[Congressional Record (Bound Edition), Volume 155 (2009), Part 16]
[Senate]
[Pages 22079-22091]
[From the U.S. Government Publishing Office, www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. LEAHY (for himself, Mr. Feingold, Ms. Cantwell, Mr. 
        Durbin, Mr. Schumer, and Mrs. Feinstein):
  S. 1681. A bill to ensure that health insurance issuers and medical 
malpractice insurance issuers cannot engage in price fixing, bid 
rigging, or market allocations to the detriment of competition and 
consumers; to the Committee on the Judiciary.
  Mr. LEAHY. Mr. President, our Nation's antitrust laws exist to 
protect consumers. These laws promote competition, which ensures that 
consumers will pay lower prices, and receive more choices of higher 
quality products. The vast majority of the companies doing business in 
the U.S. are subject to the Federal antitrust laws.
  A few industries have used their influence to obtain a special, 
statutory exemption from the antitrust laws, and the insurance industry 
is one of them. In the markets for health insurance and medical 
malpractice insurance, patients and doctors are paying the price, as 
costs continue to increase at an alarming rate. As the insurance 
industry prospers behind its exemption, patients and small businesses 
suffer. I am pleased to introduce today the Health Insurance Industry 
Antitrust Enforcement Act of 2009, which will repeal the antitrust 
exemption for health insurance and medical malpractice insurance 
providers.
  The health care industry is the subject of a great deal of debate. 
There are

[[Page 22080]]

many proposals to bring competition to health insurance providers. 
While we are debating these solutions, we should not lose sight of the 
fact that the health insurance industry currently does not have to play 
by the same, good-competition rules as other industries. That is wrong, 
and this legislation corrects it.
  The lack of affordable health insurance plagues families throughout 
our country, and the rising prices that hospitals and doctors pay for 
medical malpractice insurance drains resources that could otherwise be 
used to improve patient care. Antitrust oversight in these industries 
will provide consumers with the confidence that insurance companies are 
operating in a competitive marketplace.
  There is simply no justification for health insurance and medical 
malpractice insurance companies to be exempt from Federal laws 
prohibiting price fixing. Subjecting health and medical malpractice 
insurance providers to the antitrust laws will enable customers to feel 
confident that the price they are being quoted is the product of a fair 
marketplace. This bill will prohibit the most egregious anticompetitive 
conduct--price fixing, bid rigging and market allocations--conduct that 
harms consumers and drives up health care costs.
  In the 110th Congress, I introduced a much broader repeal of the 
McCarran-Ferguson Act with Senator Lott. While Congress did not reach 
consensus on that legislation, surely in this environment of rising 
health care costs, we can agree on this more narrowly tailored repeal. 
Insurers should not object to being subject to the same antitrust laws 
as everyone else. If they are operating in an appropriate way, they 
should have nothing to fear. American families, doctors and hospitals 
rely on insurance. It is important to ensure that the prices they pay 
for this insurance are established in a fair and competitive way.
  I look forward to repealing the antitrust exemption in the health 
insurance and medical malpractice insurance industries.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 1681

       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 ``Health Insurance Industry 
     Antitrust Enforcement Act of 2009''.

     SEC. 2. PURPOSE.

       It is the purpose of this Act to ensure that health 
     insurance issuers and medical malpractice insurance issuers 
     cannot engage in price fixing, bid rigging, or market 
     allocations to the detriment of competition and consumers.

     SEC. 3. PROHIBITION OF ANTI-COMPETITIVE ACTIVITIES.

       Notwithstanding any other provision of law, nothing in the 
     Act of March 9, 1945 (15 U.S.C. 1011 et seq., commonly known 
     as the ``McCarran-Ferguson Act'') shall be construed to 
     permit health insurance issuers (as defined in section 2791 
     of the Public Health Service Act (42 U.S.C. 300gg-91) or 
     issuers of medical malpractice insurance to engage in any 
     form of price fixing, bid rigging, or market allocations in 
     connection with the conduct of the business of providing 
     health insurance coverage (as defined in such section) or 
     coverage for medical malpractice claims or actions.

     SEC. 4. APPLICATION TO ACTIVITIES OF STATE COMMISSIONS OF 
                   INSURANCE AND OTHER STATE INSURANCE REGULATORY 
                   BODIES.

       Nothing in this Act shall apply to the information 
     gathering and rate setting activities of any State commission 
     of insurance, or any other State regulatory entity with 
     authority to set insurance rates.
                                 ______
                                 
      By Ms. CANTWELL (for herself and Mr. Nelson, of Florida):
  1682. A bill to provide the Commodity Futures Trading Commission with 
clear antimarket manipulation authority, and for other purposes; to the 
Committee on Agriculture. Nutrition, and Forestry.
  Ms. CANTWELL. Mr. President, I rise today to introduce the 
Commodities Market Manipulation Prevention Act of 2009.
  When bad-actors like Enron and Amaranth Advisors, LLC, manipulate 
commodities prices, it means that Americans pay more for commodities 
like oil, gasoline, heating oil, food, and natural gas. Unfortunately, 
current law does not protect our economy with a tough enough standard 
to prevent, deter, and enforce illegal market manipulation in critical 
commodity futures markets.
  Current law makes it very difficult for the Commodities Futures 
Trading Commission to prosecute market manipulation cases. This is 
because current law requires the CFTC to meet a more rigorous standard 
to prove market manipulation than other financial market regulatory 
agencies such as the Securities and Exchange Commission, the Federal 
Energy Regulatory Commission, and the Federal Trade Commission.
  Specifically, the Commodities Exchange Act requires the CFTC to prove 
``specific intent'' to manipulate. That is a very difficult standard to 
reach. You would have to have a pretty dumb individual to, for example, 
write in an e-mail that you specifically intend to manipulate prices. 
But that's what current law currently requires the CFTC to prove.
  In addition, CFTC case law also requires that it prove an artificial 
price exists, that the defendant had market power to move the price, 
and that he or she actually did cause the artificial price. 
Particularly in today's complex markets, proving ``artificial price'' 
can be a daunting task, which more often than not comes down to a 
``battle of the experts'' in court. Because these requirements are so 
onerous, the CFTC often ends up moving to a lesser charge of 
``attempted manipulation,'' which requires only proving intent and some 
act showing that intent. This is still a high standard, but is much 
easier than proving a full manipulation case.
  As a result, Federal courts have recognized that, with the CFTC's 
weaker anti-manipulation standard, market ``manipulation cases 
generally have not fared well.'' In fact, the standard is so weak that 
in the CFTC's 35-year history, it has only successfully prosecuted and 
won one single case of manipulation. That case is currently on appeal 
in Federal court.
  The Securities and Exchange Commission, on the other hand, under 
section 10(b) of the Securities and Exchange of 1934, has a different, 
easier-to-prove manipulation standard that it has employed successfully 
for over 75 years. Basically, the SEC does not need to prove specific 
intent, as the CFTC does. The SEC just has to prove that the defendant 
acted ``recklessly.''
  This legislation would give the CFTC the same anti-manipulation 
standard currently employed by the SEC. This means that the CFTC would 
be empowered to prove a manipulation case under the same ``reckless 
conduct'' standard that the SEC, FERC, and FTC employ, in contrast to 
its current difficult-to-prove ``specific intent'' standard. That is, 
this legislation will repeal the affirmative rule that says you are 
allowed to act recklessly in the commodity futures markets as long as 
you have no specific intent to do harm.
  Congress also recently granted this same authority to the FERC in 
2005 and the FTC in 2007 in legislation I wrote that carefully tracked 
section 10(b) of the Securities and Exchange Act of 1934 to ensure the 
FERC and FTC would interpret and enforce their new market manipulation 
authorities consistent with the SEC. This legislation also carefully 
tracks section 10(b) of the Securities Exchange Act of 1934 in part 
because Federal case law is clear that when the Congress uses language 
identical to that used in another statute, Congress intended for the 
courts and the Commission to interpret the new authority in a similar 
manner.
  In the words of the Supreme Court from the 1904 case of Kepner v. 
United States, ``when a statute uses words whose meaning under the 
judicial decisions has become well-known and well-settled, it will be 
presumed that the Legislature used such words in the sense justified by 
long judicial sanction.'' In the 75 years since the enactment of the 
Securities and Exchange Act 1934, a substantial body of case law has 
developed over the last half century around section 10(b). This will

[[Page 22081]]

provide certainty in how this legislation will be interpreted and 
applied by the Courts and the CFTC.
  In fact, the Supreme Court has compared this body of law to ``a 
judicial oak which has grown from little more than a legislative 
acorn.'' So it's worth noting that courts have held that the SEC's 
manipulation authority is not intended to catch sellers who take 
advantage of the natural market forces of supply and demand; only those 
who attempt to affect the market or prices by artificial means 
unrelated to the natural forces of supply and demand.
  In this country, our current standard in the futures arena just isn't 
working. It is not sufficient to fully prosecute and deter abuses in 
the markets. We need to get the right standard to prevent, deter, and 
enforce market manipulation in these markets.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record. 
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 1682

       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 ``Derivatives Market 
     Manipulation Prevention Act of 2009''.

     SEC. 2. CIVIL PENALTIES FOR MARKET MANIPULATION.

       Subsection (c) of section 6 of the Commodity Exchange Act 
     (7 U.S.C. 9, 15) is amended to read as follows:
       ``(c) Prohibition Regarding Market Manipulation and False 
     Information.--
       ``(1) Prohibition regarding market manipulation.--It shall 
     be unlawful for any person, directly or indirectly, to use or 
     employ, or attempt to use or employ, in connection with a 
     swap, or a contract of sale of a commodity, in interstate 
     commerce, or for future delivery on or subject to the rules 
     of any registered entity, any manipulative or deceptive 
     device or contrivance, in contravention of such rules and 
     regulations as the Commission shall promulgate by not later 
     than 1 year after the date of enactment of the Derivatives 
     Market Manipulation Prevention Act of 2009.
       ``(2) Prohibition regarding false information.--It shall be 
     unlawful for any person to report information relating to any 
     registration application, any report filed with the 
     Commission, or any other information relating to a swap, or a 
     contract of sale of a commodity, in interstate commerce, or 
     for future delivery on or subject to the rules of any 
     registered entity, or to omit any material fact that is 
     required to be stated in any application or report if the 
     person knew, or reasonably should have known, the information 
     to be false or misleading.
       ``(3) Enforcement.--
       ``(A) Authority of commission.--If the Commission has 
     reason to believe that any person is violating or has 
     violated this subsection, or any other provision of this Act 
     (including any rule, regulation, or order promulgated in 
     accordance with this subsection or any other provision of 
     this Act), the Commission may serve upon the person a 
     complaint.
       ``(B) Contents of complaint.--A complaint under 
     subparagraph (A) shall--
       ``(i) contain a description of the charges against the 
     person that is the subject of the complaint; and
       ``(ii) have attached or contain a notice of hearing that 
     specifies the date and location of the hearing regarding the 
     complaint.
       ``(C) Hearing.--A hearing described in subparagraph 
     (B)(ii)--
       ``(i) shall be held not later than 3 days after the date on 
     which the person described in subparagraph (A) receives the 
     complaint;
       ``(ii) shall require the person to show cause regarding 
     why--

       ``(I) an order should not be made--

       ``(aa) to prohibit the person from trading on, or subject 
     to the rules of, any registered entity; and
       ``(bb) to direct all registered entities to refuse all 
     privileges to the person until further notice of the 
     Commission; and

       ``(II) the registration of the person, if registered with 
     the Commission in any capacity, should not be suspended or 
     revoked; and

       ``(iii) may be held before--

       ``(I) the Commission; or
       ``(II) an administrative law judge designated by the 
     Commission, under which the administrative law judge shall 
     ensure that all evidence is recorded in written form and 
     submitted to the Commission.

