
     extensions granted or denied pursuant to this section during 
     the preceding calendar year; and
       ``(B) that includes a summary and analysis of the data 
     required to be filed with the Administrative Office by 
     paragraph (1).
       ``(3) Regulations.--The Director of the Administrative 
     Office of the United States Courts, in consultation with the 
     Attorney General, is authorized to issue binding regulations 
     dealing with the content and form of the reports required to 
     be filed under paragraph (1).''.

     SEC. 7. PATRIOT SECTION 214; FACTUAL BASIS FOR PEN REGISTER 
                   AND TRAP AND TRACE AUTHORITY UNDER FISA.

       (a) Factual Basis for Pen Registers and Trap and Trace 
     Devices Under FISA.--
       (1) Application.--Section 402(c)(2) of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1842(c)(2)) 
     is amended by striking ``a certification by the applicant 
     that'' and inserting ``a statement of the facts relied upon 
     by the applicant to justify the applicant's belief that''.
       (2) Order.--Section 402(d)(1) of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1842(d)(1)) is amended by 
     striking ``if the judge finds that'' and all that follows and 
     inserting ``if the judge finds that the application includes 
     sufficient facts to justify the belief that the information 
     likely to be obtained is foreign intelligence information not 
     concerning a United States person or is relevant to an 
     ongoing investigation to protect against international 
     terrorism or clandestine intelligence activities and 
     otherwise satisfies the requirements of this section.''.
       (b) Records.--Section 402(d)(2) of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1842(d)(2)) is amended--
       (1) in subparagraph (A)--
       (A) in clause (ii), by adding ``and'' at the end; and
       (B) in clause (iii), by striking the period at the end and 
     inserting a semicolon; and
       (2) in subparagraph (B)(iii), by striking the period at the 
     end and inserting ``; and''; and
       (3) by adding at the end the following:
       ``(C) shall direct that, upon the request of the applicant, 
     the provider of a wire or electronic communication service 
     shall disclose to the Federal officer using the pen register 
     or trap and trace device covered by the order--
       ``(i) in the case of the customer or subscriber using the 
     service covered by the order (for the period specified by the 
     order)--

       ``(I) the name of the customer or subscriber;
       ``(II) the address of the customer or subscriber;
       ``(III) the telephone or instrument number, or other 
     subscriber number or identifier, of the customer or 
     subscriber, including any temporarily assigned network 
     address or associated routing or transmission information;
       ``(IV) the length of the provision of service by such 
     provider to the customer or subscriber and the types of 
     services utilized by the customer or subscriber;
       ``(V) in the case of a provider of local or long distance 
     telephone service, any local or long distance telephone 
     records of the customer or subscriber;
       ``(VI) if applicable, any records reflecting period of 
     usage (or sessions) by the customer or subscriber; and
       ``(VII) any mechanisms and sources of payment for such 
     service, including the number of any credit card or bank 
     account utilized for payment for such service; and

       ``(ii) if available, with respect to any customer or 
     subscriber of incoming or outgoing communications to or from 
     the service covered by the order--

[[Page 15896]]

       ``(I) the name of such customer or subscriber;
       ``(II) the address of such customer or subscriber;
       ``(III) the telephone or instrument number, or other 
     subscriber number or identifier, of such customer or 
     subscriber, including any temporarily assigned network 
     address or associated routing or transmission information; 
     and
       ``(IV) the length of the provision of service by such 
     provider to such customer or subscriber and the types of 
     services utilized by such customer or subscriber.''.

       (c) Enhanced Oversight.--Section 406 of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1846) is 
     amended--
       (1) in subsection (a), by inserting ``, and the Committee 
     on the Judiciary of the House of Representatives and the 
     Committee on the Judiciary of the Senate,'' after ``of the 
     Senate''; and
       (2) in subsection (b), by striking ``On a semiannual 
     basis'' through ``the preceding 6-month period'' and 
     inserting, ``In April of each year, the Attorney General 
     shall transmit to the Administrative Office of the United 
     States Courts and to Congress a report setting forth with 
     respect to the preceding calendar year''.

     SEC. 8. PATRIOT SECTION 215; PROCEDURAL PROTECTIONS FOR COURT 
                   ORDERS TO PRODUCE RECORDS AND OTHER ITEMS IN 
                   INTELLIGENCE INVESTIGATIONS.

