[Congressional Record (Bound Edition), Volume 151 (2005), Part 20]
[Senate]
[Pages 27077-27098]
[From the U.S. Government Publishing Office, www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. BYRD (for himself and Mr. Rockefeller):
  S. 2028. A bill to provide for the reinstatement of a license for a 
certain Federal Energy Regulatory Commission project; to the Committee 
on Energy and Natural Resources.
  Mr. BYRD. Mr. President, I ask unanimous consent that the text of my 
bill to reinstate a hydroelectric license for a Federal Energy 
Regulatory Commission project in Grafton, WV, be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2028

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

     SECTION 1. REINSTATEMENT OF LICENSE FOR FEDERAL ENERGY 
                   REGULATORY COMMISSION PROJECT.

       (a) In General.--Notwithstanding the time period specified 
     in section 13 of the Federal Power Act (16 U.S.C. 806) that 
     would otherwise apply to project numbered 7307 of the Federal 
     Energy Regulatory Commission, the Commission shall, on the 
     request of the licensee for the project, in accordance with 
     that section (including the good faith, due diligence, and 
     public interest requirements of that section and procedures 
     established under that section), extend the time required for 
     commencement of construction of the project until December 
     31, 2007.
       (b) Applicability.--Subsection (a) shall apply to the 
     project on the expiration of any extension, issued by the 
     Commission under section 13 of the Federal Power Act (16 
     U.S.C. 806), of the time required for commencement of 
     construction of the project.
       (c) Reinstatement of Expired License.--If a license of the 
     Commission for the project expires before the date of 
     enactment of this Act, the Commission shall--
       (1) reinstate the license effective as of the date of the 
     expiration of the license; and
       (2) extend the time required for commencement of 
     construction of the project until December 31, 2007.
                                 ______
                                 
      By Mr. BIDEN:
  S. 2030. A bill to bring the FBI to full strength to carry out its 
mission; to the Committee on the Judiciary.
  Mr. BIDEN. Mr. President, I rise today to introduce the Full Strength 
Bureau Initiative Act of 2005. This is a piece of legislation that I 
think is critically important to our national security. Over the past 
four years, we have had numerous debates here in the Senate about what 
we need to do to protect ourselves from international terrorists. While 
I have disagreed with many of the specific decisions this Congress and 
President Bush have made, I do agree that we face a grave threat from 
radical fundamental terrorists. And, it should be a primary focus of 
our national security efforts. However, it simply makes no sense for us 
to spend all of our time worrying about terrorism if we turn a blind 
eye to traditional crime and the threat that it poses to our citizens. 
We simply have to be able to do both, and the legislation that I am 
introducing today will help do that.
  Part of the response to address this threat has been to shift the 
primary function of the Federal Bureau of Investigation from 
investigating and capturing criminals to the prevention of terror 
attacks. I don't disagree that this is an appropriate shift in 
priorities, but, we haven't made the investments necessary for the FBI 
to shift priorities and meet its commitment to combat traditional 
crime. To address this concern, I am introducing legislation that will 
authorize funding for the FBI to hire an additional 1,000 agents. These 
agents will replace the ones that have been reassigned to counterter-
rorism cases and will help keep our communities safe. The cost--$160 
million per year--is minimal when compared to the benefits it will 
provide. Its passage will help ensure that the FBI has the resources to 
achieve its counterterrorism priorities without neglecting its 
traditional crime fighting functions.
  A 2004 Government Accountability Office found that the number of 
overall agents at the FBI has increased by only seven percent since 
2001. During the same time, the overall percentage of agents dedicated 
to counterterrorism by twenty five percent--with 678 agents being 
permanently shifted from drug, white collar, and violent crime cases to 
counter-terror activities. In addition, we know that many agents are 
working on counterterrorism cases even if they have not been 
``officially'' dedicated to that effort in a process know within the 
FBI as ``overburning.''
  Ultimately, the GAO concluded, as it often does, that the impact on 
traditional crime was statistically inconclusive; however the report 
demonstrated many concerns. First, the report found that the FBI 
referred 236 counter-
terrorism matters to U.S. Attorneys for prosecution in fiscal year 
2001, which ended three weeks after September 11. Two years later, in 
fiscal year 2003, the FBI referred 1,821 counterterrorism cases to U.S. 
Attorneys for prosecution--this is a 671 percent increase. During the 
same period of time, referrals for drug, whitecollar, and violent crime 
matters all declined by 39 percent, 23 percent, and 10 percent 
respectively. This statistically demonstrates that the reprogramming 
effort--while critical--has had an impact on the FBI's traditional 
crime fighting efforts.
  In addition to investigating Federal crimes, the FBI also provides 
critical assistance to State and local law enforcement. Quite simply, 
the FBI has technical expertise and resources that are not available to 
many State and local agencies--especially smaller jurisdictions. These 
local agencies rely on the FBI to assist them on technical matters, and 
as the FBI continues to divert resources from criminal cases, a gap in 
overall law enforcement capabilities is developing. In order to 
preserve public safety and national security this is a gap that must be 
filled.
  Unfortunately, local budget woes are making it impossible for local 
agencies to fill the slack. A recent survey indicated that 23 of 44 
police agencies are facing an officer shortfall. The USA Today and the 
New York Times have reported officer shortages in New York, Cleveland, 
Los Angeles, Houston and others. In addition, I recently attended a 
Judiciary Committee hearing in Philadelphia and we heard testimony from 
the Philadelphia Chief of Police that he had lost 2,000 officers in 
recent years, and the Pittsburgh police chief reported that she had 
lost nearly \1/4\ of her officers and had to suspend her community 
policing programs and other crime prevention programs due to budget 
cuts.
  In addition to local budget woes, the U.S. Congress continues to 
slash Federal assistance for State and local law enforcement. In this 
year's Commerce, Justice, State appropriations bill, the Congress cut 
roughly $300 million from the Justice Assistance Grant and completely 
eliminated the COPS hiring program. Any local sheriff or police chief 
will tell you how important this funding assistance is to their 
efforts, and the investments that we made in them over the past ten 
years helped drive down crime rates from all-time highs to the lowest 
levels in a generation. In addition, the COPS program has been 
statistically proven to reduce crime by the Government Accountability 
Office, and the Justice Assistance Grants are the primary grant 
programs used by local agencies to combat illegal drug use in their 
communities. I voted for this spending bill because it provided 
critical funding for the FBI and the Drug Enforcement Agency, but I 
remain very critical of the cuts to state and local law enforcement 
assistance and hope that the President and the Republican-led Congress 
will change course.
  Unfortunately, these cuts and the FBI reprogramming of agents from 
crime to counter-terror cases is creating a perfect storm that I'm 
afraid will contribute to rising crime rates in the future. The good 
news is that the

[[Page 27078]]

2004 Uniform Crime Reports show that crime rates remain at historic 
lows. But, many criminologists have pointed out that many crime 
indicators should caution against complacency. Last year, there were 
over 16,000 murders throughout the United States, and police chiefs and 
sheriffs are reporting worrying signs of local youth violence. Indeed, 
a 2005 report by the FBI on youth gangs shows that gang activity is on 
the rise. Rather than pull-back, we need to re-double our effort to 
ensure that crime rates don't rise in the future and to push them even 
lower. I've often said that the safety of Nation's citizens should be 
the top priority of our Federal Government--this applies to combating 
international terrorists and traditional crime.
  We spent a bulk of the nineties creating a Federal, State, and local 
partnership that helped make our Nation safer than it has been in a 
generation. This partnership is breaking down because the President and 
many in Congress feel that local crime is not a national priority. I 
couldn't disagree more. The safety of the American people is the most 
important priority that we have. It doesn't matter whether the threat 
comes from international terrorists, drug traffickers, or from the thug 
down the street. In my opinion, it is a terrible mistake to use the 
successes of the past ten years and the new focus on terrorism as an 
excuse to abandon our critical anti-crime responsibilities. We can--and 
we must do both. The American people are counting on us, and the 
legislation that I am introducing today will help ensure that we meet 
our commitment to the American people to make sure that they are safe 
from crime and terrorism.
                                 ______
                                 
      By Mr. Durbin (for himself, Mr. Specter, Mr. DeWine, Mr. Leahy, 
        Mr. Kennedy, Mrs. Feinstein, Mr. Feingold, Mr. Harkin, Mr. 
        Akaka, Mr. Lautenberg, Ms. Cantwell, Mr. Pryor, and Mr. Kerry):
  S. 2039. A bill to provide for loan repayment for prosecutors and 
public defenders; to the Committee on the Judiciary.
  Mr. DURBIN. Mr. President, I rise today to introduce the Prosecutors 
and Defenders Incentive Act of 2005. I am honored to have the support 
and cosponsorship of Senator DeWine with whom I have enjoyed working on 
similar measures in previous Congresses. I am further pleased that 
Senators Specter, Leahy, Kennedy, Feingold, Feinstein, Akaka, Cantwell, 
Harkin, Lautenberg, Pryor, and Kerry have also agreed to join me as 
original cosponsors of this legislation. Our bill is designed to 
encourage the best and the brightest law school graduates to enter 
public service as criminal prosecutors and public defenders by making a 
student loan repayment program available to them.
  I am pleased that this legislation enjoys bipartisan support. I am 
anxious to work closely with Chairman Specter and Ranking Member Leahy 
to advance it through the Judiciary Committee and secure its enactment 
by the full Senate.
  Our proposed loan repayment program is supported by the American Bar 
Association, the National District Attorneys Association, the National 
Association of Prosecutor Coordinators, the National Legal Aid and 
Defender Association, and the American Council of Chief Defenders.
  We can--and should--do more to help prosecutor and public defender 
offices compete with the higher salaries available in the private 
sector. In many instances, despite high aspirations and strong 
motivation to work in the public sector, many graduates find it 
economically impossible to pursue that career path due to the 
overwhelming burden of debt. The availability of student loan repayment 
can be a powerful incentive for attracting some of our most talented 
new lawyers to public service employment.
  Many of today's law graduates are finishing law school owing 
staggering amounts of student loan debt. According to the American Bar 
Association, the median total cumulative educational debt for law 
school graduates in the class of 2004 was $97,763 for private schools 
and $66,810 for public schools. Educational loan debts represent a 
serious financial obligation which must be repaid. A default on any 
loan triggers serious consequences. Moreover, the looming obligation 
can impact career choices for many new graduates.
  Many budding prosecutors and public defenders face a disheartening 
dilemma. On the one hand, they have a deep commitment to pursuing a 
career in public service. On the other hand, they need a level of 
income to meet the demands of exorbitant educational loan liabilities. 
This wrenching choice has not only personal impact but adverse 
implications for the legal profession and its commitment to ensuring 
access to justice for all citizens. And from an employer's perspective, 
comparatively low salaries and high debt make it extremely difficult to 
recruit and retain attorneys in prosecutor and public defender offices.
  The results of a special study, ``Lifting the Burden: Law Student 
Debt as a Barrier to Public Service,'' published in August 2003 by the 
American Bar Association, reflects eight key findings, which I will 
describe in more specificity in my remarks.
  First, law school tuition levels have skyrocketed. Second, the vast 
majority of law students borrow funds to finance their legal education. 
Third, law students are borrowing increasingly larger sums to finance 
their legal education. Fourth, public service salaries have not kept 
pace with rising law school debt burdens or private sector salaries. 
Fifth, high student debt bars many law graduates from pursuing public 
service careers. Sixth, many law graduates who take public service 
legal jobs must leave after they gain 2 to 3 years of experience. 
Seventh, public service employers report serious difficulty recruiting 
and retaining lawyers. And eighth, the legal profession and society pay 
a severe price when law graduates are shut out from pursuing public 
service legal careers due to high educational debt burden.
  On the matter of skyrocketing tuition levels, since the early 1970s, 
there have been steep and persistent hikes in the costs of legal 
education and in the tuition rates law schools charge. Researchers 
found that tuition increased about 340 percent from 1985 to 2002 for 
private law school students and out-of-state students at public law 
schools. In state students at public law schools saw their tuition jump 
about 500 percent. During the period 1992-2002, the cost of living in 
the United States rose 28 percent while the cost of tuition for public 
law schools rose 134 percent for residents and 100 percent for 
nonresidents, and private law school tuition increased 76 percent.
  In 1975, when private law school tuition averaged $2,525 and public 
law school tuition for in state residents was $700, the need to borrow 
to finance a legal education was not as prevalent or necessary. In 
1990, when tuition was $11,680 for private institutions and $3,012 for 
public law schools, it was at least manageable. In 2002, the median law 
school annual tuitions were $24,920 for private law schools, $18,131 
for nonresident students at public law schools, and $9,252 for resident 
students at public law schools.
  A computation of the tuition rates of the 186 ABA-accredited law 
schools for 2004 reflects that charges for State residents at public 
law schools average $10,820 per year. For nonresidents attending public 
law schools, the average tuition amounts to $20,176 per year. Students 
attending private law schools pay an average of $25,603 per year.
  Additional amounts for food, lodging, books, fees and personal 
expenses increase the costs for 3 years to more than $60,000 in almost 
all cases and well over $100,000 in many instances.
  The vast majority of law students must borrow funds to finance their 
legal education. In 2002, almost 87 percent of law students borrowed to 
finance their legal education. That level remained consistent in 2004. 
Many of these students also carried unpaid debt from their 
undergraduate studies.
  Law students are borrowing increasingly larger sums to finance their 
legal education. As tuition and other expenses of attending law school 
rose, more and more students found they needed to borrow to pay for law 
school.

[[Page 27079]]

During the 1990s, the average amount students borrowed more than 
doubled. Today, the amount borrowed by many students exceeds $80,000.
  Public service salaries have not kept pace with rising law school 
debt burdens or private sector salaries. Entry-level salaries for 
government or other public service position, have always been 
significantly lower than those in private practice.
  Over the years since the mid-1970s, the median starting salaries in 
private practice have risen at a much faster pace than entry-level 
public service salaries. Between 1985 and 2002, the median starting 
salaries at private law firms rose by about 280 percent. Government 
lawyers, such as prosecutors and public defenders, saw their salaries 
increase by just 70 percent.
  According to the 2004 Public Sector and Public Interest Attorney 
Salary Report, published in August 2004 by the National Association for 
Law Placement, Inc., the median entry-level salary for public defenders 
is $39,000; with 11 to 15 years of experience, the median is $65,000. 
The salary progression for State and local prosecuting attorneys is 
similar, starting at about $40,000 and progressing to $68,000-69,000 
for those with 11 to 15 years of experience.
  In August 2004, NALP also released the results of its tenth annual 
comprehensive survey of associate compensation in private sector law 
firms. According to the 2004 Associate Salary Survey Report, based on 
salary information as of April 1, 2004 provided by 599 offices, the 
median salary for first-year associates ranged from $65,000 in firms of 
2 to 25 attorneys to $120,000 in firms of 500 attorneys or more, with a 
first-year median for all participating firms of $95,000. These figures 
evidence the stark reality of compensation differentials for those 
graduates electing to devote their skills to public service jobs as 
prosecutors and defenders.
  High student debt bars many law graduates from pursuing public 
service careers. As law school tuition and student debt have sharply 
escalated, fewer and fewer law school graduates can afford to take the 
comparatively low-paying public service positions that are available in 
government agencies or with prosecutor, public defender, or legal 
services offices.
  A national study of law school debt conducted by Equal Justice Works, 
the Partnership for Public Service, and the National Association for 
Law Placement found that law student debt prevented two-thirds of law 
student respondents from considering a public service career.
  The report was based on a spring 2002 survey of graduating law 
students. Survey respondents included 1,622 students from 117 law 
schools representing 40 States, the District of Columbia, and Canada. 
Among the findings reported were the following: Overall, 66 percent of 
respondents stated that law school debt kept them from considering a 
public interest or government job. The percentage is higher among those 
who ultimately accepted jobs in small or large private firms, with 83 
percent and 78 percent, respectively, stating that debt prevented them 
from seeking work with public interest organizations or the Federal 
Government.
  Seventy-three percent of students who had not yet accepted a job when 
surveyed also indicated that they were disinclined to seek a public 
interest or government position due to heavy debt load. Providing 
$6,000 a year in available loan repayment assistance would result in 
increased interest in a post graduate Federal Government job for 83 
percent of student respondents.
  Despite their high debt burden, some law graduates initially accept 
public service jobs. However, the magnitude of debt precipitates high 
turnover because many of these cannot repay loan obligations on a 
median starting salary of $36,000 and pay all their other remaining 
living expenses with the remaining $1,100 per month. Some who begin 
careers in public service, and who would like to remain, leave after a 
few years when they find their debts are too severely constraining on 
their hopes for making ends meet, much less raising children or saving 
for retirement.
  Many public service employers report having a difficult time 
attracting the best qualified law graduates. Public service employers, 
such as prosecutor or public defender offices, have vacancies they 
cannot fill because new law graduates cannot afford to work for them. 
Alternatively, those who do hire law graduates find that, because of 
educational debt payments, those whom they do hire leave just at the 
point when they have acquired the experience to provide the most 
valuable services.
  The legal profession and society pay a severe price when law 
graduates are shut out from pursuing public service legal careers due 
to high educational debt burden. Lawyers with dreams of serving their 
communities as prosecutors or public defenders are unable to use their 
skills to do so. And when governments cannot hire new lawyers or keep 
experienced ones, the ability to protect the public safety is 
challenged. The inability of poor and moderate-income persons to obtain 
legal assistance can result in dire consequences to those individuals 
and the communities in which they live.
  Our bill, the Prosecutors and Defenders Incentive Act, is designed to 
help remedy some of these problems. Enacting this measure will help 
make legal careers in public service as prosecutors and public 
defenders in the criminal justice system more financially viable and 
attractive to law school graduates who have incurred significant 
financial obligations in acquiring their education.
  Our proposal would establish, within the Department of Justice, a 
program of student loan repayment for borrowers who agree to remain 
employed for at least 3 years as public attorneys who are either State 
or local criminal prosecutors or State, local, or Federal public 
defenders in criminal cases. It would allow eligible attorneys to 
receive student loan debt repayments of up to $10,000 per year, with a 
maximum aggregate over time of $60,000.
  Repayment benefits for such public attorneys would be made available 
on a first-come, first-served basis and subject to the availability of 
appropriations. Priority would be given to borrowers who received 
repayment benefits for the preceding fiscal year and have completed 
less than 3 years of the first required service period. Borrowers could 
enter into an additional agreement, after the required 3-year period, 
for a successive period of service which may be less than 3 years. It 
would cover student loans made, insured, or guaranteed under the Higher 
Education Act of 1965, including consolidation loans. Furthermore, it 
would extend to Federal public defenders the existing Perkins loan 
forgiveness program available for Federal prosecutors.
  Our bill is modeled on the program for Federal executive branch 
employees which has been enjoying growing success. Federal law permits 
Federal executive branch agencies to repay their employees' student 
loans, up to $10,000 in a year, and up to a lifetime maximum of 
$60,000. In exchange, the employee must agree to remain with the agency 
for at least 3 years.
  During fiscal year 2004, 28 executive branch agencies provided 2,945 
Federal employees with more than $16.4 million in student loan 
repayments, as reported by the Office of Personnel Management in April 
2005. This marked a 42-percent increase in the number of beneficiaries 
and a 79-percent increase in benefits over fiscal year 2003.
  It is noteworthy that across the Federal Government in 2004, agencies 
used the loan repayment program most often to recruit and retain 
attorneys. In fiscal year 2004, 473 Federal lawyers received loan 
repayments, representing 16.1 percent of all employees who received the 
benefit.
  The Securities and Exchange Commission provided the benefit to 239 
lawyers, and the Justice Department distributed program benefits to 118 
of its attorneys. According to the Office of Personnel Management's 
report, the Nuclear Regulatory Commission reported that the program has 
been of tremendous benefit in recruiting and retaining attorneys in its 
Honors Law Graduate Program. NRC commented that law school debt is 
continuing to rise--to more than $100,000 in some cases--and a gap 
exists between Federal and private law firm salaries. As a

[[Page 27080]]

result, some quality candidates may rule out a career as an attorney in 
the Federal Government. NRC believes the Federal student loan repayment 
program helps the Commission overcome these obstacles.
  I recently received a compelling letter from Jennifer Walsh, the 
assistant appellate defender for the State of Illinois. Her experiences 
portray in testamentary terms the real dilemmas encountered by perhaps 
thousands of attorneys desiring public service careers despite 
exorbitant student loan obligations.
  To simply paraphrase Ms. Walsh's sentiments would diminish their 
impact, so I would like to quote some excerpts from her letter: ``I 
love being a public servant. . . . Helping those who cannot afford to 
help themselves isn't charity and it isn't socially progressive. It is 
justice and it has made me a better person. . . . However, the one 
problem that I have consistently had since becoming a public defender 
is getting my student loans paid. I have a debt burden over $110,000. . 
. . My student loan payments will soon exceed $950 a month. This 
represents about one-third of my monthly take-home pay. I cannot help 
pay the mortgage on my house. I cannot save for my two children's 
futures. During a financial crisis, my husband knows that he cannot 
look to me to help the family finances. . . . I am now faced with a 
Hobson's choice--do I fulfill the needs of my indigent clients or my 
struggling family? I absolutely, positively don't want to leave. But my 
responsibilities to my family and my student loan creditors make 
staying in the public sector feel selfish and irresponsible. Imagine 
that--working for the public good seems selfish and irresponsible 
because I cannot do what I love and, at the same time, repay what I 
owe.''
  I appreciate Ms. Walsh's willingness to share her perspectives with 
me. By enacting and funding this legislation, we can take a meaningful 
step toward alleviating some of the financial burden for attorneys such 
as Ms. Walsh who choose careers as criminal prosecutors and public 
defenders.
  I know there are many other law graduates who, like Jennifer Walsh, 
want to apply their legal training and develop their skills in the 
public sector, but are deterred by the weight of student loan 
obligations. Passage of our legislation will help them make their 
careers dreams a reality. I urge its swift adoption.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2039

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Prosecutors and Defenders 
     Incentive Act of 2005''.