       ``(4) Subpoena.--For the purpose of securing effective 
     enforcement of the provisions of this chapter, for the 
     purpose of any investigation or proceeding under this 
     chapter, and for the purpose of any action taken under 
     section 12(f) of this title, any member of the Commission or 
     any Administrative Law Judge or other officer designated by 
     the Commission (except as provided in paragraph (6)) may 
     administer oaths and affirmations, subpoena witnesses, compel 
     their attendance, take evidence, and require the production 
     of any books, papers, correspondence, memoranda, or other 
     records that the Commission deems relevant or material to the 
     inquiry.
       ``(5) Witnesses.--The attendance of witnesses and the 
     production of any such records may be required from any place 
     in the United States, any State, or any foreign country or 
     jurisdiction at any designated place of hearing.
       ``(6) Service.--A subpoena issued under this section may be 
     served upon any person who is not to be found within the 
     territorial jurisdiction of any court of the United States in 
     such manner as the Federal Rules of Civil Procedure prescribe 
     for service of process in a foreign country, except that a 
     subpoena to be served on a person who is not to be found 
     within the territorial jurisdiction of any court of the 
     United States may be issued only on the prior approval of the 
     Commission.
       ``(7) Refusal to obey.--In case of contumacy by, or refusal 
     to obey a subpoena issued to, any person, the Commission may 
     invoke the aid of any court of the United States within the 
     jurisdiction in which the investigation or proceeding is 
     conducted, or where such person resides or transacts 
     business, in requiring the attendance and testimony of 
     witnesses and the production of books, papers, 
     correspondence, memoranda, and other records. Such court may 
     issue an order requiring such person to appear before the 
     Commission or member or Administrative Law Judge or other 
     officer designated by the Commission, there to produce 
     records, if so ordered, or to give testimony touching the 
     matter under investigation or in question.
       ``(8) Failure to obey.--Any failure to obey such order of 
     the court may be punished by the court as a contempt thereof. 
     All process in any such case may be served in the judicial 
     district wherein such person is an inhabitant or transacts 
     business or wherever such person may be found.
       ``(9) Evidence.--On the receipt of evidence under paragraph 
     (3)(C)(iii)(II), the Commission may--
       ``(A) prohibit the person that is the subject of the 
     hearing from trading on, or subject to the rules of, any 
     registered entity and require all registered entities to 
     refuse the person all privileges on the registered entities 
     for such period as the Commission may require in the order;
       ``(B) if the person is registered with the Commission in 
     any capacity, suspend, for a period not to exceed 180 days, 
     or revoke, the registration of the person;
       ``(C) assess such person--
       ``(i) a civil penalty of not more than an amount equal to 
     the greater of--

       ``(I) $140,000; or
       ``(II) triple the monetary gain to such person for each 
     such violation; or

       ``(ii) in any case of manipulation or attempted 
     manipulation in violation of this subsection, subsection (d), 
     or section 9(a)(2), a civil penalty of not more than an 
     amount equal to the greater of--

       ``(I) $1,000,000; or
       ``(II) triple the monetary gain to the person for each such 
     violation; and

       ``(D) through an order of the Commission, require 
     restitution to customers of damages proximately caused by 
     violations of the person.
       ``(10) Orders.--
       ``(A) Notice.--The Commission shall provide to a person 
     described in paragraph (9)(A) and the appropriate governing 
     board of the registered entity notice of the order described 
     in paragraph (9)(A) by--
       ``(i) registered mail;
       ``(ii) certified mail; or
       ``(iii) personal delivery.
       ``(B) Review.--
       ``(i) In general.--A person that has received notice of an 
     order by the Commission may obtain a review of the order or 
     such other equitable relief as determined to be appropriate 
     by a court described in clause (ii).
       ``(ii) Petition.--To obtain a review or other relief under 
     clause (i), a person may, not later than 15 days after the 
     date of receipt of a notice under clause (i), file a written 
     petition to set aside the order with the United States Court 
     of Appeals--

       ``(I) for the circuit in which the petitioner carries out 
     the business of the petitioner; or
       ``(II) in the case of an order denying registration, the 
     circuit in which the principal place of business of the 
     petitioner is located, as listed on the application of the 
     petitioner.

       ``(C) Procedure.--
       ``(i) Duty of clerk of appropriate court.--The clerk of the 
     appropriate court under subparagraph (B)(ii) shall transmit 
     to the Commission a copy of a petition filed under 
     subparagraph (B)(ii).
       ``(ii) Duty of commission.--In accordance with section 2112 
     of title 28, United States Code, the Commission shall file in 
     the appropriate court described in subparagraph (B)(ii) the 
     record theretofore made.
       ``(iii) Jurisdiction of appropriate court.--Upon the filing 
     of a petition under subparagraph (B)(ii), the appropriate 
     court described in subparagraph (B)(ii) shall have 
     jurisdiction to affirm, set aside, or modify the order of the 
     Commission, and the findings of the Commission as to the 
     facts, if

[[Page 22082]]

     supported by the weight of evidence, shall in like manner be 
     conclusive.''.

     SEC. 3. CEASE AND DESIST ORDERS, FINES.

       Section 6(d) of the Commodity Exchange Act (7 U.S.C. 13b) 
     is amended to read as follows:
       ``(d) If any person (other than a registered entity), 
     directly or indirectly, is using or employing, or attempting 
     to use or employ, in connection with a swap, or a contract of 
     sale of a commodity, in interstate commerce, or for future 
     delivery on or subject to the rules of any registered entity, 
     any manipulative or deceptive device or contrivance, in 
     contravention of such rules and regulations as the Commission 
     shall promulgate by not later than 1 year after the date of 
     enactment of the Derivatives Market Manipulation Prevention 
     Act of 2009, the Commission may, upon notice and hearing, and 
     subject to appeal as in other cases provided for in sections 
     9 and 15 of this title, make and enter an order directing 
     that such person shall cease and desist therefrom and, if 
     such person thereafter and after the lapse of the period 
     allowed for appeal of such order or after the affirmance of 
     such order, shall fail or refuse to obey or comply with such 
     order, such person shall be guilty of a misdemeanor and, upon 
     conviction thereof, shall be fined not more than the higher 
     of $140,000 or triple the monetary gain to such person, or 
     imprisoned for not less than six months nor more than one 
     year, or both, except that if such failure or refusal to obey 
     or comply with such order involves any offense within 
     subsection (a) or (b) of section 13 of this title, such 
     person shall be guilty of a felony and, upon conviction 
     thereof, shall be subject to the penalties of said subsection 
     (a) or (b): Provided, That any such cease and desist order 
     against any respondent in any case of under this subsection 
     shall be issued only in conjunction with an order issued 
     against such respondent under sections 9 and 15 of this 
     title. Each day during which such failure or refusal to obey 
     or comply with such order continues shall be deemed a 
     separate offense.''.

     SEC. 4. MANIPULATIONS; PRIVATE RIGHTS OF ACTION.

       Section 22(a)(1) of the Commodity Exchange Act (7 U.S.C. 
     25(a)(1)) is amended by striking subparagraph (D) and 
     inserting the following:
       ``(D) who purchased or sold a contract referred to in 
     subparagraph (B) hereof if the violation constitutes the use 
     or employment of, or an attempt to use or employ, in 
     connection with a swap, or a contract of sale of a commodity, 
     in interstate commerce, or for future delivery on or subject 
     to the rules of any registered entity, any manipulative 
     device or contrivance in contravention of such rules and 
     regulations as the Commission shall promulgate by not later 
     than 1 year after the date of enactment of the Derivatives 
     Market Manipulation Prevention Act of 2009.''.

     SEC. 5. DEFINITION OF SWAP.

       Section 1a of the Commodity Exchange Act (7 U.S.C. 1a) is 
     amended by adding at the end the following:
       ``(35) Swap.--
       ``(A) In general.--Except as provided in subparagraph (B), 
     the term `swap' means any agreement, contract, or transaction 
     that--
       ``(i) is a put, call, cap, floor, collar, or similar option 
     of any kind for the purchase or sale of, or based on the 
     value of, one or more interest or other rates, currencies, 
     commodities, securities, instruments of indebtedness, 
     indices, quantitative measures, or other financial or 
     economic interests or property of any kind;
       ``(ii) provides for any purchase, sale, payment, or 
     delivery (other than a dividend on an equity security) that 
     is dependent on the occurrence, non-occurrence, or the extent 
     of the occurrence of an event or contingency associated with 
     a potential financial, economic, or commercial consequence;
       ``(iii) provides on an executory basis for the exchange, on 
     a fixed or contingent basis, of one or more payments based on 
     the value or level of one or more interest or other rates, 
     currencies, commodities, securities, instruments of 
     indebtedness, indices, quantitative measures, or other 
     financial or economic interests or property of any kind, or 
     any interest therein or based on the value thereof, and that 
     transfers, as between the parties to the transaction, in 
     whole or in part, the financial risk associated with a future 
     change in any such value or level without also conveying a 
     current or future direct or indirect ownership interest in an 
     asset (including any enterprise or investment pool) or 
     liability that incorporates the financial risk so 
     transferred, including any agreement, contract, or 
     transaction commonly known as an interest rate swap, a rate 
     floor, rate cap, rate collar, cross-currency rate swap, basis 
     swap, currency swap, foreign exchange swap, total return 
     swap, equity index swap, equity swap, debt index swap, debt 
     swap, credit spread, credit default swap, credit swap, 
     weather swap, energy swap, metal swap, agricultural swap, 
     emissions swap, or commodity swap;
       ``(iv) is an agreement, contract, or transaction that is, 
     or in the future becomes, commonly known to the trade as a 
     swap; or
       ``(v) is any combination or permutation of, or option on, 
     any agreement, contract, or transaction described in any of 
     clauses (i) through (iv);
       ``(B) Exclusions.--The term `swap' does not include:
       ``(i) any contract of sale of a commodity for future 
     delivery or security futures product traded on or subject to 
     the rules of any board of trade designated as a contract 
     market under section 5 or 5f;
       ``(ii) any sale of a nonfinancial commodity for deferred 
     shipment or delivery, so long as such transaction is 
     physically settled;
       ``(iii) any put, call, straddle, option, or privilege on 
     any security, certificate of deposit, or group or index of 
     securities, including any interest therein or based on the 
     value thereof, that is subject to the Securities Act of 1933 
     (15 U.S.C. 77a et seq.) and the Securities Exchange Act of 
     1934 (15 U.S.C. 78a et seq.);
       ``(iv) any put, call, straddle, option, or privilege 
     relating to foreign currency entered into on a national 
     securities exchange registered pursuant to section 6(a) of 
     the Securities Exchange Act of 1934 (15 U.S.C. 78f(a));
       ``(v) any agreement, contract, or transaction providing for 
     the purchase or sale of one or more securities on a fixed 
     basis that is subject to the Securities Act of 1933 (15 
     U.S.C. 77a et seq.) and the Securities Exchange Act of 1934 
     (15 U.S.C. 78a et seq.);
       ``(vi) any agreement, contract, or transaction providing 
     for the purchase or sale of one or more securities on a 
     contingent basis that is subject to the Securities Act of 
     1933 (15 U.S.C. 77a et seq.) and the Securities Exchange Act 
     of 1934 (15 U.S.C. 78a et seq.), unless such agreement, 
     contract, or transaction predicates such purchase or sale on 
     the occurrence of a bona fide contingency that might 
     reasonably be expected to affect or be affected by the 
     creditworthiness of a party other than a party to the 
     agreement, contract, or transaction;
       ``(vii) any note, bond, or evidence of indebtedness that is 
     a security as defined in section 2(a) of the Securities Act 
     of 1933 (15 U.S.C. 77b(a));
       ``(viii) any agreement, contract, or transaction that is--

       ``(I) based on a security; and
       ``(II) entered into directly or through an underwriter (as 
     defined in section 2(a) of the Securities Act of 1933) (15 
     U.S.C. 77b(a)) by the issuer of such security for the 
     purposes of raising capital, unless such agreement, contract, 
     or transaction is entered into to manage a risk associated 
     with capital raising; or

       ``(ix) any agreement, contract, or transaction a 
     counterparty of which is a Federal Reserve bank, the United 
     States government or an agency of the United States 
     government that is expressly backed by the full faith and 
     credit of the United States.
       ``(C) Rule of construction regarding master agreements.--
     The term `swap' shall be construed to include a master 
     agreement that provides for an agreement, contract, or 
     transaction that is a swap pursuant to subparagraph (A), 
     together with all supplements to any such master agreement, 
     without regard to whether the master agreement contains an 
     agreement, contract, or transaction that is not a swap 
     pursuant to subparagraph (A), except that the master 
     agreement shall be considered to be a swap only with respect 
     to each agreement, contract, or transaction under the master 
     agreement that is a swap pursuant to subparagraph (A).''.