       (a) Factual Basis for Requested Order.--
       (1) Application.--Section 501(b)(2) of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(b)(2)) 
     is amended by striking ``shall specify that the records 
     concerned are sought for'' and inserting ``shall include a 
     statement of facts showing that there are reasonable grounds 
     to believe that the records or other things sought are 
     relevant to''.
       (2) Order.--Section 501(c)(1) of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1861(c)(1)) is amended by 
     striking ``if the judge finds that'' and all that follows and 
     inserting ``if the judge finds that the statement of facts 
     contained in the application establishes reasonable grounds 
     to believe that the records or other things sought are 
     relevant to an authorized investigation conducted in 
     accordance with subsection (a)(2) to obtain foreign 
     intelligence information not concerning a United States 
     person or to protect against international terrorism or 
     clandestine intelligence activities, and the application 
     meets the other requirements of this section.''.
       (b) Additional Protections.--Section 501(c) of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(c)) is 
     amended--
       (1) in paragraph (2), by inserting after ``An order under 
     this subsection'' the following: ``--
       ``(A) shall describe the tangible things concerned with 
     sufficient particularity to permit them to be fairly 
     identified;
       ``(B) shall prescribe a return date which will provide a 
     reasonable period of time within which the tangible things 
     can be assembled and made available;
       ``(C) shall provide clear and conspicuous notice of the 
     principles and procedures set forth in subsections (d) and 
     (f); and
       ``(D)''.
       (c) Director Approval for Certain Applications.--Section 
     501(a) of the Foreign Intelligence Surveillance Act of 1978 
     (50 U.S.C. 1861(a)) is amended--
       (1) in paragraph (1), by striking ``The Director'' and 
     inserting ``Except as provided in paragraph (3), the 
     Director''; and
       (2) by adding at the end the following:
       ``(3) No application shall be made under this section for 
     an order requiring the production of library circulation 
     records, library patron lists, book sales records, book 
     customer lists, firearms sales records, or medical records 
     containing personally identifiable information without the 
     prior written approval of the Director of the Federal Bureau 
     of Investigation. The Director may delegate authority to 
     approve such an application to the Deputy Director of the 
     Federal Bureau of Investigation, but such authority may not 
     be further delegated.''.
       (d) Prohibition on Disclosure.--Section 501(d) of the 
     Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1861(d)) is amended to read as follows:
       ``(d)(1) No person shall disclose to any other person that 
     the Federal Bureau of Investigation has sought or obtained 
     tangible things pursuant to an order under this section other 
     than to--
       ``(A) those persons to whom such disclosure is necessary to 
     comply with such order;
       ``(B) an attorney to obtain legal advice or assistance with 
     respect to the production of things in response to the order; 
     or
       ``(C) other persons as permitted by the Director of the 
     Federal Bureau of Investigation or the designee of the 
     Director.
       ``(2)(A) Any person having received a disclosure under 
     subparagraph (A), (B), or (C) of paragraph (1) shall be 
     subject to the prohibitions on disclosure under that 
     paragraph.
       ``(B) Any person making a further disclosure authorized by 
     subparagraph (A), (B), or (C) of paragraph (1) shall notify 
     the person to whom the disclosure is made of the prohibitions 
     on disclosure under this subsection.
       ``(3) An order under this section shall notify, in writing, 
     the person to whom the order is directed of the nondisclosure 
     requirements under this subsection.''.
       (e) Judicial Review.--Section 501 of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) is 
     amended by adding at the end the following:
       ``(f)(1)(A) Any person receiving an order to produce any 
     tangible thing under this section may challenge the legality 
     of that order by filing a petition in the court established 
     under section 103(a).
       ``(B) That petition may be considered by any judge of the 
     court.
       ``(C) The judge considering the petition may modify or set 
     aside the order if the judge finds that the order does not 
     meet the requirements of this section or is otherwise 
     unlawful.
       ``(D) Any petition for review of a decision to affirm, 
     modify, or set aside an order under this paragraph by the 
     United States or any person receiving such order shall be 
     sent to the court of review established under section 103(b), 
     which shall have jurisdiction to consider such petitions.
       ``(E) The court of review shall immediately provide for the 
     record a written statement of the reasons for its decision 
     and, on petition of the United States or any person receiving 
     such order for a writ of certiorari, the record shall be 
     transmitted under seal to the Supreme Court, which shall have 
     jurisdiction to review such decision.
       ``(2)(A) Judicial proceedings under this subsection shall 
     be concluded as expeditiously as possible.
       ``(B) The record of proceedings, including applications 
     made and orders granted, shall be maintained under security 
     measures established by the Chief Justice of the United 
     States in consultation with the Attorney General and the 
     Director of National Intelligence.
       ``(3) All petitions under this subsection shall be filed 
     under seal, and the court, upon the request of the 
     Government, shall review any Government submission, which may 
     include classified information, as well as the application of 
     the Government and related materials, ex parte and in 
     camera.''.
       (f) Enhanced Oversight.--Section 502 of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1862) is 
     amended--
       (1) in subsection (a), by inserting ``, and the Committee 
     on the Judiciary of the House of Representatives and the 
     Committee on the Judiciary of the Senate,'' after ``of the 
     Senate''; and
       (2) in subsection (b)--
       (A) by striking ``On a semiannual basis'' through ``the 
     preceding 6-month period'' and inserting ``In April of each 
     year, the Attorney General shall transmit to the Congress a 
     report setting forth with respect to the preceding calendar 
     year'';
       (B) in paragraph (1), by striking ``and'' at the end;
       (C) in paragraph (2), by striking the period at the end and 
     inserting ``; and''; and
       (D) by adding at the end the following:
       ``(3) the total number of applications made for orders 
     approving requests for the production of tangible things 
     under section 501, and the total number of orders either 
     granted, modified, or denied, when the application or order 
     involved any of the following:
       ``(A) The production of tangible things from a library, as 
     defined in section 213(2) of the Library Services and 
     Technology Act (20 U.S.C. 9122(2)).
       ``(B) The production of tangible things from a person or 
     entity primarily engaged in the sale, rental, or delivery of 
     books, journals, magazines, or other similar forms of 
     communication whether in print or digitally.
       ``(C) The production of records related to the purchase of 
     a firearm, as defined in section 921(a)(3) of title 18, 
     United States Code.
       ``(D) The production of health information, as defined in 
     section 1171(4) of the Social Security Act (42 U.S.C. 
     1320d(4)).
       ``(E) The production of taxpayer return information, 
     return, or return information, as defined in section 6103(b) 
     of the Internal Revenue Code of 1986 (26 U.S.C. 6103(b)).
       ``(c) Each report under subsection (b) shall be submitted 
     in unclassified form, but may include a classified annex.
       ``(d) In April of each year, the Attorney General shall 
     transmit to the Administrative Office of the United States 
     Courts and to Congress a report setting forth with respect to 
     the preceding calendar year--
       ``(1) the total number of applications made for orders 
     approving requests for the production of tangible things 
     under section 501; and
       ``(2) the total number of such orders either granted, 
     modified, or denied.''.

     SEC. 9. PATRIOT SECTION 505; PROCEDURAL PROTECTIONS FOR 
                   NATIONAL SECURITY LETTERS.