     SEC. 2. LOAN REPAYMENT FOR PROSECUTORS AND DEFENDERS.

       Title I of the Omnibus Crime Control and Safe Streets Act 
     of 1968 (42 U.S.C. 3711 et seq.) is amended by adding at the 
     end the following:

     ``PART HH--LOAN REPAYMENT FOR PROSECUTORS AND PUBLIC DEFENDERS

     ``SEC. 2901. GRANT AUTHORIZATION.

       ``(a) Purpose.--The purpose of this section is to encourage 
     qualified individuals to enter and continue employment as 
     prosecutors and public defenders.
       ``(b) Definitions.--In this section:
       ``(1) Prosecutor.--The term `prosecutor' means a full-time 
     employee of a State or local agency who--
       ``(A) is continually licensed to practice law; and
       ``(B) prosecutes criminal cases at the State or local 
     level.
       ``(2) Public defender.--The term `public defender' means an 
     attorney who--
       ``(A) is continually licensed to practice law; and
       ``(B) is--
       ``(i) a full-time employee of a State or local agency or a 
     nonprofit organization operating under a contract with a 
     State or unit of local government, that provides legal 
     representation to indigent persons in criminal cases; or
       ``(ii) employed as a full-time Federal defender attorney in 
     a defender organization established pursuant to subsection 
     (g) of section 3006A of title 18, United States Code, that 
     provides legal representation to indigent persons in criminal 
     cases.
       ``(3) Student loan.--The term `student loan' means--
       ``(A) a loan made, insured, or guaranteed under part B of 
     title IV of the Higher Education Act of 1965(20 U.S.C. 1071 
     et seq.);
       ``(B) a loan made under part D or E of title IV of the 
     Higher Education Act of 1965(20 U.S.C. 1087a et seq. and 
     1087aa et seq.); and
       ``(C) a loan made under section 428C or 455(g) of the 
     Higher Education Act of 1965(20 U.S.C. 1078-3 and 1087e(g)) 
     to the extent that such loan was used to repay a Federal 
     Direct Stafford Loan, a Federal Direct Unsubsidized Stafford 
     Loan, or a loan made under section 428 or 428H of such Act.
       ``(c) Program Authorized.--The Attorney General shall 
     establish a program by which the Department of Justice shall 
     assume the obligation to repay a student loan, by direct 
     payments on behalf of a borrower to the holder of such loan, 
     in accordance with subsection (d), for any borrower who--
       ``(1) is employed as a prosecutor or public defender; and
       ``(2) is not in default on a loan for which the borrower 
     seeks forgiveness.
       ``(d) Terms of Agreement.--
       ``(1) In general.--To be eligible to receive repayment 
     benefits under subsection (c), a borrower shall enter into a 
     written agreement that specifies that--
       ``(A) the borrower will remain employed as a prosecutor or 
     public defender for a required period of service of not less 
     than 3 years, unless involuntarily separated from that 
     employment;
       ``(B) if the borrower is involuntarily separated from 
     employment on account of misconduct, or voluntarily separates 
     from employment, before the end of the period specified in 
     the agreement, the borrower will repay the Attorney General 
     the amount of any benefits received by such employee under 
     this section;
       ``(C) if the borrower is required to repay an amount to the 
     Attorney General under subparagraph (B) and fails to repay 
     such amount, a sum equal to that amount shall be recoverable 
     by the Federal Government from the employee (or such 
     employee's estate, if applicable) by such methods as are 
     provided by law for the recovery of amounts owed to the 
     Federal Government;
       ``(D) the Attorney General may waive, in whole or in part, 
     a right of recovery under this subsection if it is shown that 
     recovery would be against equity and good conscience or 
     against the public interest; and
       ``(E) the Attorney General shall make student loan payments 
     under this section for the period of the agreement, subject 
     to the availability of appropriations.
       ``(2) Repayments.--
       ``(A) In general.--Any amount repaid by, or recovered from, 
     an individual or the estate of an individual under this 
     subsection shall be credited to the appropriation account 
     from which the amount involved was originally paid.
       ``(B) Merger.--Any amount credited under subparagraph (A) 
     shall be merged with other sums in such account and shall be 
     available for the same purposes and period, and subject to 
     the same limitations, if any, as the sums with which the 
     amount was merged.
       ``(3) Limitations.--
       ``(A) Student loan payment amount.--Student loan repayments 
     made by the Attorney General under this section shall be made 
     subject to such terms, limitations, or conditions as may be 
     mutually agreed upon by the borrower and the Attorney General 
     in an agreement under paragraph (1), except that the amount 
     paid by the Attorney General under this section shall not 
     exceed--
       ``(i) $10,000 for any borrower in any calendar year; or
       ``(ii) an aggregate total of $60,000 in the case of any 
     borrower.
       ``(B) Beginning of payments.--Nothing in this section shall 
     authorize the Attorney General to pay any amount to reimburse 
     a borrower for any repayments made by such borrower prior to 
     the date on which the Attorney General entered into an 
     agreement with the borrower under this subsection.
       ``(e) Additional Agreements.--
       ``(1) In general.--On completion of the required period of 
     service under an agreement under subsection (d), the borrower 
     and the Attorney General may, subject to paragraph (2), enter 
     into an additional agreement in accordance with subsection 
     (d).
       ``(2) Term.--An agreement entered into under paragraph (1) 
     may require the borrower to remain employed as a prosecutor 
     or public defender for less than 3 years.
       ``(f) Award Basis; Priority.--
       ``(1) Award basis.--Subject to paragraph (2), the Attorney 
     General shall provide repayment benefits under this section 
     on a first-come, first-served basis, and subject to the 
     availability of appropriations.
       ``(2) Priority.--The Attorney General shall give priority 
     in providing repayment benefits under this section in any 
     fiscal year to a borrower who--
       ``(A) received repayment benefits under this section during 
     the preceding fiscal year; and
       ``(B) has completed less than 3 years of the first required 
     period of service specified for the borrower in an agreement 
     entered into under subsection (d).
       ``(g) Regulations.--The Attorney General is authorized to 
     issue such regulations as may be necessary to carry out the 
     provisions of this section.

[[Page 27081]]

       ``(h) Authorization of Appropriations.--There are 
     authorized to be appropriated to carry out this section 
     $25,000,000 for fiscal year 2006 and such sums as may be 
     necessary for each succeeding fiscal year.''.
                                 ______
                                 
      By Mr. AKAKA (for himself, Mr. Lautenberg, and Mr. Carper):
  S. 2040. A bill to amend the Homeland Security Act of 2002 (6 U.S.C. 
101 et seq.) to ensure that the Department of Homeland Security is led 
by qualified, experienced personnel; to the Committee on Homeland 
Security and Governmental Affairs.
  Mr. AKAKA. Mr. President, I rise today to introduce legislation that 
will help ensure our homeland security is in the hands of the best and 
the brightest leaders. The Department of Homeland Security Qualified 
Leaders Act will establish minimum qualification standards for most 
Senate-confirmed positions in the Department of Homeland Security, DHS. 
I am joined by Senators Lautenberg and Carper in introducing this bill, 
and I thank them for their support.
  Hurricane Katrina and the resignation of Under Secretary Michael 
Brown have raised concerns regarding the experience and qualifications 
of political appointees in the Federal Government. Mr. Brown had 
minimal emergency management experience prior to joining the Federal 
Emergency Management Agency, FEMA. Despite Mr. Brown's 3 years as a 
senior official at FEMA, the agency faltered during Hurricane Katrina 
under his leadership.
  While not all of the Government's failures to prepare for and respond 
to Hurricane Katrina can be placed at Mr. Brown's doorstep, leadership 
matters. At a recent Homeland Security and Governmental Affairs 
Committee hearing on the Coast Guard's response to Hurricane Katrina, 
Cpt Bruce C. Jones, the commanding officer of Coast Guard Air Station 
New Orleans, testified, ``What counts most in a crisis, is not the 
plan, it's leadership. Not processes, but people. And not 
organizational charts, but organizational culture.''

  According to Captain Jones, one of the reasons the Coast Guard was 
able to respond immediately and perform efficiently during Hurricane 
Katrina is because the leaders of the Eighth District and Sector New 
Orleans were able to make quick, sound decisions while following a 
predetermined plan. Quick thinking and good judgement cannot be written 
into a plan.
  In addition, DHS, with its multitude of management challenges, 
requires leaders with strong management experience. Over the past few 
years, the DHS Inspector General and the Government Accountability 
Office have cited DHS for poor contract management, ineffective 
financial systems, and major human capital challenges. Moreover, DHS is 
in the process of implementing its Second Stage Review, an attempt to 
better organize the Department to meet its many missions. As Secretary 
Michael Chertoff overhauls the Department to create what will hopefully 
be a structure that serve DHS well for years to come, he needs senior 
officials who have experience running large organizations--people who 
know which systems and chains of command work and which do not. Good 
managers are needed across the Federal Government, but nowhere are they 
more needed than in an infant agency.
  Comptroller General David Walker said in a September 21, 2005, 
interview with Federal Times that ``for certain positions, given the 
nature of the position, there should be statutory qualification 
requirements for any nominee.'' I agree.
  For these reasons, we must ensure that the right people are leading 
DHS. Our bill delineates requirements for Senate-confirmed positions 
based on their compensation under the Executive Schedule. The most 
senior officials, those in Executive Level II and III, will be required 
to possess at least 5 years of management experience, 5 years of 
experience in a field relevant to the position for which the individual 
is nominated, such as customs intelligence, or cybersecurity, and a 
demonstrated ability to manage a substantial staff and budget. These 
requirements will apply to the following positions: the Under Secretary 
of Science and Technology; the Under Secretary of Preparedness; the 
Director of FEMA; and the Under Secretary of Management. The Secretary 
and Deputy Secretary of Homeland Security are exempt from this bill.
  Executive Level IV positions will be required to possess significant 
management experience, at least 5 years of experience in a field 
relevant to the position for which the individual is nominated, and a 
demonstrated ability to manage a substantial staff and budget. These 
position include the Assistant Secretary for Immigration and Customs 
Enforcement; the Assistant Secretary for Customs and Border Patrol; the 
Assistant Secretary for Border and Transportation Security Policy; the 
Assistant Secretary for Plans, Programs, and Budgets; the Director of 
the Office State and Local Government Coordination and Preparedness; 
the Director of U.S. Citizenship and Immigration Services; the 
Inspector General; the Chief Financial Officer; the U.S. Fire 
Administrator; and the General Counsel. The bill exempts the commandant 
of the Coast Guard from this section since requirements for selection 
of the commandant already exist in law.
  I believe that any program or agency will succeed or fail based on 
leadership. This is especially true at Federal agencies, which need 
senior leaders with management skills and subject matter expertise. Our 
bill is a step in the right direction, and I urge my colleagues to join 
us in passing this important legislation.
  I ask unanimous consent that the text of the bill be printed in the 
Record following my statement.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2040

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Department of Homeland 
     Security Qualified Leaders Act of 2005''.

     SEC. 2. FINDINGS.

       Congress finds that--
       (1) the Department of Homeland Security, a large 
     organization comprised of 180,000 employees and 22 legacy 
     agencies, has a complex mission of securing the homeland from 
     man-made and natural disasters;
       (2) the Department and the agencies within require strong 
     leadership from proven managers with significant experience 
     in their respective fields; and
       (3) the majority of positions requiring Senate confirmation 
     at the Department do not have minimum qualifications.

     SEC. 3. QUALIFICATIONS OF CERTAIN SENIOR OFFICERS.

       (a) In General.--The Homeland Security Act of 2002 (6 
     U.S.C. 101 et seq.) is amended by inserting after section 103 
     the following:

     ``SEC. 104. QUALIFICATIONS OF CERTAIN SENIOR OFFICERS.

       ``(a) Executive Schedule Level II or III Positions.--
       ``(1) Positions.--This subsection shall apply to any 
     position in the Department that--
       ``(A) requires appointment by the President, by and with 
     the advice and consent of the Senate; and
       ``(B) is at level II or III of the Executive Schedule under 
     section 5313 or 5314 of title 5, United States Code, 
     (including any position for which the rate of pay is 
     determined by reference to level II or III of the Executive 
     Schedule).
       ``(2) Additional qualifications.--In addition to any other 
     qualification applicable to a position described under 
     paragraph (1), any individual appointed to such a position 
     shall possess--
       ``(A) at least 5 years of executive leadership and 
     management experience in the public or private sector;
       ``(B) at least 5 years of significant experience in a field 
     relevant to the position for which the individual is 
     nominated; and
       ``(C) a demonstrated ability to manage a substantial staff 
     and budget.
       ``(b) Executive Schedule Level IV Positions.--
       ``(1) Positions.--This subsection shall apply to any 
     position in the Department that--
       ``(A) requires appointment by the President, by and with 
     the advice and consent of the Senate; and
       ``(B) is at level IV of the Executive Schedule under 
     section 5315 of title 5, United States Code, (including any 
     position for which the rate of pay is determined by reference 
     to level IV of the Executive Schedule).
       ``(2) Additional qualifications.--In addition to any other 
     qualification applicable to a position described under 
     paragraph (1), any individual appointed to such a position 
     shall possess--

[[Page 27082]]

       ``(A) significant executive leadership and management 
     experience in the public or private sector;
       ``(B) at least 5 years of significant experience in a field 
     relevant to the position for which the individual is 
     nominated; and
       ``(C) a demonstrated ability to manage a substantial staff 
     and budget.
       ``(c) Exceptions.--This section shall not apply to the 
     position of--
       ``(1) the Secretary;
       ``(2) the Deputy Secretary of Homeland Security; or
       ``(3) the Commandant of the Coast Guard.
       ``(d) Rule of Construction.--Nothing in this section shall 
     be construed to lessen any qualification otherwise required 
     of any position.
       ``(e) Sense of Congress.--It is the sense of Congress that 
     individuals nominated by the President for the positions of 
     Secretary and Deputy Secretary of Homeland Security should 
     possess significant management experience and expertise in a 
     relevant field because of the significant level of 
     responsibility entrusted to these individuals.''.
       (b) Technical and Conforming Amendment.--The table of 
     contents in section 1 of the Homeland Security Act of 2002 (6 
     U.S.C. 101) is amended by inserting after the item relating 
     to section 103 the following:

``Sec. 104. Qualifications of certain senior officers.''.
                                 ______
                                 
      By Mr. REID:
  S. 2041. A bill to provide for the conveyance of a United States Fish 
and Wildlife Service administrative site to the city of Las Vegas, 
Nevada; to the Committee on Environment and Public Works.
  Mr. REID. Mr. President, I rise today to introduce the Ed Fountain 
Park Expansion Act. This legislation would transfer approximately eight 
acres of Federal land to the city of Las Vegas to allow for the 
expansion of one of the city's most popular parks.
  Ed Fountain Park is one of the best known and well-used parks in the 
city of Las Vegas. Located in a mature part of the city, adjacent to 
the city's oldest golf course, Ed Fountain Park has provided 
recreational opportunities for generations of local residents. For many 
years it has been home to Pop Warner football practices, youth soccer 
games, and family picnics and reunions. On any given day or night, a 
multitude of activities are taking place at the park, many of which are 
associated with the numerous nonprofit organizations that utilize the 
park's resources.
  The city of Las Vegas contacted my office several months ago to 
express their desire to expand Ed Fountain Park by acquiring land 
adjacent to the park that served as the site of the local 
administrative offices for the Bureau of Land Management, BLM, and U.S. 
Fish and Wildlife Service. The property was vacated by both Federal 
land management agencies several years ago after they relocated to a 
larger, multi-jurisdictional facility in the northwest part of the Las 
Vegas Valley.
  The property to be acquired by the city is technically classified as 
part of the Desert National Wildlife Refuge Complex and is currently 
under the jurisdiction of the Fish and Wildlife Service. The parcel in 
question, however, is many miles away the actual wildlife refuge and 
sits as a vacant urban lot. The former administrative offices that were 
housed on the land were placed there many decades ago when this area 
was considered to be in the outskirts of town. Now, after years of 
unprecedented growth, this land is surrounded by well-established 
neighborhoods. The site also contains a single empty historical 
structure that would be part of the conveyance.
  Were the property under the jurisdiction of the BLM, as is usually 
the case in the Las Vegas Valley, the property could have been 
transferred administratively under the authority of the Recreation and 
Public Purposes Act. But because it is the property of the Fish and 
Wildlife Service, legislation is needed to transfer ownership of the 
property from the Fish and Wildlife Service to the city.
  This legislation provides the city with maximum flexibility to use 
the parcel to expand Ed Fountain Park, to build new athletic fields, to 
develop a community center, or any combination of these uses. All of 
these potential uses are in the public interest and provide important 
justification for conveying the land to the city at no cost.
  I look forward to working with the distinguished chairman and ranking 
member of the Environment and Public Works Committee to move this 
legislation forward in a timely manner.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2041

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Ed Fountain Park Expansion 
     Act ''.

     SEC. 2. DEFINITIONS.

       In this Act:
       (1) Administrative site.--The term ``administrative site'' 
     means the parcel of real property identified as ``Lands to be 
     Conveyed to the City of Las Vegas; approximately, 7.89 
     acres'' on the map entitled ``Ed Fountain Park Expansion'' 
     and dated November 1, 2005.
       (2) City.--The term ``City'' means the city of Las Vegas, 
     Nevada.
       (3) Secretary.--The term ``Secretary'' means the Secretary 
     of the Interior, acting through the Director of the United 
     States Fish and Wildlife Service.

     SEC. 3. CONVEYANCE OF UNITED STATES FISH AND WILDLIFE SERVICE 
                   ADMINISTRATIVE SITE, LAS VEGAS, NEVADA.