     SEC. 6. EFFECTIVE DATE.

       (a) In General.--The amendments made by sections 2, 3, and 
     4 shall take effect on the date on which the final rule 
     promulgated by the Commodity Futures Trading Commission 
     pursuant to the Derivatives Market Manipulation Prevention 
     Act of 2009 takes effect.
       (b) Definition of Swap.--The amendment made by section 5 
     shall take effect on the date of enactment of this Act.
                                 ______
                                 
      By Mrs. FEINSTEIN (for herself and Mrs. Boxer):
  S. 1684. A bill to establish guidelines and incentives for States to 
establish criminal arsonist and criminal bomber registries and to 
require the Attorney General to establish a national criminal arsonist 
and criminal bomber registry program, and for other purposes; to the 
Committee on the Judiciary.
  Mrs. FEINSTEIN. Mr. President, today I am pleased to join with 
Senator Boxer in introducing the Managing Arson Through Criminal 
History, MATCH, Act of 2009. This bill is a companion to a bill 
introduced in the House of Representatives by Representatives Bono Mack 
and Schiff.
  The bill would establish Federal and State arson registries; require 
convicted arsonists and bombers to register and update certain 
specified information for 5 years after a first conviction, 10 years 
after a second conviction, and for life after a third conviction; and 
authorize grants and incentives through the Department of Justice so 
that these registries will be operational within 3 years.
  Southern California just went through one of the worst fire disasters 
in its history. The Station Fire destroyed 160,500 acres, destroyed 
more

[[Page 22083]]

than 80 homes and threatened more than 12,000 homes. Right now, the 
fire is still burning in wilderness areas on its eastern flank in the 
Angeles National Forest.
  Two firefighters, Fire Captain Tedmund ``Ted'' Hall, 47, of San 
Bernardino County, and Firefighter Specialist Arnaldo ``Arnie'' 
Quinones, 34, of Palmdale, served with dedication and courage. They 
were killed August 30th when their truck slipped off a winding dirt 
road high in the Angeles National Forest. Officials believe the truck 
might have been overrun by flames from the wildfire.
  Though the incident is still under investigation, officials believe 
that Hall and Quinones may have ordered dozens of people to seek 
shelter while they fought through active flames to search for an escape 
route.
  There is no doubt that the Station Fire, the largest wildfire in the 
history of Los Angeles County, was the result of arson after 
investigators examined forensic evidence from scorched landscape off 
Angeles Crest Highway. The spot is believed to be the source of origin 
of the Station fire and investigators have found incendiary material 
near the site.
  This was a disaster of massive proportions--preliminary estimates 
indicate that these fires will cost $100 million. In these tough 
economic times, this cost and its effect on the economy of California 
is enormous and will have an impact for years to come.
  Although the Federal Government may foot 80 to 90 percent of the bill 
for fighting the fire, which broke out in national parkland, the 
state's share will hit at a time when California is in the grip of a 
fiscal crisis.
  Unfortunately, this is not the first or last time that a wildfire in 
California is started by an arsonist. It doesn't need to be that way. 
The bill that I introduce today--the MATCH Act would assist fire 
investigators and law enforcement officials by giving them up-to-date 
information on potential arsonists and bombers.
  The bill would require convicted arsonists and bombers to register 
and regularly update their personal information in a new arsonist 
registry. In the future this will allow law enforcement and fire 
investigators to have an accessible database they can use to either 
find or rule out people of interest.
  This will allow them to more easily complete their investigations, 
find the person responsible, and ensure that more wildfires won't get 
started intentionally.
  This bill represents common-sense legislation that will help law 
enforcement officers do their jobs. Hundreds of firefighters worked on 
controlling the Station Fire. We owe it to these brave men and women 
who put their lives on the line--and others like them who will do so in 
the future--to give fire investigators this important new tool, so they 
can help bring arsonists and bombers to justice.
  I urge my colleagues to support this important legislation.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 1684

       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 ``Managing Arson Through 
     Criminal History (MATCH) Act of 2009''.

     SEC. 2. CRIMINAL ARSONIST AND CRIMINAL BOMBER REGISTRATION 
                   AND NOTIFICATION PROGRAM.

       (a) Registry Requirements for Jurisdictions.--
       (1) Jurisdiction to maintain a registry.--Each jurisdiction 
     shall establish and maintain a jurisdiction-wide arsonist and 
     bomber registry in accordance with this section.
       (2) Guidelines and regulations.--The Attorney General shall 
     issue guidelines and regulations to carry out this section.
       (b) Registry Requirements for Criminal Arsonists and 
     Bombers.--
       (1) In general.--A criminal arsonist or criminal bomber 
     shall register, and shall keep the registration current in 
     accordance with paragraph (3), in each jurisdiction in which 
     the criminal arsonist or criminal bomber resides, is an 
     employee, or is a student.
       (2) Initial registration.--A criminal arsonist or criminal 
     bomber shall initially register--
       (A) in addition to any jurisdiction described in paragraph 
     (1), in the jurisdiction in which the criminal arsonist or 
     criminal bomber was convicted; and
       (B)(i) before completing a sentence of imprisonment with 
     respect to the arson offense or bombing offense giving rise 
     to the registration requirement; or
       (ii) not later than 5 business days after being sentenced 
     for the arson offense or bombing offense giving rise to the 
     registration requirement, if the criminal arsonist or 
     criminal bomber is not sentenced to a term of imprisonment.
       (3) Keeping the registration current.--
       (A) In general.--Not later than 10 business days after each 
     change of name, residence, employment, or student status, a 
     criminal arsonist or criminal bomber shall appear in person 
     in at least 1 jurisdiction described in paragraph (1) and 
     inform the jurisdiction of all changes in the information 
     required for that criminal arsonist or criminal bomber in the 
     arsonist and bomber registry involved.
       (B) Provision to other jurisdictions.--A jurisdiction 
     receiving information under subparagraph (A) shall 
     immediately provide the revised information to all other 
     jurisdictions in which the criminal arsonist or criminal 
     bomber is required to register.
       (4) Application of registration requirements.--
       (A) In general.--Except as provided in the guidelines 
     established under subparagraph (B), the requirements of this 
     section, including the duties to register and to keep a 
     registration current, shall apply only to a criminal arsonist 
     or criminal bomber who was--
       (i) convicted of an arson offense or a bombing offense on 
     or after the date of enactment of this Act; and
       (ii) notified of the duties and registered in accordance 
     with subsection (f).
       (B) Application to criminal arsonists or criminal bombers 
     unable to comply with paragraph (2)(B).--
       (i) Guidelines.--The Attorney General shall establish 
     guidelines in accordance with this subparagraph for each 
     jurisdiction for--

       (I) the application of the requirements of this section to 
     criminal arsonists or criminal bombers convicted before the 
     date of the enactment of this Act, or the date of the 
     implementation of this section in such a jurisdiction; and
       (II) the registration of any criminal arsonist or criminal 
     bomber described in subclause (I) who is otherwise unable to 
     comply with paragraph (2)(B).

       (ii) Information required to be included in registry.--With 
     respect to each criminal arsonist or criminal bomber 
     described in clause (i) convicted of an arson offense or 
     bombing offense during the 10-year period ending on the date 
     of enactment of this Act, the guidelines under clause (i) 
     shall provide for the inclusion in the arsonist and bomber 
     registry of each applicable jurisdiction (and, in accordance 
     with subsection (j), the provision by the jurisdiction to 
     each entity described in subsection (j)) of--

       (I) the name of the criminal arsonist or criminal bomber 
     (including any alias used by the individual);
       (II) the Social Security number of the individual;
       (III) the most recent known address of the residence at 
     which the individual has resided;
       (IV) a physical description of the individual;
       (V) the text of the provision of law establishing the arson 
     offense or bombing offense giving rise to the duty of the 
     individual to register;
       (VI) a set of fingerprints and palm prints of the 
     individual;
       (VII) a photocopy of a valid driver's license or 
     identification card issued to the individual by a 
     jurisdiction, if available; and
       (VIII) any other information required by the Attorney 
     General.

       (iii) Notice required.--The guidelines under clause (i) 
     shall require notice to each criminal arsonist or criminal 
     bomber included in an arsonist and bomber registry pursuant 
     to this subparagraph of such inclusion.
       (5) State penalty for failure to comply.--Each 
     jurisdiction, other than a Federally recognized Indian tribe, 
     shall provide a criminal penalty that includes a maximum term 
     of imprisonment that is greater than 1 year for the failure 
     of a criminal arsonist or criminal bomber to comply with the 
     requirements of this section.
       (6) Authority to exempt certain individuals from registry 
     requirements.--A jurisdiction may exempt a criminal arsonist 
     or criminal bomber who has been convicted of an arson offense 
     or a bombing offense for the first time from the registration 
     requirements under this section in exchange for the 
     substantial assistance of the individual in the investigation 
     or prosecution of another person who has committed a criminal 
     offense. The Attorney General shall ensure that any 
     regulations promulgated under this section include guidelines 
     establishing criteria regarding when it is appropriate to 
     exempt an individual from the registration requirements under 
     this section.