       (a) In General.--Section 2709(a) of title 18, United States 
     Code, is amended--
       (1) by striking ``A wire or electronic communication 
     service provider'' and inserting the following:
       ``(1) In general.--A wire or electronic communication 
     service provider''; and
       (2) by adding at the end the following:
       ``(2) Judicial review.--A wire or electronic communication 
     service provider who receives a request under subsection (b) 
     may, at any time, seek a court order from an appropriate 
     United States district court to modify

[[Page 15897]]

     or set aside the request. Any such motion shall state the 
     grounds for challenging the request with particularity. The 
     court may modify or set aside the request if compliance would 
     be unreasonable or oppressive.''.
       (b) Nondisclosure.--Section 2709(c) of title 18, United 
     States Code, is amended--
       (1) by striking ``No wire or electronic communication 
     service provider'' and inserting the following:
       ``(1) In general.--No wire or electronic communication 
     service provider''; and
       (2) by adding at the end the following:
       ``(2) Judicial review.--A wire or electronic communication 
     service provider who receives a request under subsection (b) 
     may, at any time, seek a court order from an appropriate 
     United States district court challenging the nondisclosure 
     requirement under paragraph (1). Any such motion shall state 
     the grounds for challenging the nondisclosure requirement 
     with particularity.
       ``(3) Standard of review.--The court may modify or set 
     aside such a nondisclosure requirement if there is no reason 
     to believe that disclosure may endanger the national security 
     of the United States, interfere with a criminal, 
     counterterrorism, or counterintelligence investigation, 
     interfere with diplomatic relations, or endanger the life or 
     physical safety of any person. In reviewing a nondisclosure 
     requirement, the certification by the Government that the 
     disclosure may endanger the national security of the United 
     States or interfere with diplomatic relations shall be 
     treated as conclusive unless the court finds that the 
     certification was made in bad faith.''.
       (c) Enforcement of National Security Letters.--Section 
     2709(a) of title 18, United States Code, as amended by 
     subsection (b), is amended by adding at the end the 
     following:
       ``(3) Enforcement of requests.--The Attorney General may 
     seek enforcement of a request under subsection (b) in an 
     appropriate United States district court if a recipient 
     refuses to comply with the request.''.
       (d) Disclosure of Information.--
       (1) Secure proceedings.--Section 2709 of title 18, United 
     States Code, as amended by subsections (b) and (c), is 
     amended--
       (A) in subsection (a), by adding at the end the following:
       ``(4) Secure proceedings.--The disclosure of information in 
     any proceedings under this subsection may be limited 
     consistent with the requirements of the Classified 
     Information Procedures Act (18 U.S.C. App).''; and
       (B) in subsection (c), by adding at the end the following:
       ``(4) Secure proceedings.--The disclosure of information in 
     any proceedings under this subsection may be limited 
     consistent with the requirements of the Classified 
     Information Procedures Act (18 U.S.C. App).''.
       (2) Disclosure to necessary persons.--Section 2709(c)(1) of 
     title 18, United States Code, as amended by subsection (b), 
     is amended--
       (A) by inserting after ``any person'' the following: ``, 
     except for disclosure to an attorney to obtain legal advice 
     regarding the request or to persons to whom disclosure is 
     necessary in order to comply with the request,''; and
       (B) by adding at the end the following: ``Any attorney or 
     person whose assistance is necessary to comply with the 
     request who is notified of the request also shall not 
     disclose to any person that the Federal Bureau of 
     Investigation has sought or obtained access to information or 
     records under this section.''.

     SEC. 10. SUNSET PROVISIONS.

       (a) Modification of PATRIOT Act Sunset Provision.--Section 
     224(a) of the USA PATRIOT Act (18 U.S.C. 2510 note) is 
     amended to read as follows:
       ``(a) In General.--Except as provided in subsection (b), 
     sections 206 and 215, and the amendments made by those 
     sections, shall cease to have effect on December 31, 2009, 
     and any provision of law amended or modified by such sections 
     shall take effect on January 1, 2010, as in effect on the day 
     before the effective date of this Act.''.
       (b) Extension of Sunset on ``Lone Wolf'' Provision.--
     Subsection (b) of section 6001 of the Intelligence Reform and 
     Terrorism Prevention Act of 2004 (50 U.S.C. 1801 note) is 
     amended to read as follows:
       ``(b) Sunset.--
       ``(1) In general.--Except as provided in paragraph (2), the 
     amendment made by subsection (a) shall cease to have effect 
     on December 31, 2009.
       ``(2) Special rule.--With respect to any particular foreign 
     intelligence investigation that began before the date on 
     which the amendment made by subsection (a) ceases to have 
     effect, section 101(b)(1) of the Foreign Intelligence 
     Surveillance Act of 1978, as amended by subsection (a), shall 
     continue in effect.''.
       (c) Repeal of Sunset Provision Relating to Section 2332B 
     and the Material Support Sections of Title 18, United States 
     Code.--Section 6603 of the Intelligence Reform and Terrorism 
     Prevention Act of 2004 (Public Law 10809458; 118 Stat. 3762) 
     is amended by striking subsection (g).
       (d) Technical Amendment.--Section 1(a) of the Uniting and 
     Strengthening America by Providing Appropriate Tools Required 
     to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 
     2001 is amended to read as follows:
       ``(a) Short Title.--This Act may be cited as the `Uniting 
     and Strengthening America by Providing Appropriate tools 
     Required to Intercept and Obstruct Terrorism Act of 2001' or 
     the `USA PATRIOT Act'.''.

     SEC. 11. ENHANCEMENT OF SUNSHINE PROVISIONS.