       (a) In General.--The Secretary shall convey to the City, 
     without consideration, all right, title, and interest of the 
     United States in and to the administrative site for use by 
     the City--
       (1) as a park; or
       (2) for any other recreation or nonprofit-related purpose.
       (b) Administrative Expenses.--As a condition of the 
     conveyance under subsection (a), the Secretary shall require 
     that the City pay the administrative costs of the conveyance, 
     including survey costs and any other costs associated with 
     the conveyance.
       (c) Reversionary Interest.--
       (1) In general.--If the Secretary determines that the City 
     is not using the administrative site for a purpose described 
     in paragraph (1) or (2) of subsection (a), all right, title, 
     and interest of the City in and to the administrative site 
     (including any improvements to the administrative site) shall 
     revert, at the option of the Secretary, to the United States.
       (2) Hearing.--Any determination of the Secretary with 
     respect to a reversion under paragraph (1) shall be made--
       (A) on the record; and
       (B) after an opportunity for a hearing.
                                 ______
                                 
      By Mr. CHAMBLISS (for himself and Mr. Harkin):
  S. 2042. A bill to amend the Federal Insecticide, Fungicide, and 
Rodenticide Act to implement pesticide-related obligations of the 
United States under the international conventions or protocols known as 
the PIC Convention, the POPs Convention, and the LRTAP POPs Protocol; 
to the Committee on Agriculture, Nutrition, and Forestry.
  Mr. CHAMBLISS. Mr. President, today, Senator Harkin and I are 
introducing the POPs, LRTAP POPs and PIC Implementation Act of 2005. 
This bill would amend the Federal Insecticide, Fungicide and 
Rodenticide Act (FIFRA) to implement the United States' pesticide-
related obligations under the Stockholm Convention on Persistent 
Organic Pollutants (POPs Convention), the Aarhus Protocol on Persistent 
Organic Pollutants to the Geneva Convention on Long Range Transboundary 
Air Pollution (LRTAP POPs Protocol) and the Rotterdam Convention on the 
Prior Informed Consent Procedure for Certain Hazardous Chemicals and 
Pesticides in International Trade (PIC Convention).
  POPs are certain chemicals that are toxic, persist in the environment 
for an extended period of time and can bioaccumulate in the human food 
chain. POPs have been linked to adverse health effects on humans and 
animals. Due to their persistent characteristics and ability to 
circulate globally, POPs that are released in one part of the world can 
travel to neighboring regions and negatively affect environments where 
they are not produced or used.
  The United States has taken a leading role in reducing and 
eliminating the use POPs. For example, in the late 1970s, the United 
States prohibited the manufacture of new PCBs and severely restricted 
the use of remaining stocks. And over the past 35 years, the United 
States has had a strong regulatory process that restricted the 
production and use of dangerous pesticides. Even prior to signing the 
POPs Convention, the United States prohibited the sale of

[[Page 27083]]

all the POPs pesticides initially targeted by the convention.
  In 2001, President George W. Bush signed the POPs Convention. Its 
ultimate goal is the safe management of hazardous chemicals. Over time, 
the convention will help bring an end to the production and use of 
dangerous pollutants around the world and to positively affect the U.S. 
environment and public health.
  Specifically, the convention requires all signatory nations to stop 
the production and use of 12 listed POPs, including DDT, PCBs and 
dioxins. Parties to the convention also agree to control sources of 
POPs by-products to reduce releases and provide for the safe handling 
and disposal of POPs in an environmentally sound manner. The convention 
includes a science-based procedure to allow other POPs to be added and 
provides technical and financial assistance to help developing 
countries manage and control POPs.
  In 1998, the United States and members of the United Nations Economic 
Commission for Europe (UN-ECE) negotiated a regional protocol on POPs 
under the auspices of the Convention on Long Range Transboundary Air 
Pollution (LRTAP). Informally, the agreement is called the LRTAP POPs 
Protocol. The goal of the protocol is to eliminate production and 
reduce emissions of POPs in North America and Europe.
  The LRTAP POPs Protocol was the basis for the POPs Convention. The 
two agreements are similar in purpose, except that the LRTAP treaty is 
regional and it does not include trade restrictions or the technical 
and financial assistance available to developing nations under the POPs 
Convention. Also, the LRTAP POPs Protocol includes four additional 
chemicals to the 12 listed in the POPs Convention.
  In 1998, the PIC Convention established an information-sharing 
process to promote cooperative efforts among the parties to the 
convention regarding trade in chemicals. The process is designed to 
help nations decide whether to allow a chemical to be imported. 
Basically, the PIC Convention provides for prior notification to 
potential importing countries by nations exporting chemicals that have 
been banned or severely restricted in the exporting country. Countries 
exporting the chemicals listed in the convention must generally ensure 
that the importing country has consented to import the chemical.
  The bill we are introducing today would prohibit the sale, 
distribution, use, production or disposal of any listed POPs pesticides 
or LRTAP POPs pesticide. It would establish notice and reporting 
procedures to ensure the American public is aware of potential actions 
and decisions made by the parties to the conventions. The bill also 
would add new export reporting and labeling requirements to ensure 
compliance with U.S. obligations under the PIC Convention.
  In order for the United States to become a party to the conventions, 
the Senate must ratify the POPs and PIC Conventions. Congress also must 
pass implementing legislation. This bill does not include a 
ratification resolution and it does not amend the Toxic Substances 
Control Act.
  At this time, the United States is not a party to the conventions and 
does not have a seat at the negotiating table. This weak position 
hampers the ability of our technical experts and negotiators to protect 
our leadership role in international pesticide policy and regulation. 
Our observer-only status also limits our ability to participate in the 
critical decisions that affect U.S. businesses and economic interests 
and our environment and public health. The delay in ratifying the 
conventions serves to marginalize us.
  The U.S. delegation was unable to fully participate in the first 
meeting of parties to the POPs Convention held in May 2005 in Punta del 
Este, Uruguay. The next meeting of the parties to the POPs Convention 
is May 2006. I urge my colleagues to ratify the conventions and pass 
implementing legislation so that the United States can reclaim its 
rightful place as a world leader in the safe management of hazardous 
chemicals.
  I look forward to working with my colleagues on the Senate Foreign 
Relations Committee and the Environment and Public Works Committee on 
this matter.
  Mr. HARKIN. Mr. President, today I am pleased to join with Chairman 
Chambliss in introducing legislation to implement the Stockholm 
Convention on Persistent Organic Pollutants, the LRTAP POPs Protocol, 
and the Rotterdam PIC Protocol. These three agreements provide an 
international framework for controlling and eliminating the use of 
chemicals that have the greatest potential for long-term environmental 
damage. These persistent organic pollutants, or POPs, are chemicals 
that do not easily break down in the environment. As a result, they 
tend to move across international boundaries and bio-accumulate--in 
other words, they travel up the food chain. This legislation modifies 
existing U.S. law under the Federal Insecticide, Fungicide and 
Rodenticide Act, FIFRA, to bring us into compliance with these 
agreements with regard to chemicals used in agriculture. Implementation 
of the agreements will also require modification of the Toxic 
Substances Control Act, TSCA.
  These conventions and protocols have already entered into force. But 
at this point, though the United States is a signatory to all of them, 
we have not ratified them. All of the chemicals that are listed in the 
agreement are already banned or tightly controlled under U.S. law, but 
the Stockholm Convention's Review Committee just met in Geneva and 
further meetings are planned, and decisions are being made without our 
delegation able to fully participate as a party to the agreement. The 
United States needs to ratify the convention in order to have a voice 
in this process.
  Our goal in writing this legislation is narrow. It has not been our 
intention to open up FIFRA as part of this process, but only to craft 
those changes compelled by our international commitments. That is not 
to say that FIFRA is perfect or could not be improved and 
strengthened--only that this is not the occasion to launch into 
changing the domestic law beyond the narrow goal of compliance with 
these agreements.
  Some have urged that this measure provide for automatic processes 
triggered by the decisions of the review committee overseeing the 
Stockholm Convention. For instance, if the review committee lists a 
chemical, they would have the United States automatically take steps to 
regulate or ban the chemical domestically. I have sympathy with that 
approach, and I would hope that our existing environmental laws would 
be used to restrict the use of such a chemical before international 
action, as they have with all the initial chemicals listed in the 
Stockholm Convention.
  But that is not what is called for in the Stockholm Convention. The 
convention that this legislation will implement does not compel parties 
to adopt new chemicals added to the convention in future years. 
Instead, the parties are allowed to opt in to the convention's 
restrictions. The legislation we are introducing today would allow for 
any information or studies generated as part of the international 
process to be used as part of a domestic regulatory action on the 
chemical, but would not provide an automatic process that compelled the 
Environmental Protection Agency, EPA, to take action. In essence, we 
are allowing the EPA to move forward and take action on a chemical if 
the case made in the international review for a ban is strong, and not 
make EPA reinvent the wheel and generate new data to back up their 
conclusions, while at the same time, not mandating EPA action to ban or 
regulate a chemical. This legislation strikes a fair balance and one 
that is consistent with the limited goal we have in this process to 
bring FIFRA into compliance with our international obligations.
  The most controversial aspects of this legislation are the provisions 
that deal with the process by which new chemicals are brought under the 
convention's control. It is critically important that the position of 
the United States in the international regulation of chemicals take 
into account the

[[Page 27084]]

views of all parties--pesticide manufacturers, farmers, environmental 
scientists, State regulators--everyone who has a stake in the process.
  Under the Stockholm Convention, the process of listing new POPs 
chemicals follows a three-part process. The review committee determines 
whether a chemical satisfies the agreed screening criteria in the 
convention; if the criteria are satisfied, a risk profile is prepared; 
if on the basis of the risk profile, it is determined that global 
action is required, the committee or parties would consider listing the 
chemical.
  In each of these stages, the U.S. position should be informed by 
formal notice and comment periods as provided in existing law. The 
Federal notice and comment process is open, well developed, and well 
understood by stakeholders in the process. If this process is optional, 
there is the risk that the U.S. position could be formed without taking 
into account important views. While nothing in this legislation 
dictates that any particular position in this established process be 
taken by the administration, there is a requirement that the 
administration use this process to collect information to inform its 
position in the international body regarding any particular chemical.
  The administration's draft of this legislation gave the EPA 
Administrator permission to initiate a notice and comment period but 
did not require it. The argument for this position was a constitutional 
claim that the executive's authority over negotiations with other 
nations includes a right to rely on whatever information that the 
president chooses to use. The ``remedy'' for negotiating a faulty 
treaty, according to the letter received from the Department of 
Justice, is for the Senate to refuse to consent to the treaty.
  This position is not consistent with existing Federal law and is 
impractical particularly in a process like this one, where the 
negotiation in question would never be subject to ratification by the 
Senate. My concern with this constitutional theory resulted in an 
exchange of correspondence last year, when this bill was being drafted 
by then-Chairman Cochran.
  I wrote to then-Administrator Michael Leavitt at the EPA, asking for 
a written explanation of the administration's position on this issue. 
This resulted in two letters, one from Administrator Leavitt on behalf 
of the EPA dated March 25, 2004, and one from Assistant Attorney 
General William Moschella on behalf of the Department of Justice dated 
March 25, 2004. Finally, I requested an analysis of the constitutional 
issues raised by this provision from the American Law Division of the 
Congressional Research Service and received a memorandum dated March 
30, 2004. I will offer all of these letters and the CRS memorandum for 
inclusion in the Record at the end of my statement.
  Having reviewed all this material, I find that the administration's 
position is not well supported, and I would urge the Senate to reject 
any effort to include it in this legislation. The CRS memorandum on the 
EPA draft summarizes the state of the law as follows:
  Stated succinctly, the separation of powers doctrine ``implicit in 
the Constitution and well established in case law, forbids Congress 
from infringing upon the Executive Branch's ability to perform its 
traditional functions.'' The Supreme Court has established that in 
determining whether an act of Congress has violated the doctrine, ``the 
proper inquiry focuses on the extent to which it prevents the Executive 
Branch from accomplishing its constitutionally assigned functions.''
  The memo goes on to state that it is ``difficult to see how a 
mandatory notice and comment requirement would implicate this 
traditional executive function.'' The memorandum concludes that ``it 
does not appear that a mandatory notice and comment requirement would 
present any substantive separation of powers concerns.'' Clearly, there 
is no merit to the Justice Department's contention that mandatory 
notice and comment would be an unconstitutional intrusion into the 
President's exclusive prerogative over foreign policy. Clearly, future 
steps taken domestically to carry out these international agreements 
should be informed by the views of all stakeholders and build the 
record through the notice and comment procedure for domestic 
implementation of any international action. This legislation makes the 
right choice by mandating notice and comment.
  I appreciate the opportunity to work with Chairman Chambliss on this 
legislation, and with our committee's previous chair, Senator Cochran, 
whose staff worked tirelessly to develop this legislation. I am hopeful 
that we can work together with the other body to reach agreement on 
implementing legislation along the lines of this bill, that will clear 
the way for ratification of the Stockholm Convention.
  I ask unanimous consent to include in the Record a letter to 
Administrator Michael Leavitt, his response from March 25, 2004, the 
response to the same letter by William Moschella on behalf of the 
Justice Department, and the memorandum of law from the Congressional 
Research Service.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                         Committee on Agriculture,


                                      Nutrition, and Forestry,

                                Washington, DC, February 12, 2004.
     Hon. Michael Leavitt,
     Administrator, Environmental Protection Administration, 
         Washington, DC.
       Dear Administrator Leavitt: Thank you for your note asking 
     for my help in passing legislation to implement the Stockholm 
     Protocols. I certainly want to be helpful in that regard and 
     support moving implementing legislation quickly that will 
     enhance the ability of the Environmental Protection Agency to 
     eliminate the threat that persistent organic pollutants 
     (POPs) pose to our environment.
       As we move forward on this legislation, I believe it is 
     important to regulate not only the so-called ``dirty dozen'' 
     POPs that are explicitly controlled by the Stockholm 
     Protocols, but also to improve your agency's ability to 
     address these types of pollutants through the EPA's 
     regulatory system as expeditiously as possible, with 
     opportunities for public participation and comment. This 
     public participation and comment is particularly important to 
     inform the agency in its evaluation of potential new 
     pollutants brought before the review committee formed by this 
     legislation.
       One version of proposed implementing legislation would 
     provide for mandatory notice and comment periods to allow 
     public input at each of the three stages of the review 
     committee process. The most recent draft of the legislation 
     put forward by the EPA, however, makes each of these notice 
     and comment periods fully subject to the agency's discretion. 
     It has also been asserted that if Congress required the 
     agency to provide a notice and comment period based on action 
     of the international body, it would unconstitutionally 
     impinge on our national sovereignty. This is a novel 
     constitutional analysis that I would like to understand 
     better before this legislation moves forward.
       I request that, prior to our Committee taking up this 
     issue, you provide me with any legal analysis, legal 
     opinions, and citations to any legal authority supporting the 
     proposition that Congress cannot require the EPA to hold 
     notice and comment periods in response to the actions of an 
     international body. I know that you are as committed as I am 
     to move this legislation expeditiously, and I look forward to 
     receiving this information soon.
       Again, I look forward to working with you on this matter 
     and want to help in any way I can to assist you in your work 
     of improving our nation's environment.
           Sincerely,
                                                       Tom Harkin,
     Ranking Democratic Member.
                                  ____

                                       United States Environmental


                                            Protection Agency,

                                   Washington, DC, March 25, 2004.
     Hon. Tom Harkin,
     Ranking Member, Committee on Agriculture, Nutrition and 
         Forestry, U.S. Senate, Washington, DC.
       Dear Senator Harkin: Thank you very much for your letter of 
     February 12, 2004. I appreciate your willingness to support 
     the legislative efforts of the Administration to allow the 
     United States to become a Party to the Stockholm Convention 
     on Persistent Organic Pollutants, the Rotterdam Convention on 
     the Prior Informed Consent Procedure for Certain Hazardous 
     Chemicals and Pesticides in International Trade and the 
     Protocol on Persistent Organic Pollutants to the 1979 
     Convention on Long-Range Trans-
     boundary Air Pollution.
       In your letter, you noted a particular interest in the 
     discretionary notice and comment procedures contained within 
     the Administration's proposed legislation to implement the 
     FIFRA-related obligations of the three environmental treaties 
     referenced above. The Administration's proposal does

[[Page 27085]]

     not make these notice and comment procedures mandatory, and 
     you requested additional information about the constitutional 
     concerns that underlie that decision. I asked my staff to 
     organize a meeting for the Department of Justice to discuss 
     its constitutional concerns with your legislative assistants 
     and to answer any questions. I understand that meeting 
     occurred on March 3, 2004.
       As you know, the Stockholm Convention creates an 
     international ``Persistent Organic Pollutants Review 
     Committee'' to evaluate whether various substances should be 
     added or removed from the Convention's coverage. The United 
     States expects to play a strong role at the international 
     meetings of the Review Committee, and, as you note in your 
     letter, the United States could use the notice and comment 
     procedures under the proposed bill to ``allow public input at 
     each of the three stages of the review committee process.''
       U.S. stakeholders will no doubt have a great deal of 
     expertise about proposed pollutants brought before the 
     international review committee, and the Administration 
     proposal specifically includes notice and comment procedures 
     to allow the Executive branch to take advantage of this 
     knowledge. The statutory notice and comment procedures are 
     precatory, however, because the Department of Justice has 
     advised the Administration that it has concluded that a 
     mandatory consultation requirement would raise constitutional 
     concerns with respect to the President's authority to conduct 
     negotiations with other nations. I have forwarded your letter 
     to the Department of Justice to respond to you more 
     specifically on this point.
       I do, however, agree with the concern behind your letter 
     that ``public participation and notice and comment is 
     particularly important to inform the agency in its evaluation 
     of potential new pollutants brought before the review 
     committee.'' The constitutional concerns that are presented 
     by a mandatory requirement could be avoided by fully 
     authorizing the Executive Branch to gather information from 
     the public, but not requiring the Executive Branch to 
     exercise that authority. In order to ensure that the public 
     is well informed about events that are taking place 
     internationally, and to provide an opportunity for the 
     consideration of public comment in the event that the 
     Administration does not execute the discretionary notice and 
     comment procedures, my staff has included a new section in 
     the legislation that I transmitted to you on February 25.
       In this section, there is a mandatory requirement that the 
     Administration publish a semiannual federal register notice 
     that provides a full description of the events occurring at 
     the international level and any domestic regulatory actions 
     that have been initiated. Because this requirement is based 
     on the calendar, relates to information that is publicly 
     available, and is not linked to decisions in the 
     international process, it does not raise the same 
     constitutional concerns. This new provision also obligates 
     the Environmental Protection Agency to consider comments 
     received as a result of these semiannual federal register 
     notices. I will be interested in your reaction to this 
     proposal, which I believe addresses our respective concerns.
       I appreciate the reiteration of your commitment to passing 
     this legislation and to completing the necessary steps for 
     the United States to deposit its instrument of consent to 
     join these three very important multilateral environmental 
     treaties. I look forward to working with you. If you have any 
     further questions or concerns, please contact me or your 
     staff may contact Peter Pagano in EPA's Office of 
     Congressional and Intergovernmental Relations, at (202) 564-
     3678.
           Sincerely,
     Michael O. Leavitt.
                                  ____

                                       U.S. Department of Justice,


                                Office of Legislative Affairs,

                                   Washington, DC, March 25, 2004.
     Hon. Tom Harkin,
     Ranking Member, Committee on Agriculture, Nutrition, and 
         Forestry, U.S. Senate, Washington, DC.
       Dear Senator Harkin: The EPA has forwarded to the 
     Department of Justice your letter dated February 12, 2004, 
     regarding legislation proposed by the Administration to 
     implement the Stockholm Convention on Persistent Organic 
     Pollutants, the Rotterdam Convention on the Prior Informed 
     Consent Procedure for Certain Hazardous Chemicals and 
     Pesticides in International Trade, and the Protocol on 
     Persistent Organic Pollutants to the 1979 Convention on Long-
     Range Transboundary Air Pollution.
       Specifically, you are interested in the discretionary 
     notice and comment procedures contained within the 
     Administration's proposed legislation to implement the FIFRA-
     related obligations of the three environmental treaties 
     referenced above. At the request of the Department of 
     Justice, the Administration's proposal does not make these 
     consultations mandatory, and you requested additional 
     information about the constitutional concerns underlying that 
     decision.
       The Stockholm Convention creates an international 
     ``Persistent Organic Pollutants Review Committee'' to 
     evaluate whether various substances should be added to, or 
     removed from, the Convention's coverage. Also, as you note in 
     your letter, the notice and comment procedures under the 
     proposed bill would ``allow public input at each of the three 
     stages of the review committee process.'' The statutory 
     notice and comment procedures are precatory, however, because 
     a mandatory consultation requirement would raise 
     constitutional concerns.
       The Executive branch has sole authority over the United 
     States' negotiations with other nations. See, e.g., Letter to 
     Edmond Charles Genet, from Thomas Jefferson, Secretary of 
     State (1793), reprinted in 9 The Writings of Thomas Jefferson 
     256 (Andrew A. Lipscomb ed., 1903) (``[T]he President of the 
     United States. . . being the only channel of communication 
     between this country and foreign nations, it is from him 
     alone that foreign nations or their agents are to learn what 
     is or has been the will of the nation.''). The Supreme Court 
     has long concurred in this understanding of the President's 
     power, noting that this exclusive authority extends 
     throughout the entire ``field of negotiation.'' See United 
     States v. Curtiss-Wright Corp., 299 U.S. 304, 319 (1936) 
     (``In this vast external realm, with its important, 
     complicated, delicate, and manifold problems, the President 
     alone has the power to speak or listen as a representative of 
     the nation. He makes treaties with the advice and consent of 
     the Senate; but he alone negotiates. Into the field of 
     negotiation the Senate cannot intrude; and Congress itself is 
     powerless to invade it.''). See also New York Times Co. v. 
     United States, 403 U.S. 713, 728 (1971) (Stewart, J., 
     concurring) (``In the governmental structure created by our 
     Constitution, the Executive is endowed with enormous power in 
     the two related areas of national defense and international 
     relations.''); United States v. Louisiana, 363 U.S. 1, 35 
     (1960) (the President is ``the constitutional representative 
     of the United States in its dealings with foreign nations''); 
     Earth Island Inst. v. Christopher, 6 F.3d 648, 652-54 (9th 
     Cir. 1993); Sanchez-Espinoza v. Reagan, 770 F.2d 202, 210 
     (D.C. Cir. 1985) (Scalia, J.) (``[B]road leeway'' is 
     ``traditionally accorded the Executive in matters of foreign 
     affairs.'').
       Within this constitutional framework, statutes cannot 
     direct the President to vote a certain way in an 
     international forum, and they cannot require that the 
     President consult with specific private organizations as he 
     prepares to cast such a vote. Congress can certainly assist 
     the President in his intentional negotiations by providing 
     him with the authority to gather information from private 
     citizens, cf. New York Times Co., 403 U.S. at 729-30, but it 
     remains for the President to decide how much, if any, 
     additional information is needed and what should be done with 
     it. If a proposed treaty is ill-informed, then the 
     Constitution provides the remedy: the Senate may refuse to 
     concur in that document. Joseph Story, 3 Commentaries on the 
     Constitution of the United States Sec. 1507 (1833) (``The 
     President is the immediate author and finisher of all 
     treaties; and all the advantages, which can be derived from 
     talents, information, integrity, and deliberate investigation 
     on the one hand, and from secrecy and despatch on the other, 
     are thus combined in the system. But no treaty, so formed, 
     becomes binding upon the country, unless it receives the 
     deliberate assent of two thirds of the Senate.''). What 
     Congress may not do is direct, through legislation, how the 
     President exercises his exclusive power to negotiate.
       The Administration's concerns over legislation that would 
     mandate consultation with Congress or with private parties in 
     connection with the conduct of international negotiations are 
     not new. Similar concerns were raised by the Department of 
     Justice under President Clinton, President George H. W. Bush, 
     and President Reagan. In each case, the Department objected 
     to legislative proposals that would have required that the 
     Executive branch consult in the context of international 
     negotiations. For example, during the Clinton administration, 
     the Department of Justice objected to legislative proposals 
     that would have directed the Executive branch to consult with 
     interested parties prior to negotiating trade agreements or 
     prior to taking a position before the World Trade 
     Organization. In 1991, the Department advised that the United 
     States Trade Representative could not be required to 
     periodically consult with interested parties on the progress 
     of international trade negotiations. During the Reagan 
     Administration, the Department wrote to Senator Lowell 
     Weicker explaining that a proposed consultation requirement 
     was objectionable because any provision that would require 
     that the Executive branch disclose information that might 
     interfere with the success of international negotiations 
     would be subject to a valid claim of executive privilege. 
     Presidents of both parties have also noted concerns about 
     appropriations legislation containing similar provisions, and 
     have stated that they would interpret such provisions not to 
     intrude into this exclusive constitutional power over 
     international negotiations. See Statement on Signing the 
     Foreign Operations, Export Financing, and Related Programs 
     Appropriations Act, 2001 36 Weekly Comp. Pres. Doc. 2809-10 
     (Nov. 13, 2000) (Statement of President Clinton) (``Certain 
     provisions of the Act