[[Page 22084]]

       (c) Information Required in Registration.--
       (1) Provided by arsonist or bomber.--A criminal arsonist or 
     criminal bomber shall provide to the appropriate officer of a 
     jurisdiction in which the individual is required to register 
     for inclusion in the arsonist and bomber registry of the 
     jurisdiction--
       (A) the name of the individual (including any alias used by 
     the individual);
       (B) the Social Security number of the individual;
       (C) the address of each residence at which the individual 
     resides or will reside;
       (D) the name and address of any place where the individual 
     is an employee or will be an employee;
       (E) the name and address of any place where the individual 
     is a student or will be a student;
       (F) the license plate number and a description of any 
     vehicle owned or operated by the individual; and
       (G) any other information required by the Attorney General.
       (2) Provided by the jurisdiction.--The jurisdiction in 
     which a criminal arsonist or criminal bomber registers shall 
     ensure that the arsonist and bomber registry of the 
     jurisdiction includes--
       (A) a physical description of the individual;
       (B) the text of the provision of law establishing the arson 
     offense or bombing offense giving rise to the duty of the 
     individual to register;
       (C) the criminal history of the individual, including the 
     date of all arrests and convictions, the status of parole, 
     probation, or supervised release, registration status, and 
     the existence of any outstanding arrest warrants for the 
     individual;
       (D) a current photograph of the individual;
       (E) a set of fingerprints and palm prints of the 
     individual;
       (F) a photocopy of a valid driver's license or 
     identification card issued to the individual by a 
     jurisdiction; and
       (G) any other information required by the Attorney General.
       (d) Duration of Registration Requirement; Expunging 
     Registries of Information for Certain Juvenile Criminals.--
       (1) Duration of registration requirement.--A criminal 
     arsonist or criminal bomber shall keep the registration 
     information provided under subsection (c) current in 
     accordance with subsection (b)(3) for the full registration 
     period.
       (2) Expunging registries of information for certain 
     juvenile criminals.--
       (A) In general.--In the case of a criminal arsonist or 
     criminal bomber described in subparagraph (B), a jurisdiction 
     shall expunge the arson and bomber registry of the 
     jurisdiction of information relating to the criminal arsonist 
     or criminal bomber on the date that is 5 years after the last 
     day of the full registration period for the criminal arsonist 
     or criminal bomber.
       (B) Criminal arsonist or bomber described.--A criminal 
     arsonist or criminal bomber described in this subparagraph is 
     a criminal arsonist or criminal bomber who--
       (i) was a juvenile tried as an adult for the arson offense 
     or bombing offense giving rise to the duty of the individual 
     to register under this section; and
       (ii) was not convicted of any other felony during the 
     period beginning on the first day of the full registration 
     period for the criminal arsonist or criminal bomber and 
     ending on the last day of the 5-year period described in 
     subparagraph (A).
       (C) Application to other databases.--The Attorney General 
     shall establish a process to ensure that each entity that 
     receives information under subsection (j) with respect to a 
     criminal arsonist or criminal bomber described in 
     subparagraph (B) shall expunge the applicable database of the 
     information on the date that is 5 years after the last day of 
     the full registration period for the criminal arsonist or 
     criminal bomber.
       (e) Annual Verification.--Not less than once during each 
     calendar year during the full registration period, a criminal 
     arsonist or criminal bomber required to register under this 
     section shall--
       (1) appear in person at not less than 1 jurisdiction in 
     which the individual is required to register;
       (2) allow the jurisdiction to take a photograph of the 
     individual; and
       (3) while present at the jurisdiction, verify the 
     information in each arsonist and bomber registry in which the 
     individual is required to be registered.
       (f) Duty To Notify Criminal Arsonists and Criminal Bombers 
     of Registration Requirements and to Register.--
       (1) In general.--An appropriate officer shall, shortly 
     before release of a criminal arsonist or criminal bomber from 
     custody, or, if the individual is not in custody, immediately 
     after the sentencing of the individual for the arson offense 
     or bombing offense giving rise to the duty of the individual 
     to register--
       (A) inform the individual of the duties of the individual 
     under this section and explain those duties in a manner that 
     the individual can understand in light of the native 
     language, mental capability, and age of the individual;
       (B) ensure that the individual understands the registration 
     requirement, and if so, require the individual to read and 
     sign a form stating that the duty to register has been 
     explained and that the individual understands the 
     registration requirement;
       (C) if the individual is unable to understand the 
     registration requirements, sign a form stating that the 
     individual is unable to understand the registration 
     requirements; and
       (D) ensure that the individual is registered in accordance 
     with this section.
       (2) Notification of criminal arsonists and criminal bombers 
     who cannot comply with paragraph (1).--The Attorney General 
     shall prescribe rules to ensure the notification and 
     registration in accordance with this section of criminal 
     arsonists and criminal bombers who cannot be registered in 
     accordance with paragraph (1).
       (g) Access to Information Through the Internet.--
       (1) In general.--Except as provided in this subsection, 
     each jurisdiction shall make available on the Internet, in a 
     manner that is readily accessible to law enforcement 
     personnel and fire safety officers located in the 
     jurisdiction, all information about each criminal arsonist 
     and criminal bomber in the arsonist and bomber registry of 
     the jurisdiction.
       (2) Coordination with national database.--Each jurisdiction 
     shall--
       (A) ensure that the Internet site of the jurisdiction 
     described in paragraph (1) includes all field search 
     capabilities needed for full participation in the national 
     Internet site established under subsection (i); and
       (B) participate in the national Internet site established 
     under subsection (i) in accordance with regulations 
     promulgated by the Attorney General under this section.
       (3) Prohibition on access by the public.--Information about 
     a criminal arsonist or criminal bomber shall not be made 
     available on the Internet to the public under paragraph (1).
       (4) Mandatory exemptions.--A jurisdiction shall exempt from 
     disclosure on the Internet site of the jurisdiction described 
     in paragraph (1)--
       (A) any information about a criminal arsonist or criminal 
     bomber involving conviction for an offense other than the 
     arson offense or bombing offense giving rise to the duty of 
     the individual to register;
       (B) if the criminal arsonist or criminal bomber is 
     participating in a witness protection program, any 
     information about the individual the release of which could 
     jeopardize the safety of the individual or any other person; 
     and
       (C) any other information identified as a mandatory 
     exemption from disclosure by the Attorney General.
       (5) Optional exemptions.--A jurisdiction may exempt from 
     disclosure on the Internet site of the jurisdiction described 
     in paragraph (1)--
       (A) the name of an employer of a criminal arsonist or 
     criminal bomber; and
       (B) the name of an educational institution where a criminal 
     arsonist or criminal bomber is a student.
       (6) Correction of errors.--The Attorney General shall 
     establish guidelines to be used by each jurisdiction to 
     establish a process to seek correction of information 
     included in the Internet site of the jurisdiction described 
     in paragraph (1) if an individual contends the information is 
     erroneous. The guidelines established under this paragraph 
     shall establish the period, beginning on the date on which an 
     individual has knowledge of the inclusion of information in 
     the Internet site, during which the individual may seek the 
     correction of the information.
       (7) Warning.--An Internet site of a jurisdiction described 
     in paragraph (1) shall include a warning that--
       (A) information on the site is to be used for law 
     enforcement purposes only and may only be disclosed in 
     connection with law enforcement purposes; and
       (B) any action in violation of subparagraph (A) may result 
     in a civil or criminal penalty.
       (h) National Criminal Arsonist and Criminal Bomber 
     Registry.--
       (1) In general.--The Attorney General shall maintain a 
     national database at the Bureau of Alcohol, Tobacco, 
     Firearms, and Explosives that includes relevant information 
     for each criminal arsonist or criminal bomber (including any 
     information provided under subsection (j)). The database 
     shall be known as the National Criminal Arsonist and Criminal 
     Bomber Registry.
       (2) Electronic forwarding.--The Attorney General shall 
     ensure (through the national registry maintained under this 
     subsection or otherwise) that updated information about a 
     criminal arsonist or criminal bomber is immediately 
     transmitted by electronic forwarding to all relevant 
     jurisdictions.
       (3) Authorization of appropriations.--There are authorized 
     to be appropriated to the Attorney General to carry out this 
     subsection such sums as may be necessary for each of fiscal 
     years 2010 through 2014.
       (i) National Arsonist and Bomber Internet Site.--
       (1) In general.--The Attorney General shall establish and 
     maintain a national arsonist and bomber Internet site. The 
     Internet site shall include relevant information

[[Page 22085]]