       (a) Rules and Procedures for FISA Courts.--Section 103 of 
     the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1803) is amended by adding at the end the following:
       ``(e)(1) The courts established pursuant to subsections (a) 
     and (b) may establish such rules and procedures, and take 
     such actions, as are reasonably necessary to administer their 
     responsibilities under this Act.
       ``(2) The rules and procedures established under paragraph 
     (1), and any modifications of such rules and procedures, 
     shall be recorded, and shall be transmitted to the following:
       ``(A) All of the judges on the court established pursuant 
     to subsection (a).
       ``(B) All of the judges on the court of review established 
     pursuant to subsection (b).
       ``(C) The Chief Justice of the United States.
       ``(D) The Committee on the Judiciary of the Senate.
       ``(E) The Select Committee on Intelligence of the Senate.
       ``(F) The Committee on the Judiciary of the House of 
     Representatives.
       ``(G) The Permanent Select Committee on Intelligence of the 
     House of Representatives.
       ``(3) The transmissions required by paragraph (2) shall be 
     submitted in unclassified form, but may include a classified 
     annex.''.
       (b) Enhanced Congressional Oversight of FISA Emergency 
     Authorities.--
       (1) Emergency electronic surveillance.--Section 107 of the 
     Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1807), is amended--
       (A) in paragraph (a), by striking ``and'' at the end;
       (B) in paragraph (b), by striking the period at the end and 
     inserting ``; and''; and
       (C) by adding at the end the following:
       ``(c) the total number of emergency employments of 
     electronic surveillance under section 105(f) and the total 
     number of subsequent orders approving or denying such 
     electronic surveillance.''.
       (2) Emergency physical searches.--Section 306 of the 
     Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1826) is amended--
       (A) in the first sentence, by inserting ``, and the 
     Committee on the Judiciary of the House of Representatives 
     and the Committee on the Judiciary of the Senate,'' after 
     ``the Senate'';
       (B) in the second sentence, by striking ``and the 
     Committees on the Judiciary of the House of Representatives 
     and the Senate'';
       (C) in paragraph (2), by striking ``and'' at the end;
       (D) in paragraph (3), by striking the period at the end and 
     inserting ``; and''; and
       (E) by adding at the end the following:
       ``(4) the total number of emergency physical searches 
     authorized by the Attorney General under section 304(e) (50 
     U.S.C. 1824(e)), and the total number of subsequent orders 
     approving or denying such physical searches.''.
       (3) Emergency pen registers and trap and trace devices.--
     Section 406(b) of the Foreign Intelligence Surveillance Act 
     of 1978 (50 U.S.C. 1846(b)), as amended by section 7, is 
     amended--
       (A) in paragraph (1), by striking ``and'' at the end;
       (B) in paragraph (2), by striking the period at the end and 
     inserting ``; and''; and
       (C) by adding at the end the following:
       ``(3) the total number of pen registers and trap and trace 
     devices whose installation and use was authorized by the 
     Attorney General on an emergency basis under section 403, and 
     the total number of subsequent orders approving or denying 
     the installation and use of such pen registers and trap and 
     trace devices.''.
                                 ______
                                 
      By Mr. INOUYE (for himself and Mr. Sununu):
  S. 1390. A bill to reauthorize the Coral Reef Conservation Act of 
2000, and for other purposes; to the Committee on Commerce, Science, 
and Transportation.
  Mr. INOUYE. Mr. President, I rise today to introduce the Coral Reef 
Conservation Amendments Act of 2005, legislation to reauthorize and 
update the Coral Reef Conservation Act of 2000. I am pleased to be 
joined in this endeavor by Senator John Sununu, the new Chairman of the 
Commerce Committee's National Ocean Policy Study, who is also greatly 
concerned about the fate of coral reefs and the future well-being of 
our coastal regions and resources.
  Coral reefs, often called the ``rainforests of the sea,'' are among 
the oldest and most diverse ecosystems on the planet. Covering less 
than one percent of the Earth's surface, these fragile resources 
provide services worth billions of dollars each year to the United 
States economy and economies worldwide. Coral reef resources provide

[[Page 15898]]

economic and environmental benefits in the form of food, jobs, natural 
products, pharmaceuticals, and shoreline protection. In Hawaii, reef-
related activities generate $360 million each year for the State's 
economy, and the overall worth of our reefs has been estimated at close 
to $10 billion.
  However, these reefs are also under pressure from some 1.2 million 
residents and the seven million tourists visiting each year. Threats 
range from land-based sources of pollution, overfishing, recreational 
overuse, alien species introduction, marine debris, coral bleaching and 
the increased acidity of our oceans. Despite these impacts, there are 
still remote coral reefs that are largely intact, such as those in the 
Northwestern Hawaiian Islands. The continued conservation and study of 
these isolated reefs is necessary for understanding healthy coral reef 
ecosystems and restoring impacted ecosystems.
  The reefs of the Northwestern Hawaiian Islands are an important 
nesting and breeding site for many endangered and threatened species. A 
Federal public designation process is underway to manage these areas as 
a National Marine Sanctuary, under a science-based management scheme 
that will accommodate multiple uses while achieving the necessary 
conservation goals. Increased funding and expanded Federal, State and 
local partnerships in this area have resulted in monitoring, mapping, 
and research programs have improved our understanding of the spatial 
and temporal dynamics of Hawaiian reefs which can be used to guide 
conservation and management decisions.
  Through this reauthorization, we can build upon lessons learned in 
Hawaii and other areas and apply them throughout the United States. A 
mere five years ago, Congress took its first step toward addressing 
coral reef declines by authorizing legislation that provided targeted 
funding to advance our understanding and capacity to address threats to 
coral reefs. Since then, strong support for these programs around the 
country, as well as focused funding, have given us much information 
that will help us strengthen and refocus the legislation. The report of 
the U.S. Ocean Commission has further underscored the urgent need to 
improve management and conservation of coral reefs from a variety of 
threats. Our hearing on coral threats last month provided additional 
recommendations for changes to move from monitoring to action to 
improve coral conservation.
  The Coral Reef Amendments Act of 2005 responds to these 
recommendations by increasing annual authorizations under the Coral 
Reef Conservation Act, starting at $30 million in fiscal year 2006, and 
increasing to $35 million in fiscal year 2009 to 2012. This roughly 
doubles the authorization levels in the existing act. It also gives 
priority attention to local action strategies and territorial needs, as 
well as on prevention of physical damage from vessel impacts. A new $8 
million Community-Based Planning Grants program is included to 
encourage and enhance on-the-ground efforts to develop and implement 
coral management and protection plans, working through appropriate 
Federal and State management agencies. I am particularly pleased that 
this grant program will encourage adoption of traditional and island-
based management approaches, many of which have a long history in the 
Pacific region.
  The bill also fills a gap in authority needed for NOAA to respond to 
vessel groundings on coral reefs, damage that compounds over time if 
left unaddressed. Grounded vessels have remained on reefs, and have 
been a particular problem, when there is no viable owner or when the 
grounding occurs under circumstances that do not allow for response 
under authorities such as the National Marine Sanctuaries Act or the 
Oil Pollution Act. The July 2, 2005, grounding of the survey vessel 
CASITAS in the remote Northwestern Hawaiian Islands, and the damage 
caused in American Samoa several years ago when a typhoon drove 9 
abandoned fishing vessels onto reefs in Pago Pago harbor, highlight the 
vulnerability of coral reefs to groundings, and limitations of existing 
law and funding.
  The bill responds to these needs by giving NOAA statutory authority 
to respond on an emergency basis to prevent or mitigate coral reef 
destruction from vessel or other physical impacts, including damage 
caused by natural disasters. The bill also authorizes NOAA to use Coral 
Reef Conservation Funds for these purposes, and encourages leveraging 
resources and assistance from other Federal agencies, as well as 
private sources. To assist in preventing future groundings, the bill 
authorizes NOAA to establish a vessel grounding inventory, identify 
reefs outside National Marine Sanctuaries that are at risk, and 
recommend measures that may be used to prevent future groundings, such 
as navigational aids or beacons to warn mariners.
  Finally, the bill specifically directs NOAA to coordinate on the 
federal, state, and local levels to implement the U.S. National Coral 
Action Strategy.
  I hope that my colleagues will join me in supporting this bill. I ask 
unanimous consent that the text of the bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1390

       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 ``Coral Reef Conservation 
     Amendments Act of 2005.''.