[[Page 27086]]

     could interfere with my sole constitutional authority in the 
     area of foreign affairs by directing or burdening my 
     negotiations with foreign governments and international 
     organizations . . . I will not interpret these provisions to 
     limit my ability to negotiate and enter into agreements with 
     foreign nations.''); Statement on Signing the Foreign 
     Operations, Export Financing, and Related Programs 
     Appropriations, 2002, 38 Weekly Comp. Pres. Doc. 49-50 (Jan. 
     10, 2002) (Statement of President Bush) (objecting to . 
     provision ``which purports to direct the Secretary of State 
     to consult certain international organizations in determining 
     the state of events abroad'' and noting this and other 
     provisions ``shall be construed consistent with my 
     constitutional authorities to conduct foreign affairs, 
     participate in international negotiations, and supervise the 
     Executive Branch'').
       In the pending legislation, the Department concluded that a 
     mandatory requirement for ``public participation and 
     comment'' would raise similar constitutional concerns and 
     therefore recommended that more precatory language be used.
       That said, the Department does not take issue with the 
     general belief that ``public participation and notice and 
     comment is particularly important to inform the 
     [Administration] in its evaluation of potential new 
     pollutants brought before the review committee.'' The 
     constitutional concerns that are presented by a mandatory 
     consultation requirement can be avoided by fully authorizing 
     the Executive Branch to gather information from the public, 
     but not requiring the Executive Branch to exercise that 
     authority. To ensure that the public is well informed about 
     events that are taking place internationally, and to provide 
     an opportunity for the consideration of public comment in the 
     event that the President chooses not to execute the 
     discretionary notice and comment procedures, the bill 
     requires that the Administration publish a semi-annual 
     Federal Register notice that provides a full description of 
     the events occurring at the international level and any 
     domestic regulatory actions that have been initiated. Because 
     this requirement based on the calendar, relates to 
     information that is publicly available, and is not linked to 
     decisions in the international process, this does not raise 
     the same constitutional concerns.
       We trust this provides an answer to your inquiry. We would 
     welcome the opportunity to assist you with any future 
     inquiries you may have. The Office of Management and Budget 
     has advised that there is no objection to the submission of 
     this letter from the standpoint of the Administration's 
     program.
       Sincerely,
                                                William Moschella,
     Assistant Attorney General.
                                  ____



                               Congressional Research Service,

                                   Washington, DC, March 30, 2004.
     Re: Validity of Provisions Mandating Notice and Comment 
         Proceedings in Response to the Decisions of Parties 
         Operating Pursuant to International Conventions and 
         Protocols.

       Hon. Tom Harkin: Pursuant to your request, this memorandum 
     analyzes certain provisions of a draft bill forwarded by the 
     Administration that would amend the Federal Insecticide, 
     Fungicide, and Rodenticide Act (FIFRA) to allow for the 
     implementation of the Stockholm Convention on Persistent 
     Organic Pollutants (POPs Convention), the Rotterdam 
     Convention on the Prior Informed Consent Procedure for 
     Certain Hazardous Chemicals and Pesticides in International 
     Trade (PIC Convention) and the Protocol on Persistent Organic 
     Pollutants to the Convention on Long-Range Transboundary Air 
     Pollution (LRTAP POPs Protocol). In pertinent part, the draft 
     bill would imbue the Administrator of the Environmental 
     Protection Agency (hereinafter referred to as 
     ``Administrator'') with discretionary authority to publish 
     notices in the Federal Register and to provide an opportunity 
     for comment in response to certain actions taken by parties 
     to the POPs Convention and the LRTAP POPs Protocol.
       The Administration has asserted that the notice and comment 
     provisions in its proposal are necessarily ``precatory'' in 
     nature, ``because a mandatory consultation requirement would 
     raise constitutional concerns.'' You have asked whether it 
     would be constitutionally problematic to make the notice and 
     comment provisions in the draft proposal mandatory, despite 
     the concerns raised by the Administration. A review of 
     relevant constitutional principles appears to indicate that 
     such a requirement would pass constitutional muster.


                            POPs Convention

       The POPs Convention was signed by the United States on May 
     31, 2001, and requires nations to reduce or eliminate the 
     production and use of listed chemicals. The POPs Convention 
     allows new chemicals to be added to the list by amendment to 
     the relevant treaty annexes, and an amendment may be proposed 
     by any party to the Convention. Amendments may be adopted at 
     a meeting of the Conference of the Parties after the 
     circulation of such a proposal to all parties at least six 
     months in advance of the meeting. The POPs convention also 
     creates a Persistent Organic Pollutants Review Committee 
     (POPs Review Committee) that is to consist of government-
     designated experts in chemical assessment or management. The 
     POPs Review Committee is charged generally with determining 
     whether a listing proposal submitted by a party meets 
     screening criteria established in the Convention, determining 
     whether global action is warranted regarding the proposal, 
     and recommending whether a proposed chemical should be 
     considered for listing by the Conference of the Parties.


                          LRTAP POPs Protocol

       The 1998 Aarhus Protocol on Persistent Organic Pollutants 
     (hereinafter referred to as ``LRTAP POPs Protocol'') amended 
     the Convention on Long-Range Transboundary Air Pollution with 
     the objective of eliminating discharges, emissions and losses 
     of listed persistent organic pollutants during their 
     production, use and disposal. Any party may offer an 
     amendment to add a new chemical to the LRTAP POPs Protocol, 
     which may be adopted by consensus of the parties represented 
     at a session of the Executive Body of the Convention. Prior 
     to the addition of a chemical, the LRTAP POPs Protocol 
     requires the completion of a risk profile on the chemical 
     establishing that it meets selection criteria specified under 
     the protocol.


                           The Draft Proposal

       The Administration's draft proposal, as supplied by your 
     office, provides for the implementation of the PIC and POPs 
     Conventions and the LRTAP POPs Protocol. To effectuate this 
     implementation, the proposal imbues the Administrator with 
     the discretionary authority to publish notices in the Federal 
     Register in response to actions taken to add chemicals to the 
     list of those covered under the POPs Convention and the LRTAP 
     POPs Protocol specifically.
       As noted above, the POPs Convention establishes a POPs 
     Review Committee that is responsible for considering 
     proposals to add chemicals to those listed in the POPs 
     Convention and recommending to the Conference of the Parties 
     whether a proposed chemical should be considered for listing 
     by the Conference. In the event that the POPs Review 
     Committee does not forward a proposal, the Conference may 
     choose to consider the proposal on its own accord. Section 
     3(4) of the draft bill contains several provisions 
     authorizing the Administrator of the EPA to publish notices 
     in the Federal Register at certain stages of the listing 
     process and to provide an opportunity for comment on a 
     proposed listing. In particular, Section 3(4), establishing a 
     new 7 U.S.C. 136o(e)(3), authorizes the publication of a 
     notice and opportunity for comment after a decision by the 
     POPs Review Committee that a listing proposal meets the 
     screening criteria specified in the POPs Convention or, 
     alternatively, if the Conference of the Parties decides that 
     such a proposal should proceed.
       Likewise, a new 7 U.S.C. 136o(e)(4) would authorize the 
     publication of notice and opportunity for comment upon a 
     determination by the POPs Review Committee that a proposed 
     listing warrants global action, or, alternatively, if the 
     Conference of the Parties decides that the proposal should 
     proceed. Finally, a new 7 U.S.C. 136o(e)(5) would authorize 
     the publication of notice and opportunity for comment after 
     the POPs Review Committee recommends that the Conference of 
     the Parties consider making a listing decision regarding the 
     chemical at issue.
       Publication of notice and opportunity for comment would 
     also be authorized after a party to the LRTAP POPs Protocol 
     submits a risk profile in support of a proposal to add a 
     chemical to those already listed. Additional notice and 
     comment proceedings would be authorized in instances where 
     the Executive Body determines that further consideration of a 
     pesticide is warranted, as well as after the completion of a 
     technical review of a proposal to add a chemical to the LRTAP 
     POPs Protocol. It is interesting to note that while the draft 
     proposal makes the decision as to whether to engage at all in 
     notice and comment procedures discretionary, the 
     Administrator is required to provide detailed elements of 
     notice in the event that such procedures are offered.


                                analysis

       You have specifically inquired as to whether it would 
     violate the doctrine of separation of powers to make the 
     aforementioned discretionary notice and comment procedures 
     mandatory, irrespective of the general concern voiced by the 
     Administration that ``a mandatory consultation requirement 
     would raise constitutional concerns.'' An examination of 
     applicable principles and precedent appears to indicate that 
     a mandatory notice and comment requirement would be 
     constitutionally permissible.
       Stated succinctly, the separation of powers doctrine 
     ``implicit in the Constitution and well established in case 
     law, forbids Congress from infringing upon the Executive 
     Branch's ability to perform its traditional functions.'' The 
     Supreme Court has established that in determining whether an 
     act of Congress has violated the doctrine, ``the proper 
     inquiry focuses on the extent to which it prevents the 
     Executive Branch from accomplishing its constitutionally 
     assigned functions.'' Furthermore, as was noted by the Court 
     of Appeals for the Ninth Circuit in Confederated Tribes of 
     Siletz Indians v. United States:

[[Page 27087]]

       Although the Supreme Court has not announced a formal list 
     of elements to be considered when determining whether a 
     violation of the doctrine has taken place, it has 
     consistently looked to at least two factors: (1) the 
     governmental branch to which the function in question is 
     traditionally assigned, see Mistretta, 488 U.S. at 364, 109 
     S.Ct. at 65-51; Morrison v. Olson, 487 U.S. 654, 694-96, 108 
     S.Ct. 2597, 2620-22, 101 L.Ed. 2d 659 (1988); and (2) the 
     control of the function retained by the branch, see 
     Mistretta, 488 U.S. at 408-12, 109 S.Ct. at 673-75; Morrison, 
     487 U.S. at 692-96, 108 S.Ct. at 2619-22.
       Applying these factors to the case at hand, it appears 
     unlikely that a reviewing court would hold that mandatory 
     notice and comment provisions would violate the doctrine. As 
     is indicated by the DOJ letter, it seems that any argument 
     that a mandatory requirement would offend the separation of 
     powers doctrine would hinge on the assertion that such a 
     requirement necessarily constitutes an intrusion into the 
     core power of the Executive Branch over external affairs. 
     Specifically, in United States v. Curtiss-Wright Corp., the 
     Supreme Court declared:
       [n]ot only . . . is the federal power over external affairs 
     in origin and essential character different from that over 
     internal affairs, but participation in the exercise of the 
     power is significantly limited. In this vast external realm, 
     with its important, complicated, delicate and manifold 
     problems, the President alone has the power to speak or 
     listen as a representative of the nation. He makes treaties 
     with the advice and consent of the Senate; but he alone 
     negotiates. Into the field of negotiation the Senate cannot 
     intrude; and Congress itself is powerless to invade it. As 
     Marshall said in his great argument of March 7, 1800, in the 
     House of Representatives, `the President is the sole organ of 
     the nation in its external relations, and its sole 
     representative with foreign nations.'
       However, it is difficult to see how a mandatory notice and 
     comment requirement would implicate this traditional 
     executive function. Specifically, while it is generally 
     conceded that there are some powers enjoyed by the President 
     alone regarding foreign affairs, it is likewise evident that 
     Congress possesses wide authority to promulgate policies 
     respecting foreign affairs. Congress has often exercised this 
     authority to determine policy objectives for the United 
     States in international negotiations and to require 
     subsequent legislative approval of international agreements 
     before they may enter into force for the United States.
       A mandatory notice and comment requirement would not appear 
     to be an attempt to control the substance of negotiations 
     between the United States and other parties to POPs 
     Convention or the LRTAP POPs Protocol. Instead, such a 
     requirement would simply establish that the Administrator 
     must publish notices in the Federal Register providing 
     information regarding chemicals that are being considered for 
     listing to either the Convention or the Protocol. A somewhat 
     analogous requirement in the international arena may be found 
     at 19 U.S.C. 3537, which requires the United States Trade 
     Representative to consult with the appropriate congressional 
     committees and to publish detailed notices in the Federal 
     Register whenever it is a party to any dispute settlement 
     proceedings under the WTO. Furthermore, it should be noted 
     that this notification provision could be likened to 
     reporting requirements that are often imposed by Congress. As 
     a general proposition, Congress is entitled to full access to 
     information that is in the possession of the Executive 
     Branch, subject to claims of executive privilege.
       In addition to the general assertion that a mandatory 
     notice and comment requirement would intrude on the 
     President's power over the ``field of negotiation'' in 
     foreign affairs, the DOJ letter states that any potential 
     requirement that the Administrator consult with private 
     parties or give consideration to comments received therefrom 
     would also be constitutionally problematic. However, it is 
     likewise difficult to ascertain how such a provision would 
     necessarily impair the ability of the executive branch to 
     carry out its core functions in this context. There is no 
     indication that such a provision would be drafted so as to 
     require the disclosure of sensitive information, or to 
     require the inclusion of such individuals in the actual 
     negotiation process. Rather, the notice and comment 
     procedures at issue would appear to be tailored to ensure 
     that the public is kept informed regarding ongoing 
     proceedings in this context, and is further afforded the 
     opportunity to comment on proposals under consideration. 
     Accordingly, it appears that such a dynamic would not raise 
     concerns any more significant than existing consultation 
     requirements. Based on these factors, it does not appear that 
     a mandatory notice and comment requirement would present any 
     substantive separation of powers concerns.

                                                T.J. Halstead,

                                             Legislative Attorney,
                                            American Law Division.
                                 ______
                                 
      By Mr. DURBIN (for himself, Mr. Cochran, and Mr. Salazar):
  S. 2043. A bill to amend the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act to provide grants for mass evacuation 
exercises for urban and suburban areas and the execution of emergency 
response plans, and for other purposes; to the Committee on Homeland 
Security and Governmental Affairs.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the text of 
the bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2043

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Mass Evacuation Exercise 
     Assistance Act of 2005''.

     SEC. 2. MASS EVACUATION EXERCISES AND EXECUTION OF EMERGENCY 
                   RESPONSE PLANS.

       Section 201 of the Robert T. Stafford Disaster Relief and 
     Emergency Assistance Act (42 U.S.C. 5131) is amended by 
     adding at the end the following:
       ``(e) Grants for Mass Evacuation Exercises for Urban and 
     Suburban Areas and the Execution of Emergency Response 
     Plans.--
       ``(1) In general.--The Secretary of Homeland Security shall 
     make grants to States or units of local governments nominated 
     by States to--
       ``(A) establish programs for the development of plans and 
     conduct of exercises for the mass evacuation of persons in 
     urban and suburban areas; and
       ``(B) execute plans developed under subparagraph (A), 
     including the purchase and stockpiling of necessary supplies 
     for emergency routes and shelters.
       ``(2) Conditions.--As a condition for the receipt of 
     assistance under paragraph (1)(A), the Secretary of Homeland 
     Security may establish any guidelines and standards for the 
     programs that the Secretary determines to be appropriate.
       ``(3) Requirements.--To the maximum extent practicable, a 
     program assisted under paragraph (1)(A) shall incorporate the 
     coordinated use of public and private transportation 
     resources in the plans developed and the exercises carried 
     out under the program.
       ``(4) Participation of members of the armed forces.--
       ``(A) In general.--The Secretary of Defense may authorize 
     the participation of members of the Armed Forces and the use 
     of appropriate Department of Defense equipment and materials 
     in an exercise carried out under a program assisted under 
     this subsection.
       ``(B) Reimbursement for participation of guard.--In the 
     event members of the National Guard in State status 
     participate in an exercise carried out under a program 
     assisted under this subsection pursuant to an authorization 
     of the chief executive officer of a State, the Secretary of 
     Defense may, using amounts available to the Department of 
     Defense, reimburse the State for the costs to the State of 
     the participation of such members in such exercise.
       ``(5) Authorization of appropriations.--There is authorized 
     to be appropriated to carry out this subsection $250,000,000 
     for each of fiscal years 2006 through 2010.
       ``(f) Mass Evacuation Plans.--
       ``(1) Requirement.--Each State or unit of local government 
     receiving a grant under subsection (e)(1) shall, in 
     consultation with relevant local governments, develop and 
     maintain detailed and comprehensive mass evacuation plans for 
     each area in the jurisdiction of the State unit of local 
     government.
       ``(2) Plan development.--In developing the evacuation plans 
     required under paragraph (1), each State or unit of local 
     government shall, to the maximum extent practicable--
       ``(A) assist urban and suburban county and municipal 
     governments in establishing and maintaining mass evacuation 
     plans;
       ``(B) assist hospitals, nursing homes, other institutional 
     adult congregate living facilities, group homes, and other 
     health or residential care facilities that house individuals 
     with special needs in establishing and maintaining mass 
     evacuation plans; and
       ``(C) integrate the plans described in subparagraphs (A) 
     and (B) and coordinate evacuation efforts with the entities 
     described in subparagraphs (A) and (B).
       ``(3) Plan contents.--State, county, and municipal mass 
     evacuation plans shall, to the maximum extent practicable--
       ``(A) establish incident command and decisionmaking 
     processes;
       ``(B) identify primary and alternate escape routes;
       ``(C) establish procedures for converting 2-way traffic to 
     1-way evacuation routes, removing tollgates, ensuring the 
     free movement of emergency vehicles, and deploying traffic 
     management personnel and appropriate traffic signs;
       ``(D) maintain detailed inventories of drivers and public 
     and private vehicles, including buses, vans, and handicap-
     accessible vehicles, that may be pressed into service;
       ``(E) maintain detailed inventories of emergency shelter 
     locations and develop the necessary agreements with 
     neighboring jurisdictions to operate or use the shelters in 
     the event of a mass evacuation;

[[Page 27088]]