     for each criminal arsonist or criminal bomber. The Internet 
     site shall allow law enforcement officers and fire safety 
     officers to obtain relevant information for each criminal 
     arsonist or criminal bomber by a single query for any given 
     zip code or geographical radius set by the user in a form and 
     with such limitations as may be established by the Attorney 
     General and shall have such other field search capabilities 
     as the Attorney General may provide.
       (2) Prohibition on access by the public.--Information about 
     a criminal arsonist or criminal bomber shall not be made 
     available on the Internet to the public under paragraph (1).
       (3) Authorization of appropriations.--There are authorized 
     to be appropriated to the Attorney General to carry out this 
     subsection such sums as may be necessary for each of fiscal 
     years 2010 through 2014.
       (j) Notification Procedures.--
       (1) In general.--Immediately after a criminal arsonist or 
     criminal bomber registers in the arsonist and bomber registry 
     of a jurisdiction, or updates a registration in the arsonist 
     and bomber registry of a jurisdiction, an appropriate officer 
     of the jurisdiction shall provide the information in the 
     arsonist and bomber registry (other than information exempted 
     from disclosure by this section or the Attorney General) 
     about the individual to the entities described in paragraph 
     (2).
       (2) Entities.--The entities described in this paragraph 
     are--
       (A) the Attorney General;
       (B) appropriate law enforcement agencies (including 
     probation agencies, if applicable) in each area in which the 
     criminal arsonist or criminal bomber resides, is an employee, 
     or is a student;
       (C) each jurisdiction in which the criminal arsonist or 
     criminal bomber resides, is an employee, or is a student; and
       (D) each jurisdiction from or to which a change of 
     residence, employment, or student status occurs.
       (k) Actions To Be Taken When Criminal Arsonist or Criminal 
     Bomber Fails To Comply.--
       (1) Jurisdictions.--An appropriate officer of a 
     jurisdiction shall--
       (A) notify the Attorney General and appropriate law 
     enforcement agencies if a criminal arsonist or criminal 
     bomber fails to comply with the requirements of the arsonist 
     and bomber registry of the jurisdiction; and
       (B) revise the arsonist and bomber registry of the 
     jurisdiction to reflect the nature of the failure.
       (2) Ensuring compliance.--If a criminal arsonist or 
     criminal bomber fails to comply with the requirements of the 
     arsonist and bomber registry of a jurisdiction, an 
     appropriate officer of the jurisdiction, the Attorney 
     General, and any law enforcement agency notified under 
     paragraph (1)(A) shall take any appropriate action to ensure 
     compliance.
       (l) Development and Availability of Registry Management and 
     Website Software.--
       (1) Duty to develop and support.--In consultation with the 
     jurisdictions, the Attorney General shall develop and support 
     software to enable jurisdictions to establish and operate 
     arsonist and bomber registries and Internet sites described 
     in subsection (g).
       (2) Criteria.--The software described in paragraph (1) 
     shall facilitate--
       (A) immediate exchange of information among jurisdictions;
       (B) access over the Internet to appropriate information, 
     including the number of registered criminal arsonists or 
     criminal bombers in each jurisdiction;
       (C) full compliance with the requirements of this section; 
     and
       (D) communication of information as required under 
     subsection (j).
       (3) Deadline.--Not later than 2 years after the date of 
     enactment of this Act, the Attorney General shall make 
     available to jurisdictions a fully operational edition of the 
     software described in paragraph (1).
       (m) Period for Implementation by Jurisdictions.--
       (1) Deadline.--A jurisdiction shall implement this section 
     not later than the later of--
       (A) 3 years after the date of enactment of this Act; or
       (B) 1 year after the date on which the software described 
     in subsection (l) is made available to the jurisdiction.
       (2) Extensions.--The Attorney General may make not more 
     than 2 1-year extensions of the deadline under paragraph (1) 
     for a jurisdiction.
       (3) Failure of jurisdiction to comply.--For any fiscal year 
     after the expiration of the deadline specified in paragraph 
     (1) (including any extension under paragraph (2)), that a 
     jurisdiction fails to substantially implement this section, 
     as determined by the Attorney General, the jurisdiction shall 
     not receive 10 percent of the funds that would otherwise be 
     allocated for that fiscal year to the jurisdiction under 
     subpart 1 of part E of title I of the Omnibus Crime Control 
     and Safe Streets Act of 1968 (42 U.S.C. 3750 et seq.).
       (n) Election by Indian Tribes.--
       (1) Election.--
       (A) In general.--A federally recognized Indian tribe may, 
     by resolution or other enactment of the tribal council or 
     comparable governmental body, elect to carry out this section 
     as a jurisdiction subject to its provisions.
       (B) Implementation.--A federally recognized Indian tribe 
     that, as of the date that is 1 year after the date of 
     enactment of this Act, has not made an election described in 
     subparagraph (A) shall, by resolution or other enactment of 
     the tribal council or comparable governmental body, enter 
     into a cooperative agreement to arrange for a jurisdiction to 
     carry out any function of the tribe under this section until 
     such time as the tribe elects to carry out this section.
       (2) Cooperation between tribal authorities and other 
     jurisdictions.--
       (A) Nonduplication.--A federally recognized Indian tribe 
     subject to this section is not required to duplicate 
     functions under this section that are fully carried out by 1 
     or more jurisdictions within which the territory of the tribe 
     is located.
       (B) Cooperative agreements.--A federally recognized Indian 
     tribe, through cooperative agreements with 1 or more 
     jurisdictions within which the territory of the tribe is 
     located, may--
       (i) arrange for the tribe to carry out any function of the 
     jurisdiction under this section with respect to criminal 
     arsonists or criminal bombers subject to the jurisdiction of 
     the tribe; and
       (ii) arrange for the jurisdiction to carry out any function 
     of the tribe under this section with respect to criminal 
     arsonists and criminal bombers subject to the jurisdiction of 
     the tribe.
       (3) Law enforcement authority in indian country.--
     Enforcement of this section in Indian country, as defined in 
     section 1151 of title 18, United States Code, shall be 
     carried out by the Federal Government, tribal governments, 
     and State governments under jurisdictional authorities in 
     effect on the date of enactment of this Act.
       (o) Immunity for Good Faith Conduct.--The Federal 
     Government, a jurisdiction, a political subdivision of a 
     jurisdiction, and an agency, officer, employee, and agent of 
     the Federal Government, a jurisdiction, or a political 
     subdivision of a jurisdiction shall not be held liable in any 
     Federal or State court for any good faith conduct to carry 
     out this section.
       (p) Criminal Arsonist and Criminal Bomber Management 
     Assistance Program.--
       (1) In general.--The Attorney General shall establish and 
     implement a Criminal Arsonist and Bomber Management 
     Assistance program (in this subsection referred to as the 
     ``Assistance Program''), under which the Attorney General may 
     make grants to jurisdictions to offset the costs of 
     implementing this section.
       (2) Application.--A jurisdiction desiring a grant under 
     this subsection for a fiscal year shall submit to the 
     Attorney General an application in such form and containing 
     such information as the Attorney General may require.
       (3) Increased grant payments for prompt compliance.--
       (A) In general.--A jurisdiction that, as determined by the 
     Attorney General, has substantially implemented this section 
     not later than 2 years after the date of enactment of this 
     Act is eligible for a bonus payment in addition to the amount 
     of a grant to the jurisdiction under paragraph (1). The 
     Attorney General may make a bonus payment to a jurisdiction 
     for the first fiscal year beginning after the date on which 
     the Attorney General determines the jurisdiction has 
     substantially implemented this section.
       (B) Amount.--A bonus payment under this paragraph shall 
     be--
       (i) if the Attorney General determines that the 
     jurisdiction has substantially implemented this section not 
     later than the date that is 1 year after the date of 
     enactment of this Act, in an amount equal to 10 percent of 
     the amount of a grant to the jurisdiction under paragraph (1) 
     for the fiscal year in which the bonus payment is made; and
       (ii) if the Attorney General determines that the 
     jurisdiction has substantially implemented this section after 
     the date that is 1 year after the date of the enactment of 
     this Act, and not later than 2 years after the date of 
     enactment of this Act, in an amount equal to 5 percent of the 
     amount of a grant to the jurisdiction under paragraph (1) for 
     the fiscal year in which the bonus payment is made.
       (4) Authorization of appropriations.--There are authorized 
     to be appropriated to the Attorney General to carry out this 
     subsection such sums as may be necessary for each of fiscal 
     years 2010 through 2014.
       (q) Definitions.--In this section:
       (1) Arsonist and bomber registry.--The term ``arsonist and 
     bomber registry'' means a registry of criminal arsonists and 
     criminal bombers, and a notification program, maintained by a 
     jurisdiction under this section.
       (2) Arson offense.--The term ``arson offense'' means any 
     criminal offense for committing arson, attempting arson, or 
     conspiracy to commit arson in violation of the laws of the 
     jurisdiction in which the offense was committed or the laws 
     of the United States.
       (3) Bombing offense.--The term ``bombing offense'' means 
     any criminal offense for committing a bombing, attempting a 
     bombing, or conspiracy to commit a bombing in violation of 
     the laws of the jurisdiction in which

[[Page 22086]]

     the offense was committed or the laws of the United States.
       (4) Criminal arsonist.--The term ``criminal arsonist''--
       (A) means an individual who is convicted of an arson 
     offense; and
       (B) does not include a juvenile who is convicted of an 
     arson offense unless the juvenile was tried as an adult for 
     the arson offense.
       (5) Criminal bomber.--The term ``criminal bomber''--
       (A) means an individual who is convicted of a bombing 
     offense; and
       (B) does not include a juvenile who is convicted of a 
     bombing offense unless the juvenile was tried as an adult for 
     the bombing offense.
       (6) Criminal offense.--The term ``criminal offense'' means 
     a Federal, State, local, tribal, foreign, or military offense 
     (to the extent specified by the Secretary of Defense under 
     section 115(a)(8)(C)(i) of the Departments of Commerce, 
     Justice, and State, the Judiciary, and Related Agencies 
     Appropriations Act, 1998 (Public Law 105-119; 10 U.S.C. 951 
     note)) or other criminal offense.
       (7) Employee.--The term ``employee'' includes an individual 
     who is self-employed or works for any other entity, whether 
     compensated or not.
       (8) Fire safety officer.--The term ``fire safety officer'' 
     means an individual serving in an official capacity as a 
     firefighter, fire investigator, or other arson investigator, 
     as defined by the jurisdiction for the purposes of this 
     section.
       (9) Full registration period.--
       (A) In general.--The term ``full registration period'' 
     means the period--
       (i) beginning on the later of--

       (I) the date on which an individual is convicted of an 
     arson offense or bombing offense;
       (II) the date on which an individual is released from 
     custody for conviction of an arson offense or bombing 
     offense; or
       (III) the date on which an individual is placed on parole, 
     supervised release, or probation for an arson offense or 
     bombing offense; and

       (ii) ending--

       (I) for an individual who has been convicted of an arson 
     offense or bombing offense for the first time, 5 years after 
     the date described in clause (i);
       (II) for an individual who has been convicted of an arson 
     offense or bombing offense for the second time, 10 years 
     after the date described in clause (i); and
       (III) for an individual who has been convicted of an arson 
     offense or bombing offense more than twice, on the date on 
     which the individual dies.

       (B) Exclusion of time in custody.--Any period during which 
     an individual is in custody shall not be included in 
     determining the end of the period under subparagraph (A).
       (10) Jurisdiction.--The term ``jurisdiction'' means--
       (A) a State;
       (B) the District of Columbia;
       (C) the Commonwealth of Puerto Rico;
       (D) Guam;
       (E) American Samoa;
       (F) the Commonwealth of the Northern Mariana Islands;
       (G) the Virgin Islands; and
       (H) to the extent provided in and subject to the 
     requirements of subsection (o), a federally recognized Indian 
     tribe.
       (11) Law enforcement officer.--The term ``law enforcement 
     officer'' has the meaning given that term in section 1204 of 
     the Omnibus Crime Control and Safe Street Act of 1968 (42 
     U.S.C. 3796b).
       (12) Resides.--The term ``resides'' means the location of 
     the home of an individual or other place where an individual 
     habitually lives.
       (13) Student.--The term ``student'' means an individual who 
     enrolls in or attends an educational institution (whether 
     public or private), including a secondary school, trade or 
     professional school, and institution of higher education.
                                 ______
                                 
      By Mr. FEINGOLD (for himself, Mr. Durbin, Mr. Tester, Mr. Udall, 
        of New Mexico, Mr. Bingaman, Mr. Sanders, Mr. Akaka, Mr. Wyden, 
        Mr. Menendez, and Mr. Merkley):
  S. 1686. A bill to place reasonable safeguards on the use of 
surveillance and other authorities under the USA PATRIOT Act, and for 
other purposes; to the Committee on the Judiciary.
  Mr. FEINGOLD. Mr. President, I am pleased today to introduce the 
Judicious Use of Surveillance Tools In Counterterrorism Efforts, or 
JUSTICE, Act of 2009. I have had the privilege of working closely on 
this bill with Senator Durbin, as I have on so many of these issues 
over the years, and I welcome the support of Senators Tester, Tom 
Udall, Bingaman, Sanders, Akaka and Wyden. I am also pleased that the 
bill has the support of organizations and activists across the 
political spectrum, from former Republican Congressman Bob Barr to the 
American Civil Liberties Union to the American Library Association.
  At the end of this year, three provisions of the USA PATRIOT Act will 
sunset unless Congress acts to reauthorize them. In my view, Congress 
should take this opportunity to revisit not just those three 
provisions, but rather a broad range of surveillance laws enacted in 
recent years to assess what additional safeguards are needed.
  The JUSTICE Act does just that: It takes a comprehensive approach to 
fixing the Patriot Act and the FISA Amendments Act, once and for all. 
It permits the government to conduct necessary surveillance, but within 
a framework of accountability and oversight. It ensures both that our 
government has the tools to keep us safe, and that the privacy and 
civil liberties of innocent Americans will be protected. Because we can 
and must do both. These are not mutually exclusive goals.
  Indeed, the Department of Justice just this week acknowledged as much 
in a letter setting forth its views on Patriot Act reauthorization. The 
Department said: ``We also are aware that Members of Congress may 
propose modifications to provide additional protection for the privacy 
of law abiding Americans. As President Obama said in his speech at the 
National Archives on May 21, 2009, `We are indeed at war with al Qaeda 
and its affiliates. We do need to update our institutions to deal with 
this threat. But we must do so with an abiding confidence in the rule 
of law and due process; in checks and balances and accountability.' 
Therefore, the Administration is willing to consider such ideas, 
provided that they do not undermine the effectiveness of these 
important authorities.''
  I welcome the administration's openness to potential reforms of the 
Patriot Act and look forward to working together as the reauthorization 
process moves forward this fall.
  But I remain concerned that critical information about the 
implementation of the Patriot Act has not been made public--information 
that I believe would have a significant impact on the debate. During 
the debate on the Protect America Act and the FISA Amendments Acts in 
2007 and 2008, critical legal and factual information remained unknown 
to the public and to most members of Congress--information that was 
certainly relevant to the debate and might even have made a difference 
in votes. And during the last Patriot Act reauthorization debate in 
2005, a great deal of implementation information remained classified. 
This time around, we must find a way to have an open and honest debate 
about the nature of these government powers, while protecting national 
security secrets.
  As a first step, the Justice Department's letter made public for the 
first time that the so-called ``lone wolf'' authority--one of the three 
expiring provisions--has never been used. That was a good start, since 
this is a key fact as we consider whether to extend that power. But 
there also is information about the use of Section 215 orders that I 
believe Congress and the American people deserve to know. I do not 
underestimate the importance of protecting our national security 
secrets. But before we decide whether and in what form to extend these 
authorities, Congress and the American people deserve to know at least 
basic information about how they have been used. So I hope that the 
administration will consider seriously making public some additional 
basic information, particularly with respect to the use of Section 215 
orders.
  There can be no question that statutory changes to our surveillance 
laws are necessary. Since the Patriot Act was first passed in 2001, we 
have learned important lessons, and perhaps the most important of all 
is that Congress cannot grant the government overly broad authorities 
and just keep its fingers crossed that they won't be misused. Congress 
has the responsibility to put appropriate limits on government 
authorities--limits that allow agents to actively pursue criminals, 
terrorists and spies, but that also protect the privacy of innocent 
Americans.
  This lesson was most clear in the context of National Security 
Letters.