     SEC. 2. EXPANSION OF CORAL REEF CONSERVATION PROGRAM.

       (a) Project Diversity.--Section 204(d) of the Coral Reef 
     Conservation Act of 2000 (16 U.S.C. 6403(d)) is amended--
       (2) by striking ``Geographic and Biological'' in the 
     heading and inserting ``Project'';
       (2) by striking ``40 percent'' in paragraph (2) and 
     inserting ``30 percent''; and
       (3) by striking paragraph (3) and inserting the following:
       ``(3) Remaining funds shall be awarded for--
       ``(A) projects (with priority given to community-based 
     local action strategies) that address emerging priorities or 
     threats, including international and territorial priorities, 
     or threats identified by the Administrator in consultation 
     with the Coral Reef Task Force; and
       ``(B) other appropriate projects, as determined by the 
     Administrator, including monitoring and assessment, research, 
     pollution reduction, education, and technical support.''.
       (b) Approval Criteria.--Section 204(g) of that Act (16 
     U.S.C. 6403(g)) is amended--
       (1) by striking ``or'' after the semicolon in paragraph 
     (9);
       (2) by redesignating paragraph (10) as paragraph (12); and
       (3) by inserting after paragraph (9) the following:
       ``(10) activities designed to minimize the likelihood of 
     vessel impacts on coral reefs, particularly those activities 
     described in section 210(b), including the promotion of 
     ecologically sound navigation and anchorages near coral 
     reefs;
       ``(11) promoting and assisting entities to work with local 
     communities, and all appropriate governmental and 
     nongovernmental organizations, to support community-based 
     planning and management initiatives for the protection of 
     coral reef systems; or''.

     SEC. 3. EMERGENCY RESPONSE.

       Section 206 of the Coral Reef Conservation Act of 2000 (16 
     U.S.C. 6404) is amended to read as follows:

     ``SEC. 206. EMERGENCY RESPONSE ACTIONS.

       ``(a) In General.--The Administrator may undertake or 
     authorize action necessary to prevent or minimize the 
     destruction or loss of, or injury to, coral reefs or coral 
     reef ecosystems from vessel impacts or other physical damage 
     to coral reefs, including damage from unforeseen or disaster-
     related circumstances.
       ``(b) Actions Authorized.--Action authorized by subsection 
     (a) includes vessel removal and emergency restabilization of 
     the vessel and any impacted coral reef.
       ``(c) Partnering with Other Federal Agencies.--When 
     possible, action by the Administrator under this section 
     should--
       ``(1) be conducted in partnership with other Federal 
     agencies, including the United States Coast Guard, the 
     Federal Emergency Management Agency, the U.S. Army Corps of 
     Engineers, and the Department of the Interior; and
       ``(2) leverage resources of such other agencies, including 
     funding or assistance authorized under other Federal laws, 
     such as the Oil Pollution Act of 1990, the Comprehensive 
     Environmental Response, Compensation, and Liability Act, and 
     the Federal Water Pollution Control Act.''.

     SEC. 4. NATIONAL PROGRAM.

       Section 207(b) of the Coral Reef Conservation Act of 2000 
     (16 U.S.C. 6406) is amended--

[[Page 15899]]

       (1) by striking ``and'' after the semicolon in paragraph 
     (3);
       (2) by striking ``partners.'' in paragraph (4) and 
     inserting ``partners; and''; and
       (3) by adding at the end the following:
       ``(5) activities designed to minimize the likelihood of 
     vessel impacts or other physical damage to coral reefs, 
     including those activities described identified in section 
     210(b).''.

     SEC. 5. REPORT TO CONGRESS.

       (a) In General.--Section 208 of the Coral Reef Conservation 
     Act of 2000 (16 U.S.C. 6407) is amended to read as follows:

     ``SEC. 208. REPORT TO CONGRESS.

       ``Not later than March 1, 2007, and every 3 years 
     thereafter, the Administrator shall submit to the Committee 
     on Commerce, Science, and Transportation of the Senate and 
     the Committee on Resources of the House of Representatives a 
     report describing all activities undertaken to implement the 
     strategy, including--
       ``(1) a description of the funds obligated by each 
     participating Federal agency to advance coral reef 
     conservation during each of the 3 fiscal years next preceding 
     the fiscal year in which the report is submitted;
       ``(2) a description of Federal interagency and cooperative 
     efforts with States and United States territories to prevent 
     or address overharvesting, coastal runoff, or other 
     anthropogenic impacts on coral reefs, including projects 
     undertaken with the Department of Interior, Department of 
     Agriculture, the Environmental Protection Agency, and the 
     United States Army Corps of Engineers;
       ``(3) a summary of the information contained in the vessel 
     grounding inventory established under section 210, including 
     additional authorization or funding, needed for response and 
     removal of such vessels;''
       ``(4) a description of Federal disaster response actions 
     taken pursuant to the National Response Plan to address 
     damage to coral reefs and coral reef ecosystems; and
       ``(5) an assessment of the condition of United States coral 
     reefs, accomplishments under this Act, and the effectiveness 
     of management actions to address threats to coral reefs.''.
       (b) Clerical Amendment.--The table of contents for the 
     Coral Reef Conservation Act of 2000 (16 U.S.C. 6401 et seq.) 
     is amended by striking the item relating to section 208 and 
     inserting the following:

``208. Report to Congress.''.

     SEC. 6. FUND; GRANTS; GROUNDING INVENTORY; COORDINATION.