       ``(F) establish procedures for informing the public of 
     evacuation procedures before and during an evacuation and 
     return procedures after an evacuation, including using 
     television, radio, print, and online media, land-based and 
     mobile phone technology, and vehicles equipped with public 
     address systems;
       ``(G) identify primary and alternate staging locations for 
     emergency responders;
       ``(H) identify gaps in the ability to respond to different 
     types of disasters, including the capacity to handle surges 
     in demand for hospital, emergency medical, coroner, morgue, 
     and mortuary services, quarantines, decontaminations, and 
     criminal investigations;
       ``(I) establish procedures to evacuate individuals with 
     special needs, including individuals who are low-income, 
     disabled, homeless, or elderly or who do not speak English;
       ``(J) establish procedures for evacuating animals that 
     assist the disabled;
       ``(K) establish procedures for protecting property, 
     preventing looting, and accounting for pets; and
       ``(L) ensure the participation of the private and nonprofit 
     sectors.
       ``(4) Updating of plans.--State, county, municipal, and 
     private plans under this subsection shall be updated on a 
     regular basis.
       ``(g) Additional Assistance to States.--The Secretary of 
     Homeland Security shall assist States and local governments 
     in developing and maintaining the plans described in 
     subsection (f) by--
       ``(1) establishing and maintaining comprehensive best 
     practices for evacuation planning, training, and execution;
       ``(2) developing assistance teams to travel to States and 
     assist local governments in planning, training, and 
     execution;
       ``(3) developing a training curriculum based on the best 
     practices established under paragraph (1);
       ``(4) providing the training curriculum developed under 
     paragraph (3) to State and local officials;
       ``(5) maintaining a list of qualified government agencies, 
     private sector consultants, and nonprofit organizations that 
     can assist local governments in setting up evacuation plans; 
     and
       ``(6) establishing and maintaining a comprehensive guide 
     for State and local governments regarding--
       ``(A) the types of Federal assistance that are available to 
     respond to emergencies; and
       ``(B) the steps necessary to apply for that assistance.
       ``(h) Report To Congress.--Not later than 1 year after the 
     date of enactment of this subsection, the Comptroller General 
     of the United States shall conduct a study detailing--
       ``(1) any Federal laws that pose an obstacle to effective 
     evacuation planning;
       ``(2) any State or local laws that pose an obstacle to 
     effective evacuation planning; and
       ``(3) the political and economic pressures that discourage 
     governors, county executives, mayors, and other officials 
     from--
       ``(A) ordering an evacuation; or
       ``(B) conducting exercises for the mass evacuation of 
     people.''.
                                 ______
                                 
      By Mr. DeWINE:
  S. 2046. A bill to establish a National Methamphetamine Information 
Clearinghouse to promote sharing information regarding successful law 
enforcement, treatment, environmental, social services, and other 
programs related to the production, use, or effects of methamphetamine 
and grants available for such programs, and for the other purposes; to 
the Committee on the Judiciary.
  Mr. DeWINE. Mr. President, today I am introducing a bill that would 
create a National Methamphetamine Information Clearinghouse (NMIC). 
This web-based source of information would promote sharing of ``best 
practices'' regarding law enforcement, treatment, environmental, social 
services, and other programs to combat the production, use, and effects 
of methamphetamine.
  The purpose of the NMIC is to make a one-stop shop, where all the 
``best practices'' in the fight against meth can be found--information 
from law enforcement, treatment-based organizations, social services 
and environmental agencies. It will be a website providing information 
that agencies and organizations submit, describing what has worked in 
their local communities. The people who have had success with 
addressing meth and meth-related issues will be providing this 
information. Additionally, there will be information and links 
regarding available grants for establishing and maintaining anti-meth 
programs.
  The NMIC will serve two distinct populations--law enforcement and the 
broader community. The NMIC will contain a restricted access section 
where law enforcement will be able to post their successful strategies, 
training techniques, and conference notes so that other law enforcement 
will be able to get ideas and incorporate them in their own 
jurisdictions. The unrestricted portion of the website will include 
resources for other agencies and the public at large. For example, 
child protection agencies might post techniques on dealing with meth 
orphans, community health centers might post treatment options that 
provided them with some success, and environmental groups might post 
tips on cleaning up the toxic waste.
  So, a landlord or hotel owner whose property was used as a meth lab 
and who wants to be able to rent out the property again, or the mother 
who wants to figure out if her child is a meth addict--and what to do 
if she is they would all be able to find useful information on the 
site.
  One of our challenges in the fight against meth is finding those who 
need assistance and connecting them with those who can help--and that 
is exactly what this clearinghouse can do. Many people and 
organizations that have had some success in controlling meth are more 
than willing to share the techniques they found that work, if only they 
knew who needed the information. And, there are those who are just 
starting to attack the meth problem in their communities and need 
guidance as to how to make that start an effective one. The NMIC can 
help bring those groups of people together and enhance everyone's 
ability to fight the plague of meth.
  NMIC will be housed under the auspices of the Department of Justice 
and will be governed by an Advisory Council comprised of 10 members 
from a variety of agencies and organizations. It is this Council who 
will monitor the submissions to the Clearinghouse and make sure that 
the information found on the site is accurate, up-to-date, and useful.
  The bill I am introducing today provides the basic outline of this 
idea, and over the next two months, I will be working closely with law 
enforcement and community groups to modify and improve the 
Clearinghouse before we move forward with this legislation next year. I 
look forward to that process and encourage all of my colleagues to join 
me in this effort to combat the meth problem.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2046

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``National Methamphetamine 
     Information Clearinghouse Act of 2005''.

     SEC. 2. DEFINITIONS.

       In this Act--
       (1) the term ``Council'' means the National Methamphetamine 
     Advisory Council established under section 3(b)(1);
       (2) the term ``drug endangered children'' means children 
     whose physical, mental, or emotional health are at risk 
     because of the production, use, or effects of methamphetamine 
     by another person;
       (3) the term ``National Methamphetamine Information 
     Clearinghouse'' or ``NMIC'' means the information 
     clearinghouse established under section 3(a); and
       (4) the term ``qualified entity'' means a State or local 
     government, school board, or public health, law enforcement, 
     nonprofit, or other nongovernmental organization providing 
     services related to methamphetamines.

     SEC. 3. ESTABLISHMENT OF CLEARINGHOUSE AND ADVISORY COUNCIL.

       (a) Clearinghouse.--There is established, under the 
     supervision of the Attorney General of the United States, an 
     information clearinghouse to be know as the National 
     Methamphetamine Information Clearinghouse.
       (b) Advisory Council.--
       (1) In general.--There is established an advisory council 
     to be known as the National Methamphetamine Advisory Council.
       (2) Membership.--The Council shall consist of 10 members 
     appointed by the Attorney General--
       (A) not fewer than 3 of whom shall be representatives of 
     law enforcement agencies;
       (B) not fewer than 4 of whom shall be representatives of 
     nongovernmental and nonprofit organizations providing 
     services related to methamphetamines; and
       (C) 1 of whom shall be a representative of the Department 
     of Health and Human Services.

[[Page 27089]]

       (3) Period of appointment; vacancies.--Members shall be 
     appointed for 3 years. Any vacancy in the Council shall not 
     affect its powers, but shall be filled in the same manner as 
     the original appointment.

     SEC. 4. NMIC REQUIREMENTS AND REVIEW.

       (a) In General.--The NMIC shall promote sharing information 
     regarding successful law enforcement, treatment, 
     environmental, social services, and other programs related to 
     the production, use, or effects of methamphetamine and grants 
     available for such programs.
       (b) Components.--The NMIC shall include--
       (1) a toll-free number; and
       (2) a website that--
       (A) provides information on the short-term and long-term 
     effects of methamphetamine use;
       (B) provides information regarding methamphetamine 
     treatment programs and programs for drug endangered children, 
     including descriptions of successful programs and contact 
     information for such programs;
       (C) provides information regarding grants for 
     methamphetamine-related programs, including contact 
     information and links to websites;
       (D) allows a qualified entity to submit items to be posted 
     on the website regarding successful public or private 
     programs or other useful information related the production, 
     use, or effects of methamphetamine;
       (E) includes a restricted section that may only be accessed 
     by a law enforcement organization that contain successful 
     strategies, training techniques, and other information that 
     the Council determines helpful to law enforcement agency 
     efforts to combat the production, use or effects of 
     methamphetamine;
       (F) allows public access to all information not in a 
     restricted section; and
       (G) contains any additional information the Council 
     determines may be useful in combating the production, use, or 
     effects of methamphetamine.
       (c) Review of Posted Information.--
       (1) In general.--Not later than 30 days after the date of 
     submission of an item by a qualified entity, the Council 
     shall review an item submitted for posting on the website 
     described in subsection (b)(2)--
       (A) to evaluate and determine whether the item, as 
     submitted or as modified, meets the requirements for posting; 
     and
       (B) in consultation with the Attorney General, to determine 
     whether the item should be posted in a restricted section of 
     the website.
       (2) Determination.--Not later than 45 days after the date 
     of submission of an item, the Council shall--
       (A) post the item on the website described in subsection 
     (b)(2); or
       (B) notify the qualified entity that submitted the item 
     regarding the reason such item shall not be posted and 
     modifications, if any, that the qualified entity may make to 
     allow the item to be posted.

     SEC. 5. AUTHORIZATION OF APPROPRIATIONS.

       There are authorized to be appropriated--
       (1) for fiscal year 2006--
       (A) $1,000,000 to establish the NMIC and Council; and
       (B) such sums as are necessary for the operation of the 
     NMIC and Council; and
       (2) for each of fiscal years 2007 through 2010, such sums 
     as are necessary for the operation of the NMIC and Council.
                                 ______
                                 
      By Mr. OBAMA (for himself and Mrs. Clinton):
  S. 2047. A bill to promote healthy communities; to the Committee on 
Health, Education, Labor, and Pensions.
  Mr. OBAMA. Mr. President, today, I am introducing the Healthy 
Communities Act of 2005, and I am pleased to have the support of my 
good friend and colleague Senator Hillary Rodham Clinton.
  Over the last few decades, our medical researchers and scientists 
have developed increasingly sophisticated and high tech methods to 
diagnose and treat disease. Yet, this approach has caused us to lose 
sight of the need for preventing diseases on the front-end, with 
greater investment in basic public health interventions that too often 
get short shrift.
  Today, I would like to bring it back to the basics and talk about 
environmental quality. The air we breathe, the food we eat, the houses 
in which we live, and the parks in which our children play--all of 
these factors contribute to our health. Environmental health, as 
defined by the World Health Organization, includes both the direct, 
damaging effects of chemicals, radiation, and some biological agents, 
and the effects on health and well-being of the broad physical, 
psychological, social, and aesthetic environment. The legislation that 
I have introduced draws attention to that aspect of the environment 
that is the physical environment--the toxicants and pollutants that we 
may not notice, but are present in our everyday surroundings and taking 
a toll on our health.
  My home State of Illinois faces a number of environmental challenges, 
including high levels of lead poisoning. It is estimated that over 
400,000 children in this country suffer from elevated blood lead 
levels. Chicago has the unfortunate distinction of ranking number 1 for 
children with elevated blood lead levels. 6,691 children have elevated 
blood lead levels, which is 50 percent higher than the number of 
children in the second ranked city of Philadelphia. Elevated blood 
levels are known to cause behavioral and learning problems, slowed 
growth, impaired hearing and damage to the kidneys, brain and bone 
marrow. Adults are not exempt from lead toxicity--poisoned adults 
suffer pregnancy difficulties, high blood pressure, digestive problems, 
nerve disorders, memory and concentration problems, and muscle and 
joint pain. Lead poisoning is completely preventable, and although our 
agencies have made good progress, we can and must do more to address 
this issue.
  Obviously lead is only one of many toxicants and pollutants with 
which we must contend. Different areas of the U.S. face unique 
challenges--States like California are grappling with the repercussions 
of air pollution, while Massachusetts and others in the Northeast are 
challenged with high levels of mercury in the water. As much as we know 
about these hazards, the effects of many chemicals are unknown.
  Less than half of the chemicals produced in this country in 
quantities greater than 10,000 pounds have been tested for their 
potential human toxicity, with less than 10 percent studied to assess 
effects on development. This lack of knowledge has serious health 
repercussions--in children, environmental toxins are estimated to cause 
up to 35 percent of asthma cases, up to 10 percent of cancer cases, and 
up to 20 percent of neurobehavioral disorders. Overall, an estimated 25 
percent of preventable illnesses worldwide can be attributed to poor 
environmental quality. Diseases such as cancer, heart disease, asthma, 
birth defects, infertility, and obesity are all caused or exacerbated 
by toxicants or pollutants in the environment.
  Minority Americans are significantly more likely to be affected than 
other Americans. Some studies have found that 3 of every 5 African- and 
Latino Americans live in communities with one or more toxic waste 
sites. Communities with existing incinerators, and those that are 
proposed for placement of new incinerators, have substantially higher 
numbers of minority residents. Minority Americans are already plagued 
with higher rates of death and disease, and fewer health resources in 
their neighborhoods. As we focus our efforts on environmental health, 
we must be cognizant that some groups are disproportionately affected 
by federal policies and decision-making, and deserve careful attention.
  The Healthy Communities Act of 2005 addresses environmental health 
concerns in a comprehensive fashion, building upon many of the 
successful federal initiatives and filling in gaps in other critical 
areas. The bill establishes an independent advisory committee to 
provide recommendations across all relevant Federal agencies. It asks 
the CDC and the EPA to assess and report the environmental public 
health of the nation, and each State. The Health Action Zone Program 
will provide intense Federal attention and resources to clean up and 
address the health needs of the nation's most blighted communities. 
Environmental research is expanded, including biomonitoring and health 
tracking initiatives. Finally, the Act promotes environmental health 
workforce programs at the CDC and the NIH.
  The Healthy Communities Act of 2005 will increase national attention 
on the importance of the environment, and its relationship to good 
health. As we work to make our future stronger for our communities, let 
us look to our past. In the National Environmental Policy Act (NEPA) of 
1969, Congress wrote that it is the continuing responsibility of the 
Federal Government to

[[Page 27090]]

assure that all Americans live in ``safe, healthful and aesthetically 
and culturally pleasing surroundings.'' Almost forty years later, our 
responsibility to the American people continues. I encourage all of my 
colleagues to join me and support passage of this bill.
                                 ______
                                 
      By Mr. OBAMA:
  S. 2048. A bill to direct the Consumer Product Safety Commission to 
classify certain children's products containing lead to be banned 
hazardous substances; to the Committee on Commerce, Science, and 
Transportation.
  Mr. OBAMA. Mr. President, I rise today to introduce the Lead Free 
Toys Act of 2005, which directs the Consumer Product Safety Commission 
to intensify efforts to reduce lead exposure for children.
  The unfortunate reality for many children--particularly in low-income 
and minority households--is the continued presence of high blood lead 
levels. Over 400,000 children in this country have elevated blood lead 
levels, with my own hometown of Chicago having the largest 
concentration of these children.
  Lead is a highly toxic substance that can produce a range of health 
problems in young children, including IQ deficiencies, reading and 
learning disabilities, impaired hearing, reduced attention spans, 
hyperactivity, and damage to the kidneys, brain and bone marrow. Even 
low levels of blood lead in pregnant women, infants and children can 
lead to impaired cognitive abilities, fetal organ development and 
behavioral problems.
  We know that lead poisoning is completely preventable. As the Nation 
has increased efforts to reduce environmental lead exposure, the number 
of children with high blood levels has steadily dropped. Restricting 
lead in gasoline and paint represent two major accomplishments in this 
regard. But much work remains to be done.
  Earlier today I introduced the Healthy Communities Act of 2005, to 
strengthen Federal, State and local efforts to address environmental 
health issues in communities already affected by lead and other toxins. 
However, we need to take greater proactive steps to prevent 
contamination, and the Lead Free Toys Act of 2005 will help us do just 
that.
  Disturbingly, lead is present in a number of toys and other 
frequently used objects by young children. According to research 
conducted by the National Center for Environmental Health, about half 
of tested lunch boxes have unsafe levels of lead. The highly popular 
Angela Anaconda lunch box was found to have 56,400 parts per million of 
lead, which is more than 90 times the 600 parts per million legal limit 
for lead in paint for children's products. Other lunch boxes showed 
levels of lead between two and twenty-five times the legal limit for 
lead paint in children's products. In most cases, the highest lead 
levels were found in the lining of lunch boxes, where lead could come 
into direct contact with food.
  This problem is not limited to lunchboxes. One study found that 60 
percent of more than 400 pieces of costume jewelry purchased at major 
department stories contain dangerous amounts of lead. From September 
2003 through July 2004, there were 3 recalls of nearly 150 million 
pieces of toy jewelry because of toxic levels of lead.
  This past August the Centers for Disease Control updated their 
``Preventing Lead Poisoning in Young Children'' statement calling for 
the elimination of all nonessential uses of lead in children's 
products. Specifically, the CDC urged a more systematic approach to 
identifying lead-contaminated items and prohibiting their sale before 
children are exposed, rather than usual recall efforts after exposure 
has occurred.
  The Consumer Product Safety Commission leads our national efforts to 
safeguard our children from potentially dangerous objects. However, the 
Commission has dragged its feet in aggressively addressing the problem 
of lead in toys. The Lead Free Toys Act, introduced by my colleague 
Congressman Henry Waxman earlier this year, requires the Consumer 
Product Safety Commission to prescribe regulations classifying any 
children's product containing lead as a banned hazardous substance 
under the Hazardous Substances Act. It defines ``children's product 
containing lead'' as any consumer product marketed or used by children 
under age 6 that contains more than trace amounts of lead as determined 
by the Commission and prescribed by regulations. The Act also requires 
the Commission to issue standards for reduction in lead in electronic 
devices.
  It's a national disgrace that toys that could pose a serious and 
significant danger to children are readily available in our department 
stores and markets. The Lead Free Toys Act of 2005 will help us keep 
our children safe and healthy, and contribute to national efforts to 
reduce lead exposure. I ask each of my colleagues to help support this 
Act.
                                 ______
                                 
      By Mr. DOMENICI (for himself, Mr. Dorgan, and Mr. Talent):
  S. 2049. A bill to improve the security of the United States borders 
and for other purposes; to the Committee on the Judiciary.
  Mr. DOMENICI. Mr. President, I rise today with my friend from North 
Dakota, Senator Dorgan, and my friend from Missouri, Senator Talent, to 
introduce a bill of critical importance to the security of our borders: 
the Border Modernization and Security Act of 2005.
  Securing our borders is the first necessary step towards immigration 
reform, and I believe the legislation I am introducing makes an 
enormous leap in the right direction.
  Our bill builds upon legislation we introduced in the last Congress 
to improve our port of entry infrastructure as well as a lot of good 
ideas proposed by other Senators in this Congress, and adds some 
provisions that I think are important to a comprehensive border 
security and immigration reform effort.
  The Border Modernization and Security Act increases the number of 
Customs and Border Protection (CBP) officers and Immigration and 
Customs Enforcement (ICE) agents each by 1000 for each of fiscal years 
2007 through 2011. These personnel are necessary to improve our 
enforcement at ports of entry and within the United States, and 
increasing the number of these employees goes hand in hand with our 
recent efforts to increase the number of border patrol agents who are 
enforcing the law along our international borders. Along this same 
line, the bill allows the Department of Homeland Security (DHS) to 
support its border and immigration forces with National Guard personnel 
and volunteer retired law enforcement officers, provides for an 
increase in the number of DHS alien and immigration investigative 
personnel, and increases the number of Deputy Marshals to investigate 
criminal immigration matters.
  Increasing the number of DHS employees alone will not solve our 
border problems. Unauthorized aliens also cause a significant burden on 
our courts. For example, for the 12-month period ending September 30, 
2004, 364 felony cases per judge were filed in the New Mexico District. 
It is apparent how burdensome this number is for my border State's 
court when you consider that the national average of felony cases filed 
per judge is 88. To help with these high caseload levels, our bill 
increases the number of DHS immigration attorneys, federal defenders, 
Office of Immigration Litigation attorneys, assistant US Attorneys, and 
immigration judges.
  Increased personnel is only one aspect of our effort to secure the 
border. Any border security effort must provide DHS personnel with 
necessary technologies and assets. To that end, our bill authorizes 
funds for the Department to acquire new technologies, construct roads, 
fences, and barriers, purchase air assets, vehicles, and other 
equipment, maintain temporary and permanent border checkpoints, and 
construct the appropriate facilities to support the increased number of 
DHS personnel being hired. Such assets are invaluable tools for our CBP 
and ICE employees, and we must make sure those men and women have what 
they need. We also provide for up to 15,000 new detention beds for 
unauthorized aliens in our bill.