[[Page 22087]]

In reports issued in 2007 and 2008, the Department of Justice Inspector 
General carefully documented rampant misuse and abuse of the National 
Security Letter, NSL, authority by the FBI. The Inspector General 
found--as he put it--``widespread and serious misuse of the FBI's 
national security letter authorities. In many instances, the FBI's 
misuse of national security letters violated NSL statutes, Attorney 
General Guidelines, or the FBI's own internal policies.'' After those 
Inspector General reports, there can no longer be any doubt that 
granting overbroad authority leads to abuses. The FBI's apparently lax 
attitude and in some cases grave misuse of these potentially very 
intrusive authorities is attributable in no small part to the USA 
PATRIOT Act. That flawed legislation greatly expanded the NSL 
authorities, essentially granting the FBI a blank check to obtain some 
very sensitive records about Americans, including people not under any 
suspicion of wrong-doing, without judicial approval. Congress gave the 
FBI very few rules to follow, and failed to adequately remedy those 
shortcomings when it considered the NSL statutes as part of the Patriot 
Act reauthorization process in 2005.
  The JUSTICE Act, like the bipartisan National Security Letter Reform 
Act that I introduced in the 110th Congress, would finally provide the 
statutory safeguards needed to protect against abuse of NSLs. And it 
would remedy First Amendment violations in the NSL statutes that were 
identified last year by the U.S. Court of Appeals for the Second 
Circuit, in a decision where Justice Sotomayor participated on the 
panel.
  Specifically, the JUSTICE Act restricts the types of records that can 
be obtained without a court order to those that are the least sensitive 
and private, and it ensures that the FBI can only use NSLs to obtain 
information about individuals with some nexus to a suspected terrorist 
or spy. It makes sure that the FBI can no longer obtain the sensitive 
records of individuals three or four times removed from a suspect, most 
of whom would be entirely innocent. It follows the road map laid out by 
the Second Circuit to make sure the gag orders that accompany NSLs do 
not violate the First Amendment.
  It prevents the use of so-called ``exigent letters,'' which the IG 
found the FBI was using in violation of the NSL statutes. It requires 
additional congressional reporting on NSLs, and it requires the FBI to 
establish a compliance program and tracking database for NSLs. And it 
requires the Attorney General to issue minimization procedures for 
information obtained through NSLs, so that information obtained about 
Americans is subject to enhanced protections and the FBI does not 
retain information obtained in error.
  The JUSTICE Act also fixes Section 215, one of the most controversial 
provisions of the Patriot Act and one of the three that is subject to 
the 2009 sunset. This provision permits the government to obtain court 
orders for Americans' business records under the Foreign Intelligence 
Surveillance Act; it is often referred to as the ``library'' provision, 
although it covers all types of business records.
  On Section 215, the legislation establishes a standard of 
individualized suspicion for obtaining a FISA business records order, 
requiring that the government be able to demonstrate the records have 
some nexus to terrorism or espionage, and it creates procedural 
protections to prevent abuses. The bill also ensures robust, meaningful 
and constitutionally sound judicial review of both National Security 
Letters and Section 215 business records orders, and the gag orders 
that accompany them.
  The bill also ensures that Americans can feel safe in their homes by 
placing reasonable checks on the so-called ``sneak and peek'' search 
warrant provision of the Patriot Act. It would eliminate the overbroad 
catch-all provision that allows these searches to be used in virtually 
any criminal case, and it would shorten the presumptive time limits for 
notification that the search occurred. It also would create a statutory 
exclusionary rule, in recognition of the strong Fourth Amendment 
interests at stake with regard to this extraordinary exception to the 
usual requirement that law enforcement knock and announce themselves 
before executing a search warrant.
  The JUSTICE Act also includes a number of reasonable safeguards to 
protect Americans' private communications. It permits the FBI to use 
roving wiretaps under FISA, but provides safeguards to protect innocent 
Americans from unnecessary surveillance. It ensures that the FBI does 
not obtain sensitive information about Americans' Internet usage 
without satisfying an appropriate standard, and subjects those 
authorities, called ``pen registers and trap and trace devices'', to 
new procedural checks. It provides new safeguards for the Patriot Act 
provision on computer trespass, which allows computer owners who are 
subject to hacking to give the government permission to monitor 
individuals on their systems without a warrant.
  The bill also addresses the FISA Amendments Act, FAA, which granted 
the government new, over-expansive surveillance authorities and 
provided immunity to any companies that cooperated with the blatantly 
illegal warrantless wiretapping program that went on for more than five 
years--and that the prior administration repeatedly misled Congress 
about. That legislation became law last year over my strong objection, 
but it is not too late for Congress to fix it.
  I offered several amendments to the FISA Amendments Act on the Senate 
floor--amendments that would have helped to make sure that the privacy 
of Americans' communications are properly protected. And now those 
amendments are part of the JUSTICE Act.
  First, the bill would ensure that the FISA Amendments Act cannot be 
used to authorize the government to collect the content of all 
communications between the U.S. and the rest of the world. Under the 
FAA, millions upon millions of communications between innocent 
Americans and their friends, families, or business associates overseas 
could legally be collected, with absolutely no suspicion of any 
wrongdoing. The JUSTICE Act would ensure such bulk collection will 
never occur.
  Second, the JUSTICE Act would include a meaningful prohibition on the 
practice of reverse targeting--namely, wiretapping a person overseas 
when what the government is really interested in is listening to an 
American here at home with whom the foreigner is communicating. It 
would do so by requiring the government to obtain a court order 
whenever a significant purpose of the surveillance is to acquire the 
communications of an American in the U.S.
  Third, the bill would create potential consequences if the government 
initiates surveillance under the FAA using procedures that have not 
been approved by the FISA Court, and the FISA Court later finds that 
those procedures were unlawful. Say, for example, the FISA Court 
determines that the procedures were not even reasonably designed to 
wiretap foreigners outside the U.S., rather than Americans here at 
home. Under the bill, the FISA Court would have the discretion to place 
limits on how the illegally obtained information on Americans can be 
retained and used.
  Fourth, this bill includes a provision that will help protect the 
privacy of Americans whose international communications will be 
collected in vast new quantities. On the Senate floor last year, I 
joined with Senator Webb and Senator Tester to offer an amendment to 
provide real protections for the privacy of Americans, while also 
giving the government the flexibility it needs to wiretap terrorists 
overseas. And that amendment is in this bill.
  And finally with respect to the FAA, the bill would repeal the grant 
of immunity to any companies that participated in the illegal NSA 
wiretapping program. Senator Dodd was a leader on this during debate on 
the FAA and deserves a great deal of credit for drawing attention to 
this issue. Granting immunity seriously undercut our statutory scheme, 
which relies on both the government and the private sector to follow 
the law in implementing surveillance techniques. That is exactly why

[[Page 22088]]

the surveillance laws have long provided liability protection for 
companies that cooperate with a government request for assistance, as 
long as they receive either a court order or a certification from the 
Attorney General that no court order is needed and the request meets 
all statutory requirements. But if requests are not properly 
documented, companies are supposed to refuse the government's request, 
and they are subject to liability if they instead decide to cooperate.
  This framework, which has been in place for 30 years, protects 
companies that comply with legitimate government requests while also 
protecting the privacy of Americans' communications from illegitimate 
snooping. Granting companies that allegedly cooperated with an illegal 
program the retroactive immunity that was in the FAA undermines the law 
that has been on the books for decades--a law that was designed to 
prevent exactly the type of abuses that occurred. Repealing that 
provision helps bolster the statutory framework that has for so long 
helped to protect the privacy of Americans' communications.
  The JUSTICE Act also provides additional congressional and judicial 
oversight of the Foreign Intelligence Surveillance Act. It ensures that 
the FBI provides some limited public reporting regarding its secret 
intelligence surveillance authority under FISA. It would give courts 
more authority to oversee the process for determining whether and how 
criminal defendants against whom FISA-derived evidence is being used 
should get access to the underlying applications and orders so they can 
mount a challenge.
  The last title of the bill simply ensures that the law labels as 
terrorists only those people who truly wish to do this country harm--
not domestic protesters who engage in civil disobedience or people who 
provide humanitarian assistance.
  These concerns are not new. ``Sneak and peek'' searches, the need for 
reasonable limits on the FBI's use of roving wiretaps, access to 
business records, and the overly expansive computer trespass authority 
were all issues I first raised in the fall of 2001 as some of the 
reasons why I believed the PATRIOT Act was flawed and threatened 
fundamental constitutional rights and protections. Eight years later, 
it is time to finally get this right. Again and again, the previous 
administration requested and the Congress provided vast new 
surveillance authorities with minimal checks and balances. Many of 
these new tools were appropriate, and passage of this bill would leave 
in place surveillance authorities that are dramatically broader than 
what existed prior to 9/11. But what has been missing--what this bill 
finally provides--is the assurances that these new authorities are 
tailored to our national security needs and subject to proper 
oversight. Every single one of the changes in this bill is reasonable, 
measured and justifiable. I urge my colleagues to support it.
                                 ______
                                 
      Mr. BENNETT (for himself, Mr. Enzi, Mr. Bunning, and Mr. Crapo):
  S. 1688. A bill to prevent congressional reapportionment distortions 
by requiring that, in the questionnaires used in the taking of any 
decennial census of population, a checkbox or other similar option be 
included for respondents to indicate citizenship status or lawful 
presence in the United States; to the Committee on Homeland Security 
and Governmental Affairs.
  Mr. BENNETT. Mr. President, I am pleased to rise today to introduce 
this important legislation, The Fairness in Representation Act, with my 
colleagues Senators Enzi and Bunning. Next year's decennial census will 
be an enormous and expensive effort to complete the constitutionally 
mandated ``actual enumeration.'' I am proud of our Census department 
and the many people around the nation that will work together to 
produce what we hope and expect will be a fair and accurate census.
  Unfortunately, current 2010 Census questionnaires lack a critical 
question: Are you a U.S citizen? How are we to accurately apportion 
representation in the House of Representatives and the Electoral 
College when no count of legal residents exists? Article 1 Section 2 of 
the U.S. Constitution mandates that a census be taken every 10 years 
expressly for the purpose of apportioning seats in the House of 
Representatives. However apportionment is based on each State's total 
population--including illegal aliens--relative to the rest of the 
country. Currently our census doesn't give us a count of the legal 
residents of this country. In the 1964 Supreme Court ruling, Wesberry 
v. Sanders the Court states that ``The House of Representatives, the 
[Constitutional] Convention agreed, was to represent the people as 
individuals and on a basis of complete equality for each voter.'' By 
counting citizens, legal residents and illegals alike, we are in effect 
eroding the power of the vote of those citizens who live in areas with 
fewer non-citizens. The large number of non-citizens in a district 
erases the principle of ``one man, one vote'' because it takes fewer 
votes to be elected to Congress.
  The political costs of this broken system are great. I have drafted 
this legislation to require the decennial census to include a question 
regarding citizenship. The legislation will further direct the census 
to make such adjustments in the total population figures as may be 
necessary, in order that those who are not U.S. citizens or are not 
lawfully present in the U.S. are not counted in tabulating population 
for the purposes of apportionment. Apportionment of congressional seats 
and the Electoral College will be based on the legal population, rather 
than unfairly advantaging those communities with high illegal 
populations. I urge my colleagues to support this legislation that will 
correct an inexcusable error and return our representation system to 
its constitutional roots.
                                 ______
                                 