       (a) In General.--The Coral Reef Conservation Act of 2000 
     (16 U.S.C. 6401 et seq.) is amended--
       (1) by striking ``organization solely'' and all that 
     follows in section 205(a) (16 U.S.C. 6404(a)) and inserting 
     ``organization--
       ``(1) to support partnerships between the public and 
     private sectors that further the purposes of this Act and are 
     consistent with the national coral reef strategy under 
     section 203: and
       ``(2) to address emergency response actions under section 
     206.'';
       (2) by adding at the end of section 205(b) 16 U.S.C. 
     6404(b)) ``The organization is encouraged to solicit funding 
     and in-kind services from the private sector, including 
     nongovernmental organizations, for emergency response actions 
     under section 206 and for activities to prevent damage to 
     coral reefs, including activities described in section 
     210(b)(2).'';
       (3) by striking ``the grant program'' in section 205(c) (16 
     U.S.C. 6404(c)) and inserting ``any grant program or 
     emergency response action'';
       (4) by redesignating sections 209 and 210 as sections 212 
     and 213, respectively; and
       (5) by inserting after section 208 the following:

     ``SEC. 209. COMMUNITY-BASED PLANNING GRANTS.

       ``(a) In General.--The Administrator may make grants to 
     entities who have received grants under section 204(c) to 
     provide additional funds to such entities to work with local 
     communities and through appropriate Federal and State 
     entities to prepare and implement plans for the increased 
     protection of coral reef areas identified by the community 
     and the best scientific information available as high 
     priorities for focused attention. The plans shall--
       ``(1) support attainment of 1 or more of the criteria 
     described in section 204(g);
       ``(2) be developed at the community level;
       ``(3) utilize watershed-based approaches;
       ``(4) provide for coordination with Federal and State 
     experts and managers; and
       ``(5) build upon local approaches or models, including 
     traditional or island-based resource management concepts.
       ``(b) Terms and Conditions.--The provisions of subsections 
     (b), (d), (f), and (h) of section 204 apply to grants under 
     subsection (a), except that, for the purpose of applying 
     section 204(b)(1) to grants under this section, `25 percent' 
     shall be substituted for `50 percent'.

     ``SEC. 210. VESSEL GROUNDING INVENTORY.

       ``(a) In General.--The Administrator may maintain an 
     inventory of all vessel grounding incidents involving coral 
     reef resources, including a description of--
       ``(1) the impacts to such resources;
       ``(2) vessel and ownership information, if available;
       ``(3) the estimated cost of removal, mitigation, or 
     restoration;
       ``(4) the response action taken by the owner, the 
     Administrator, the Commandant of the Coast Guard, or other 
     Federal or State agency representatives;
       ``(5) the status of the response action, including the 
     dates of vessel removal and mitigation or restoration and any 
     actions taken to prevent future grounding incidents; and
       ``(6) recommendations for additional navigational aids or 
     other mechanisms for preventing future grounding incidents.
       ``(b) Identification of At-risk Reefs.--The Administrator 
     may--
       ``(1) use information from any inventory maintained under 
     subsection (a) or any other available information source to 
     identify coral reef areas outside designated National Marine 
     Sanctuaries that have a high incidence of vessel impacts, 
     including groundings and anchor damage; and
       ``(2) identify appropriate measures, including action by 
     other agencies, to reduce the likelihood of such impacts.

     ``SEC. 211. REGIONAL COORDINATION.

       ``The Administrator shall work in coordination and 
     collaboration with other Federal agencies, States, and United 
     States territorial governments to implement the strategies 
     developed under section 203, including regional and local 
     strategies, to address multiple threats to coral reefs and 
     coral reef ecosystems such as coastal runoff, vessel impacts, 
     and overharvesting.''.
       (b) Clerical Amendment.--The table of contents for the 
     Coral Reef Conservation Act of 2000 (16 U.S.C. 6401 et seq.) 
     is amended--
       (1) by redesignating the items relating to sections 208 
     through 211 as relating to sections 211 through 214; and
       (b) by inserting the following after the item relating to 
     section 207:

``209. Community-based planning grants.
``210. Vessel grounding inventory.
``211. Regional coordination.''.

     SEC. 7. AUTHORIZATION OF APPROPRIATIONS.

       Section 212 of the Coral Reef Conservation Act of 2000 
     (formerly 16 U.S.C. 6408), as redesignated by section 6, is 
     amended--
       (1) by striking ``$16,000,000 for each of fiscal years 
     2001, 2002, 2003, and 2004,'' in subsection (a) and inserting 
     ``$30,000,000 for fiscal year 2006, $32,000,000 for fiscal 
     year 2007, $34,000,000 for fiscal year 2008, and $35,000,000 
     for each of fiscal years 2009 through 2012, of which no less 
     than 30 percent per year (for each of fiscal years 2006 
     through 2012) shall be used for the grant program under 
     section 204 and up to 10 percent per year shall be used for 
     the Fund established under section 205,'';
       (2) by striking ``$1,000,000'' in subsection (b) and 
     inserting ``$2,000,000''; and
       (3) by striking subsection (c) and inserting the following:
       ``(c) Community-based Planning Grants.--There is authorized 
     to be appropriated to the Administrator to carry out section 
     209 the sum of $8,000,000 for fiscal years 2007 through 2012, 
     such sum to remain available until expended.''; and
       (4) by striking subsection (d).
                                 ______
                                 
      By Mr. LAUTENBERG (for himself, Mr. Jeffords, Mrs. Boxer, Mr. 
        Kerry, Mr. Corzine, Mrs. Clinton, and Mr. Kennedy)
  S. 1391. A bill to amend the Toxic Substances Control Act to reduce 
the exposure of children, workers, and consumers to toxic chemical 
substances; to the Committee on Environment and Public Works.
  Mr. LAUTENBERG. Mr. President, I rise today to introduce the Child, 
Worker and Consumer Safe Chemicals Act of 2005. Senators Jeffords, 
Boxer, Kerry, Corzine, Clinton and Kennedy are cosponsors of this 
legislation.
  Every day, Americans use household products that contain hundreds of 
chemicals. Most people assume that those chemicals have been proven 
safe for their families and children. Unfortunately, that assumption is 
wrong. Many chemicals that have been in use for decades have never been 
tested for their health effects.
  Over 40 years ago Rachel Carson, in her book Silent Spring, warned 
about the danger of using chemicals that had not been fully tested. 
Today, nearly all of those same chemicals are still being used--yet to 
this day most of them have never been tested for their health effects.
  Many of these chemicals perform amazing services and make our lives 
easier. But in recent years study after study has raised concerns about 
some of the chemicals that are used in thousands of products.
  For instance, take the common baby bottle. Many baby bottles contain 
the chemical ``Bisphenol A'' which at very low doses has been shown to 
affect reproduction, the immune system, brain chemistry, behavior and 
more. How great is the risk of using Bisphenol A in baby bottles, water 
bottles and other everyday products? The answer is ``we don't know.''