[[Page 27091]]

  Another area Congress must address is our land port of entry 
infrastructure. No American border has undergone a comprehensive 
infrastructure overhaul since 1986, when Senator Dennis DeConcini of 
Arizona and I put forth a $357 million effort to modernize the 
southwest border. A great deal has changed in the past nineteen years. 
More importantly, much has changed since September 11, 2001. Congress 
has passed legislation to improve security at airports and seaports, 
but we have not yet addressed the needs of our busiest ports, located 
on the United States' northern and southwestern land borders. The 
Border Modernization and Security Act would change that and would 
prevent terrorists from exploiting weaknesses at our land ports.
  My bill requires the General Service Administration (GSA) to identify 
port of entry infrastructure and technology improvement projects that 
would enhance homeland security. The GSA would work with the Department 
of Homeland Security to prioritize and implement these projects based 
on needs along the border. The Secretary of Homeland Security would 
also have to prepare a Land Border Security Plan to assess the 
vulnerabilities at each port of entry located on the northern border or 
the southern border. This plan will require the cooperation of Federal, 
State and local entities involved at our borders to ensure that 
everyone who plays a role in border security is consulted about the 
plan.
  The Border Modernization and Security Act would also modernize 
homeland security along the United States' borders by implementing 
technology demonstration programs to test and evaluate new port of 
entry and border security technologies. Because equipment and 
technology alone will not solve the security problems on our border, 
these test sites will also house facilities to provide the necessary 
training to personnel who must implement and use these technologies 
under realistic conditions.
  We must also improve the enforcement of existing immigration laws. 
Our bill authorizes funds for the Department of Homeland Security to 
expand its Expedited Removal Procedures so DHS can expeditiously return 
non-Mexican illegal aliens who have spent less than 14 days in the US 
and who are apprehended within 100 miles of the international border to 
the alien's country of origin. We also allow DHS to create an automated 
biometric entry and exit data system at our land ports of entry so we 
can more accurately keep track of who is entering and leaving the US.
  In order for the Department to more easily identify and remove 
unauthorized aliens who commit crimes under State law and are held in 
State and local prisons, we authorize the expansion of DHS' 
Institutional Removal Program. Because of the burden these aliens place 
on our State and local prisons, DHS will be responsible for reimbursing 
prisons that detain an alien after the alien has completed his prison 
sentence in order to effectuate the alien's transfer to federal 
custody.
  Along the same line, the Border Modernization and Security Act 
provides additional assistance to States that are impacted by 
unauthorized aliens who commit crimes. I know first hand the impact 
such aliens have on our State and local prisons from talking to 
prosecutors and judges in New Mexico, so our bill reauthorizes the 
State Criminal Alien Assistance Program to help our States with the 
costs of incarcerating these aliens. Additionally, the bill allows for 
the reimbursement of State and local costs of processing illegal aliens 
through the criminal justice system and creates a new grant program for 
State, local, and Indian tribe law enforcement agencies who incur costs 
related to border security activities.
  I believe that these measures are an important part of addressing 
this nation's homeland security needs, and I am pleased to introduce 
this bill today with Senators Dorgan and Talent.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2049

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Border Security and 
     Modernization Act of 2005''.

     SEC. 2. DEFINITIONS.

       In this Act:
       (1) Department.--Except as otherwise provided, the term 
     ``Department'' means the Department of Homeland Security.
       (2) Secretary.--Except as otherwise provided, the term 
     ``Secretary'' means the Secretary of Homeland Security.
       (3) State.--Except as otherwise provided, the term 
     ``State'' has the meaning given that term in section 
     101(a)(36) of the Immigration and Nationality Act (8 U.S.C. 
     1101 (a)(36)).

     SEC. 3. CONSTRUCTION.

       Nothing in this Act may be construed to require law 
     enforcement personnel of a State or political subdivision of 
     a State to--
       (1) report the identity of a victim of, or a witness to, a 
     criminal offense to the Secretary for immigration enforcement 
     purposes;
       (2) arrest such victim or witness for a violation of the 
     immigration laws of the United States; or
       (3) enforce the immigration laws of the United States.

                       TITLE I--BORDER PROTECTION

                   Subtitle A--Personnel and Training

     SEC. 101. PERSONNEL OF THE DEPARTMENT OF HOMELAND SECURITY.

       (a) In General.--
       (1) Customs and border protection officers.--During each of 
     the fiscal years 2007 through 2011, the Secretary shall, 
     subject to the availability of appropriations for such 
     purpose, increase by not less than 1,000 the number of 
     positions for full-time active duty officers of the Bureau of 
     Customs and Border Protection of the Department for such 
     fiscal year.
       (2) Immigration and customs enforcement inspectors.--
     Section 5203 of the Intelligence Reform and Terrorism 
     Prevention Act of 2004 (Public Law 108-458; 118 Stat. 3734) 
     is amended by striking ``800'' and inserting ``1000''.
       (3) Investigative personnel.--In addition to the positions 
     authorized under section 5203 of the Intelligence Reform and 
     Terrorism Prevention Act of 2004, as amended by paragraph 
     (2), during each of the fiscal years 2007 through 2011, the 
     Secretary shall, subject to the availability of 
     appropriations for such purpose, increase by not less than 
     100 the number of positions for investigative personnel 
     within the Department to investigate alien smuggling and 
     immigration status violations for such fiscal year.
       (4) Legal personnel.--During each of the fiscal years 2007 
     through 2011, the Secretary shall, subject to the 
     availability of appropriations for such purpose, increase by 
     not less than 100 the number of positions for attorneys in 
     the Office of General Counsel of the Department who represent 
     the Department in immigration matters for such fiscal year.
       (5) Waiver of fte limitation.--The Secretary is authorized 
     to waive any limitation on the number of full-time equivalent 
     personnel employed by the Department to fulfill the 
     requirements of paragraph (1) and the amendment made by 
     paragraph (2).
       (b) Training.--The Secretary shall provide appropriate 
     training for the agents, officers, inspectors, and associated 
     support staff of the Department on an ongoing basis to 
     utilize new technologies and techniques and to ensure that 
     the proficiency levels of such personnel are acceptable to 
     protect the international borders of the United States.
       (c) Authorization of Appropriations.--There are authorized 
     to be appropriated to the Secretary for each of fiscal years 
     2007 through 2011, such sums as may be necessary to carry out 
     this section.

     SEC. 102. PERSONNEL OF THE DEPARTMENT OF JUSTICE AND OTHER 
                   ATTORNEYS.

       (a) Litigation Attorneys.--During each of the fiscal years 
     2007 through 2011, the Attorney General shall, subject to the 
     availability of appropriations for such purpose, increase by 
     not less than 50 the number of positions for attorneys in the 
     Office of Immigration Litigation of the Department of Justice 
     for such fiscal year.
       (b) United States Attorneys.--During each of the fiscal 
     years 2007 through 2011, the Attorney General shall, subject 
     to the availability of appropriations for such purpose, 
     increase by not less than 50 the number of United States 
     Attorneys to litigate immigration cases in the Federal courts 
     for such fiscal year.
       (c) United States Marshals.--During each of the fiscal 
     years 2007 through 2011, the Attorney General shall, subject 
     to the availability of appropriations for such purpose, 
     increase by not less than 50 the number of Deputy United 
     States Marshals to investigate criminal immigration matters.
       (d) Immigration Judges.--During each of fiscal years 2007 
     through 2011, the Attorney General shall, subject to the 
     availability of appropriations for such purpose, increase by 
     not less than 100 the number of immigration judges for such 
     fiscal year.
       (e) Defense Attorneys.--During each of the fiscal years 
     2007 through 2011, the Director of the Administrative Office 
     of the

[[Page 27092]]

     United States Courts shall, subject to the availability of 
     appropriations for such purpose, increase by not less than 
     100 the number of attorneys in the Federal Defenders Program 
     for such fiscal year.
       (f) Authorization of Appropriations.--There are authorized 
     to be appropriated to the Attorney General for each of fiscal 
     years 2007 through 2011 such sums as may be necessary to 
     carry out this section, including the hiring of necessary 
     support staff.

     SEC. 103. USE OF THE NATIONAL GUARD FOR BORDER PROTECTION 
                   ACTIVITIES.

       (a) In General.--Section 112 of title 32, United States 
     Code, is amended--
       (1) by striking ``drug interdiction and counter-drug 
     activities'' each place it appears and inserting ``drug 
     interdiction, counter drug, and border activities''; and
       (2) in subparagraphs (A) and (B) of subsection (e)(1), by 
     striking ``drug interdiction or counter-drug activities'' 
     each place it appears and inserting ``drug interdiction, 
     counter-drug, or border activities''.
       (b) Definition of Drug Interdiction, Counter-Drug, and 
     Border Activities.--Subsection (h)(1) of such section is 
     amended to read as follows:
       ``(1) The term `drug interdiction, counter-drug, and border 
     activities', with respect to the National Guard of a State, 
     means the use of National Guard personnel in--
       ``(A) drug interdiction and counter-drug law enforcement 
     activities, including drug demand reduction activities 
     authorized by the law of the State and requested by the 
     Governor of the State; or
       ``(B) activities conducted in cooperation with personnel of 
     the Department of Homeland Security to secure the 
     international borders of the United States, including 
     constructing roads, fencing, and vehicle barriers, assisting 
     in search and rescue operations conducted by personnel of the 
     Department of Homeland Security, and monitoring international 
     borders, and excluding any law enforcement activities 
     conducted by personnel of the Department of Homeland 
     Security.''.

     SEC. 104. DEPUTY BORDER PATROL AGENT PROGRAM.

       (a) Authority to Establish.--The Secretary may establish a 
     Deputy Border Patrol Agent Program (in this section referred 
     to as the ``Program'') in the Office of Border Patrol.
       (b) Purpose.--The purpose of the Program shall be to 
     establish a volunteer force of trained, retired law 
     enforcement officers to assist the Secretary in carrying out 
     the mission of the Department to achieve operational control 
     of the borders of the United States.
       (c) Qualifications.--An individual may participate as a 
     volunteer in the Program only if such individual is a retired 
     law enforcement officer, who is or was previously licensed by 
     a Federal or State authority to enforce Federal, State, or 
     local penal offenses.
       (d) Utilization of Volunteers.--The Secretary may utilize 
     an individual who participates as a volunteer in the Program 
     to provide such border security functions that the Secretary 
     determines are appropriate.
       (e) Training and Other Requirements.--The Secretary may 
     require an individual who participates as a volunteer in the 
     Program to participate in such training, testing, and other 
     requirements that the Secretary determines are appropriate.
       (f) Swearing In.--Upon completion of any training, testing, 
     or other procedures required by the Secretary, an individual 
     who participates in the Program shall be sworn in and 
     assigned to the Office of Border Patrol.
       (g) Assignment of Volunteers.--The Secretary may assign 
     individuals participating in the Program to provide patrol 
     services at facilities and locations along the international 
     borders of the United States.
       (h) Oversight of Agents.--The Secretary, acting through the 
     Commissioner of the Bureau of Customs and Border Protection 
     of the Department, shall have oversight of all individuals 
     participating in the Program. Such volunteers shall serve at 
     the pleasure of the Secretary, acting through the 
     Commissioner of the Bureau of Customs and Border Protection.
       (i) Authorization of Appropriations.--There are authorized 
     to be appropriated $10,000,000 for each of the fiscal years 
     2007 through 2011 to carry out this section.

     SEC. 105. DOCUMENT FRAUD DETECTION.

       (a) Training.--The Secretary shall provide appropriate 
     officers of the Bureau of Customs and Border Protection of 
     the Department with training in identifying and detecting 
     fraudulent travel documents. Such training shall be developed 
     in consultation with the Forensic Document Laboratory of the 
     Bureau of Immigration and Customs Enforcement of such 
     Department.
       (b) Forensic Document Laboratory.--The Secretary shall 
     provide all officers of the Bureau of Customs and Border 
     Protection with access to the Forensic Document Laboratory.
       (c) Authorization of Appropriations.--There are authorized 
     to be appropriated $10,000,000 for each of the fiscal years 
     2007 through 2011 to carry out this section.

                       Subtitle B--Infrastructure

     SEC. 111. MODERNIZATION OF BORDER INFRASTRUCTURE.

       (a) Definitions.--In this section:
       (1) Commissioner.--The term ``Commissioner'' means the 
     Commissioner of the Bureau of Customs and Border Protection 
     of the Department.
       (2) Maquiladora.--The term ``maquiladora'' means an entity 
     located in Mexico that assembles and produces goods from 
     imported parts for export to the United States.
       (3) Northern border.--The term ``northern border'' means 
     the international border between the United States and 
     Canada.
       (4) Southern border.--The term ``southern border'' means 
     the international border between the United States and 
     Mexico.
       (b) Border Technologies, Assets, and Construction.--
       (1) Acquisition.--The Secretary shall procure technologies 
     necessary to support the mission of the Department to achieve 
     operational control of the international borders of the 
     United States. In determining what technologies to procure, 
     the Secretary shall consult with the Secretary of Defense and 
     the head of the National Laboratories and Technology Centers 
     of the Department of Energy.
       (2) Construction of border control facilities.--The 
     Secretary shall construct roads, acquire vehicle barriers, 
     and construct fencing necessary to support such mission.
       (3) Assets.--The Secretary shall acquire unmanned aerial 
     vehicles, police-type vehicles, helicopters, all terrain 
     vehicles, interoperable communications equipment, firearms, 
     sensors, cameras, lighting and such other equipment and 
     assets as may be necessary to support such mission.
       (4) Facilities.--The Secretary shall construct such 
     facilities as may be necessary to support the number of 
     employees of the Department who are hired pursuant to any 
     provision of this Act or of subtitle B of title V of the 
     Intelligence Reform and Terrorism Prevention Act of 2004 
     (Public Law 108-458; 118 Stat. 3733).
       (5) Checkpoints.--The Secretary may construct and maintain 
     temporary or permanent checkpoints on roadways located in 
     close proximity to the northern border or the southern border 
     to support such mission.
       (c) Port of Entry Infrastructure Assessment Study.--
       (1) Requirement to update.--In order to carry out the 
     mission of the Department to achieve operational control of 
     the international borders of the United States, not later 
     than January 31 of each year, the Administrator of General 
     Services shall update the Port of Entry Infrastructure 
     Assessment Study prepared by the United States Customs 
     Service, the Immigration and Naturalization Service, and the 
     General Services Administration in accordance with the matter 
     relating to the ports of entry infrastructure assessment that 
     is set out in the joint explanatory statement in the 
     conference report accompanying H.R. 2490 of the 106th 
     Congress, 1st session (House of Representatives Rep. No. 106-
     319, page 67) and submit such updated study to Congress.
       (2) Consultation.--In preparing the updated studies 
     required by paragraph (1), the Administrator of General 
     Services shall consult with the Director of the Office of 
     Management and Budget, the Secretary, and the Commissioner.
       (3) Content.--Each updated study required by paragraph (1) 
     shall--
       (A) identify port of entry infrastructure and technology 
     improvement projects that would enhance border security and 
     facilitate the flow of legitimate commerce if implemented;
       (B) include the projects identified in the National Land 
     Border Security Plan required by subsection (d); and
       (C) prioritize each project described in subparagraph (A) 
     or (B) based on the likelihood that the project will--
       (i) fulfill immediate security requirements; and
       (ii) facilitate trade across the borders of the United 
     States.
       (4) Project implementation.--
       (A) In general.--The Commissioner shall implement the 
     infrastructure and technology improvement projects described 
     in each updated study required by paragraph (1) in the order 
     of priority assigned to each project under paragraph (3)(C).
       (B) Exception.--The Commissioner may diverge from the 
     priority order if the Commissioner determines that 
     significantly changed circumstances, such as immediate 
     security needs or changes in infrastructure in Mexico or 
     Canada, compellingly alter the need for a project in the 
     United States.
       (d) National Land Border Security Plan.--
       (1) Requirement for plan.--In order to carry out the 
     mission of the Department to achieve operational control of 
     the international borders of the United States, not later 
     than January 31 of each year, the Secretary shall prepare a 
     National Land Border Security Plan and submit such plan to 
     Congress.
       (2) Consultation.--In preparing the plan required by 
     paragraph (1), the Secretary shall consult with the Under 
     Secretary for Information Analysis and Infrastructure 
     Protection and the Federal, State, and local law enforcement 
     agencies and private entities that are involved in 
     international trade

[[Page 27093]]

     across the northern border or the southern border.
       (3) Vulnerability assessment.--
       (A) In general.--The plan required by paragraph (1) shall 
     include a vulnerability assessment of each port of entry 
     located on the northern border or the southern border.
       (B) Port security coordinators.--The Secretary may 
     establish 1 or more port security coordinators at each port 
     of entry located on the northern border or the southern 
     border--
       (i) to assist in conducting a vulnerability assessment at 
     such port; and
       (ii) to provide other assistance with the preparation of 
     the plan required by paragraph (1).
       (e) Expansion of Trade Security Programs.--
       (1) Customs-trade partnership against terrorism.--
       (A) In general.--Not later than 180 days after the date of 
     enactment of this Act, the Commissioner, in consultation with 
     the Secretary, shall develop a plan to expand the size and 
     scope (including personnel needs) of the Customs-Trade 
     Partnership Against Terrorism programs along the northern 
     border and southern border, including--
       (i) the Business Anti-Smuggling Coalition;
       (ii) the Carrier Initiative Program;
       (iii) the Americas Counter Smuggling Initiative;
       (iv) the Free and Secure Trade Initiative; and
       (v) other Industry Partnership Programs administered by the 
     Commissioner.
       (2) Maquiladora demonstration program.--Not later than 180 
     days after the date of enactment of this Act, the 
     Commissioner shall establish a demonstration program to 
     develop a cooperative trade security system with maquiladoras 
     to improve supply chain security.
       (f) Port of Entry Technology Demonstration Program.--
       (1) Establishment.--In order to carry out the mission of 
     the Department to achieve operational control of the 
     international borders of the United States, the Secretary 
     shall carry out a technology demonstration program to test 
     and evaluate new port of entry technologies, refine port of 
     entry technologies and operational concepts, and train 
     personnel under realistic conditions. The Commissioner of the 
     Bureau of Customs and Border Protection shall oversee the 
     program in consultation and cooperation with other divisions 
     of the Department.
       (2) Technology and facilities.--
       (A) Technology tested.--Under the demonstration program, 
     the Secretary shall test technologies that enhance port of 
     entry operations, including those related to inspections, 
     communications, port tracking, identification of persons and 
     cargo, sensory devices, personal detection, decision support, 
     and the detection and identification of weapons of mass 
     destruction.
       (B) Facilities developed.--At a demonstration site selected 
     pursuant to paragraph (3)(B), the Secretary shall develop 
     facilities to provide appropriate training to law enforcement 
     personnel who have responsibility for border security, 
     including cross-training among agencies, advanced law 
     enforcement training, and equipment orientation.
       (3) Demonstration sites.--
       (A) Number.--The Secretary shall carry out the 
     demonstration program at not less than 3 sites and not more 
     than 5 sites.
       (B) Selection criteria.--To ensure that at least 1 of the 
     facilities selected as a port of entry demonstration site for 
     the demonstration program has the most up-to-date design, 
     contains sufficient space to conduct the demonstration 
     program, has a traffic volume low enough to easily 
     incorporate new technologies without interrupting normal 
     processing activity, and can efficiently carry out 
     demonstration and port of entry operations, at least 1 port 
     of entry selected as a demonstration site shall--
       (i) have been established not more than 15 years before the 
     date of enactment of this Act;
       (ii) consist of not less than 65 acres, with the 
     possibility of expansion onto not less than 25 adjacent 
     acres; and
       (iii) have serviced an average of not more than 50,000 
     vehicles per month in the 12 full months preceding the date 
     of enactment of this Act.
       (4) Relationship with other agencies.--The Secretary shall 
     permit personnel from an appropriate Federal or State agency 
     to utilize a demonstration site described in paragraph (3) to 
     test technologies that enhance port of entry operations, 
     including those related to inspections, communications, port 
     tracking, identification of persons and cargo, sensory 
     devices, personal detection, decision support, and the 
     detection and identification of weapons of mass destruction.
       (5) Report.--
       (A) Requirement.--Not later than 1 year after the date of 
     enactment of this Act, and annually thereafter, the Secretary 
     shall submit to Congress a report on the activities carried 
     out at each demonstration site under the technology 
     demonstration program established under this subsection.
       (B) Content.--Each report submitted pursuant to 
     subparagraph (A) shall include an assessment by the Secretary 
     of the feasibility of incorporating any demonstrated 
     technology for use throughout the Bureau of Customs and 
     Border Protection.
       (g) Border Patrol Technology Demonstration Program.--
       (1) Establishment.--In order to carry out the mission of 
     the Department to achieve operational control of the 
     international borders of the United States, the Secretary 
     shall carry out a technology demonstration program to test 
     and evaluate new border security technologies and train 
     personnel under realistic conditions.
       (2) Technology and facilities.--
       (A) Technology tested.--Under the demonstration program, 
     the Secretary shall test technologies that enhance border 
     security, including those related to communications, sensory 
     devices, personal detection, and decision support.
       (B) Facilities development.--At a site where border patrol 
     agents participate in law enforcement training, the Secretary 
     shall develop facilities to carry out the demonstration 
     program, including providing appropriate training to law 
     enforcement personnel who have responsibility for border 
     security, including cross-training among agencies, advanced 
     law enforcement training, and equipment orientation.
       (3) Relationship with other agencies.--The Secretary shall 
     permit personnel from an appropriate Federal or State agency 
     to utilize the demonstration site described in this 
     subsection to test technologies that enhance border security, 
     including those related to communications, sensory devices, 
     personal detection, and decision support.
       (4) Report.--
       (A) Requirement.--Not later than 1 year after the date of 
     enactment of this Act, and annually thereafter, the Secretary 
     shall submit to Congress a report on the activities carried 
     out at the demonstration site under the technology 
     demonstration program established under this subsection.
       (B) Content.--Each report submitted pursuant to 
     subparagraph (A) shall include an assessment by the Secretary 
     of the feasibility of incorporating any demonstrated 
     technology for use throughout the Department.
       (h) International Agreements.--Funds authorized in this Act 
     may be used for the implementation of projects described in 
     the Declaration on Embracing Technology and Cooperation to 
     Promote the Secure and Efficient Flow of People and Commerce 
     across our Shared Border between the United States and 
     Mexico, agreed to March 22, 2002, Monterrey, Mexico (commonly 
     known as the Border Partnership Action Plan) or the Smart 
     Border Declaration between the United States and Canada, 
     agreed to December 12, 2001, Ottawa, Canada that are 
     consistent with the provisions of this Act.
       (i) Authorization of Appropriations.--There are authorized 
     to be appropriated the following:
       (1) For each of the fiscal years 2007 through 2011, 
     $1,000,000,000 to carry out subsection (b).
       (2) For each of the fiscal years 2007 through 2011, such 
     sums as may be necessary to carry out paragraph (1) of 
     subsection (c).
       (3) For each of the fiscal years 2007 through 2011, 
     $100,000,000 to carry out paragraph (4) of subsection (c).
       (4) For each of the fiscal years 2007 through 2011, such 
     sums as may be necessary to carry out subsection (d).
       (5)(A) For fiscal year 2007, $30,000,000 to carry out 
     paragraph (1) of subsection (e); and
       (B) For each of the fiscal years 2008 through 2011, such 
     sums as may be necessary to carry out such paragraph.
       (6)(A) For fiscal year 2007, $5,000,000 to carry out 
     paragraph (2) of subsection (e); and
       (B) For each of the fiscal years 2008 through 2011, such 
     sums as may be necessary to carry out such paragraph.
       (7)(A) For fiscal year 2007, $50,000,000 to carry out 
     subsection (f), and not more than $10,000,000 of such amount 
     may be expended for technology demonstration program 
     activities at any 1 port of entry demonstration site during 
     such fiscal year.
       (B) For each of the fiscal years 2008 through 2011, such 
     sums as may be necessary to carry out subsection (f), and not 
     more than $10,000,000 may be expended for technology 
     demonstration program activities at any 1 port of entry 
     demonstration site in any such fiscal year.
       (8) For each of the fiscal years 2007 through 2011, 
     $10,000,000 to carry out subsection (g).