      By Mr. BINGAMAN (for himself and Mr. Udall, of New Mexico):
  S. 1689. A bill to designate certain land as components of the 
National Wilderness Preservation System and the National Landscape 
Conservation System in the State of New Mexico, and for other purposes; 
to the Committee on Energy and Natural Resources.
  Mr. BINGAMAN. Mr. President, I am pleased to rise today with my 
colleague Senator Tom Udall to introduce the Organ Mountains-Desert 
Peaks Wilderness Act. This legislation will designate approximately 
259,000 acres of wilderness in Dona Ana County, including the iconic 
Organ Mountains that overlook the City of Las Cruces. The legislation 
will also establish two Conservation Areas in Dona Ana County--the 
86,600-acre Organ Mountains National Conservation Area on the east side 
of Las Cruces, and the 75,600-acre Desert Peaks National Conservation 
Area to the west, which adjoins the Prehistoric Trackways National 
Monument to its south.
  The Organ Mountains are among the many scenic landscapes in Dona Ana 
County that define Southern New Mexico and the rich culture of its 
people. In addition to protecting the viewshed of the Organ Mountains 
from future development, this proposal seeks to preserve other 
important landscapes such as the Dana Ana Mountains, Robledo Mountains, 
and the ancient volcanic cinder cones and grasslands of the Potrillo 
Mountains. Many visitors also come to explore the caves, limestone 
cliffs, and winding canyons of the proposed Desert Peaks National 
Conservation Area.
  While the public lands protected by this bill are important for their 
scenic and recreational values, they also represent a valuable economic 
resource for county residents, through ranching, hunting, and tourism 
that take place here. This proposal will preserve healthy habitat for 
game and sensitive species; quality grazing land; and cultural 
resources like petroglyphs and historical features. Even those who may 
never visit these areas will benefit from their protection by consuming 
the clean water that these major watersheds provide to the people 
living in the valleys below.
  This proposal is the culmination of over 2 years of consensus 
building accomplished by listening to input from a

[[Page 22089]]

broad spectrum of the community. As a result, the proposal that has 
been developed meets the goals of conserving our treasured landscapes 
in Dona Ana County while addressing the valid concerns raised by 
frequent users of our public lands. I would like to take a moment to 
mention a couple of important changes we have made to the bill based on 
the input we received from the community to address both border 
security concerns as well as access issues for the ranchers who graze 
cattle in the region.
  Dona Ana County shares its southern border with Mexico, and national 
security issues are always an important factor to consider in any 
legislation that involves border counties. For example, currently the 
West Potrillo Mountains Wilderness Study Area comes as close as a half-
mile in some places from the U.S.-Mexico border, which has created 
challenges for both the Department of Interior and the Department of 
Homeland Security to meet the goals of their distinct, yet equally 
important missions. This legislation seeks to provide additional 
flexibility for Customs and Border Patrol to accomplish its mission of 
border enforcement by releasing from Wilderness Study Area status more 
than 16,000 acres along the southern border. By assisting Border Patrol 
with its mission, the Bureau of Land Management will be better suited 
to meet its goals of natural resource protection as well.
  With regard to ranching, access to water infrastructure is critical 
in the hot climate of southern New Mexico. To this end, we worked 
closely with all grazing permittees in the area to ensure all roads 
that lead to water improvements, like windmills, solar wells, water 
troughs and pipelines, were excluded from new wilderness areas. Other 
major infrastructure, like corrals, have also been excluded, and the 
congressional grazing guidelines that are referred to in this 
legislation will provide ranchers with the ability to use motorized 
vehicles to maintain stock ponds, fences, and other improvements in 
wilderness areas and to respond to emergencies. It is my belief that 
this approach will allow for the protection of these public lands while 
ensuring that ranching will continue.
  My constituents in Dona Ana County have long expressed their desire 
to strike a balance between development and the preservation of the 
public lands that they grew up enjoying or that attracted them to the 
area in the first place. As such, this proposal is supported by a wide 
array of constituencies ranging from conservation and sportsmen's 
groups, city and county officials, to the Hispano Chamber of Commerce. 
With enactment of this bill, it is my hope that while Dona Ana County 
continues to prosper and grow, our unique places will be protected for 
generations to come. I am pleased that Senator Udall has cosponsored 
this bill, and I urge all my colleagues to support the passage of this 
legislation.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 1689

         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 ``Organ Mountains-Desert 
     Peaks Wilderness Act''.

     SEC. 2. DEFINITIONS.

         In this Act:
         (1) Conservation area.--The term ``Conservation Area'' 
     means each of the Organ Mountains National Conservation Area 
     and the Desert Peaks National Conservation Area established 
     by section 4(a).
         (2) Management plan.--The term ``management plan'' means 
     the management plan for the Conservation Areas developed 
     under section 4(d).
         (3) Secretary.--The term ``Secretary'' means the 
     Secretary of the Interior.
         (4) State.--The term ``State'' means the State of New 
     Mexico.

     SEC. 3. DESIGNATION OF WILDERNESS AREAS.

         (a) In General.--In accordance with the Wilderness Act 
     (16 U.S.C. 1131 et seq.), the following areas in the State 
     are designated as wilderness and as components of the 
     National Wilderness Preservation System:
         (1) Aden lava flow wilderness.--Certain land administered 
     by the Bureau of Land Management in Dona Ana County 
     comprising approximately 27,650 acres as generally depicted 
     on the map entitled ``Potrillo Mountains Complex'' and dated 
     September 16, 2009, which shall be known as the ``Aden Lava 
     Flow Wilderness''.
         (2) Broad canyon wilderness.--Certain land administered 
     by the Bureau of Land Management in Dona Ana County 
     comprising approximately 13,900 acres as generally depicted 
     on the map entitled ``Desert Peaks National Conservation 
     Area'' and dated September 16, 2009, which shall be known as 
     the ``Broad Canyon Wilderness''.
         (3) Cinder cone wilderness.--Certain land administered by 
     the Bureau of Land Management in Dona Ana County comprising 
     approximately 16,950 acres as generally depicted on the map 
     entitled ``Potrillo Mountains Complex'' and dated September 
     16, 2009, which shall be known as the ``Cinder Cone 
     Wilderness''.
         (4) Organ mountains wilderness.--Certain land 
     administered by the Bureau of Land Management in Dona Ana 
     County comprising approximately 19,400 acres as generally 
     depicted on the map entitled ``Organ Mountains National 
     Conservation Area'' and dated September 16, 2009, which shall 
     be known as the ``Organ Mountains Wilderness''.
         (5) Potrillo mountains wilderness.--Certain land 
     administered by the Bureau of Land Management in Dona Ana and 
     Luna counties comprising approximately 143,450 acres as 
     generally depicted on the map entitled ``Potrillo Mountains 
     Complex'' and dated September 16, 2009, which shall be known 
     as the ``Potrillo Mountains Wilderness''.
         (6) Robledo mountains wilderness.--Certain land 
     administered by the Bureau of Land Management in Dona Ana 
     County comprising approximately 17,000 acres as generally 
     depicted on the map entitled ``Desert Peaks National 
     Conservation Area'' and dated September 16, 2009, which shall 
     be known as the ``Robledo Mountains Wilderness''.
         (7) Sierra de las uvas wilderness.--Certain land 
     administered by the Bureau of Land Management in Dona Ana 
     County comprising approximately 11,100 acres as generally 
     depicted on the map entitled ``Desert Peaks National 
     Conservation Area'' and dated September 16, 2009, which shall 
     be known as the ``Sierra de las Uvas Wilderness''.
         (8) Whitethorn wilderness.--Certain land administered by 
     the Bureau of Land Management in Dona Ana and Luna counties 
     comprising approximately 9,600 acres as generally depicted on 
     the map entitled ``Potrillo Mountains Complex'' and dated 
     September 16, 2009, which shall be known as the ``Whitethorn 
     Wilderness''.
         (b) Management.--Subject to valid existing rights, the 
     wilderness areas designated by subsection (a) shall be 
     administered by the Secretary in accordance with this Act and 
     the Wilderness Act (16 U.S.C. 1131 et seq.), except that any 
     reference in the Wilderness Act to the effective date of that 
     Act shall be considered to be a reference to the date of 
     enactment of this Act.
         (c) Incorporation of Acquired Land and Interests in 
     Land.--Any land or interest in land that is within the 
     boundary of a wilderness area designated by subsection (a) 
     that is acquired by the United States shall--
         (1) become part of the wilderness area within the 
     boundaries of which the land is located; and
         (2) be managed in accordance with--
         (A) the Wilderness Act (16 U.S.C. 1131 et seq.);
         (B) this Act; and
         (C) any other applicable laws.
         (d) Grazing.--Grazing of livestock in the wilderness 
     areas designated by subsection (a), where established before 
     the date of enactment of this Act, shall be administered in 
     accordance with--
         (1) section 4(d)(4) of the Wilderness Act (16 U.S.C. 
     1133(d)(4)); and
         (2) the guidelines set forth in Appendix A of the Report 
     of the Committee on Interior and Insular Affairs to accompany 
     H.R. 2570 of the 101st Congress (H. Rept. 101-405).
         (e) Military Overflights.--Nothing in this section 
     restricts or precludes--
         (1) low-level overflights of military aircraft over the 
     wilderness areas designated by subsection (a), including 
     military overflights that can be seen or heard within the 
     wilderness areas;
         (2) flight testing and evaluation; or
         (3) the designation or creation of new units of special 
     use airspace, or the establishment of military flight 
     training routes, over the wilderness areas.
         (f) Buffer Zones.--
         (1) In general.--Nothing in this section creates a 
     protective perimeter or buffer zone around any wilderness 
     area designated by subsection (a).
         (2) Activities outside wilderness areas.--The fact that 
     an activity or use on land outside any wilderness area 
     designated by subsection (a) can be seen or heard within the 
     wilderness area shall not preclude the activity or use 
     outside the boundary of the wilderness area.
         (g) Potential Wilderness Area.--
         (1) Robledo mountains potential wilderness area.--

[[Page 22090]]

         (A) In general.--Certain land administered by the Bureau 
     of Land Management, comprising approximately 100 acres as 
     generally depicted as ``Potential Wilderness'' on the map 
     entitled ``Desert Peaks National Conservation Area'' and 
     dated September 16, 2009, is designated as a potential 
     wilderness area.
         (B) Designation as wilderness.--
         (i) In general.--On the date on which the Secretary 
     publishes in the Federal Register the notice described in 
     clause (ii), the potential wilderness area designated under 
     subparagraph (A) shall be--

         (I) designated as wilderness and as a component of the 
     National Wilderness Preservation System; and
         (II) incorporated into the Robledo Mountains Wilderness 
     designated by subsection (a)(6).