[[Page 15900]]

  Mothers have every right to expect their babies to be safe from 
exposure to toxic chemicals--before and after birth. We have laws to 
make sure that pesticides and medicines are safe--and even toys. But we 
fail to require similar assessments for the chemicals used in baby 
bottles, water bottles, food packages and thousands of other products. 
This is inexcusable.
  But the current law, known as ``Toxic Substances Control Act'' (TSCA) 
actually sets up roadblocks to EPA getting the vital information it 
needs to determine whether these chemicals are safe. So last year, I 
asked the Government Accountability Office (GAO) to assess TSCA to 
determine how effective it has been in doing the job of protecting 
public health and the environment.
  In the GAO report released today, Chemical Regulation: Options Exist 
to Improve EPA's Ability to Assess Health Risks and Manage its Chemical 
Review Program, we learn that TSCA is such an ineffective and 
burdensome law that it often fails to protect our children, workers and 
the general population from exposure to carcinogens such as asbestos--
for which there is no safe level of exposure.
  According to the GAO, only five chemicals that existed 29 years ago 
when Congress passed TSCA have ever been restricted by EPA. In 29 
years, the agency has formally requested health and environmental 
effects information on just 200 chemicals--out of about 80,000.
  The GAO reports, ``EPA does not routinely assess existing chemicals 
and has limited information on their health and environmental risks.'' 
It adds, ``EPA lacks sufficient data to ensure that potential health 
and environmental risks of new chemicals are identified.''
  Children are the most sensitive population to chemical pollutants and 
we must protect that sacred bond between a mother and her child. Again, 
it is inexcusable that our laws require extensive data to approve 
pesticides and pharmaceuticals as safe--but fail to require similar 
analysis for the chemicals used in baby bottles, water bottles, food 
packages and thousands of other products.
  That is why today I am introducing The Child-Safe Chemicals Act. My 
bill will establish a safety standard that each chemical on the market 
must meet. It shifts the burden for proving that chemicals are safe 
from EPA to the chemical manufacturers. Under my bill, the 
manufacturers must provide the EPA with whatever data it needs to 
determine if a chemical use meets the safety standard. And the bill 
strengthens EPA's authority to restrict the use of chemicals which fail 
to meet that standard.
  I have ten grandchildren . . . and I believe we have a sacred duty to 
protect the health of infants and children. I agree with Daniel 
Maguire, a professor of religious ethics at Marquette University who 
stated, ``As a principle of ethics, whatever is good for kids is good; 
whatever is bad for kids is ungodly.''
  My bill has been endorsed by the American Public Health Association 
and many of the nation's leading pediatricians. The American people 
have a right to assume that the products they use are safe. This bill 
will help guarantee that right.
  Mr. JEFFORDS. Mr. President, I rise today to introduce the Kid Safe 
Chemicals Act with Senators Lautenberg, Boxer, Kerry, Corzine, Clinton 
and Kennedy. The purpose of the bill is simple--improve children's 
health by reducing exposure to harmful toxic chemicals in everyday 
consumer products.
  Synthetic chemicals play an integral role in the US economy and in 
enhancing our quality of life. Yet--like most Americans--I assumed 
basic safeguards were in place to ensure that chemicals widely used in 
household products were first determined to be safe. Sadly, this 
assumption is false.
  A new report, issued today by the Government Accountability Office, 
shows that most chemicals used in consumer products today have never 
undergone any Federal safety review. Further, the report demonstrates 
that EPA lacks the necessary legal tools to protect our children from 
harmful chemicals. The report, which I requested along with Senators 
Lautenberg and Leahy, is titled ``Chemical Regulation: Options Exist to 
Improve EPA's Ability to Assess Health Risks and Manage its Chemical 
Review Program.''
  To all people who care about our children's health, GAO's conclusions 
should be a call to action. Three findings merit particular attention.
  First, GAO found that ``EPA does not routinely assess the human 
health and environmental risks of existing chemicals and faces 
challenges obtaining the information necessary to do so.'' For example, 
the Agency has required testing for fewer than 200 of the 62,000 
chemicals used in commerce since EPA began reviewing chemicals in 1979.
  Additionally, GAO found that ``EPA's reviews of new chemicals provide 
limited assurance that health and environmental risks are identified 
before the chemicals enter commerce.'' According to the report, 
chemical companies generally do not test new chemicals for toxicity or 
gauge human exposure levels before they are submitted for EPA review, 
forcing the Agency to rely on predictive modeling that ``does not 
ensure that the chemicals' risks are fully assessed before they enter 
commerce.''
  Finally, even when EPA has toxicity and exposure information on 
chemicals showing significant health risks, GAO found that the Agency 
has difficulty overcoming the legal hurdles needed to take action. As a 
result, in almost three decades, EPA has issued regulations to ban or 
limit the production or restrict the use of only five chemicals.
  Our toxic ignorance would be less alarming if it wasn't coupled with 
overwhelming evidence of widespread human exposure. Study after study--
including those by the Centers for Disease Control--have found a 
cocktail of synthetic chemicals in the blood and tissue of most people 
tested. For example, bio-monitoring studies have found Bisphenyl A, a 
chemical used in plastic baby pacifiers, water bottles, and food and 
beverage containers, in 95 percent of people tested. Similarly, 
chemicals such as P-FOA, which is used in non-stick Teflon pans, and 
polybrominated diphenyl ethers, used as flame retardants, are regularly 
found in breast milk and fetal liver tissue.
  To be clear, the health effects of these chemicals are unknown. 
Unknown because no one is required to look. We do know, however, that 
most of us are carrying in our bodies dozens--if not hundreds--of 
synthetic chemicals to which our grandparents were never exposed. We 
also know that the incidence of certain cancers and neurological and 
developmental disorders linked to chemical exposure are on the rise.
  The Kid Safe Chemical Act would fundamentally overhaul the nation's 
chemical management framework. First, it would protect kids by 
requiring chemical manufacturers to perform basic testing of their 
products. Second, it would reduce our toxic ignorance by providing much 
needed hazard and exposure information to EPA and the public. Third, 
using a science based, worst-first priority system, EPA would be 
required to determine the safety of 300 chemicals within the next five 
years. By 2020, all chemicals distributed in commerce would need to 
meet the safety standard.
  To avoid imposing an undue burden on industry, the Kid Safe Chemicals 
Act relies on essentially the same safety standard as the Food Quality 
Protection Act, which passed the Gingrich-Lott Congress unanimously and 
which chemical manufacturers themselves have complied with for the past 
decade. In short, chemical manufacturers would need to establish to EPA 
that there was ``a reasonable certainty of no harm'' before 
distributing their chemicals in commerce. A ten-fold safety factor 
would be built in to account for the unique sensitivity of children.
  Finally, the Kid Safe Chemicals Act encourages innovation of less 
toxic chemicals by removing existing disincentives and initiating a 
safer alternatives and green chemistry program.
  As a result, the bill has been endorsed by a wide array of public 
health groups, such as the Breast Cancer