     SEC. 112. DETENTION SPACE AND REMOVAL CAPACITY.

       Section 5204(a) of the Intelligence Reform and Terrorism 
     Protection Act of 2004 (Public Law 108-458; 118 Stat. 3734) 
     is amended by striking ``8,000'' and inserting ``15,000''.

     SEC. 113. INCREASE OF FEDERAL DETENTION SPACE AND THE 
                   UTILIZATION OF FEDERAL FACILITIES IDENTIFIED 
                   FOR CLOSURE.

       (a) Construction or Acquisition of Detention Facilities.--
       (1) In general.--The Secretary shall construct or acquire 
     additional detention facilities in the United States.
       (2) Determination of location.--The location of any 
     detention facility built or acquired in accordance with this 
     subsection shall be determined by the Deputy Assistant

[[Page 27094]]

     Director of the Office of Detention and Removal Operations 
     within the Bureau of Immigration and Customs Enforcement of 
     the Department.
       (3) Use of federal facilities identified for closure.--In 
     acquiring detention facilities under this subsection, the 
     Secretary shall, to the maximum extent practical, request the 
     transfer of appropriate portions of military installations 
     approved for closure or realignment and any other Federal 
     facilities identified for closure.
       (b) Authorization of Appropriations.--There are authorized 
     to be appropriated such sums as may be necessary to carry out 
     this section.

     SEC. 114. ALTERNATIVES TO DETENTION.

       The Secretary shall implement demonstration programs in 
     each State located along the international border between the 
     United States and Canada or along the international border 
     between the United States and Mexico to study the 
     effectiveness of alternatives to the detention of aliens, 
     including electronic monitoring devices and intensive 
     supervision programs, that ensure that alien's appearance at 
     court and compliance with removal orders.

                     Subtitle C--Grants for States

     SEC. 121. BORDER LAW ENFORCEMENT GRANTS.

       (a) Law Enforcement Agency Defined.--In this section, the 
     term ``law enforcement agency'' means a Tribal, State, or 
     local law enforcement agency.
       (b) Authority to Award Grants.--The Secretary is authorized 
     to award grants to an eligible law enforcement agency to 
     provide assistance with costs associated with State border 
     security efforts, including efforts to combat criminal 
     activity that occurs in the jurisdiction of such agency by 
     virtue of such agency's proximity to an international border 
     of the United States.
       (c) Criteria.--The Secretary shall award grants under 
     subsection (b) on a competitive basis, considering criteria 
     including--
       (1) the law enforcement agency's distance from the 
     international border, with communities closer to the border 
     given priority because of their proximity;
       (2) population, with smaller communities given priority;
       (3) the criminal caseload of the law enforcement agency, 
     based upon the number of felony criminal cases filed per 
     judge in the United States district court located in the 
     district that the law enforcement agency has jurisdiction 
     over, with priority given to those with higher caseloads;
       (4) the percentage of undocumented aliens residing in the 
     law enforcement agency's State compared to the total number 
     of such aliens residing in all States, based on the most 
     recent decennial census; and
       (5) the percentage of undocumented alien apprehensions in 
     the law enforcement agency's State in that fiscal year 
     compared to the total of such apprehensions for all such 
     States for that fiscal year.
       (d) Use of Funds.--Grants awarded under subsection (b) 
     shall be used to provide additional resources for a law 
     enforcement agency to address criminal activity occurring 
     near an international border of the United States, 
     including--
       (1) law enforcement technologies;
       (2) equipment such as police-type vehicles, all terrain 
     vehicles, firearms, sensors, cameras, and lighting; and
       (3) such other resources as are available to assist the law 
     enforcement agency.
       (e) Application.--The head of a law enforcement agency 
     seeking to apply for a grant under this section shall submit 
     an application to the Secretary at such time, in such manner, 
     and with such information as the Secretary may require.
       (f) Authorization of Appropriations.--There are authorized 
     to be appropriated $500,000,000 for each of the fiscal years 
     2007 through 2011 to carry out this section.

                    TITLE II--IMMIGRATION PROVISIONS

     SEC. 201. EXPEDITED REMOVAL BETWEEN PORTS OF ENTRY.

       (a) In General.--Section 235 of the Immigration and 
     Nationality Act (8 U.S.C. 1225) is amended--
       (1) in subsection (b)(1)(A)(i), by striking ``the officer'' 
     and inserting ``a supervisory officer''; and
       (2) in subsection (c), by adding at the end the following:
       ``(4) Expansion.--The Secretary of Homeland Security shall 
     make the expedited removal procedures under this subsection 
     available in all border patrol sectors on the southern border 
     of the United States as soon as operationally possible.
       ``(5) Training.--The Secretary of Homeland Security shall 
     provide employees of the Department of Homeland Security with 
     comprehensive training on the procedures authorized under 
     this subsection.''.
       (b) Authorization of Appropriations.--There are authorized 
     to be appropriated $20,000,000 for each of fiscal years 2007 
     through 2011 to carry out the amendments made by this 
     section.

     SEC. 202. CANCELLATION OF VISAS.

       Section 222(g) of the Immigration and Nationality Act (8 
     U.S.C. 1202(g)) is amended--
       (1) in paragraph (1), by inserting ``and any other 
     nonimmigrant visa issued by the United States that is in the 
     possession of the alien'' after ``such visa''; and
       (2) in paragraph (2)(A), by striking ``(other than the visa 
     described in paragraph (1)) issued in a consular office 
     located in the country of the aliens nationality'' and 
     inserting ``(other than a visa described in paragraph (1)) 
     issued in a consular office located in the country of the 
     aliens nationality or foreign residence''.

     SEC. 203. BIOMETRIC ENTRY-EXIT SYSTEM.

       (a) Grounds of Inadmissibility.--Section 212 of the 
     Immigration and Nationality Act (8 U.S.C. 1182) is amended--
       (1) in subsection (a)(7), by adding at the end the 
     following:
       ``(C) Withholders of biometric data.--Any alien who fails 
     to comply with a lawful request for biometric data is 
     inadmissible.''; and
       (2) in subsection (d), by inserting after paragraph (1) the 
     following:
       ``(2) The Secretary of Homeland Security may waive the 
     application of subparagraph (C) of subsection (a)(7) for an 
     individual alien or a class of aliens, at the discretion of 
     the Secretary.''.
       (b) Collection of Biometric Data From Aliens Departing the 
     United States.--Section 215 of the Immigration and 
     Nationality Act (8 U.S.C. 1185) is amended--
       (1) by redesignating subsection (c) as subsection (g); and
       (2) by inserting after subsection (b) the following:
       ``(c) The Secretary of Homeland Security is authorized to 
     require aliens departing the United States to provide 
     biometric data and other information relating to their 
     immigration status.''.
       (c) Inspection of Applicants for Admission.--Section 235(d) 
     of the Immigration and Nationality Act (8 U.S.C. 1185(d)) is 
     amended by adding at the end the following:
       ``(5) Authority to collect biometric data.--In conducting 
     inspections under subsection (b), immigration officers are 
     authorized to collect biometric data from--
       ``(A) any applicant for admission or alien seeking to 
     transit through the United States; or
       ``(B) any lawful permanent resident who is--
       ``(i) entering the United States; and
       ``(ii) not regarded as seeking an admission into the United 
     States pursuant to section 101(a)(13)(C).''.
       (d) Collection of Biometric Data From Alien Crewman.--
     Section 252 of the Immigration and Nationality Act (8 U.S.C. 
     1282) is amended by inserting ``Immigration officers are 
     authorized to collect biometric data from any alien crewman 
     seeking permission to land temporarily in the United 
     States.'' after ``this title''.
       (e) Implementation.--Section 7208 of the 9/11 Commission 
     Implementation Act of 2004 (8 U.S.C. 1365b) is amended in 
     subsection (l)--
       (1) by striking ``There are authorized'' and inserting the 
     following:
       ``(1) In general.--There are authorized''; and
       (2) by adding at the end the following:
       ``(2) Implementation at all land border ports of entry.--
     There are authorized to be appropriated such sums as may be 
     necessary for each of fiscal years 2008, 2009, and 2010 to 
     implement the automated biometric entry and exit data system 
     at all land border ports of entry.''.

     SEC. 204. REIMBURSEMENT FOR STATES.

       (a) Incarceration Costs.--Section 241(i)(5) of the 
     Immigration and Nationality Act (8 U.S.C. 1231(i)(5)) is 
     amended to read as follows:
       ``(5) There are authorized to be appropriated to carry out 
     this subsection--
       ``(A) $750,000,000 for fiscal year 2007;
       ``(B) $850,000,000 for fiscal year 2008; and
       ``(C) $950,000,000 for each of the fiscal years 2009 
     through 2011.''.
       (b) Reimbursement for Costs Associated With Processing 
     Criminal Illegal Aliens.--
       (1) In general.--The Secretary shall reimburse States and 
     units of local government for costs associated with 
     processing illegal aliens through the criminal justice 
     system, including--
       (A) indigent defense;
       (B) criminal prosecution;
       (C) autopsies;
       (D) translators and interpreters; and
       (E) courts costs.
       (2) Authorization of appropriations.--There are authorized 
     to be appropriated $500,000,000 for each of the fiscal years 
     2007 through 2011 to carry out paragraph (1).

     SEC. 205. COMPLETION OF BACKGROUND AND SECURITY CHECKS.

       Section 103 of the Immigration and Nationality Act (8 
     U.S.C. 1103) is amended by adding at the end the following:
       ``(i) Notwithstanding any other provision of law, the 
     Secretary of Homeland Security, the Attorney General, or any 
     court may not--
       ``(1) grant or order the grant of adjustment of status to 
     that of an alien lawfully admitted for permanent residence;
       ``(2) grant or order the grant of any other status, relief, 
     protection from removal, or other benefit under the 
     immigration laws; or
       ``(3) issue any documentation evidencing or related to such 
     grant by the Attorney General, the Secretary, or any court,


[[Page 27095]]


     until such background and security checks as the Secretary 
     may in his discretion require have been completed to the 
     satisfaction of the Secretary.''.

     SEC. 206. RELEASE OF ALIENS FROM NONCONTIGUOUS COUNTRIES.

       Section 236(a)(2) of the Immigration and Nationality Act (8 
     U.S.C. 1226(a)(2)) is amended to read as follows:
       ``(2) may release the alien on bond of not less than $5,000 
     with security approved by, and containing conditions 
     prescribed by, the Secretary of Homeland Security; but''.

     SEC. 207. COUNTRIES THAT DO NOT ACCEPT RETURN OF NATIONALS.

       Section 243(d) of the Immigration and Nationality Act (8 
     U.S.C. 1253(d)) is amended--
       (1) by striking ``On being notified'' and inserting the 
     following:
       ``(1) In general.--Upon notification''; and
       (2) by striking ``Attorney General'' each place it appears 
     and inserting ``Secretary of Homeland Security''; and
       (3) by adding at the end the following:
       ``(2) Denial of admission.--The Secretary of Homeland 
     Security, after making a determination that the government of 
     a foreign country has denied or unreasonably delayed 
     accepting an alien who is a citizen, subject, national, or 
     resident of that country after the alien has been ordered 
     removed, and after consultation with the Secretary of State, 
     may deny admission to any citizen, subject, national or 
     resident of that country until the country accepts the alien 
     that was ordered removed.''.

                          TITLE III--PENALTIES

     SEC. 301. INCREASED CRIMINAL PENALTIES FOR ALIEN SMUGGLING.

       Section 274(a) of the Immigration and Nationality Act (8 
     U.S.C. 1324(a)) is amended--
       (1) in paragraph (1)(B)--
       (A) in clause (i), by striking ``10 years'' and inserting 
     ``15 years'';
       (B) in clause (ii), by striking ``5 years'' and inserting 
     ``10 years''; and
       (C) in clause (iii), by striking ``20 years'' and inserting 
     ``40 years'';
       (2) in paragraph (2)--
       (A) in subparagraph (A), by striking ``one year, or both; 
     or'' and inserting ``3 years, or both'';
       (B) in subparagraph (B)--
       (i) in clause (i), by adding at the end the following: ``be 
     fined under title 18, United States Code, and imprisoned not 
     less than 5 years nor more than 25 years;'';
       (ii) in clause (ii), by striking ``or'' at the end and 
     inserting the following: ``be fined under title 18, United 
     States Code, and imprisoned not less than 3 years nor more 
     than 20 years; or''; and
       (iii) in clause (iii), by adding at the end the following: 
     ``be fined under title 18, United States Code, and imprisoned 
     not more than 15 years; or''; and
       (C) by striking the matter following clause (iii) and 
     inserting the following:
       ``(C) in the case of a third or subsequent offense 
     described in subparagraph (B) and for any other violation, 
     shall be fined under title 18, United States Code, and 
     imprisoned not less than 5 years nor more than 15 years.'';
       (3) in paragraph (3)(A), by striking ``5 years'' and 
     inserting ``10 years''; and
       (4) in paragraph (4), by striking ``10 years'' and 
     inserting ``20 years''.

     SEC. 302. INCREASED CRIMINAL PENALTIES FOR DOCUMENT FRAUD.

       Section 1546 of title 18, United States Code, is amended--
       (1) in subsection (a)--
       (A) by striking ``not more than 25 years'' and inserting 
     ``not less than 25 years'';
       (B) by inserting ``and if the terrorism offense resulted in 
     the death of any person, shall be punished by death or 
     imprisoned for life,'' after ``section 2331 of this 
     title)),'';
       (C) by striking ``20 years'' and inserting ``imprisoned not 
     more than 40 years'';
       (D) by striking ``10 years'' and inserting ``imprisoned not 
     more than 20 years''; and
       (E) by striking ``15 years'' and inserting ``imprisoned not 
     more than 30 years''; and
       (2) in subsection (b), by striking ``5 years'' and 
     inserting ``10 years''.

     SEC. 303. INCREASED CRIMINAL PENALTIES FOR CERTAIN CRIMES.

       (1) In general.--Title 18, United States Code, is amended 
     by inserting after chapter 51 the following:

                      ``CHAPTER 52--ILLEGAL ALIENS

     ``SEC. 1131. ENHANCED PENALTIES FOR CERTAIN CRIMES COMMITTED 
                   BY ILLEGAL ALIENS.

       ``(a) Any alien unlawfully present in the United States, 
     who commits, or conspires or attempts to commit, a crime of 
     violence or a drug trafficking offense (as defined in section 
     924), shall be fined under this title and sentenced to not 
     less than 5 years in prison.
       ``(b) If an alien who violates subsection (a) was 
     previously ordered removed under the Immigration and 
     Nationality Act (8 U.S.C. 1101 et seq.) on the grounds of 
     having committed a crime, the alien shall be sentenced to not 
     less than 15 years in prison.
       ``(c) A sentence of imprisonment imposed under this section 
     shall run consecutively to any other sentence of imprisonment 
     imposed for any other crime.''.
       (2) Clerical amendment.--The table of chapters at the 
     beginning of part I of title 18, United States Code, is 
     amended by inserting after the item relating to chapter 51 
     the following:

52. Illegal aliens.................................................1131

     SEC. 304. INCREASED CRIMINAL PENALTIES FOR CRIMINAL STREET 
                   GANGS.

       (a) Inadmissibility.--Section 212(a)(2) of the Immigration 
     and Nationality Act (8 U.S.C. 1182(a)(2)) is amended--
       (1) by redesignating subparagraph (F) as subparagraph (J); 
     and
       (2) by inserting after subparagraph (E) the following:
       ``(F) Aliens who are members of criminal street gangs.--Any 
     alien who is determined by a court to be a member of a 
     criminal street gang (as defined in section 521(a) of title 
     18, United States Code) is inadmissible.''.
       (b) Deportability.--Section 237(a)(2) of the Immigration 
     and Nationality Act (8 U.S.C. 1227(a)(2)) is amended by 
     adding at the end the following:
       ``(F) Aliens who are members of criminal street gangs.--Any 
     alien who is determined by a court to be a member of a 
     criminal street gang (as defined in section 521(a) of title 
     18, United States Code) is deportable.''.
       (c) Temporary Protected Status.--Section 244(c)(2)(B) of 
     the Immigration and Nationality Act (8 U.S.C. 1254a(c)(2)(B)) 
     is amended--
       (1) in clause (i), by striking ``or'' at the end;
       (2) in clause (ii), by striking the period at the end and 
     inserting ``; or''; and
       (3) by adding at the end the following:
       ``(iii) the alien is determined by a court to be a member 
     of a criminal street gang (as defined in section 521(a) of 
     title 18, United States Code).''.

                TITLE IV--REMOVAL AND VIOLATION TRACKING

     SEC. 401. INSTITUTIONAL REMOVAL PROGRAM.