         (ii) Notice.--The notice referred to in clause (i) is 
     notice that--

         (I) the communications site within the potential 
     wilderness area designated under subparagraph (A) is no 
     longer used;
         (II) the associated right-of-way is relinquished or not 
     renewed; and
         (III) the conditions in the potential wilderness area 
     designated by subparagraph (A) are compatible with the 
     Wilderness Act (16 U.S.C. 1131 et seq.).

         (h) Release of Wilderness Study Areas.--Congress finds 
     that, for purposes of section 603(c) of the Federal Land 
     Policy and Management Act of 1976 (43 U.S.C. 1782(c)), the 
     public land in Dona Ana County administered by the Bureau of 
     Land Management not designated as wilderness by subsection 
     (a)--
         (1) has been adequately studied for wilderness 
     designation;
         (2) is no longer subject to section 603(c) of the Federal 
     Land Policy and Management Act of 1976 (43 U.S.C. 1782(c)); 
     and
         (3) shall be managed in accordance with--
         (A) the Federal Land Policy and Management Act of 1976 
     (43 U.S.C. 1701 et seq.);
         (B) this Act; and
         (C) any other applicable laws.

     SEC. 4. ESTABLISHMENT OF NATIONAL CONSERVATION AREAS.

         (a) Establishment.--The following areas in the State are 
     established as National Conservation Areas:
         (1) Organ mountains national conservation area.--Certain 
     land administered by the Bureau of Land Management in Dona 
     Ana County comprising approximately 86,650 acres as generally 
     depicted on the map entitled ``Organ Mountains National 
     Conservation Area'' and dated September 16, 2009, which shall 
     be known as the ``Organ Mountains National Conservation 
     Area''.
         (2) Desert peaks national conservation area.--Certain 
     land administered by the Bureau of Land Management in Dona 
     Ana County comprising approximately 75,600 acres, as 
     generally depicted on the map entitled ``Desert Peaks 
     National Conservation Area'' and dated September 16, 2009, 
     which shall be known as the ``Desert Peaks National 
     Conservation Area''.
         (b) Purposes.--The purposes of the Conservation Areas are 
     to conserve, protect, and enhance for the benefit and 
     enjoyment of present and future generations the cultural, 
     archaeological, natural, geological, historical, ecological, 
     wildlife, educational, recreational, and scenic resources of 
     the Conservation Areas.
         (c) Management.--
         (1) In general.--The Secretary shall manage the 
     Conservation Areas--
         (A) in a manner that conserves, protects, and enhances 
     the resources of the Conservation Areas; and
         (B) in accordance with--
         (i) the Federal Land Policy and Management Act of 1976 
     (43 U.S.C. 1701 et seq.);
         (ii) this Act; and
         (iii) any other applicable laws.
         (2) Uses.--
         (A) In general.--The Secretary shall allow only such uses 
     of the Conservation Areas that the Secretary determines would 
     further the purposes described in subsection (b).
         (B) Use of motorized vehicles.--
         (i) In general.--Except as needed for administrative 
     purposes or to respond to an emergency, the use of motorized 
     vehicles in the Conservation Areas shall be permitted only on 
     roads designated for use by motorized vehicles in the 
     management plan.
         (ii) New roads.--No additional road shall be built within 
     the Conservation Areas after the date of enactment of this 
     Act unless the road is necessary for public safety or natural 
     resource protection.
         (C) Grazing.--The Secretary shall permit grazing within 
     the Conservation Areas, where established before the date of 
     enactment of this Act--
         (i) subject to all applicable laws (including 
     regulations) and Executive orders; and
         (ii) consistent with the purposes described in subsection 
     (b).
         (D) Utility right-of-way upgrades.--Nothing in this 
     section precludes the Secretary from renewing or authorizing 
     the upgrading (including widening) of an existing utility 
     right-of-way through the Organ Mountains National 
     Conservation Area--
         (i) in accordance with--

         (I) the National Environmental Policy Act of 1969 (42 
     U.S.C. 4321 et seq.); and
         (II) any other applicable law; and

         (ii) subject to such terms and conditions as the 
     Secretary determines to be appropriate.
         (d) Management Plan.--
         (1) In general.--Not later than 3 years after the date of 
     enactment of this Act, the Secretary shall develop a 
     management plan for each of the Conservation Areas.
         (2) Consultation.--The management plans shall be 
     developed in consultation with--
         (A) State, tribal, and local governments; and
         (B) the public.
         (3) Considerations.--In preparing and implementing the 
     management plans, the Secretary shall consider the 
     recommendations of Indian tribes and pueblos on methods for--
         (A) ensuring access to, and protection for, traditional 
     cultural and religious sites in the Conservation Areas; and
         (B) enhancing the privacy and continuity of traditional 
     cultural and religious activities in the Conservation Areas.
         (e) Incorporation of Acquired Land and Interests in 
     Land.--Any land or interest in land that is within the 
     boundary of a Conservation Area designated by subsection (a) 
     that is acquired by the United States shall--
         (1) become part of the Conservation Area within the 
     boundaries of which the land is located; and
         (2) be managed in accordance with--
         (A) this Act; and
         (B) any other applicable laws.
         (f) Transfer of Administrative Jurisdiction.--On the date 
     of enactment of this Act, administrative jurisdiction over 
     the approximately 2,050 acres of land generally depicted as 
     ``Transfer from DOD to BLM'' on the map entitled ``Organ 
     Mountains National Conservation Area'' and dated September 
     16, 2009, shall--
         (1) be transferred from the Secretary of Defense to the 
     Secretary;
         (2) become part of the Organ Mountains National 
     Conservation Area; and
         (3) be managed in accordance with--
         (A) this Act; and
         (B) any other applicable laws.

     SEC. 5. GENERAL PROVISIONS.

         (a) Maps and Legal Descriptions.--
         (1) In general.--As soon as practicable after the date of 
     enactment of this Act, the Secretary shall file maps and 
     legal descriptions of the Conservation Areas and the 
     wilderness areas designated by section 3(a) with--
         (A) the Committee on Energy and Natural Resources of the 
     Senate; and
         (B) the Committee on Natural Resources of the House of 
     Representatives.
         (2) Force of law.--The maps and legal descriptions filed 
     under paragraph (1) shall have the same force and effect as 
     if included in this Act, except that the Secretary may 
     correct errors in the maps and legal descriptions.
         (3) Public availability.--The maps and legal descriptions 
     filed under paragraph (1) shall be on file and available for 
     public inspection in the appropriate offices of the Bureau of 
     Land Management.
         (b) National Landscape Conservation System.--The 
     Conservation Areas and the wilderness areas designated by 
     section 3(a) shall be administered as components of the 
     National Landscape Conservation System.
         (c) Fish and Wildlife.--Nothing in this Act affects the 
     jurisdiction of the State with respect to fish and wildlife 
     located on public land in the State, except that the 
     Secretary, after consultation with the New Mexico Department 
     of Game and Fish, may designate zones where, and establish 
     periods during which, hunting, or fishing shall not be 
     allowed for reasons of public safety, administration, the 
     protection for nongame species and their habitats, or public 
     use and enjoyment.
         (d) Withdrawals.--
         (1) In general.--Subject to valid existing rights, the 
     Federal land within the Conservation Areas, the wilderness 
     areas designated by section 3(a), and the approximately 6,300 
     acres of land generally depicted as ``Parcel B'' on the map 
     entitled ``Organ Mountains National Conservation Area'' and 
     dated September 16, 2009, including any land or interest in 
     land that is acquired by the United States after the date of 
     enactment of this Act within such areas, is withdrawn from--
         (A) entry, appropriation, or disposal under the public 
     land laws;
         (B) location, entry, and patent under the mining laws; 
     and
         (C) operation of the mineral leasing, mineral materials, 
     and geothermal leasing laws.
         (2) Limited withdrawal.--The approximately 1,300 acres of 
     land generally depicted as ``Parcel A'' on the map entitled 
     ``Organ Mountains National Conservation Area'' and dated 
     September 16, 2009, is withdrawn in accordance with paragraph 
     (1), except from disposal under the Act of June 14, 1926 
     (commonly known as the ``Recreation and Public Purposes Act'' 
     (43 U.S.C. 869 et seq.)).

     SEC. 6. PREHISTORIC TRACKWAYS NATIONAL MONUMENT BOUNDARY 
                   ADJUSTMENT.

         Section 2103(b) of the Omnibus Public Land Management Act 
     of 2009 (16 U.S.C. 431

[[Page 22091]]

     note; Public Law 111-11; 123 Stat. 1097) is amended by 
     striking ``December 17, 2008'' and inserting ``July 30, 
     2009''.

     SEC. 7. AUTHORIZATION OF APPROPRIATIONS.

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

  Mr. UDALL of New Mexico. Mr. President, today I join Senator Bingaman 
in introducing Organ Mountains-Desert Peaks Wilderness Act. The bill 
celebrates and preserves a portion of the unique and delicate landscape 
of southern New Mexico. Wilderness and conservation areas in Dona Ana 
and Luna Counties will protect a vast number of archeological sites and 
riparian areas, maintain habitat and migration corridors for wildlife, 
and preserve some of the only Chihuahuan Desert in the United States.
  Set in the heart of Dona Ana County, Las Cruces is New Mexico's 
second largest city, and growing. The citizens of Las Cruces and the 
surrounding communities want to ensure that the area will continue to 
develop in a way that preserves the surrounding pristine landscapes 
including the iconic Organ Mountains. The Organ Mountains-Desert Peaks 
Wilderness Act is consistent with the city and County's long-term 
growth plan, and will act to maintain growth patterns in a way that 
will allow all citizens to enjoy the impressive views and landscapes 
surrounding Las Cruces.
  The Organ Mountains Wilderness and NCA, just one portion of this 
comprehensive legislation, will keep these impressive peaks available 
for the enjoyment of southern New Mexicans, and all who visit the area. 
This mountain range is strikingly unique and gives great character and 
identity to other surrounding landscape and to the city of Las Cruces 
itself. A vast range of individual and public and private organizations 
came together to work on the protection of the Organ Mountains and the 
seven other wilderness areas included in the bill. Hunters, anglers and 
conservationists worked with ranchers and city and county officials to 
determine what areas were in greatest need of protection. Nearby 
military facilities worked with the Bureau of Land Management on land 
exchanges that are reflected in the bill and will benefit the public 
and military entities. Recommendations from the Border Patrol on how to 
ensure that the new wilderness fit into their homeland security efforts 
were incorporated into the bill. Years of negotiation and cooperation 
have resulted in the legislation being introduced today.
  In total, the Organ Mountains-Desert Peaks Wilderness Act will 
protect 421,344 acres of desert landscape including 162,270 acres of 
National Conservation Area, and 259,071 acres of Wilderness Area. This 
area of rare and beautiful landscapes will be valued for generations. 
From the jagged basalt lava flows of the Cinder Cone Wilderness to the 
roaming hawks and scrambling javelinas of the Robledo Mountains, this 
unique piece of southern New Mexico has abundant natural value for its 
citizens.
  With this legislation, we build upon the work of conservation greats 
like Aldo Leopold, a man who saw the beauty of New Mexico's untamed 
wilderness lands and sought to preserve them for future generations. It 
was Mr. Leopold who said, ``Conservation is a state of harmony between 
men and land.'' With the Organ Mountains-Desert Peaks Wilderness Act, 
we move a step closer to achieving that state of perfect harmony. I 
thank Senator Bingaman for his work to preserve this landscape and urge 
my colleagues to support this important bill.

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