[[Page 15901]]

Fund, the Center for Children's Environmental Health, and the American 
Public Health Association.
  I believe that the Kid Safe Chemicals Act represents a rational, 
common sense approach to reducing children's exposure to toxic 
chemicals.
                                 ______
                                 
      By Mr. SMITH (for himself and Mr. Dorgan):
  S. 1392. A bill to reauthorize the Federal Trade Commission; to the 
Committee on Commerce, Science, and Transportation.
  Mr. SMITH. Mr. President, I rise today with Senator Dorgan to 
introduce the FTC Reauthorization Act of 2005.
  As the chairman of the Subcommittee on Trade, Tourism, and Economic 
Development, I am pleased to have Senator Dorgan, the ranking member of 
the subcommittee join me to introduce this important bill. Our 
subcommittee has jurisdiction over the Federal Trade Commission and its 
missions and this legislation would reauthorize the FTC from fiscal 
year 2006 through 2010.
  The FTC reauthorization bill is important for the FTC to carry out 
its critical mission of preventing unfair competition and protecting 
consumers from unfair or deceptive acts or practices in the 
marketplace.
  The responsibility to protect consumers is quite broad and includes a 
wide array of deception and unfair business practices, including price 
fixing, telemarketing fraud, Internet scams, and consumer identity 
theft.
  As a product of its responsibilities, the FTC plays a vital role in 
maintaining integrity in the marketplace and strengthening our economy.
  This legislation authorizes appropriations to fund the FTC's 
operations including moneys for efforts to secure data privacy and to 
combat spyware and identity theft. These are areas that have posed an 
increased threat to consumers recently, affecting millions of consumers 
with a pricetag to society in the billions of dollars.
  The services and protections the FTC performs for consumers are 
invaluable and we need to pass an authorization bill, which it has 
operated without since 1998.
  I urge my colleagues to support this legislation and its expeditious 
passage through the Congress.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1392

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``FTC Reauthorization Act of 
     2005.''

     SEC. 2. REAUTHORIZATION.

       The text of section 25 of the Federal Trade Commission Act 
     (15 U.S.C. 57c) is amended to read as follows:
       ``There are authorized to be appropriated to carry out the 
     functions, powers, and duties of the Commission not to exceed 
     $213,000,000 for fiscal year 2006, $241,000,000 for fiscal 
     year 2007, $253,000,000 for fiscal year 2008, $264,000,000 
     for fiscal year 2009, and $276,000,000 for fiscal year 
     2010.''.
                                 ______
                                 
      By Mr. VITTER:
  S. 1393. A bill to amend the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act to provide for reimbursement of certain for-
profit hospitals; to the Committee on Homeland Security and 
Governmental Affairs.
  Mr. VITTER. Mr. President, I rise to introduce the Hospital Emergency 
Reimbursement Act of 2005. This bill will help ensure the safety of 
many patients, elderly residents, and those who require critical care 
during the event of a hurricane or other disaster.
  Each year, natural disasters place millions of Americans in harm's 
way. Hurricanes, floods, and other hazards pose a particular danger to 
people with special needs. Many patients depend on technology to keep 
them alive. For them, electricity is a necessity that makes lengthy 
evacuations a life-threatening race against the clock. These patients 
must be sheltered in medical facilities with reliable power generators 
that will perform during a severe storm and during the immediate 
recovery period after the storm.
  Providing for their safety is precisely why I am introducing the 
Hospital Emergency Reimbursement Act. This bill will enable the Federal 
Emergency Management Agency, under certain circumstances, to reimburse 
private for-profit hospitals that shelter special needs patients during 
federally declared disasters.
  Currently, FEMA only has the authority to reimburse a hospital for 
sheltering if it is a public or nonprofit institution. However, the 
number of these facilities is shrinking in many communities. The 
guidelines for providing assistance must acknowledge this reality. Last 
year in Louisiana, two people with critical needs died in transit from 
New Orleans to a temporary public facility in Baton Rouge in the 
evacuation for Hurricane Ivan. With every storm or evacuation order, 
tens of thousands of families with relatives in critical condition 
scramble to make arrangements to protect their loved ones.
  By allowing reimbursement to additional private facilities, the 
Hospital Emergency Reimbursement Act of 2005 would promote the safety 
of Americans around the Nation by allowing greater flexibility during 
an emergency. The amount of reimbursement provided by FEMA under this 
bill would be limited to the same amount available to public and 
nonprofit facilities. Furthermore, funds would be available to for-
profit hospitals when public and nonprofit facilities within a 30-mile 
radius have met or exceeded their capacity. Under this measure, public 
and non-profits still are used first for emergency needs, with private 
for-profit hospitals available as backup to ensure that everyone in a 
medically critical condition is covered.
  I urge my colleagues to support the Hospital Emergency Assistance Act 
of 2005.

                          ____________________