       (a) Institutional Removal Program.--
       (1) Continuation.--The Secretary shall continue to operate 
     the Institutional Removal Program of the Department to--
       (A) identify removable criminal aliens in Federal and State 
     correctional facilities;
       (B) ensure that such aliens are not released into the 
     community; and
       (C) remove such aliens from the United States after the 
     completion of their sentences.
       (2) Expansion.--Not later than 5 years after the date of 
     the enactment of this Act, the Secretary shall expand the 
     Institutional Removal Program to every State.
       (3) State participation.--The appropriate officials of each 
     State in which the Secretary is operating the Institutional 
     Removal Program should--
       (A) cooperate with Federal officials carrying out the 
     Institutional Removal Program;
       (B) expeditiously and systematically identify criminal 
     aliens in the prison and jail populations of the State; and
       (C) promptly convey the information described in 
     subparagraph (B) to the appropriate officials carrying out 
     the Institutional Removal Program.
       (b) Report to Congress.--Not later than 2 years after of 
     the date of the enactment of this Act, the Secretary shall 
     submit a report to Congress on the participation of the 
     States in the Institutional Removal Program.
       (c) Authorization of Appropriations.--There are authorized 
     to be appropriated $50,000,000 to carry out the expanded 
     Institutional Removal Program authorized under subsection 
     (a).

     SEC. 402. AUTHORIZATION FOR DETENTION AFTER COMPLETION OF 
                   STATE OR LOCAL PRISON SENTENCE.

       (a) In General.--Law enforcement officers of a State or 
     political subdivision of a State are authorized to--
       (1) hold an illegal alien for a period of up to 14 days 
     after the alien has completed the alien's State or local 
     prison sentence in order to effectuate the transfer of the 
     alien to Federal custody when the alien is removable or not 
     lawfully present in the United States; or
       (2) issue a detainer that would allow aliens who have 
     served a State or local prison sentence to be detained by an 
     appropriate prison until personnel from the Bureau of 
     Immigration and Customs Enforcement can take the alien into 
     Federal custody.
       (b) Reimbursement.--
       (1) In general.--The Secretary shall reimburse a State or a 
     political subdivision of a State for all reasonable expenses 
     incurred by the State or the political subdivision for the 
     detention of an alien as described in subsection (a).
       (2) Cost computation.--The amount of reimbursement provided 
     for costs incurred carrying out subsection (a) shall be 
     determined pursuant to a formula determined by the Secretary.
       (c) Technology Usage.--Technology such as videoconferencing 
     shall be used to the maximum extent possible in order to make 
     the Institutional Removal Program available in remote 
     locations. Mobile access to Federal databases of aliens and 
     live scan technology shall be used to the maximum extent 
     practicable in order to make these resources available to 
     State and local law enforcement agencies in remote locations.
       (d) Authorization of Appropriations.--There are authorized 
     to be appropriated such sums as may be necessary to reimburse 
     a State or political subdivision of a State for

[[Page 27096]]

     the detention of an illegal alien pursuant to subsection (b).

     SEC. 403. USE OF THE NATIONAL CRIME INFORMATION CENTER 
                   DATABASE TO TRACK VIOLATIONS OF IMMIGRATION 
                   LAW.

       (a) Provision of Information to the National Crime 
     Information Center.--
       (1) In general.--Not later than 1 year after the date of 
     enactment of this Act, the Secretary shall provide the 
     National Crime Information Center of the Department of 
     Justice with such information as the Director may have 
     related to--
       (A) any alien against whom a final order of removal has 
     been issued;
       (B) any alien who is subject to a voluntary departure 
     agreement that has become invalid under section 240B(a)(2) of 
     the Immigration and Nationality Act (8 U.S.C. 1229c); and
       (C) any alien whose visa has been revoked.
       (2) Requirement to provide and use information.--The 
     information described in paragraph (1) shall be provided to 
     the National Crime Information Center, and the Center shall 
     enter the information into the Immigration Violators File of 
     the National Crime Information Center database if the name 
     and date of birth are available for the individual, 
     regardless of whether the alien received notice of a final 
     order of removal or the alien has already been removed.
       (3) Removal of information.--Should an individual be 
     granted cancellation of removal under section 240A of the 
     Immigration and Nationality Act (8 U.S.C. 1229b), or granted 
     permission to legally enter the United States pursuant to the 
     Immigration and Nationality Act after a voluntary departure 
     under section 240B of the Immigration and Nationality Act (8 
     U.S.C. 1229c), information entered into the National Crime 
     Information Center in accordance with paragraph (1) of this 
     section shall be promptly removed.
       (b) Inclusion of Information in the National Crime 
     Information Center Database.--Section 534(a) of title 28, 
     United States Code, is amended--
       (1) in paragraph (3), by striking ``and'' at the end;
       (2) by redesignating paragraph (4) as paragraph (5); and
       (3) by inserting after paragraph (3) the following new 
     paragraph:
       ``(4) acquire, collect, classify, and preserve records of 
     violations of the immigration laws of the United States, 
     regardless of whether the alien has received notice of the 
     violation or the alien has already been removed; and''.

  Mr. DORGAN. Mr. President, I am pleased to join Senator Domenici in 
introducing the Border Security and Modernization Act of 2005.
  Senator Domenici and I represent border States, but the bill we are 
introducing today is not one of merely regional importance. Border 
security is an issue that affects our country as a whole. We cannot 
have homeland security without strong and effective border security.
  The Administration has signaled that it wants to have a vigorous 
debate on border security and immigration issue early next year. Our 
bill does not attempt to change immigration law, but it squarely 
addresses the border security issue.
  I began working on border security long before the attacks of 
September 11, 2001. The Northern border is over 4,000 miles long. In 
the past, almost all of our resources in this country were targeted at 
the Southern border. It used to be that we had ports of entry at the 
Northern border where, at night, the only barrier was an orange rubber 
cone in the middle of the road. The polite people crossing at night 
actually stopped and removed the cone before they came across the 
border. Those who were not so polite would run over it at 60 miles an 
hour.
  In 2001, before the September 11 attacks, I proposed something called 
the Northern Border Initiative. That bill added hundreds of Customs 
officers to the Northern border, and it became law. I also worked to 
replace the orange cones with hardened gates. But we clearly have to do 
much more.
  The legislation we are introducing today, which Senator Domenici has 
described in detail, would devote significant new resources to our 
border security. Among other things, this legislation would authorize 
the hiring of an additional 1,000 Customs and Border Protection 
inspectors and Immigration and Customs Enforcement officers a year for 
the next five years. It would authorize the Department of Homeland 
Security to work with States to use National Guard and a volunteer 
force of retired law enforcement officers as resources to help monitor 
the borders. And it would have the Federal Government reimburse State 
governments for the cost of detaining undocumented aliens while 
decisions are made regarding possible deportation.
  This bipartisan proposal is not about immigration. It's about border 
security. We need to do a better job of securing our borders, and we 
need to do so on an urgent basis. We hope our colleagues will join us, 
on a bipartisan basis, in supporting this legislation.
                                 ______
                                 
      By Ms. SNOWE (for herself and Ms. Cantwell):
  S. 2050. A bill to establish a commission on inland waters policy; to 
the Committee on Commerce, Science, and Transportation.
  I rise today to introduce legislation that creates a national 
commission on island waters policy to support the long-term 
sustainability of our water resources. A 2001 National Academy of 
Sciences report found that U.S. Federal policies and research lack the 
coordination necessary to respond to increasing future demands. The 
overarching goal of this legislation is to recommend actions that will 
better coordinate and improve the Federal Government's water management 
policies, similar to the U.S. Commission on Ocean Policy, PL 106-256.
  My legislation is supported by the American Society of Limnology and 
Oceanography, ASLO, and the Council of Scientific Society Presidents, 
CSSP, representing 1.4 million scientists and science educators. I 
especially want to thank Dr. Peter Jumars of the School of Marine 
Sciences at University of Maine at Orono and Darling Marine Center and 
immediate past president of ASLO, for all of his extensive knowledge 
and assistance that helped craft the legislation.
  The bill creates a commission to study the Nation's policies for 
inland waters--a category that would include all lakes, streams, 
rivers, groundwaters, estuaries, and fresh- and salt water wetlands. 
The stewardship of these resources is essential to human health, the 
ecosystem, the economy, agriculture, energy production, and the 
transportation sector.
  The National Academy of Sciences, NAS, issued a report in 2001 
describing that water resources of the United States will be subjected 
to more intense and a broader array of pressures in the 21st century. 
It found that U.S. Federal policies and research lack the coordination 
necessary to respond to increasing future demands. An inland waters 
policy commission should be viewed as an attempt to make sure our 
Nation's clean water laws are achieving what Congress mandated. Water 
policies have been very contentious in many parts of the Nation and 
have oftentimes pitted people and their livelihoods against 
preservation concerns. Only by developing greater water research and 
coordinating a comprehensive national policy will the conflict between 
anthropogenic needs and water preservation be overcome.
  Mr. Chairman, in April of this year, the GAO published a report with 
findings that the administration is not addressing the study of water 
resources, agriculture, energy, biological diversity and other areas in 
relation to climate change as mandated under the Global Change Research 
Act. None of those topics has been addressed in 21 studies that the 
Bush administration plans to publish by September 2007, the GAO report 
found, even though fairly robust climate models are now making 
predictions about changes in rainfall globally and nationally as the 
climate changes. Water policy currently has no intelligent mechanism 
for using this information. The GAO report points out that a 
comprehensive study of the Nation's water resources is needed.
  The bill authorizes an appropriation of $8.5 million until expended. 
By comparison, the U.S. Commission on Ocean Policy appropriation was 
set at a total of up to $6 million for fiscal years 2001 and 2002.
  I hope my colleagues will take a close look at this legislation and 
see the great value in supporting the long-term sustainability of our 
Nation's water resources.
  I thank the Chair.
                                 ______
                                 
      By Mr. AKAKA (for himself and Mr. Inouye):

[[Page 27097]]

  S. 2051. A bill to extend eligibility for certain Federal benefits to 
citizens of the Freely Associated States; to the Committee on Finance.
  Mr. AKAKA. Mr. President, I rise today to introduce legislation with 
my senior colleague from Hawaii, Senator Dan Inouye, to provide certain 
Federal public benefits for citizens of the Freely Associated State, 
FAS, who are residing in the United States. The bill would provide 
eligibility for nonemergency Medicaid, Food Stamps, Temporary 
Assistance to Needy Families, TANF, and Supplemental Security Income, 
SSI, to FAS citizens residing in the United States.
  Citizens from the FAS are from the Republic of the Marshall Islands, 
RMI, Federated States of Micronesia, FSM, and the Republic of Palau, 
which are jurisdictions that have a unique political relationship with 
the United States. The Compact of Free Association established these 
nations as sovereign states responsible for their own foreign policies. 
However, the FAS remain dependent upon the United States for military 
protection and economic assistance.
  Under the compact, the United States has the right to reject the 
strategic use of, or military access to, the FAS by other countries, 
which is often referred to as the ``right of strategic denial.'' In 
addition, the U.S. may block FAS government policies that it deems 
inconsistent with its duty to defend the FAS, which is referred to as 
the ``defense veto.'' The compact also states that the United States 
has exclusive military base rights in the FAS.
  In exchange for these prerogatives, the United States is required to 
support the FAS economically, with the goal of producing self-
sufficiency, and FAS citizens are allowed free entry into the United 
States as nonimmigrants for the purposes of education, medical 
treatment, and employment. Many FAS citizens reside in the State of 
Hawaii. Since 1997, when Hawaii began reporting its impact costs, the 
State has identified more than $140 million in costs associated with 
FAS citizens. In 2002, the State of Hawaii expended more than $32 
million in assistance to FAS citizens. P.L. 108-188, the Compact of 
Free Association Amendments Act of 2003, provides $30 million in annual 
funding for compact impact assistance to be shared between the State of 
Hawaii, Guam, the Commonwealth of the Northern Mariana Islands, CNMI, 
and American Samoa. While this funding is a positive step forward, it 
does not begin to reimburse the affected jurisdictions for the costs 
associated with FAS citizens.
  This legislation would provide assistance to states and territories 
that shoulder the majority of the costs associated with the compact. 
The Federal Government must provide appropriate resources to help 
States meet the needs of the FAS citizens--an obligation based on a 
Federal commitment. It is unconscionable for a State or territory to 
shoulder the entire financial burden of providing necessary 
educational, medical, and social services to individuals who are 
residing in that State or territory when the obligation is that of the 
Federal Government. For that reason, we are seeking to provide 
reimbursement of these costs. It is time for the Federal Government to 
take up some of the financial responsibility that until now has been 
carried by the State of Hawaii, CNMI, Guam, and American Samoa by 
restoring public benefits to FAS citizens.
  This bill would restore eligibility of FAS citizens for nonemergency 
Medicaid. FAS citizens lost many of their public benefits as a result 
of the Personal Responsibility and Work Opportunity, PRWORA, Act of 
1996, including Medicaid coverage. FAS citizens were previously 
eligible for Medicaid as aliens permanently residing under color of law 
in the United States.
  After the enactment of welfare reform, the State of Hawaii could no 
longer claim Federal matching funds for services rendered to FAS 
citizens. Yet the State of Hawaii, Guam, American Samoa, and the CNMI 
have continued to meet the health care needs of FAS citizens. The State 
of Hawaii has used its resources to provide Medicaid services to FAS 
citizens.
  In 2003 alone, the State spent approximately $9.77 million to provide 
Medicaid services without receiving any federal matching funds. This 
represents a dramatic increase from $6.75 million in State fiscal year 
2002. Furthermore, the trend in the need for health care services among 
FAS citizens continues to rise. During fiscal year 2004, the number of 
individuals served in the State of Hawaii's Medicaid program grew from 
3,291 to 4,818 people based on the average monthly enrollment. This is 
an increase of 46 percent.
  This bill would also provide eligibility for FAS citizens residing in 
the United States to participate in the Temporary Assistance for Needy 
Families and Supplemental Security Income programs. According to 
Hawaii's attorney general, financial assistance in the form of the 
Temporary Assistance to Other Needy Families, TAONF, Program, a State 
program, provided $5.1 million to FAS citizens in State fiscal year 
2003. This continues an upward trend from $4.5 million in State fiscal 
year 2002. This total includes funds that go to the General Assistance 
Program, which supports individuals and couples with little or no 
income and who have a temporary, incapacitating medical condition; the 
aged, blind, and disabled program for FAS citizens with little or no 
income who are not eligible for federally-funded Supplemental Security 
Income; and the State's TAONF Program that assists other needy families 
who are not eligible for federal-funding under the Temporary Assistance 
to Needy Families program. The financial assistance that the State of 
Hawaii provides to FAS citizens in the form of TAONF is a great support 
to those families attempting to achieve economic stability, but it has 
a significant financial impact on the State's budget.
  The bill would also provide eligibility for the Food Stamp Program. 
Mr. President, the Food Stamp Program serves as the first line of 
defense against hunger. It is the cornerstone of the Federal food 
assistance program and provides crucial support to needy households and 
those making the transition from welfare to work. We have partially 
addressed the complicated issue of alien eligibility for public 
benefits such as food stamps, but again, I must say it is just partial. 
Not only should all legal immigrants receive these benefits, but so 
should citizens of the FAS. Exclusion of FAS citizens from Federal, 
State, or local public benefits or programs is an unintended and 
misguided consequence of the welfare reform law. We allow certain legal 
immigrants eligibility in the program. Yet FAS citizens, who are not 
considered immigrants but who are required to up for the Selective 
Service if they are residing in the United States are ineligible to 
receiving food stamps. This bill corrects this inequity.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record. I also ask unanimous consent that a letter of 
support I received last week from Director Lillian Koller of the State 
of Hawaii, Department of Human Services be printed in the Record.
  I look forward to working with my colleagues to enact this measure 
which is of critical importance to my State of Hawaii, which has borne 
the costs of these benefits for FAS citizens living in Hawaii for the 
past 19 years.
  There being no objection, the materials were ordered to be printed in 
the Record, as follows:

                                S. 2051

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

     SECTION 1. EXCEPTION FOR CITIZENS OF FREELY ASSOCIATED 
                   STATES.

       (a) In General.--Section 402(a)(2) of the Personal 
     Responsibility and Work Opportunity Reconciliation Act of 
     1996 (8 U.S.C. 1612(a)(2)) is amended by adding at the end 
     the following:
       ``(M) Exception for citizens of freely associated states.--
     With respect to eligibility for benefits for the specified 
     Federal programs described in paragraph (3), paragraph (1) 
     shall not apply to any individual who lawfully resides in the 
     United States (including territories and possessions of the 
     United States) in accordance with--
       ``(i) section 141 of the Compact of Free Association 
     between the Government of the

[[Page 27098]]

     United States and the Government of the Federated States of 
     Micronesia, approved by Congress in the Compact of Free 
     Association Amendments Act of 2003;
       ``(ii) section 141 of the Compact of Free Association 
     between the Government of the United States and the 
     Government of the Republic of the Marshall Islands, approved 
     by Congress in the Compact of Free Association Amendments Act 
     of 2003; or
       ``(iii) section 141 of the Compact of Free Association 
     between the Government of the United States and the 
     Government of Palau, approved by Congress in Public Law 99-
     658 (100 Stat. 3672).''.
       (b) Medicaid and TANF Exceptions.--Section 402(b)(2) of the 
     Personal Responsibility and Work Opportunity Reconciliation 
     Act of 1996 (8 U.S.C. 1612(b)(2)) is amended by adding at the 
     end the following:
       ``(G) Medicaid and tanf exceptions for citizens of freely 
     associated states.--With respect to eligibility for benefits 
     for the programs defined in subparagraphs (A) and (C) of 
     paragraph (3) (relating to temporary assistance for needy 
     families and medicaid), paragraph (1) shall not apply to any 
     individual who lawfully resides in the United States 
     (including territories and possessions of the United States) 
     in accordance with a Compact of Free Association referred to 
     in subsection (a)(2)(M).''.
       (c) Qualified Alien.--Section 431(b) of the Personal 
     Responsibility and Work Opportunity Reconciliation Act of 
     1996 (8 U.S.C. 1641(b)) is amended--
       (1) in paragraph (6), by striking ``or'' at the end;
       (2) in paragraph (7), by striking the period at the end and 
     inserting ``; or''; and
       (3) by adding at the end the following:
       ``(8) an individual who lawfully resides in the United 
     States (including territories and possessions of the United 
     States) in accordance with a Compact of Free Association 
     referred to in section 402(a)(2)(M).''.
       (d) Conforming Amendment.--Section 1108 of the Social 
     Security Act (42 U.S.C. 1308) is amended--
       (1) in subsection (f), in the matter preceding paragraph 
     (1), by striking ``subsection (g)'' and inserting 
     ``subsections (g) and (h)''; and
       (2) by adding at the end the following:
       ``(h) The limitations of subsections (f) and (g) shall not 
     apply with respect to medical assistance provided to an 
     individual described in section 431(b)(8) of the Personal 
     Responsibility and Work Opportunity Reconciliation Act of 
     1996.''.
       (e) Effective Date.--The amendments made by this Act take 
     effect on the date of enactment of this Act and apply to 
     benefits and assistance provided on or after that date.
                                  ____

                                                  State of Hawaii,


                                 Department of Human Services,

                                   Honolulu, HI, November 9, 2005.
     Sen. Daniel K. Akaka,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
       Dear Senator Akaka, I am writing in support of your 
     legislation to reinstate eligibility for Compact migrants 
     from the Freely Associated States for various Federal 
     programs, including Temporary Assistance for Needy Families 
     (TANF), Supplemental Security Income (SSI), Food Stamps, and 
     Medicaid. As you know, ``Compact migrants'' refers to those 
     who have relocated to Hawaii from the Republic of Palau, the 
     Federated States of Micronesia, and the Republic of the 
     Marshall Islands. As you know, a high percentage of the 
     Compact migrant population are poorly educated and live in 
     poverty, and are thus part of the additional demand on the 
     already strained social support systems of the State.
       The Department of Human Services is the lead agency that 
     administers social safety net programs for individuals and 
     families in Hawaii. The amount of State resources that is 
     being expended to care for Compact migrants has been steadily 
     increasing as the number of migrants continues to grow. The 
     costs to the State cannot be measured in the numbers of 
     migrants alone. What is not reflected in the numbers of 
     migrants alone, is that many of these migrants come to Hawaii 
     with serious medical conditions that require costly intensive 
     and extensive services. In 2004, the Department of Human 
     Services alone spent over $26.6 million to provide services 
     to over 10,800 migrants in our financial assistance, medical 
     assistance, vocational rehabilitation, and youth services 
     programs.
       Allowing Compact migrants to be served with Federal funds 
     under the TANF, SSI, Food Stamps, and Medicaid programs would 
     tremendously assist the State of Hawaii. I appreciate your 
     leadership in this area and look forward to continuing to 
     work with you on your legislative efforts to assist Compact 
     migrants in Hawaii.
           Sincerely,
                                           Lillian B. Koller, Esq.
     Director.

                          ____________________